BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
5
7
SB 57 (Lieu)
As Amended February 11, 2013
Hearing date: April 23, 2013
Penal Code
AA:mc
SUPERVISED FELONS:
ELECTRONIC AND GPS MONITORING
HISTORY
Source: California State Sheriffs' Association
Prior Legislation: SB 566 (Hollingsworth) -held in Senate Public
Safety, 2009
SB 1203 (G. Runner) - failed in Assembly Public
Safety, 2008
AB 2417 (S. Runner) - never set for hearing, 2008
Proposition 83 - November 2006 General Election
Support: Fontana Police Officers Association; Crime Victims
United of California; Kern County Board of Supervisors;
Golden State Bail Agents Association; California Narcotic
Officers Association; California Police Chiefs Association; Los
Angeles Police Protective League; Los Angeles Probation
Officers Union, AFSCME, Local 685; Riverside Sheriffs'
Association; Association for Los Angeles Deputy Sheriffs;
Fresno Chief of Police; Avenal Chief of Police; Fresno County
Sheriff; Coalinga Chief of Police; Kings County Sheriff;
California District Attorneys Association; Crime Victims
Action Alliance;
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Opposition:American Civil Liberties Union; Friends Committee on
Legislation; California Public Defenders Association;
California Attorneys for Criminal Justice; Taxpayers
for Improving Public Safety; Legal Services for
Prisoners with Children
KEY ISSUE
SHOULD IT BE A FELONY FOR FELONS TO WILLFULLY DEFEAT GPS/ELECTRONIC
MONITORING ATTACHED TO THEM AS A CONDITION OF THEIR COMMUNITY
SUPERVISION, AS SPECIFIED?
PURPOSE
The purpose of this bill is to enact new felony crimes for
felons being supervised in the community - either on parole or
postrelease community supervision - who willfully defeat their
GPS/electronic monitoring, as specified.
Parole
Current law generally provides for a period of post-prison
supervision immediately following a period of incarceration in
state prison. (Penal Code � 3000 et seq.)
Current law generally provides that persons released from state
prison on or after October 1, 2011, for any of the following
crimes are subject to parole supervision by the Department of
Corrections and Rehabilitation (CDCR):
1) A serious felony as described in subdivision (c) of
Section 1192.7.
2) A violent felony as described in subdivision (c) of
Section 667.5.
3) A crime for which the person has been sentenced to a
life term under the 3-strikes law.
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4) Any crime where the person eligible for release from
prison is classified as a High Risk Sex Offender.
5) Any crime where the person is required, as a condition
of parole, to undergo treatment by the Department of Mental
Health as a mentally ill offender.
6) Any felony committed while the person was on
parole for a period exceeding three years where the
person was required to register as a sex offender or was
subject to parole for life, as specified. (Penal Code �
3000.08; see also Penal Code � 3451(b).)
Current law provides that every "inmate who has been convicted
for any felony violation of a 'registerable sex offense' . . .
or any attempt to commit any of the above-mentioned offenses and
who is committed to prison and released on parole . . . shall be
monitored by a global positioning system for the term of his or
her parole, or for the duration or any remaining part thereof,
whichever period of time is less." (Penal Code � 3000.07(a).)
Inmates released on parole pursuant to this section shall be
required to pay for the costs associated with the monitoring by
a global positioning system, subject to waiver by CDCR upon a
finding of an inability to pay, as specified. (Penal Code �
3000.07(c).)<1>
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<1> Current statute also provides, as enacted by Proposition
83 of 2006, that every "inmate who has been convicted for any
felony violation of a "registerable sex offense" . . . or any
attempt to commit (one of the enumerated sex offenses) and who
is committed to prison and released on parole . . . shall be
monitored by a global positioning system for life." (Penal Code
� 3004(b).) Any inmate released on parole subject to this
provision "shall be required to pay for the costs associated
with the monitoring by a global positioning system. However,
the Department of Corrections and Rehabilitation shall waive any
or all of that payment upon a finding of an inability to pay.
