Bill Text: CA AB937 | 2021-2022 | Regular Session | Amended
Bill Title: Immigration enforcement.
Spectrum: Partisan Bill (Democrat 27-0)
Status: (Engrossed - Dead) 2022-08-31 - Read third time. Refused passage. (Ayes 18. Noes 13. Page 5423.). [AB937 Detail]
Download: California-2021-AB937-Amended.html
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Amended
IN
Senate
August 23, 2022 |
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Amended
IN
Senate
September 03, 2021 |
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Amended
IN
Assembly
April 21, 2021 |
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Amended
IN
Assembly
March 22, 2021 |
CALIFORNIA LEGISLATURE—
2021–2022 REGULAR SESSION
Assembly Bill
No. 937
| Introduced by Assembly Members Carrillo, Kalra, and Santiago (Principal coauthors: Senators Gonzalez and Wiener) (Coauthors: Assembly Members Aguiar-Curry, Bryan, Cristina Garcia, Gipson, Robert Rivas, Jones-Sawyer, (Coauthors: Senators Becker, Bradford, Durazo, Hueso, Kamlager, Laird, Leyva, and Skinner) |
February 17, 2021 |
An act to add Chapter 17.15 (commencing with Section 7282.7) to Division 7 of Title 1 of the Government Code, and to amend Section 13125 of, and to repeal Sections 5025 and 5026 of, the Penal Code, relating to immigration enforcement.
LEGISLATIVE COUNSEL'S DIGEST
AB 937, as amended, Carrillo.
Immigration enforcement.
Existing law, the California Values Act, prohibits a California law enforcement agency from providing a person’s release date, or responding to a request for notification of a release date, unless that information is available to the public, and prohibits the transfer of an individual to immigration authorities, as specified, unless the person has been convicted of specified crimes or arrested for a serious or violent felony.
This bill would prohibit any state or local agency from arresting or assisting with the arrest, confinement, detention, transfer, interrogation, or deportation of an individual for an immigration enforcement purpose, except as specified. The bill would additionally prohibit state or local agencies or courts from
using immigration status as a factor to deny or to recommend denial of probation or participation in any diversion, rehabilitation, mental health program, or placement in a credit-earning program or class, or to determine custodial classification level, to deny mandatory supervision, or to lengthen the portion of supervision served in custody. The bill would authorize a person to bring an action for equitable or declaratory relief in a court of competent jurisdiction against a state or local agency or state or local official that violates these provisions, and would make those agencies or officials liable for actual and general damages and reasonable attorney’s fees.
Existing law requires the Department of Corrections and Rehabilitation to implement and maintain procedures to identify inmates serving terms in state prison who are undocumented felons subject to deportation. Existing law requires the department to annually report to the Legislature the number of
persons identified as undocumented aliens, as specified.
This bill would repeal those provisions.
Existing law requires all basic information stored in state or local criminal offender record information systems to be recorded in the form of specified standard data elements, including, among other things, place of birth.
This bill would no longer require that information to include place of birth.
Digest Key
Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: NOBill Text
The people of the State of California do enact as follows:
SECTION 1.
The Legislature finds and declares all of the following:(a) California’s punitive carceral system unjustly and disproportionately harms Black, Latinx, Indigenous, and Asian and Pacific Islander American communities. In recent years, with the passing of SB 260, SB 261, SB 1437, AB 1812, which amended paragraph (1) of subdivision (d) of Section 1170 of the Penal Code, and Proposition 47, the Legislature and California voters have demonstrated a strong commitment to reforming our criminal justice system and ending mass incarceration.
(b) Despite these reforms, when California’s
jails and prisons voluntarily and unnecessarily transfer immigrant and refugee community members eligible for release from state or local custody to Immigration and Customs Enforcement (ICE) for immigration detention and deportation purposes, they subject these community members to double punishment and further trauma. Immigrant community members can be incarcerated by ICE, often for prolonged periods and with no right to bail, and deported, permanently banishing them from the country, from their families, their homes, their livelihoods and “all that makes life worth living.” Ng Fung Ho v. White, 259 U.S. 276, 284 (1922). The Supreme Court has repeatedly acknowledged that for many people deportation is a more severe penalty than any jail sentence. See, e.g., Lee v. U.S., 137 S.Ct. 1958, 1968 (2017); Padilla v. Kentucky, 559 U.S. 356, 364 (2010).
