February 9, 2021 The Honorable Nancy Skinner Chair, Senate Budget & Fiscal Review Committee California State Senate Sacramento, CA 95814 The Honorable Maria Elena Durazo Chair, Senate Budget Subcommittee 5 California State Senate Sacramento, CA 95814 The Honorable Phil Ting Chair, Assembly Budget Committee California State Assembly Sacramento, CA 95814 The Honorable Christina Garcia Chair, Assembly Budget Subcommittee 5 California State Assembly Sacramento, CA 95814 Re: The Safe and Effective Implementation of Criminal Justice Reforms and Post- Conviction Immigration Reform Dear Budget Leaders: The California Public Defenders Association (CPDA) with support from the ACLU of California, National Association of Social Workers (CA chapter), Immigrant Legal Resource Center, NextGen California and the San Francisco Public Defender is requesting $37,800,000 to be allocated to the public defender offices of the fourteen most populous counties to hire public defenders and social workers for the purpose of implementing recent post-conviction criminal justice and immigration reform statutes that if fully implemented will lower California’s prison population, keep our communities safe, and prevent the unjust deportation of non-citizens. This budget request would save tens of millions of dollars in fiscal year 2021-22 and hundreds of millions of future dollars spent on corrections as described in more detail in this request. Specifically, the county public defender offices requesting support through this budget request are Los Angeles, San Diego, Orange, Riverside, San Bernardino, Santa Clara, Alameda, Sacramento, Contra Costa, Fresno, Kern, San Francisco, Ventura, and San Joaquin. This one- time budget request will generate millions of dollars in on-going savings to the state. INTRODUCTION I. THE STATE COULD SAVE MILLIONS OF DOLLARS BY RELEASING INCARCERATED PERSONS WHO ARE SERVING ILLEGAL SENTENCES OR SENTENCES THAT NO LONGER SERVE THE INTERESTS OF JUSTICE A. A relatively small investment in public defender’s offices now will save tens of millions of dollars in fiscal year 2021-22 and hundreds of millions of future dollars spent on corrections. There are thousands of incarcerated persons currently serving life or shorter state prison sentences that are illegal or unnecessary for public safety but are costing the taxpayers millions
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February 9, 2021
The Honorable Nancy Skinner
Chair, Senate Budget & Fiscal Review Committee
California State Senate
Sacramento, CA 95814
The Honorable Maria Elena Durazo
Chair, Senate Budget Subcommittee 5
California State Senate
Sacramento, CA 95814
The Honorable Phil Ting
Chair, Assembly Budget Committee
California State Assembly
Sacramento, CA 95814
The Honorable Christina Garcia
Chair, Assembly Budget Subcommittee 5
California State Assembly
Sacramento, CA 95814
Re: The Safe and Effective Implementation of Criminal Justice Reforms and Post-
Conviction Immigration Reform
Dear Budget Leaders:
The California Public Defenders Association (CPDA) with support from the ACLU of
California, National Association of Social Workers (CA chapter), Immigrant Legal Resource
Center, NextGen California and the San Francisco Public Defender is requesting $37,800,000 to
be allocated to the public defender offices of the fourteen most populous counties to hire public
defenders and social workers for the purpose of implementing recent post-conviction criminal
justice and immigration reform statutes that if fully implemented will lower California’s prison
population, keep our communities safe, and prevent the unjust deportation of non-citizens. This
budget request would save tens of millions of dollars in fiscal year 2021-22 and hundreds of
millions of future dollars spent on corrections as described in more detail in this request.
Specifically, the county public defender offices requesting support through this budget request
are Los Angeles, San Diego, Orange, Riverside, San Bernardino, Santa Clara, Alameda,
Sacramento, Contra Costa, Fresno, Kern, San Francisco, Ventura, and San Joaquin. This one-
time budget request will generate millions of dollars in on-going savings to the state.
INTRODUCTION
I. THE STATE COULD SAVE MILLIONS OF DOLLARS BY RELEASING
INCARCERATED PERSONS WHO ARE SERVING ILLEGAL SENTENCES
OR SENTENCES THAT NO LONGER SERVE THE INTERESTS OF
JUSTICE
A. A relatively small investment in public defender’s offices now will save tens of millions
of dollars in fiscal year 2021-22 and hundreds of millions of future dollars spent on
corrections.
