LFC files

SUMMARY

Synopsis of SJC Amendment

The Senate Judiciary Committee amendment on page 2, line 6, after "facility" inserts "following the entry of a judgement and sentence or an order of confinement".

Synopsis of Bill

SB 347 requires the Corrections Department (CD) to reimburse counties for the expense of incarcerating persons confined in a county jail for parole violations, probation violations, or while awaiting transport to a state prison facility. The amount of reimbursement is to be established by the county sheriff, the county jail administrator or the independent contractor who is in charge of the county jail operations.

Significant Issues

According to the Criminal and Juvenile Justice Coordinating Council (CJJCC), offenders sentenced to prison should ideally be transported to prison as soon as possible after sentencing. SB 347 represents an incentive for CD to do this.

The Public Defender Department (PDD) reports there are at least two designated groups of inmates affected by this bill ( and one undesignated group). Each group of inmates is significant and deserves separate treatment, whatever the wisdom of either change. One group and problem area are county jail inmates who have been sentenced to prison terms and are awaiting transport to the prison intake facility in Grants. The second, far larger group, and far higher cost, is the group of probation and parole violators.

First significant issue: these are very different groups, posing different problems, and they should not be treated equivalently.

Second significant issue: One of the problems in the transport-to-prison area is that people responsible for the delays are not financially accountable.

Third significant issue: The huge transfer of funds from the state to counties if the state must pay for every probation and parole violator will cause numerous consequences system-wide.

Fourth significant issue: Probation and parole violators are different and should be treated differently.

FISCAL IMPLICATIONS

CD reports there is no appropriation in the bill to cover the approximately $11,000,000 increase in cost to the agency. This is not a cost that could be absorbed because reimbursement would require the Department to pay the Counties by way of warrant (cash). CD currently does not receive an appropriation for these costs except as follows.

According to a published Attorney General's Opinion (AGO), CD is responsible for costs of housing parolees in the county jail when those parolees have violated their parole and are detained in county jail awaiting their return to the prison system. Therefore, for several years, the legislature has appropriated some funds for the payment of some of these costs. The appropriation has not been enough to pay all counties for housing of parolees. The bill contains no appropriation to pay for the costs of incarcerating probation violators or those persons awaiting transport to a state facility. Therefore, SB 347 increases the Department's responsibility to pay counties without providing appropriate funding.

For example, in fiscal year 1998 the Department was appropriated $680,000 for the purpose of reimbursing Counties who held parole violators. CD knows of at least 29 facilities that could have charged for these detainees. Of those 29 facilities, only 12 actually submitted bills to the Department for holding such parolees. The cost for fiscal year 1998 was approximately $1,000,000. However, the Department estimates that if the remaining 17 facilities were to have charged the Department for their detainees the would have been an additional cost of approximately $500,000 for fiscal year 1998.

Based upon another written AGO, CD is not responsible for paying the costs of probation violators who are held in the County jails. Therefore, the Department has never received an appropriation for such costs. CD estimates that there are almost two times as many probation violators held in County jails than parole violators and that these offenders are held for approximately three times the number of days as compared to parolees. Therefore, CD projects the additional cost to the Department if it were required to reimburse the Counties for probation violators would be approximately $7,722,000.

Similarly, CD has never been responsible for paying to the County the costs of those offenders who have been sentenced to the Department prisons and are awaiting transportation to the Departments reception and diagnostic center. After the defendant has been sentenced at a hearing, it often takes days or weeks to finalize the written judgement and sentence. Also, CD does not control when these offenders are delivered to its reception and diagnostic center. The various county sheriffs deputies are generally responsible for transporting these offenders to the Departments custody. During fiscal year 1998, there were approximately 1500 new commitments transported to the reception and diagnostic center. If each of these offenders stayed an average of 21 days in the county jail after sentencing and prior to transport, the CD projects it would cost an additional $2,125,000.

Based upon fiscal year 1998 data, CD estimates it would have cost an addition $11,000,000 to reimburse counties for these costs. Obviously, the number of these offenders increases every year, and therefore this $11,000,000 cost would probably substantially higher in fiscal year 2000. Also CD is concerned that the per diem rate is set by counties without regard to funds available to pay bills.

PDD reports the fiscal impact to the agency could be significant because legal proceedings would change dramatically if this bill were passed. Probation and parole proceedings would have to be given far higher priority because of the new financial strain placed on the state and its Probation and Parole Divisions. There are so many uncertainties in how this financial shift would affect court proceedings that the fiscal impact cannot be calculated or estimated at this time.

In 1996, CJJCC conducted a study of New Mexico's prisoners and found that on average they were held for 27 days in jails between sentencing and transfer to prison. If this holding period has not changed, then during FY 98 the 1,740 new admissions to prison would have been held for a total of 46,980 days in county jails (1,740 x 27). Assuming a cost of $50 per offender per day in a county jail, this would represent a cost of $2,349,000 to the jails (46,980 x 50). Thus the amount involved is substantial.

Note that:

a) The average holding time for probation violators returned to prison appears to be a little longer: 39 days. Assuming approximately 240 probation violators returned to prison during FY 98, this represents an additional cost to jails of $460,200.

b) No information is available on the average holding time for parole violators.

Overall, these figures suggest the fiscal impact of SB 347 is something in the order of $3,000,000 - a burden that would be shifted from counties to CD. However, it must be noted that, with the opening of new facilities at Hobbs and Santa Rosa, it is possible that the average holding time for sentenced offenders, probation violators, and parole violators has diminished. Thus the estimate must be treated with caution.

ADMINISTRATIVE IMPLICATIONS

CD reports in both the short term and long term, this bill would result in a significant increase in the administrative burden upon the Department staff who would be required to track, account for and verify the billings received by the various counties regarding these offenders. The Department would probably be unable to absorb this additional administrative burden. It is possible additional FTE would be required.

CONFLICT/DUPLICATION/COMPANIONSHIP/RELATIONSHIP

SB 149 (HB 19) appropriates $250,000 to Valencia County to assist the County with the cost of housing prisoners; SB 274 appropriates $65,000 to Mora County to help the County with the cost of housing prisoners. HB 202 appropriates $750,000 to the Local Government Division of DFA to reimburse counties for Transportation and Extradition of State Prisoners.

OTHER SUBSTANTIVE ISSUES

DFA reports SB 347 states that the rate of reimbursing counties "shall be established, from time to time, by the county sheriff, the county jail administrator or the independent contractor who is in charge of county jail operations." It is not possible to estimate the potential cost of this bill or to prepare budget requests without having a more explicitly defined reimbursement rate. In addition, CD needs to be involved in establishing the rates for various counties to assure that the State and the thirty-three counties are treated equitably and consistently.

CD reports in New Mexico as well as other states around the nation, the county jails have historically been responsible for the costs of housing these offenders. These communities enjoy the benefit of the increased safety to their communities while these offenders are awaiting hearings to determine whether their probation or parole will be revoked. Also, CD does not control the period of time it takes to transport these offenders to the Departments custody after a sentencing hearing.

The counties detention budgets over the years have presumably included the costs of housing these offenders. These offenders presumably account for a significant portion of the counties detention costs. If these costs are to be transferred to CD, perhaps that portion of the counties detention budget which has traditionally been used to pay for these offenders should be transferred to CD.

If these costs are transferred to CD and insufficient appropriations are made, a situation is created whereby one governmental entity closes its fiscal year with a deficit owed to many counties and the various counties showing a receivable owed from CD. This creates accounting difficulties. SB 347 would create a situation whereby counties would be forced to consider filing a civil suit against CD to collect amounts due.

PDD reports

LAT/njw