BILL ANALYSIS Ó
AB 2
Page 1
Date of Hearing: March 12, 2013
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2 (Morrell) - As Introduced: December 3, 2012
SUMMARY : Requires a person who violates the conditions of
parole or of postrelease community supervision (PRCS) by failing
to fulfill sex-offender registration requirements to serve time
for the violation in prison rather than in the county jail.
EXISTING LAW :
1)Requires all persons paroled before October 1, 2011 to remain
under the supervision of the California Department of
Corrections and Rehabilitation (CDCR) until jurisdiction is
terminated by operation of law or until parole is discharged.
[Penal Code Section 3000.09.]
2)Requires the following persons released from prison on or
after October 1, 2011, be subject to parole under the
supervision of CDCR:
a) A person who committed a serious felony listed in Penal
Code Section 1192.7(c);
b) A person who committed a violent felony listed in Penal
Code Section 667.5(c);
c) A person serving a Three-Strikes sentence;
d) A high risk sex offender;
e) A mentally disordered offender [Penal Code Section
3000.08(a)];
f) A person required to register as a sex offender and
subject to a parole term exceeding three years at the time
of the commission of the offense for which he or she is
being released; and,
AB 2
Page 2
g) A person subject to lifetime parole at the time of the
commission of the offense for which he or she is being
released. [Penal Code Section 3000.08(a) and (c).]
3)Requires all other offenders released from prison on or after
October 1, 2011, to be placed on PRCS under the supervision of
a county agency, such as a probation department. [Penal Code
Section 3000.08(b).]
4)Limits the term for PRCS to three years. [Penal Code Section
3451(a).]
5)Provides for intermediate sanctions for violating the terms of
PRCS, including "flash incarceration" for up to 10 days.
(Penal Code Section 3454.)
6)Specifies that if PRCS is revoked, the offender may be
incarcerated in the county jail for a period not to exceed 180
days for each custodial sanction. [Penal Code Section
3455(d).]
7)Prohibits the return of an offender who violates conditions of
PRCS to prison. (Penal Code Section 3458.)
8)Specifies that a parolee held in custody for a pending parole
violation before October 1, 2011, may be returned to state
prison for the violation for period not to exceed 12 month.
[Penal Code Section 3057(a).]
9)Specifies that a parolee held in custody for a pending parole
violation on or after October 1, 2011 will be returned to
county jail, rather than state prison, for up to 180 days of
incarceration per revocation. [Penal Code Section 3056(a).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "The
registration of sex offenders in California began in 1947.
This registration information, with some exceptions, has been
accessible online since 2004, under Megan's Law. Failure to
register for felons and those on parole was previously
punishable by imprisonment in state prison; however, due to
realignment, these offenders are being sent to county or city
AB 2
Page 3
jail. Overcrowding of jails puts offenders back on the
streets within weeks, if not days. Recently, a sex offender
who violated his parole by failing to register as a sex
offender served only one day out of a thirty day sentence, due
to jail overcrowding. Since his release, he has been charged
with murder.
"We are compromising the safety of our communities by putting
these criminals back onto the streets with no accountability
for their actions.
"It has become a well-known fact that there are no repercussions
for failure to comply with the rules. Do we really want to
put the public's safety at risk in order to save the state a
dime?"
2)Changes to Parole As a Result of Criminal Justice Realignment :
Prior to realignment, individuals released from prison were
placed on parole and supervised in the community by parole
agents of CDCR. If it was alleged that a parolee had violated
a condition of parole, he or she would have a revocation
proceeding before the Board of Parole Hearings (BPH). If
parole was revoked, the offender would be returned to state
prison for violating parole.
Realignment shifted the supervision of some released prison
inmates from CDCR parole agents to local probation
departments. Parole under the jurisdiction of CDCR for
inmates released from prison on or after October 1, 2011 is
limited to those defendants whose term was for a serious or
violent felony; were serving a Three-Strikes sentence; are
classified as high-risk sex offenders; who are required to
undergo treatment as mentally disordered offenders; or who,
while on certain paroles, commit new offenses. [Penal Code
Sections 3000.08(a) and (c), and 3451(b).] All other inmates
released from prison are subject to up to three years of PRCS
under local supervision. [Penal Code Sections 3000.08(b) and
3451(a).]
Realignment also changed where an offender is incarcerated for
violating parole or PRCS. Most individuals can no longer be
returned to state prison for violating a term of supervision;
offenders serve the revocation term in county jail. [Penal
Code Sections 3056(a) and 3458.] There is a 180-day limit to
incarceration. [Penal Code Sections 3056(a) and 3455(c).]
AB 2
Page 4
The only offenders who are eligible for return to prison for
violating parole are life-term inmates paroled pursuant to
Penal Code section 3000.1 (e.g., murderers, specific life term
sex offenses).
Additionally, realignment changed the process for revocation
hearings, but this change is being implemented in phases.
Until July 1, 2013, individuals supervised on parole by state
agents continue to have revocation hearings before the BPH.