There are thousands of incarcerated persons currently serving life or shorter state prison
sentences that are illegal or unnecessary for public safety but are costing the taxpayers millions
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of dollars in the midst of a budget deficit and pandemic. While recent court orders require the
California Department of Corrections and Rehabilitation (CDCR) to further reduce prison
populations, thousands of prisoners lack the assistance of lawyers who could help them obtain
release. 1 With a modest investment, public defender’s offices could help individual prisoners
obtain release and save the state upwards of $29,000,000 ($29 million dollars) in fiscal year
2021-22 and more than $230,000,000 ($230 million dollars) in long-term savings.
California’s correctional system’s budget is upwards of $15 billion dollars per year.2 The
considerable savings associated with safely decarcerating state prisons and closing facilities is
timely; as recently as May 2020 California was facing a projected $54 billion deficit caused by
the COVID-19 pandemic.3
In 2011, California’s state prisons were so overcrowded that the United States Supreme Court
found that they violated the Eighth Amendment’s ban on cruel and unusual punishment.4 In its
opinion, the Court affirmed that prisons were “severely overcrowded, imperiling the safety of
both correctional employees and inmates” and resulting in “[n]eedless suffering and death.”5
While strides have been made to reduce the prison population, it has consistently hovered around
115,000, or just below 137.5% of its design capacity.6 Very recently, in response to COVID-19,
the prison population was reduced to just under 100,000 (approximately 118% of its capacity),
achieved mostly by accelerating releases of persons nearing natural release dates.7 Many of the
post-conviction statutes public defender’s offices are seeking resources to implement focus on
persons at the other end of the spectrum, namely those persons serving life sentences or very
long determinate term sentences who are legally entitled to release due to a change in the law or
have otherwise earned release through sustained, demonstrated rehabilitation.
B. Incarcerated persons are more at risk for COVID-19 infection and severe illness.
Between late March and early November 2020, more than 15,875 persons incarcerated in
California state prisons have tested positive for COVID-19; 80 have died.8 Another 4,401 staff
members have also tested positive.9 At San Quentin state prison alone, more than one in three
incarcerated persons have been infected with a potentially deadly disease.10 While the human
costs to incarcerated people, staff, and their families have been immense, the direct financial
costs of treating incarcerated people at outside hospitals have been adding up as well.
1 https://www.nytimes.com/2020/10/21/us/san-quentin-prison-coronavirus.html 2 https://www.sacbee.com/news/politics-government/the-state-worker/article237689339.html accessed on October 9 3 https://www.kqed.org/news/11821589/california-considers-downsizing-state-prison-system-amid-coronavirus-
budget-woes 4 Brown v. Plata (2011) 563 U.S. 493. 5 Id. at 503-504. 6 See PPIC Just the Facts at https://www.ppic.org/publication/californias-prison-population/ accessed on April 15,
2020. 7 See CDCR’s Weekly Report of Population, October 7, 2020 at https://www.cdcr.ca.gov/research/wp-
from Riverside County include relief for a U.S. Army Veteran who served in Vietnam and
Panama, for a well-loved member of his community, who now has a path to citizenship, for a
young man who works as an electrician with the goal of becoming a licensed electrician, and for
a young mother of three. In Santa Clara County, a young woman who has been in the United
States since she was eleven was given relief. Marin County cases include relief for a man from
Haiti who had been in the county since he was six years old. In Los Angeles County, a woman
who was the sole caretaker for her paraplegic husband was able to stay, as was an Operation
Desert Storm veteran who had been in the United States since he was two months old, and a
single father whose only crime was writing a bad check to pay medical bills related to his
daughter’s kidney transplant.
Funding public defenders to represent immigrant clients in Penal Code section 1473.7 motions
will prevent the unjust deportation of non-citizens and save the costs associated with poverty and
family separation. This will amount to millions of taxpayer dollars saved. For example, 6% of
children in foster care in Los Angeles and San Diego were there because of the deportation of a
11 https://www.cdcr.ca.gov/research/wp-content/uploads/sites/174/2020/01/201812_DataPoints.pdf p. 20. 12 https://www.ppic.org/blog/severe-covid-19-infections-may-threaten-californias-prisons/ 13 US Census 2010, available at https://www.census.gov/quickfacts/CA (last accessed October 11, 2020)
convictions. But too often, public defender offices lack the resources to clean up old
convictions. Right now, only a few counties provide attorney assistance for Penal Code section
1473.7 cases. For example, Los Angles handles 132 such cases a year (despite a population of
1.7 million immigrants). Public defenders from Los Angeles, San Francisco, and Ventura county
public defender offices recently reported a combined total of 329 backlogged post-conviction
cases, due to the lack of resources.