(c) Community members transferred to ICE are refugees, lawful permanent residents, people who entered the United States as children, parents, caretakers, essential workers, or are otherwise valued California residents. California should not subject these community members to a second, double punishment, and disregard their record of rehabilitation, stable reentry plans, and community support, purely because they are refugees or immigrants. Ending ICE transfers in California is a reflection of the state’s commitment to ending racial injustice and mass incarceration.
(d) Moreover, incarceration and ICE transfers are harmful to public health. Countless studies document negative health impacts of incarceration in jails, prisons, and ICE detention centers. People who have been incarcerated have worse health outcomes and, overall, have
lower life expectancies. Given the racial inequities plaguing the state’s carceral system, the significant health risks posed by incarceration and transfers weigh heavily on California’s Black, Latinx, and Asian and Pacific Islander American communities.
(e) The Constitutions of the United States and the State of California protect all persons present within our borders from unreasonable searches and seizures, from deprivations of life, liberty or property without due process of law, from being deprived of equal protection under the law, including from being targeted on the basis of race or ethnicity. This act embodies and protects these values by ensuring that all Californians, including refugees and immigrants, are not torn from their communities when they are eligible for release from state or local custody simply because they
are not citizens of the United States.
(f) No federal statutes affirmatively require local or state governments to assist ICE with immigration enforcement. While one federal statute specifically addresses this issue, 8 U.S.C. § 1373, it only passively restricts local and state governments from prohibiting the sharing of only information related to immigration status or citizenship. Further, 8 U.S.C. § 1373 has been found by several federal courts to be unconstitutional. The Supreme Court ruled that the Tenth Amendment prohibits the federal government from affirmatively compelling a state to enact laws and policies, and also prevents the federal government from prohibiting a state or local jurisdiction from enacting new laws or policies. See Murphy v. Nat’l Collegiate Athletic Ass’n, 138 S. Ct. 1461, 1477 (2018). Applying this rule from the
Supreme Court, a number of federal district courts have held that 8 U.S.C. § 1373 is unconstitutional under the Tenth Amendment of the United States Constitution. The 9th Circuit Court of Appeals acknowledged this fact when it upheld the Values Act against a preemption challenge in US v. California (9th Cir. 2019) 921 F.3d 865, cert. denied, US v. California (2020) 141 S.Ct. 124. It is the intent of the VISION Act to be consistent with federal law.
(g) To ensure an equitable opportunity for noncarceral, rehabilitative and diversionary dispositions or custody status to all persons involved in the criminal legal system, irrespective of immigration status, it is the intent of the Legislature to abrogate case law that is inconsistent with this value, including, but not limited to, People v. Sanchez (1987) 190 Cal.App.3d 224; People v.
Cisneros (2000) 84 Cal.App.4th 352; People v. Espinoza (2003) 107 Cal.App.4th 1069; People v. Arce (2017) 11 Cal.App.5th 613.
(h) This act shall be known, and may be cited as, the Voiding Inequality and Seeking Inclusion for Our Immigrant Neighbors (VISION) Act.
SEC. 2.
Chapter 17.15 (commencing with Section 7282.7) is added to Division 7 of Title 1 of the Government Code, to read:CHAPTER 17.15. Voiding Inequality and Seeking Inclusion for Our Immigrant Neighbors Act
7282.7.
(a)(2)This subdivision does
(b) Notwithstanding subdivision (a), if an individual was released from the Department of
Corrections and Rehabilitation after they were found suitable for release on parole by the Board of Parole Hearings (BPH), and within five years of their release on parole, they are convicted of a new offense and sentenced to a base term of at least 20 years to serve in the custody of the Department of Corrections and Rehabilitation, BPH may, but is not required to, respond to a request for notification of release date from Immigration and Customs Enforcement (ICE) for that individual no more than 24 hours before their actual release date.
(1) BPH shall consider the following when deciding whether to respond to an ICE request for notification of a person’s release date:
(A) Family and community ties in the United States, including disfavoring notifying ICE if the person has family members in the United States or relationships with community-based organizations.
(B) Number of years living in the United States, including disfavoring notifying ICE if they have had residence in the United States for at least five years.