After July 1, 2013, the trial courts will assume
responsibility for holding all revocation hearings for those
individuals who remain under the jurisdiction of CDCR. In
contrast, since the inception of realignment, individuals
placed on PRCS stopped appearing before the BPH for revocation
hearings. Their revocation hearings are handled by the trial
court. PRCS currently provides for lesser or "intermediate"
sanctions before PRCS is revoked for a violation. This
includes "flash incarceration" for up to 10 days. (Penal Code
Section 3454.) Intermediate sanctions, including flash
incarceration, will also be available for state parolees after
July 1, 2013. [Penal Code Section 3000.08(d), effective July
1, 2013.]
3)On-going Concerns for Prison Overcrowding : In January 2010,
a three-judge panel issued a ruling ordering the State of
California to reduce its prison population to 137.5% of design
capacity because overcrowding was the primary reason that CDCR
was unable to provide inmates with constitutionally adequate
healthcare. [Coleman/Plata vs. Schwarzenegger (2010) No. Civ
S-90-0520 LKK JFM P/NO. C01-1351 THE.] The United State
Supreme Court upheld the decision, declaring that "without a
reduction in overcrowding, there will be no efficacious remedy
for the unconstitutional care of the sick and mentally ill"
inmates in California's prisons. [Brown v. Plata (2011) 131
S.Ct. 1910, 1939; 179 L.Ed.2d 969, 999.] The original
deadline to reach the required prison population reduction was
June 2013.
Realignment has significantly reduced the prison population;
however, it is projected to be insufficient to comply with the
court-ordered population limit. In January 2013, the State
moved to vacate or to modify the population reduction order,
arguing that the reductions made to date are sufficient.
Without ruling on the motion, the federal court recently
extended the deadline to December 2013. The ongoing
AB 2
Page 5
litigation indicates that prison capacity remains a concern.
According to a recent budget report prepared by the
Legislative Analyst's Office (LAO) on the Governor's criminal
justice proposals, "[t]he average daily parole population is
projected to be about 43,000 parolees in the budget year, a
decline of about 15,000 parolees (25 percent) from the
estimated current-year level. This decline is also largely a
result of the 2011 realignment, which shifted from the state
to the counties the responsibility for supervising certain
offenders following their release from prison. The average
daily population projected for 2013-14 is about 4,500 parolees
lower than was initially projected by the department in spring
2012. According to CDCR, this is due to more parolees being
discharged from supervision than expected in the first six
months of 2012. In addition, CDCR projections show that the
decline in the parole population is expected to slow down and
even increase in coming years." (See The 2013-14 Budget:
Governor's Criminal Justice Proposals, February 15, 2013, p.
26 <
http://lao.ca.gov/analysis/2013/crim_justice/criminal-justice-p
roposals/criminal-justice-proposals-021513.pdf>.)
Parole census data from CDCR indicated there were nearly
10,400 sex-registrant parolees as of June 2012. (See
.) More
recently, CDCR informed the committee that as of February 21,
2013, there were approximately 6,965 sex offenders on parole
in the community. The assumption is that the significant
decline is attributable to many of these individuals being
placed on PRCS. CDCR has also informed this Committee that in
the last calendar year, January through December 2012, there
were 2,133 state parole violations for failure to register as
a sex offender. This figure does not include violations for
those on PRCS supervision.
Returning perhaps thousands of violators to state custody
would erode realignment and not advance the goal of reducing
the prison population to required levels. Even if the federal
court determines the State has sufficiently complied with the
federal court order based on the current reductions of the
prison population, the prison population would need to be
maintained, not increased.
AB 2
Page 6
Moreover, this is not the only measure that seeks to return
parole offenders to the custody of CDCR. There are six other
related bills that would require parole violators to be
returned to state prison for violations.
4)Practical Considerations : As noted above, under current law,
the maximum time for which a person on supervised release can
be returned to custody is 180 days. This bill does not change
that. An offender will receive actual and conduct credits
against that sanction [Penal Code Section 4019(a)(5)], so the
actual time to be served on the violation will be even less.
It is questionable whether it makes logistical sense to
congest reception centers with offenders who will only be in
prison for a very short time.
5)Sex Offender Registration Requirements : An offender who is
required to register as a sex offender must do so for the rest
of his or her life. Registration shall be with the local law
enforcement in the place of residence. [Penal Code Section
290(b).] The registrant must update the registration
annually, within five working days of his or her birthday.
[Penal Code Section 290.012(a).] If the registrant changes
his or her name, the registrant must inform the local law
enforcement agency with which he or she is currently
registered within five working days. (Penal Code Section
290.014.)
A person who moves, whether within the same jurisdiction where
currently registered or to a new jurisdiction inside or
outside California, must, in person, within five working days
of the move, inform the law enforcement agency or agencies
with which he or she last registered of the move, the new
address or transient location, if known, and any plans he or
she has to return to California. (Penal Code section
290.013.) When a sex offender moves from one county to
another in California without notifying law enforcement in
both the county that the offender departs and the county into
which the offender moves, he or she has committed two
offenses: one under Penal Code Section 290(b), and another
under Penal Code Section 290.013.