Public defenders are increasingly faced with taking on Penal Code section 1473.7 representation.
In 2019, the California Court of Appeal held that a defendant who makes a prima facie showing
under Penal Code section 1473.7, who is indigent, and who is unable to attend a hearing is
entitled to court-appointed counsel to litigate the Penal Code section 1473.7 motion.17
B. State laws only work to the extent they are implemented.
No funding accompanied these new laws, and public defender offices throughout the state while
committed to trying to help their clients benefit from these reforms, have struggled to handle the
new workload. Consequently, a backlog of these cases exists, requiring that incarcerated persons
who are eligible for release remain in state prison while they wait for an attorney to be assigned
to their case. Put simply, thousands of persons incarcerated in state prison who are statutorily and
legally entitled to be released have not received the benefit of SB 1437. Likewise, YOP and
Penal Code section 1170(d) candidates continue to serve prison sentences that no longer serve
the interest of justice.
DETAILS OF BUDGET REQUEST
IV. THE PROGRAMMATIC CHANGES SOUGHT IN THIS BUDGET
REQUEST.
A. Attorneys are necessary to implement SB 1437 and Penal Code 1473.7.
SB 1437 can be successfully implemented only through the assistance of public defenders.
According to CDCR, as of September 30, 2018, almost 22,000 persons were serving state prison
sentences for first- or second-degree murder.18 Not all 22,000 will be eligible for resentencing
under SB 1437. However, CDCR cannot identify eligible inmates because its records do not
differentiate between principal offenders and accomplices. Determining whether an inmate
qualifies for relief is a legal determination, with the central question being whether the inmate
could have been convicted of first- or second-degree murder had SB 1437 already been in place.
Therefore, all 22,000 cases must be reviewed by an attorney for eligibility for relief.
County public defender offices do not have the necessary resources to implement SB 1437. Six
of the largest counties - San Diego, San Bernardino, Los Angeles, Orange, Sacramento, and
17 People v. Fryhaat (2019) 35 Cal. App. 5th 969. In accordance with this decision, California criminal courts have
begun to appoint public defenders to represent indigent federal immigration detainees who seek post-conviction
relief. 18 See CDCR Senate Bill 1437 Fact Sheet, November 2018.
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Riverside - account for two of every three inmates sentenced to state prison.19 These six counties
also account for 67% of all murder convictions that need to be reviewed for SB 1437
eligibility.20
For example, the Orange County Public Defender’s Office estimates that 900 of the 1,150
murder convictions that need to be reviewed for relief are waiting to be assigned to an attorney.
In Riverside County, of 1,330 murder convictions that need to be reviewed for eligibility, the
public defender’s office has taken appointment on 325, but even these have been “wait-listed”
due to a lack of resources. In Sacramento County, of the 1,680 cases that need to be assessed;
approximately 90 are receiving active attention. The Los Angeles Public Defender’s Office has
by far the biggest backlog, with almost 2500 cases awaiting review to determine eligibility for
relief.
Penal Code 1473.7 likewise requires public defenders to ensure successful implementation.
Public defenders have access to important tools that can mitigate or eliminate the immigration
consequences of a crime. Public defenders already have a duty to advise and defend against the
immigration consequences of criminal convictions. Penal Code §§ 1016.2, 1016.3; Padilla v.
Kentucky, 559 U.S. 336 (2010). Public defenders must screen clients for past problematic
convictions. But too often, offices lack the resources to clean up old convictions. Right now,
only a few counties provide attorney assistance for Penal Code section 1473.7 cases. For
example, Los Angles handles 132 such cases a year (despite a population of 1.7 million
immigrants). Public defenders from Los Angeles, San Francisco, and Ventura county public
defender offices recently reported a combined total of 329 backlogged post-conviction cases, due
to the lack of resources.