The department shall consider any remaining amounts the inmate
has been ordered to pay in fines, assessments and restitution
fines, fees, and orders, and shall give priority to the payment
of those items before requiring that the inmate pay for the
global positioning monitoring." (Penal Code � 3004(c).)
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Current law authorizes CDCR to "utilize continuous electronic
monitoring to electronically monitor the whereabouts of persons
on parole, . . .", as specified. (Penal Code � 3010.)
Current law provides that, "Whenever a parole officer
supervising an individual has reasonable cause to believe that
the individual is not complying with the rules or conditions set
forth for the use of continuous electronic monitoring as a
supervision tool, the officer supervising the individual may,
without a warrant of arrest, take the individual into custody
for a violation of parole. (Penal Code � 3010.7.)
Current law authorizes parole to "impose additional and
appropriate conditions of supervision," upon a finding of good
cause that the parolee has committed a violation of law or
violated his or her conditions of parole; those may include
"rehabilitation and treatment services and appropriate
incentives for compliance, and impose immediate, structured, and
intermediate sanctions for parole violations, including flash
incarceration in a county jail. . . . 'Flash incarceration' is
a period of detention in county jail due to a violation of a
parolee's conditions of parole. The length of the detention
period can range between one and 10 consecutive days. Shorter,
but if necessary more frequent, periods of detention for
violations of a parolee's conditions of parole shall
appropriately punish a parolee while preventing the disruption
in a work or home establishment that typically arises from
longer periods of detention." (Penal Code � 3000.08(d).)
Current law further authorizes the following sanctions for
parole violations, as specified:
(1) Return the person to parole supervision with
modifications of conditions, if
appropriate, including a period of incarceration in county jail.
(2) Revoke parole and order the person to confinement in
the county jail.
(3) Refer the person to a reentry court pursuant to Section
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3015 or other evidence-based program in the court's discretion.
(g) Confinement shall not exceed a period of 180 days in
the county jail. (Penal Code � 3000.08(f).)
This bill would provide that a person who willfully removes or
disables, or willfully permits another to remove or disable, an
electronic, global positioning system (GPS), or other monitoring
device affixed to his or her person, knowing that the device was
affixed as a condition of parole, is guilty of a felony,
punishable by imprisonment in the state prison for 16 months,
two years, or three years.
This bill would provide that a person who willfully removes or
disables an electronic, GPS, or other monitoring device affixed
to the person of another, knowing that the device was affixed as
a condition of parole, is guilty of a felony, punishable by
imprisonment in the state prison for 16 months, two years, or
three years.
This bill would exclude from these provisions the removal or
disabling of an electronic, GPS, or other monitoring device by a
physician, emergency medical services technician, or by any
other emergency response or medical personnel when doing so is
necessary during the course of medical treatment of the person
subject to the electronic, GPS, or other monitoring device.
This bill also would exclude from these provisions instances
where the removal or disabling of the electronic, GPS, or other
monitoring device is authorized or required by a court, or by
the law enforcement, probation, parole authority, or other
entity responsible for placing the electronic, GPS, or other
monitoring device upon the person, or that has, at the time, the
authority and responsibility to monitor the electronic, GPS, or
other monitoring device.
Postrelease Community Supervision
Current law , enacted as part of the 2011 realignment legislation
addressing public safety, includes the "Postrelease Community
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Supervision Act of 2011," ("PRCS") as specified. (Penal Code �
3450 et seq.)
Under current law , PRCS generally provides that certain felons
released from prison on and after October 1, 2011, "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." Under current law ,
felons released from prison after having served a prison term
for any of the crimes described above are ineligible for PRCS,
and therefore subject to supervision by state parole. (Penal
Code � 3451 (a).)
Current law authorizes county agencies responsible for
supervising persons subject to PRCS to "determine additional
appropriate conditions of supervision . . . consistent with
public safety, including the use of continuous electronic
monitoring . . . , order the provision of appropriate
rehabilitation and treatment services, determine appropriate
incentives, and 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. . . . '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
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establishment that typically arises from longer term
revocations." (Penal Code � 3454(b) and (c).)
