BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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AB 986 (Bradford)
As Amended May 15, 2013
Hearing date: June 18, 2013
Penal Code
AA:mc
CITY JAILS:
"FLASH" INCARCERATION
HISTORY
Source: California Police Chiefs Association
Prior Legislation: AB 109 (Committee on Budget) - Ch. 15, Stats.
2011
AB 117 (Committee on Budget) - Ch. 39, Stats. 2011
ABx1 17 (Blumenfield) - Ch. 12, Stats. 2011
AB 116 (Committee on Budget) - Ch. 136, Stats. 2011
Support: Unknown
Opposition:None known
Assembly Floor Vote: Ayes 74 - Noes 0
KEY ISSUE
SHOULD THE DEFINITION OF "FLASH INCARCERATION" BE REVISED TO INCLUDE
A REFERENCE TO "CITY" JAILS?
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AB 986 (Bradford)
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PURPOSE
The purpose of this bill is to revise the definition of "flash
incarceration," which currently is defined to include a period
of detention in a county jail, to include city jails.
Current law generally authorizes the use of a penalty known as
"flash incarceration"<1> for felons who have been released from
prison, are subject to supervision by state parole or county
probation, and are believed to have violated a condition of
their supervision. (Penal Code
�� 3008.8; 3450.)
Current law specifically authorizes county agencies responsible
for supervising persons subject to postrelease community
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<1> Current law, as enacted by the criminal justice realignment
of 2011, includes legislative findings and declarations which,
among other things, defines "community-based punishment" to mean
"evidence-based correctional sanctions and programming
encompassing a range of custodial and noncustodial responses to
criminal or noncompliant offender activity. Intermediate
sanctions may be provided by local public safety entities
directly or through public or private correctional service
providers and include, but are not limited to, the following: .
. . Short-term 'flash' incarceration in jail for a period of not
more than 10 days. . . ." (Penal Code � 3450.)
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AB 986 (Bradford)
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supervision<2> ("PRCS") to:
. . . determine and order appropriate responses to
alleged violations, which can include, but shall not
be limited to, immediate, structured, and intermediate
sanctions up to and including referral to a reentry
court . . . , or flash incarceration in a county jail.
Periods of flash incarceration are encouraged as one
method of punishment for violations of an offender's
condition of postrelease supervision.
(c) " Flash incarceration " is a period of detention in
county jail due to a violation of an offender's
conditions of postrelease supervision. The length of
the detention period can range between one and 10
consecutive days. Flash incarceration is a tool that
may be used by each county agency responsible for
postrelease supervision. Shorter, but if necessary
more frequent, periods of detention for violations of
an offender's postrelease supervision conditions shall
appropriately punish an offender while preventing the
disruption in a work or home establishment that
typically arises from longer term revocations. (Penal
Code � 3454(b) and (c) (emphasis added).)
Current law also authorizes this use of flash incarceration on
parolees, who are supervised by state parole. (See Penal Code �
3008.08 (d), (e) and (f).)
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<2> "Postrelease Community Supervision ("PRCS") generally
provides that certain felons released from prison "shall, upon
release from prison and for a period not exceeding three years
immediately following release, be subject to community
supervision provided by a county agency designated by each
county's board of supervisors which is consistent with
evidence-based practices, including, but not limited to,
supervision policies, procedures, programs, and practices
demonstrated by scientific research to reduce recidivism among
individuals under postrelease supervision." (Penal Code �
3451.)
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This bill would revise the definition of "flash incarceration"
to include a period of detention in a city jail.
This bill would make additional non-substantive changes to the
code, as specified.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
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Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy known as "ROCA" (which
stands for "Receivership/ Overcrowding Crisis Aggravation"), the
Committee held measures which created a new felony, expanded the
scope or penalty of an existing felony, or otherwise increased
the application of a felony in a manner which could exacerbate
the prison overcrowding crisis. Under these principles, ROCA
was applied as a content-neutral, provisional measure necessary
to ensure that the Legislature did not erode progress towards
reducing prison overcrowding by passing legislation which would
increase the prison population. ROCA necessitated many hard and
difficult decisions for the Committee.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order issued by the Three-Judge Court three years
earlier to reduce the state's prison population to 137.5 percent
of design capacity. The State submitted in part that the, ". .
. population in the State's 33 prisons has been reduced by over
24,000 inmates since October 2011 when public safety realignment
went into effect, by more than 36,000 inmates compared to the
2008 population . . . , and by nearly 42,000 inmates since 2006
. . . ." Plaintiffs, who opposed the state's motion, argue in
part that, "California prisons, which currently average 150% of
capacity, and reach as high as 185% of capacity at one prison,
continue to deliver health care that is constitutionally
deficient." In an order dated January 29, 2013, the federal
court granted the state a six-month extension to achieve the
137.5 % prisoner population cap by December 31st of this year.
In an order dated April 11, 2013, the Three-Judge Court denied
the state's motions, and ordered the state of California to
"immediately take all steps necessary to comply with this
Court's . . . Order . . . requiring defendants to reduce overall
prison population to 137.5% design capacity by December 31,
2013."
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The ongoing litigation indicates that prison capacity and
related issues concerning conditions of confinement remain
unresolved. However, in light of the real gains in reducing the
prison population that have been made, although even greater
reductions are required by the court, the Committee will review
each ROCA bill with more flexible consideration. The following
questions will inform this consideration:
whether a measure erodes realignment;
whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
whether a bill corrects a constitutional infirmity or
legislative drafting error;
whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and
whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Stated Need for This Bill
The author states:
"Flash incarceration" is an effective tool for local
law enforcement to temporarily detain an offender who
violates the conditions of his/her postrelease
supervision. Periods of flash incarceration are
encouraged as one method of punishment for violations
of an offender's condition of postrelease supervision.
The length of the detention period can range between
one and 10 consecutive days, depending on what is
deemed appropriate by the responsible county agency.
Flash incarceration is, of course, subject to bed
availability in the county jail.
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After the Legislature passed AB 109, the Criminal
Justice Realignment Act of 2011, the population in
county jails dramatically increased. As a result,
county agencies haven't been able to flash incarcerate
individuals in violation of the conditions of their
postrelease supervision simply because there aren't
enough beds.
This bill would allow city jails to be used for flash
incarceration in cases where an offender violates
conditions of his/her postrelease supervision.
2. What This Bill Would Do
This bill would make what appears to be a technical amendment to
current law by revising the definition of "flash incarceration"
to include periods of detention in a city jail. As currently
drafted, the statutory language is limited to county jails.
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