Public defenders are increasingly faced with taking on Penal Code section 1473.7 representation.
In 2019, the California Court of Appeal held that a defendant who makes a prima facie showing
under Penal Code section 1473.7, who is indigent, and who is unable to attend a hearing is
entitled to court-appointed counsel to litigate the Penal Code section 1473.7 motion.21
B. Social workers are necessary to implement YOP and Penal Code sections 1170(d).
Public defender social workers are, not only essential, in implementing YOP and Penal Code
sections 1170(d) but are more cost effective than lawyers. Social workers in public defender
offices, write psychosocial histories based on the client records and interviews with family and
friends, but social workers are also the primary professionals responsible for the individual’s
successful reentry. Social workers perform discharge planning ensuring that those reentering the
community have access to prescribed medications, placement in residential treatment facilities or
sober living programs. They often connect clients directly to crisis stabilization hospitals and
other forms of residential care, depending on the client’s mental health diagnoses and acuity of
19 See “Some criminal justice reform measures taking hold slowly as judges and prosecutors oppose them,” by Greg
Moran, November 24, 2019. 20 See The California Department of Corrections and Rehabilitation county totals for Murder 1 and Murder 2
convictions as of December 31, 2018. 21 People v. Fryhaat (2019) 35 Cal. App. 5th 969. In accordance with this decision, California criminal courts have
begun to appoint public defenders to represent indigent federal immigration detainees who seek post-conviction
relief.
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care needs and work between providers to ensure that medical clearances and negative infectious
disease tests are completed and received by residential providers during the reentry process.
Social workers are often the only parties in public defender offices who are aware of state funded
programs targeting clients upon reentry and connecting them to these state resources. For
example, probation officers and parole agents rarely initiate the process to place clients who
qualify for STOP (Specialized Treatment for Optimized Programming) or similar CDCR funded
housing into these housing programs, where they are supposed to stabilize and avoid
violations/revocations that return them to custody at immense public expense. Social workers in
public defender offices have tapped into these resources and make these referrals. Similarly,
social workers are the professionals promoting STRTP placements for juveniles, funded by
CDSS, rather than DJJ juvenile incarceration. Public defender social workers also try to connect
youth with the community colleges through the Rising Scholars program. In the long run, each of
these reentry options is a cost saver; these are therapeutic, holistic, and cost-efficient programs
that the state often intends counties to use in service of re-entering individuals, but which are
rarely used. Public defender social workers make referrals to these state targeted resources, as
well as accessing residential care for substance use and mental health disorders for some
individuals directly upon the individual’s leaving custody through Drug Medi-Cal (the DMC-
ODS 1115 Waiver) in several counties.
At a Penal Code section 3051 YOP hearing, the Board of Parole is required to give great
weight to factors specific to youthful offenders. These factors include the diminished culpability
of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth
and increased maturity of the incarcerated person. Public defender offices with current clients
sentenced to prison who will one day be eligible for a YOP hearing are collecting records and
obtaining other information including interviews of family, teachers, and friends for use at the
future YOP hearings. However, for the thousands of persons who were incarcerated before the
effective dates of the statute’s amendments, public defender offices must retroactively recreate
an accurate picture of the persons’ youth, which is a herculean and time-consuming effort as
memories fade and records are destroyed.
Penal Code section 1170(d) post-conviction factors to consider include the incarcerated
person’s disciplinary record; record of rehabilitation; evidence that reflects whether age, time
served, and diminished physical condition, if any, have reduced the inmate’s risk for future
violence; and changed circumstances that would render continued incarceration no longer in the
interest of justice.22 While CDCR has a process in place to identify cases that may merit a recall
of sentence, in practice its criteria are more narrow than the law requires. After AB 2942, a
district attorney may recommend a sentencing recall based on a much wider range of appropriate
criteria.
Although some efforts are being made to implement AB 2942, resources are insufficient to
implement this new law statewide. In some counties, district attorney’s offices are simply not
pursuing Penal Code section 1170(d) relief. In others, the district attorney’s offices evaluate
cases by their own internal and un-reviewed criteria. In still others, the practical process to obtain
post-AB 2942 relief is for defense counsel to present to the district attorney’s office a complete
22 See Penal Code section 1170(d)(1).
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psychosocial assessment supported by records and expert recommendations in order to persuade
the district attorney to make the recall recommendation to the trial court.