Current law further authorizes the following sanctions for PRCS
violations, as specified:
(1) Return the person to postrelease community supervision
with modifications of
conditions, if appropriate, including a period of incarceration
in county jail.
(2) Revoke and terminate postrelease community supervision
and order the person to confinement in the county jail.
(3) Refer the person to a reentry court pursuant to Section
3015 or other evidence-based program in the court's discretion.
(Penal Code � 3455(a).)
Current law provides that confinement sanctions shall not exceed
a period of 180 days in the county jail for each custodial
sanction. (Penal Code � 3455(d).)
This bill would provide that a person who willfully removes or
disables, or willfully permits another to remove or disable, an
electronic, global positioning system (GPS), or other monitoring
device affixed to his or her person, knowing that the device was
affixed as a condition of postrelease community supervision, is
guilty of a felony, punishable by imprisonment in the state
prison for 16 months, two years, or three years.
This bill would provide that a person who willfully removes or
disables an electronic, GPS, or other monitoring device affixed
to the person of another, knowing that the device was affixed as
a condition of postrelease community supervision, is guilty of a
felony, punishable by imprisonment in the state prison for 16
months, two years, or three years.
This bill would exclude from these provisions the removal or
disabling of an electronic, GPS, or other monitoring device by a
physician, emergency medical services technician, or by any
other emergency response or medical personnel when doing so is
necessary during the course of medical treatment of the person
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subject to the electronic, GPS, or other monitoring device.
This bill also would exclude from these provisions the removal
or disabling of the electronic, GPS, or other monitoring device
is authorized or required by a court of law, or by the law
enforcement, probation, parole authority, or other entity
responsible for placing the electronic, GPS, or other monitoring
device upon the person, or that has, at the time, the authority
and responsibility to monitor the electronic, GPS, or other
monitoring device.
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.
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
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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."
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
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reasonable, appropriate remedy.
COMMENTS
1. Stated Need for This Bill
The author states in part:
Over the last few years, an alarming increase of
parolees monitored by GPS, including high-risk sex
offenders and gang members have removed or disabled
their electronic global positioning system monitoring
devices. In many instances, these offenders have
committed new crimes, including sexual battery,
kidnapping and attempted manslaughter.
These documented increases jeopardize the entire GPS
monitoring system and put the program at risk of
failure if parolees are not deterred from disabling
their tracking devices. GPS supervision is not only
an important tool used to monitor sex offenders; it
has also been shown to reduce recidivism, reduce crime
and save taxpayer dollars, according to a study funded
by the U.S. Department of Justice.
Senate Bill 57 seeks to deter parolees from cutting
off their GPS bracelets in order to reduce the risks
of offenders committing new violent crimes.
. . .
Prior to the 2011 public safety realignment, sex
offenders and other parolees who violate parole were
returned to state prison for up to a year. However,
realignment moved parole violators from state prison
to county jails to be held for not longer than 180
days. Since removal of a GPS device is not considered
a crime, and pursuant to existing policy of the Board
of Parole Hearings, an offender is not held for 180
days.
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By changing where these parole violators are housed,
an unintended consequence was created as it relates to
GPS monitoring. Where previously these sex offenders
would return to state prison, and depending on the
county, these offenders are released without a
significant period of incarceration. In short, the
deficiency in existing law is that removal of a GPS
device does not constitute a crime and, as such, does
not deter an offender from removing the device again.
. . . By making cutting GPS ankle-bracelets a new
crime, which carries the possibility of imprisonment
in the state prison, offenders will be deterred from
removing the devices and, consequently, will reduce
the incidents of offenders committing new crimes,
which could lead to even longer stays in prison than
the term being sought by SB 57.
2. What This Bill Would Do
As explained in detail above, this bill would enact new felony
crimes for felons being supervised in the community - either on
parole or postrelease community supervision ("PRCS") - who
willfully defeats their GPS/electronic monitoring. This bill
applies to all parolees and felons subject to postrelease
community supervision. The penalties under this bill in
summary:
16 months/2/3 year prison term: the person willfully
removes or disables, or willfully permits another to, a
GPS/electronic monitoring device they knew was affixed as a
condition of parole.
