BILL ANALYSIS �
AB 605
Page 1
Date of Hearing: April 2, 2013
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 605 (Linder) - As Introduced: February 20, 2013
SUMMARY : Provides that a defendant who is released on parole or
postrelease community supervision (PRCS), who has suffered a
prior or current felony requiring registration as a sex
offender, and who violates any condition of parole or PRCS shall
serve any period of incarceration ordered for that violation in
the state prison.
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
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being released; and,
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, "In 2011 the
Legislature approved the realignment of 'nonviolent,
nonsexual, & nonserious' offenders from state prisons to local
jails, AB 109. Yet, since realignments passage the amount of
sex offenders walking our streets has dramatically increased.
AB 605
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"Unfortunately for California, realignment only takes into
account the last offense and not an offender's entire history.
Californian's understood the danger of having sex offenders
treated separate from normal parolees, which is what led to
Megan's Law being passed in 2004 and Jessica's Law passing in
2006. Realignment has stymied many of these reforms in the
name of prison overcrowding.
"According to recently released numbers from the Department of
Corrections, in the 15 months before realignment there were
2,346 sex offenders violating their parole. This number has
increased to 2,706 in the 15 months since. Riverside County
alone has seen an increase of over 13% in sex offenders
violating their parole. Neighboring San Bernardino County has
seen an even more drastic increase of nearly 20%.
"In one case a 39 year old man was arrested for the rape,
murder, and robbery of his own grandmother. The man was a
registered sex offender who had been in and out of jail
between 5 and 11 times over the last year. In his most recent
stint, he spent one day in a local jail for failing to
register as a sex offender after being sentence to 30 days.
He was subsequently released under the realignment program.
"While realignment was a last ditch effort to fix overcrowding,
it has placed the people of California in danger. In addition
to AB 109, the Legislature has already passed 6 other pieces
of legislation to correct or fund the initial legislation. AB
605 will simply be an additional correction found to be
needed."
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
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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).]
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
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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.] Without changes to
how the prison population was managed, the court decisions
"could have led to arbitrary early release of tens of
thousands of prison inmates." (See Chief Probation Officers
of California Issue Brief, Realignment Perspective, July
2012.)
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
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
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.) More
recently, CDCR informed this Committee that as of March 20,
2013, there were approximately 6,863 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
2012 there were 26,226 parole violations by sex offender
registrants.
Returning 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.
4)Practical Considerations : Conduct which is a parole or PRCS
violation is often not a crime. The Board of Prison Terms
"may impose on the parolee any conditions that it may deem
proper." [Penal Code Section 3053(a).] Likewise, the local
supervising agency may determine appropriate conditions of
release for individuals placed on PRCS. [Penal Code Section
3454.] Thus, parole may be revoked if the parolee moves
without the parole agent's permission, fails to provide notice
of a change in employment, consumes alcohol, or fails to
report to the parole agent. Of course, if the offender
commits a new crime, under current law, he or she can be
prosecuted for that conduct. This bill will send sex offender
registrants on supervised release back to prison for technical
and de minimis violations, not just for serious violations or
for conduct amounting to a crime.
Moreover, 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. For example, CDCR
has informed this Committee that with half-time credits, the
current typical length of incarceration for a violation is 15
to 60 days. Therefore, 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.
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The United State Supreme Court specifically addressed the
effect of parole violators on prison overcrowding in its
decision upholding the ruling of the three-judge panel. "The
State now sends large numbers of persons to prison for
violating a technical term or condition of their parole, and
it could reduce the prison population by punishing technical
parole violations through community-based programs. This last
measure would be particularly beneficial as it would reduce
crowding in the reception centers, which are especially hard
hit by overcrowding." (Brown v. Plata, supra, 131 S.Ct.
1943.)
5)Argument in Support : According to the Golden State Bail
Agents Association , "GSBAA supports AB 605 because it will
protect public safety by sending convicted sex offenders back
to state prison if they have shown that they are not able to
obey the conditions of their PRCS release. These offenders
are a danger to public safety because they have demonstrated
that they are not amenable to rehabilitation or supervision.
"Further, recent scandals have revealed that county probation
departments are overwhelmed by their responsibility to
supervise the thousands of persons subject to PRCS that they
are now required to supervise under realignment law."
6)Argument in Opposition : According to the American Civil
Liberties Union , "Under current law, any person who is on
either state parole, under specified circumstances, or PRCS is
supervised by county departments of probation. If he or she
violates the terms and conditions of release, he or she may be
sentenced to county jail for a period of up to one hundred
eighty days. (Cal. Penal Code � 3455, subd. (d).)
Additionally, if he or she commits a new crime, the district
attorney may file new charges and if convicted, the defendant
will be sentenced in accordance with the new charge.
"This bill would specify that any person, who has previously
been convicted of a registerable offense, must be returned to
prison for any violation, without reference to when he or she
was convicted of the registerable offense, or what type of
violation he or she is facing. 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
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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 commits a new crime, he or she can be
charged with the new crime. If said crime is a state prison
felony, he or she will be returned to state prison, without
reference to his or her status on PRCS."
7)Related Legislation :
a) AB 2 (Morrell) requires a person who violates the
conditions of parole or of PRCS by failing to fulfill
sex-offender registration requirements to serve time for
the violation in prison rather than in the county jail. AB
2 failed passage in this Committee, and pending a motion
for reconsideration.
b) AB 601 (Eggman) authorizes a court upon revocation of
parole to commit the person to state prison for one year.
AB 601 is pending hearing by this Committee.
c) AB 1065 (Holden) requires any person released from state
prison 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
hearing by this Committee.
d) AB 1334 (Conway) requires all offenders released from
prison who have a current or prior conviction for an
offense requiring sex-offender registration, or a juvenile
adjudication requiring sex-offender registration, be
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subject to parole supervision by CDCR. AB 1334 is pending
hearing by this Committee.
e) SB 57 (Lieu) states legislative intent to enact
legislation that addresses the removal and disablement of
global-positioning-system monitoring devices by parolees
and probationers. SB 57 is pending hearing by the Senate
Public Safety Committee.
f) 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, or a
prior or current crime requiring sex-offender registration.
SB 287 is pending hearing by the Senate Public Safety
Committee.
g) 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 hearing
by the Senate Public Safety Committee.
8)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 District Attorneys Association
Capitol Resources Institute
Golden State Bail Agents Association
Opposition
American Civil Liberties Union
California Attorneys for Criminal Justice
California Public Defenders Association
Friends Committee on Legislation of California
AB 605
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Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744