(C) Disfavoring notifying ICE if there is evidence of the individual’s rehabilitation and success for reentry.
(2) Notwithstanding this subdivision, a state or local agency shall not respond to an ICE request for notification of release date for any individual who meets any of the following criteria:
(A) The department has identified the person as a member of a vulnerable population at any time they were in department custody, including, but not limited to, individuals who have received care through the enhanced outpatient program or correctional clinical case management system, individuals placed in
nondisciplinary segregation, transgender individuals, veterans, or individuals treated in hospice care or in the California Medical Facility.
(B) An individual who qualifies for the Elderly Parole Program.
(C) An individual who qualifies under Section 3051 or 1172.6 of the Penal Code.
(D) An individual who is a survivor of domestic violence or sexual assault as documented in their BPH psychological assessment, comprehensive risk assessment, or court documents.
(E) An individual who will serve as a caregiver upon their release from the department, as documented in their parole plan.
(c) Subdivisions (a) and (b) do
not prohibit compliance with a criminal judicial warrant.
(b)
(d) A state or local agency or court shall not use immigration status as a factor to deny or to recommend denial of probation or participation in any diversion, rehabilitation, mental health program, or placement in a credit-earning program or class, or to determine custodial classification level, to deny mandatory supervision, or to lengthen the portion of supervision served in custody.
(c)
(e) For the purposes of this section, all of the following definitions apply:
(1) “Immigration enforcement” includes any and all efforts to investigate, enforce, or assist in the investigation or enforcement of any federal civil immigration law, and also includes any and all efforts to investigate, enforce, or assist in the investigation or enforcement of any federal criminal immigration law that penalizes a person’s presence in, entry, or reentry to, or employment in, the United States.
(2) “State or local agency” includes, but is not limited to, local and state law enforcement agencies, parole or probation agencies, the
Department of Juvenile Justice, and the Department of Corrections and Rehabilitation.
(3) “Transfer” includes custodial transfers, informal transfers in which a person’s arrest is facilitated through the physical hand-off of that person in a nonpublic area of the state or local agency, or any coordination between the state or local agency and the receiving agency about an individual’s release to effectuate an arrest for immigration enforcement purposes upon or following their release from the state or local agency’s custody.
(d)
(f) In
addition to any other sanctions, penalties, or remedies provided by law, a person may bring an action for equitable or declaratory relief in a court of competent jurisdiction against a state or local agency or state or local official that violates this section. A state or local agency or official that violates this section is also liable for actual and general damages and reasonable attorney’s fees.
SEC. 3.
Section 5025 of the Penal Code, as amended by Section 5 of Chapter 565 of the Statutes of 1994, is repealed.SEC. 4.
Section 5025 of the Penal Code, as amended by Section 49 of Chapter 296 of the Statutes of 2021, is repealed.(a)Immediately upon the effective date of the amendments to this section made at the 1993–94 First Extraordinary Session of the Legislature, the Department of Corrections and Rehabilitation and the Department of Youth and Community Restoration shall implement and maintain procedures to identify, within 90 days of assuming custody, inmates serving terms in state prison or wards of the Department of Youth and Community Restoration who are undocumented felons subject to deportation. The Department of Corrections and Rehabilitation and the Department of Youth and Community Restoration shall refer to the United States Department of Homeland Security the name and location of any inmate or ward who may be an undocumented
immigrant and who may be subject to deportation for a determination of whether the inmate or ward is undocumented and subject to deportation. The Department of Corrections and Rehabilitation and the Department of Youth and Community Restoration shall make case files available to the United States
Department of Homeland Security for purposes of investigation.
(b)The procedures implemented by the department pursuant to subdivision (a) shall include, but not be limited to, the following criteria for determining the country of citizenship of any person serving a term in the state prison:
(1)Country of citizenship.
(2)Place of birth.
(3)Inmate’s statements.
(4)Prior parole records.
(5)Prior arrest records.
(6)Probation Officer’s Report (POR).
(7)Information from the Department of Justice’s Criminal Identification and Information Unit.
(8)Other legal documents.