16 months/2/3 year prison term: the person willfully
removes or disables, or willfully permits another to, a
GPS/electronic monitoring device affixed to another person
knowing it was affixed as a condition of parole.
16 months/2/3 year prison term: the person willfully
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removes or disables, or willfully permits another to, a
GPS/electronic monitoring device they knew was affixed as a
condition of PRCS.
16 months/2/3 year prison term: the person willfully
removes or disables, or willfully permits another to, a
GPS/electronic monitoring device affixed to another person
knowing it was affixed as a condition of PRCS.
The bill excludes from these crimes persons who remove these
devices for medical reasons, or are otherwise authorized to
remove them, as specified.
3. Public Safety Realignment of 2011; Considerations for This
Bill
Realignment made changes in how felons coming out of prison are
supervised in the community. Realignment generally provides
that post-prison supervision for felons is the responsibility of
parole or probation; whether a felon newly-released from prison
is supervised by state parole or county probation (under
postrelease community supervision ["PRCS"]) generally depends
upon the crime that sent them to prison or other factors.<2>
Custody sanctions for PRCS violations are served in county jail.
No person who is on PRCS may be returned to prison for a
violation of any condition of the person's postrelease
supervision agreement.<3> Similarly, no person who is on parole
for less than life may be returned to prison for a violation of
any condition of the person's parole.<4>
With respect to parole violators, who are the subject of this
bill, the Governor's Budget Summary for 2011-2012 describes the
administration's reasoning for realignments provisions limiting
the return of parole violators to state prison:
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<2> Penal Code � 3000.08; see also Penal Code � 3451(b).
<3> Penal Code � 3458. This limitation applies solely to PRCS
violations, and does not apply to a conviction for a new felony
offense.
<4> Penal Code � 3000.08.
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The large number of shortterm, lowerlevel offenders
and parole violators in prison has resulted in
overloaded reception centers, inefficient prison
operations, and difficulties with rehabilitation
efforts. . . . <5>
The February 2013 analysis of the Governor's budget proposals
provided by the Legislative Analyst's Office includes the
following background regarding projections concerning
California's prison population:
The average daily prison population is projected to be
about 129,000 inmates
in 2013-14, a decline of roughly 3,600 inmates (3
percent) from the estimated current-year level. This
decline is largely due to the 2011realignment of
lower-level felons from state to local responsibility.
Although decreasing, the projected
inmate population for 2013-14 is still about 3,200
inmates higher than was projected by CDCR in spring
2012. According to the department, this is due in part
to higher-than-expected admissions to state prison.<6>
As noted above, on April 11th of this year, the federal court
reasserted its order that California reduce its prison
population to 137.5 percent of capacity by the end of this year.
With respect to prison population , members may wish to consider
the following questions:
How would this bill affect the prison population?
How would this bill affect the ongoing federal
litigation described above and, in particular, the ability
of the state to meet the court orders concerning reductions
in California's prison population?
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<5>
http://2011-12.archives.ebudget.ca.gov/pdf/BudgetSummary/Correcti
onsandRehabilitation.pdf.
<6> LAO, The 2013-14 Budget: Governor's Criminal Justice
Proposals (Feb. 15, 2013.)
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The California State Sheriffs' Association, which is the sponsor
of this bill, submits:
CSSA recognizes that creating a new crime resulting in
incarceration in state prison is counter to the
current federal court order demanding that CDCR reduce
its prison population. However, the use of GPS as
part of formal supervision, as indicated by the
National Institute of Justice report Monitoring
High-Risk Sex Offenders with GPS Technology: An
Evaluation of the California Supervision Program has
been shown, when applied properly, to reduce incidents
of new crimes. However, offenders will not wear GPS
bracelets if there is little or no consequence to
cutting them off, which is evident by the increased
numbers of violations reported since Realignment
began. If there is no deterrence to cutting off GPS,
then the behavior of an offender will not change, and
the resulting crimes committed by a non-compliant
high-risk sex offender, in addition to creating new
victims, will result in punishment in a state prison
that far exceeds the punishment provided by Senate
Bill 57.