Additionally, if a person required to register as a sex offender
spends more than 14 days, or an aggregate period exceeding 30
days in a calendar year, enrolled as a college student or
employed or at such an institution, that person must register
AB 2
Page 7
with the campus police department. (Penal Code Section
290.009.)
Re-registration is required upon release from incarceration,
unless the person was incarcerated for less than 30 days and
is returning to the last registered address. [Penal Code
Section 290.015(a).]
A defendant may be charged with and convicted of multiple
violations of the Sex Offender Registration Act, for example,
based on a failure to register within five days of his or her
birthday and a separate failure to register within five days
of changing his or her address.
6)Argument in Support : None submitted.
7)Argument in Opposition : According to the American Civil
Liberties Union , "This bill requires any person who is on PRCS
or state parole, as specified, and who fails to register as a
sex offender, even where the person is not on PRCS or parole
for a registerable offense, must serve any violation in state
prison. Given that a person may only be returned to custody
for a maximum of one hundred eighty days, his or her stay in
state prison will be very short only to be returned to the
county for supervision. This makes little sense. The
implementation of the Criminal Justice Realignment Act was
designed, inter alia, to reduce overcrowding in California's
prisons, particularly in the reception centers. This bill
will once again exacerbate overcrowding in the reception
centers and place a significant financial burden on the State.
Moreover, if counties are no longer responsible for housing
someone who is in violation of his or PRCS conditions,
counties should be required to return a pro-rata portion of
the AB 109 funds designed to assist in addressing that
population. ?
"California still operates a prison system that is one hundred
fifty percent (150%) of capacity; well beyond the Court's
order of 137.5 percent (%). It makes little sense to return
those who are deemed in violation of state parole or PRCS to
state prison, particularly for such a short period of time.
Moreover, if a person fails to register where the registration
results from a felony conviction, he or she may be charged
with that offense, and sentenced to state prison for a term of
sixteen months, two, or three years. (Cal. Penal Code §
AB 2
Page 8
290.018, subd. (b).)
"Equally troubling is that portions of California's sex offender
registration law are currently the subject of ongoing
litigation. (Doe v. Harris (N. Dist. Cal., Nov. 7, 2012,
C12-5713 TEH).) Provisions of Proposition 35, enacted by the
voter in November 2012, required registered sex offenders to
provide any and all email and internet identifiers to local
law enforcement. (Cal. Penal Code § 290.014.) Although this
provision is currently enjoined, jurisdictions might still
allege violations of parole or PRCS for failure to provide
email and internet identifiers. This would needlessly subject
a person to state prison term for a violation of parole."
8)Related Legislation :
a) AB 63 (Patterson) provides that a person on PRSC or
parole who is ordered pursuant to a revocation hearing to
serve a term of imprisonment, incarceration, or confinement
for violating the conditions of release, when the violation
was based on the removal or disabling of an electronic,
global positioning system (GPS), or other monitoring device
affixed as a condition of release, and the person has not
been prosecuted for that conduct, shall serve that term in
the state prison. AB 63 is pending hearing by this
Committee.
b) AB 605 (Linder) provides that a defendant who is
released on parole or PRCS, who has suffered a prior or
current felony requiring registration as a sex offender,
and who violates parole or PRCS shall serve any period of
incarceration ordered for that violation in the state
prison. AB 605 is pending hearing by this Committee.
c) AB 1065 (Holden) requires any person released from state
prison who who has served a prior prison term for which he
or she was required, as a condition of parole, to undergo
treatment by the Department of State Hospitals and be
subject to parole supervision by CDCR. AB 1065 is pending
rereferral by the Assembly Rules Committee.
d) SB 57 (Lieu) states legislative intent to enact
legislation that addresses the removal and disablement of
GPS monitoring devices by parolees and probationers. SB 57
is pending hearing by the Senate Public Safety Committee.
AB 2
Page 9
e) SB 287 (Walters) makes the provisions for PRCS
inapplicable to any person released from prison who has a
prior conviction for a serious or violent felony, a crime
for which the person received a third strike, or a crime
that resulted in the person being classified as a high-risk
sex offender. SB 287 is pending hearing by the Senate
Public Safety Committee.
f) SB 710 (Nielsen) makes the provisions of PRCS applicable
only to persons released from prison prior to January 1,
2014, and requires all offenders released from prison on or
after that to be subject to parole supervision by CDCR for
a minimum period of three years. SB 710 is pending
rereferral by the Senate Rules Committee.
9)Prior Legislation : AB 109 (Committee on Budget), Chapter 15,
Statutes of 2011, created the Postrelease Community
Supervision Act, which provides, among other things, that
inmates released from prison who are not required to be on
parole are subject to up to three years of local supervision.
REGISTERED SUPPORT / OPPOSITION :
Support
California Communities United Institute
California District Attorneys Association
San Bernardino County Sheriff's Department
Opposition
American Civil Liberties Union
American Friends Service Committee
California Attorneys for Criminal Justice
California Public Defenders Association
Friends Committee on Legislation of California
Legal Services for Prisoners with Children
Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744
AB 2
Page 10