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AB-3181 Detention facilities: Due Process in Detention Program.(2019-2020)

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Date Published: 02/21/2020 09:00 PM
AB3181:v99#DOCUMENT


CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill
No. 3181


Introduced by Assembly Members Bonta and Reyes

February 21, 2020


An act to add Chapter 17.9 (commencing with Section 7315) to Division 7 of Title 1 of the Government Code, relating to detention facilities.


LEGISLATIVE COUNSEL'S DIGEST


AB 3181, as introduced, Bonta. Detention facilities: Due Process in Detention Program.
Existing law prohibits a city, city and county, or local law enforcement agencies from entering into a contract with the federal government or any federal agency to house or detain noncitizens for purposes of civil immigration custody in a locked detention facility. Existing law requires the Attorney General to engage in reviews of county, local, and private locked detention facilities in which noncitizens are being housed or detained for purposes of civil immigration proceedings in California. Existing law requires that review to include a review of the conditions of confinement, a review of the standard of care and due process provided to the detainees, and a review of the circumstances around their apprehension and transfer to the facility.
Existing state regulations specify minimum standards for local detention facilities, including standards for visiting, correspondence, library services, access to telephones, and access to courts and counsel, among others.
This bill would require any facility in the state that detains, confines, or holds an individual in custody to develop written policies and procedures to ensure persons detained have access to basic minimum standards with respect to due process and access to the court and to legal counsel and the minimum standards specified in state regulations.
The bill would require the State Department of Social Services to establish the Due Process in Detention Program to provide individual consultations where unrepresented individuals can consult with an attorney, develop a statewide referral network with legal service providers, and monitor access to legal resources, courts, and counsel for individuals in detention. The bill would require the department to collect and publicly report data from each immigration detention center, as specified.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 (a) In keeping with its obligation to safeguard the humane and just treatment of all individuals located in California, it is the intent of the Legislature that this bill declare the state’s intention to protect the due process rights and access to counsel for all Californians held in immigration detention. The Legislature finds and declares all of the following:
(1) There is generally no recognized right to government-appointed counsel in civil immigration proceedings even though deportation can result in imminent harm or death.
(2) A three-year study has shown that 68 percent of detained immigrants in California are unrepresented. Furthermore, the same data shows that detained immigrants who had counsel succeeded more than five times as often as did their unrepresented counterparts.
(3) Existing law (Chapter 17 of the Statutes of 2017 (Assembly Bill 103)) requires, until July 1, 2027, the Attorney General, or the Attorney General’s designee, to review county, local, or private locked detention facilities in which noncitizens are being housed or detained for purposes of civil immigration proceedings in California, including any county, local, or private locked detention facility in which an accompanied or unaccompanied minor is housed or detained on behalf of, or pursuant to a contract with, the federal Office of Refugee Resettlement or the United States Immigration and Customs Enforcement.
(4) The California Department of Justice’s Review of Immigration Detention in California in 2019 found all of the following:
(A) Detainees face several challenges to obtaining counsel or adequately representing themselves. Not all detention facilities in California offer consistent legal orientation programs, and when detainees are able to contact pro bono counsel numbers provided by facilities, many organizations are unable to take on new clients. Further, many facilities do not facilitate confidential legal phone calls for detainees who have or are seeking counsel or advice. Legal materials provided to detainees are difficult to access, are rarely offered in languages other than English and Spanish, and may be out of date.
(B) Throughout the United States, the Executive Office of Immigration Review (EOIR) manages the Legal Orientation Program (LOP) through a contract with the Vera Institute of Justice. Through LOP, legal services organizations provide comprehensive explanations about immigration court and basic legal information to large groups of detained individuals. The program normally includes a group presentation, individual orientations where unrepresented individuals can briefly discuss their cases with LOP providers, self-help workshops, and referrals to pro bono legal services. In California, formal LOP is only provided at Adelanto and Otay Mesa, and some of the remaining facilities allow informal legal consultation visits from legal service providers.
(C) Having legal counsel makes a significant difference. A 2016 study by the American Immigration Council found that “immigrants with legal counsel were more likely to be released from detention,” and have a much greater chance of prevailing in their immigration proceedings. Specifically, between 2007 and 2012, 21 percent of immigration detainees who were represented by counsel had successful case outcomes compared with only 2 percent of those without counsel.
(5) According to federal government data, California is among the top five states in the nation with the largest number of people in immigration detention per day. The United States Immigration and Customs Enforcement (ICE) is looking to expand the number of detention beds in California to 7,200.
(6) In Jones v. Blanas (2004) 393 F.3d 918, the United States Ninth Circuit Court of Appeals found, “[l]ike criminal inmates, civil detainees litigate under serious disadvantages. The civilly confined are limited in their ability to interview witnesses and gather evidence, their access to legal materials, their ability to retain counsel, and their ability to monitor the progress of their lawsuit and keep abreast of procedural deadlines. ...[C]ivil detainees, like their criminal counterparts, suffer from more limited ability to investigate their claims, to contact lawyers and to avail themselves of the judicial process” (internal quotations omitted).
(7) The case of the individual confined awaiting civil commitment proceedings implicates the intersection between two distinct Fourteenth Amendment imperatives. First, “[p]ersons who have been involuntarily committed are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish” (Youngberg v. Romeo (1982) 457 U.S. 307, 321-322). Second, when the state detains an individual on a criminal charge, that person, unlike a criminal convict, “may not be punished prior to an adjudication of guilt in accordance with due process of law” (Bell v. Wolfish (1979) 441 U.S. 520, 535; see also Demery v. Arpaio (9th Cir.2004) 378 F.3d 1020, 1029; “[T]he Fourteenth Amendment prohibits all punishment of pretrial detainees...”). As civil detainees retain greater liberty protections than individuals detained under criminal process (see Youngberg v. Romeo (1982), 457 U.S. at 321-24), and preadjudication detainees retain greater liberty protections than convicted ones (see Bell v. Wolfish (1979), 441 U.S. at 535-36), it follows that an individual detained for civil immigration proceedings is entitled to protections at least as great as those afforded to a civilly committed individual and at least as great as those afforded to an individual accused but not convicted of a crime.
(8) Despite due process rights codified under federal law and the United States Constitution, immigrant detention facilities in California do not follow uniform protocols or standards to ensure access to counsel and courts.
(9) The current expansion of detention facilities in California, sudden shifts with respect to the structure of immigration detention facilities and courts, and ongoing challenges regarding access to counsel and courts creates an urgent need to establish a comprehensive statewide program to ensure access to counsel and coordinated legal orientation and representation.
(b) It is the intent of the Legislature that any immigration detention facility in the state of California establish basic minimum standards to ensure due process and adequate access to courts and legal counsel as provided for in Sections 1062 to 1070, inclusive, of Title 15 of the California Code of Regulations.
(c) It is the intent of the Legislature to require the State Department of Social Services to establish the Due Process in Detention Program to provide individuals in immigration detention with access to legal orientation resources such as self-help materials, provide legal screenings and referrals to pro bono legal services, support remote legal representation, survey conditions with respect to access to counsel and conditions of confinement, and to collect and publicly report data from detention facilities on an annual basis.
(d) It is the intent of the Legislature to authorize the department to contract with third parties to assist and participate in legal orientation, case coordination and referral, and representation, and to also authorize the department to contract with a third party that specializes in creating a searchable database with the goal of increasing legal representation.

