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  




          ---------------------------
          <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).) 

          ---------------------------
          <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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                                                          AB 986 (Bradford)
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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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                                                          AB 986 (Bradford)
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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.













                                                          AB 986 (Bradford)
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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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