(c)Within 48 hours of identifying an inmate or ward as an undocumented felon pursuant to subdivision (a), the Department of Corrections and Rehabilitation and the Department of Youth and Community Restoration shall cause the inmate or ward to be transferred to the custody of the United States Attorney General for appropriate action. Once an inmate or ward has been identified as an undocumented felon by the United States Immigration and Naturalization Service, the inmate or ward shall not undergo any additional evaluation or classification procedures other than those required for the safety or security of the institution, the inmate or ward, or the public.
(d)The Department of Corrections and Rehabilitation and the Department of Youth and Community Restoration shall report quarterly to the Legislature the number of persons referred to the United States Department of Homeland Security pursuant to subdivision (a). The report shall contain the number of persons transported, the race, national origin, and national ancestry of persons transported, the offense or offenses for which the persons were committed to state prison, and the facilities to which the persons were transported.
(e)For purposes of this section, “immigrant” means a person who is not a citizen or national of the United States.
SEC. 5.
Section 5026 of the Penal Code is repealed.(a)The Department of Corrections and Rehabilitation and the Department of Youth and Community Restoration shall cooperate with the United States Department of Homeland Security by providing the use of prison facilities, transportation, and general support, as needed, for the purposes of conducting and expediting deportation hearings and subsequent placement of deportation holds on undocumented immigrants who are incarcerated in state prison.
(b)For purposes of this section, “immigrant” means a person who is not a citizen or national of the United States.
SEC. 6.
Section 13125 of the Penal Code is amended to read:13125.
All basic information stored in state or local criminal offender record information systems shall be recorded, when applicable and available, in the form of the following standard data elements:The following personal identification data: |
Name—(full name) |
Aliases |
Monikers |
Race |
Sex |
Date of birth |
Height |
Weight |
Hair color |
Eye color |
CII number |
FBI number |
Social security number |
California operator’s license number |
Fingerprint classification number |
Henry |
NCIC |
Address |
The following arrest data: |
Arresting agency |
Booking
number |
Date of arrest |
Offenses charged |
Statute citations |
Literal descriptions |
Police disposition |
Released |
Cited and released |
Turned over to |
Complaint filed |
The following misdemeanor or infraction data or preliminary hearing data: |
County and court name |
Date complaint filed |
Original
offenses charged in a complaint or citation |
Held to answer |
Certified plea |
Disposition |
Not convicted |
Dismissed |
Acquitted |
Court trial |
Jury trial |
Convicted |
Plea |
Court trial |
Jury trial |
Date of disposition |
Convicted offenses |
Sentence |
Sentence enhancement data elements |
Proceedings suspended |
Reason suspended |
The following superior court data: |
County |
Date complaint filed |
Type of proceeding |
Indictment |
Information |
Certification |
Original offenses charged in indictment or information |
Disposition |
Not convicted |
Dismissed |
Acquitted |
Court trial |
Jury trial |
On transcript |
Convicted—felony, misdemeanor |
Plea |
Court trial |
Jury trial |
On transcript |
Date of disposition |
Convicted offenses |
Sentence |
Sentence enhancement data
elements |
Proceedings suspended |
Reason suspended |
Source of reopened cases |
The following corrections data: |
Adult probation |
County |
Type of court |
Court number |
Offense |
Date on probation |
Date removed |
Reason for removal |
Jail (unsentenced prisoners only) |
Offenses
charged |
Name of jail or institution |
Date received |
Date released |
Reason for release |
Bail on own recognizance |
Bail |
Other |
Committing agency |
County jail (sentenced prisoners only) |
Name of jail, camp, or other |
Convicted offense |
Sentence |
Sentence enhancement data elements |
Date
received |
Date released |
Reason for release |
Committing agency |
Division of Juvenile Justice |
County |
Type of court |
Court number |
Division of Juvenile Justice number |
Date received |
Convicted offense |
Type of receipt |
Original commitment |
Parole violator |
Date
released |
Type of release |
Custody |
Supervision |
Date terminated |
Department of Corrections and Rehabilitation |
County |
Type of court |
Court number |
Department of Corrections and Rehabilitation number |
Date received |
Convicted offense |
Type of receipt |
Original commitment |
Parole violator |
Date released |
Type of release |
Custody |
Supervision |
Date terminated |
Mentally disordered sex offenders |
County |
Hospital number |
Date received |
Date discharged |
Recommendation |