SEC. 2.

 Chapter 17.9 (commencing with Section 7315) is added to Division 7 of Title 1 of the Government Code, to read:
CHAPTER  17.9. Detention Facilities

7315.
 Any facility in the state of California which detains, confines, or holds an individual in custody shall develop written policies and procedures to ensure individuals in detention have access to basic minimum standards with respect to due process and access to the court and to legal counsel. These policies and procedures shall include provisions for all of the following:
(a) Visitation as provided for in Section 1062 of Title 15 of the California Code of Regulations.
(b) Correspondence as provided for in Section 1063 of Title 15 of the California Code of Regulations.
(c) Library services as provided for in Section 1064 of Title 15 of the California Code of Regulations.
(d) Access to a telephone as provided for in Section 1067 of Title 15 of the California Code of Regulations.
(e) Access to the courts and counsel, including unlimited mail and confidential consultations with attorneys, as provided for in Section 1068 of Title 15 of the California Code of Regulations.
(f) Orientation designed to inform a newly detained individual about their rights and service programs, as provided for in Section 1069 of Title 15 of the California Code of Regulations.
(g) Individual or family services programs, which facilitate cooperation with appropriate public or private agencies for individual or family social services programs for inmates, including legal assistance, as provided for in Section 1070 of Title 15 of the California Code of Regulations.

7317.
 (a) The State Department of Social Services shall establish the Due Process in Detention Program to achieve the following objectives:
(1) Provide individual consultations in which unrepresented individuals can consult with an attorney on the specifics of their case, provide group orientations which cover an interactive general overview of immigration removal proceedings, and provide legal self-help materials for unrepresented individuals.
(2) Develop a statewide case referral network with legal service providers in order to increase legal representation for individuals in detention, including remote representation.
(3) Monitor access to legal resources, courts, and counsel for individuals in detention.
(b) The State Department of Social Services shall collect and publicly report annually all of the following data from each immigrant detention facility:
(1) The number of individuals provided with individual consultations or group orientations, self-help materials, and referrals through the program.
(2) The rates of legal representation.
(3) Whether each facility is in compliance with the basic minimum standards enumerated in Section 7315.
(4) Whether each facility is providing adequate access to courts and counsel.
(c) The department, or their designees, shall be provided all necessary access to effectuate legal orientation and data collection required by this chapter, including, but not limited to, access to detainees, officials, personnel, and records.
(d) The department shall contract as necessary with third parties to achieve these objectives.
(e) The data listed in subdivision (a) shall be aggregated and deidentified and shall not include any information that is protected by state and federal law.
(f) The department shall publicly report the data collected through its internet website in two phases:
(1) In the first phase, the department shall release an annual report of all data collected.
(2) In the second phase, the data shall be posted on the department’s internet website in a searchable format.

SEC. 3.

 The provisions of this act are severable. If any provision of this act or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.