To fully implement Penal Code section 1170(d), social workers are instrumental in preparing
persuasive presentations which include a robust reentry plan. Not only are social workers less
expensive to employ than attorneys, but they also have the necessary skill set to accomplish the
needed tasks. The information uncovered by social workers can be used to persuade district
attorneys to originate 1170(d) requests. Additionally, having public defenders identify
appropriate cases will allow clients to receive advice and support from a trusted advocate that
will hold communications confidential until informed consent is obtained, and social workers
familiar with community supports can formulate reentry plans. Reentry plans are critical in
convincing district attorneys to support release and in keeping the community safe.
Most public defender offices do not have social workers. Even in public defender offices with
social workers, the social workers are overwhelmed with their current duties with social worker
to attorney ratios of 1:100 (Orange County) and 1:130 (Riverside County). Existing public
defender social workers do not have the capacity to service Penal Code section 1170(d) needs.
V. FUNDING THE IMPLEMENTATION OF CRIMINAL JUSTICE REFORMS
WILL SAFELY DECREASE THE PRISON POPULATION, SAVING
MILLIONS OF DOLLARS AND HELPING PERSONS AVOID
CONTRACTING COVID-19.
A. Thousands are eligible for release from incarceration.
A 2002 study of FBI crime data found that nearly 20% of all murders annually between 1970-
1998 were felony murders.23 Even if only 10% of the 22,000 state prison cases involving
convictions for first- or second-degree murder are eligible for SB 1437 relief, this amounts to up
to 2,200 persons who are legally entitled to release or a shortened sentence. 24
The number of persons eligible for a YOP parole hearing is in the thousands. The Orange County
Public Defender’s Office reports that there are 1,216 YOP cases to prepare for hearing, and
meaningful work on any of them has yet to commence. The San Bernardino County Public
Defender’s Office reports that it has 900 cases to prepare. The San Diego County Public
Defender’s Office reports that it has over 600 cases that are currently unassigned due to lack of
resources.
The number of incarcerated persons eligible for Penal Code section 1170(d) relief is similarly
vast, as the primary limitation is what is in the interest of justice.
23 See SB 1437 Felony Murder Analysis SENATE FLOOR ANALYSES 8/30/18. 24 When the Legislature enacted SB 1437 they were keenly aware of the possible financial savings to be gained. The
Senate Committee on Appropriations calculated the potential savings based on the then proposed 2018-19 per capita
cost to house a person in state prison at $80,729 annually, with an annual marginal rate per inmate of between
$10,000 and $12,000. As to SB 1437 alone, the Senate Floor Analysis explained that there would be “[u]nknown
significant ongoing savings, likely amounting to hundreds of thousands of dollars to millions of dollars annually, for
CDCR to incarcerate inmates for shorter sentences.” SB 1437 Felony Murder Analysis, SENATE COMMITTTEE
ON APPROPRIATION 5/14/2018 and Ibid, SENATE FLOOR ANALYSIS.
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B. Safely releasing incarcerated persons will save California millions of dollars annually.
By acting now to fund current legislative priorities such as SB 1437, YOP and AB 2942 (Penal
Code section 1170(d)), the legislature will be addressing future structural budget problems and
save the state money. In the mere 3 years since SB 1437 was enacted the per capita cost of
housing an individual in state prison has increased by over $10,000, from approximately $80,000
to over $90,000.
Based on only partial data, funding public defender offices to litigate SB 1437 cases would save
the state at least $17,000,000 ($17 million dollars) in fiscal year 2021-22 and long-term savings
assuming a modest average sentence reduction of 10 years over $177,000,000 ($177 million
Los Angeles 2500 250 62.5 $5,691,687.50 $56,916,875.00
San Diego 1476 147 36.75 $3,346,712.25 $33,467,122.50
total $17,735,298.25 $177,352,982.50
Similarly, Penal Code section 1170(d) long-term savings, assuming an average per prison
sentence reduction of 4.5 years, are $53,274,195 ($53 million dollars) and $11,838,710 ($11
million dollars) for fiscal year 2021-22 just relying on the current CDCR projected release of 130
people that they have referred to court for release.
25 Numbers provided by respective county public defender offices. 26 A 2002 study of FBI crime data found that nearly 20% of all murders annually between 1970-1998 were felony
murders. (See SB 1437 Felony Murder Analysis SENATE FLOOR ANALYSES 8/30/18.) For purposes of this
analysis, we assume 10% of reviewed cases are eligible for relief. 27 We do not have comprehensive statewide data on success rates for SB 1437 cases. Yolo County reports a success
rate of approximately 20% and Alameda County reports a success rate of approximately 57%. For purposes of this
analysis, we assume a statewide success rate of 25%. 28 Estimates based on FY 20-21 average per person cost of incarceration of $91,067. 29 We do not have comprehensive statewide data on sentence reductions for SB 1437 cases. The average sentence
reduction in several recent cases from Los Angeles, Santa Clara, Riverside, and Ventura counties was 15 years.
Using this average, we conservatively assume an average reduction of 10 years.
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Forecast 1170(d) Savings
CDCR referrals pending
court response30
Projected releases
(assuming 30% success
rate31)
FY 21-22 savings32 Long-term savings
(assuming average per
person sentence
reduction of 4.5 years33)
435 130 $11,838,710 $53,274,195
The cost savings from implementing only SB 1437 and Penal Code section 1170(d) are upwards
of $29,000,000 ($29 million dollars) in fiscal year 2021-22 and more than $230,000,000 ($230
million dollars) in long-term savings.34
VI. DATA COLLECTION
A. SB 1437.
Data will be collected as to the number of cases that are reviewed, found eligible, litigated, and
outcomes.
B. Penal Code section 3051 YOP Hearings.
Data will be collected as to the number of cases that are prepared for hearing and, as applicable,
outcomes.
C. AB 2942 (Penal Code section 1170(d)).
Data will be collected as to the number of cases that are prepared for recall, as well as outcomes.
D. Penal Code section 1473.7.
Data will be collected as to the number of cases screened for relief, found eligible, petitions filed,
and outcomes in order to analyze the outcomes to determine the success of this funding.
30 Estimate based on CDCR Recall and Resentence Recommendation Program Summary Dashboard, Data as of
9/30/2020. 31 Id. 32 Estimates based on FY 20-21 average per person cost of incarceration of $91,067. 33 Estimate based on CDCR Recall and Resentence Recommendation Program Summary Dashboard, Data as of
9/30/2020. 34 Closing a prison that is no longer needed as the result of safe decarceration methods will save hundreds of
millions of future dollars. While the financial savings associated with closing a prison is significant, if safely
decarcerating the state prisons saves human life because incarcerated persons and prison staff avoid a deadly
disease, the return on investment is incalculable.
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VII. FUNDING AMOUNTS WERE DETERMINED BY CURRENT FTE COSTS
AND APPORTIONING RESOURCES BY RELATIVE POPULATION SIZE.
A. SB 1437.
Assuming 10% of the 22,000 cases that need to be reviewed for AB 1437 eligibility are
thereafter assessed as eligible for relief, this amounts to 2,200 persons that need an attorney to
handle their case. Bigger counties are struggling the most with SB 1437 backlogs. This request,
therefore, seeks to secure resources for the biggest fourteen (14) counties to make significant
progress clearing the backlogs. Counties would receive two, three, or four attorneys based on
relative population size, except for Los Angeles County which would receive ten attorneys.
This budget request asks for funding to hire a total of 46 attorneys, to work for two years on the
backlog of 1437 cases. Assuming an attorney costs $200,000 annually, this amounts to a total
cost of $18,400,000 to address the unassigned work associated with SB 1437.
B. Penal Code section 3051 YOP and AB 2942 (Penal Code section 1170(d)).
The estimated annual cost to fund a social worker is $150,000. The aggregate cost of employing
a total of 46 social workers, for two years, $13,800,000.
C. Penal Code section 1473.7.
It is estimated that a total of 14 attorneys (working for two years) would be required to give
immigrants with claims that their pleas were taken without knowledge of immigration
consequences under Penal Code section 1437.7. The total request is for approximately
$5,600,000. 35
CONCLUSION
VIII. PUBLIC DEFENDER’S OFFICES AND SOCIAL WORKERS CAN