As part of realignment the state shifted certain revenues to
local governments. As explained by the LAO:
. . . (T)he 2011-12 budget package included statutory
changes to realign several criminal justice and other
programs from state responsibility to local
governments, primarily counties. Along with the
shift-or realignment-of programs, state law realigned
revenues to locals. Specifically, current law shifts
a share of the state sales tax, as well as Vehicle
License Fee revenue, to local governments. The
passage of Proposition 30 by voters in November 2012,
among other changes, guaranteed these revenues to
local governments in the future. The Governor's
budget includes an estimate of revenues projected to
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go to local governments over the next few years.
These estimates are generally in line with prior
estimates. . . . (T)otal funding for the criminal
justice programs realigned is expected to increase
from $1.4 billion in 2011-12 to $2.2 billion in
2013-14.<7>
This bill does not make any changes to the funding realigned
pursuant to realignment and guaranteed to local governments by
Proposition 30. Members may wish to discuss the fiscal
implications of "re-realigning" some of the parole and
postrelease community supervision violators who are now subject
to incarceration at the local level back to the state without a
readjustment to the revenue shifts that were part of
realignment, as well as the following questions:
Would this bill establish an effective deterrent to
violating GPS parole conditions?
What are the implications of this bill with respect to
the fiscal guarantees assured in Proposition 30, passed
last November?
What are the implications of this bill with respect to
the state's General Fund?
4. Reports, Data and Information Concerning Sex Offenders and
GPS/Electronic Monitoring
For the last several months there have been a number of news
reports regarding the number of sex offender parolees removing
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<7> Id.
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or disarming their GPS.<8> Many of these reports describe
parolees who were released from local custody before having
fully served their ordered sanctions for parole violations.<9>
A particularly disturbing case in San Joaquin County involves a
parolee who had been sanctioned with jail time and released
early from jail several times - and after the last time
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<8> For example, in February of this year, the Los Angeles
Times reported, "Thousands of paroled child molesters, rapists
and other high-risk sex offenders in California are removing or
disarming their court-ordered GPS tracking devices - and some
have been charged with new crimes including sexual battery,
kidnapping and attempted manslaughter. The offenders have
discovered that they can disable the monitors, often with little
risk of serving time for it, a Times investigation has found.
The jails are too full to hold them. "It's a huge problem,"
said Fresno parole agent Matt Hill. "If the public knew, they'd
be shocked." More than 3,400 arrest warrants for GPS
tamperers have been issued since October 2011, when the state
began referring parole violators to county jails instead of
returning them to its packed prisons. Warrants increased 28% in
2012 compared to the 12 months before the change in custody
began. Nearly all of the warrants were for sex offenders, who
are the vast majority of convicts with monitors, and many were
for repeat violations." Paige St. John, Los Angeles Times,
Paroled sex offenders disarming tracking devices (Feb. 23,
2013).
<9> "Before prison realignment took effect, sex offenders who
breached parole remained behind bars, awaiting hearings that
could send them back to prison for up to a year. Now, the
maximum penalty is 180 days in jail, but many never serve that
time. With so little deterrent, parolees "certainly are
feeling more bold," said Jack Wallace, an executive at the
California Sex Offender Management Board. . . . Arrest
warrants for GPS tamperers are automatically published online.
The Times reviewed that data as well as thousands of jail logs,
court documents and criminal histories provided by confidential
sources. The records show that the way authorities handle
violators can vary significantly by county. San Bernardino
County releases more inmates early from its cramped jails than
any other county in California, according to state reports. But
sex offenders who violate parole there generally serve their
terms. . . . By contrast, parole violators in San Joaquin
County are often set free within a day of arrest.
A review of the county's jail logs shows that nine of the 15 sex
offenders arrested for violating parole in December and January
were let out within 24 hours, including seven who immediately
tampered with their trackers and disappeared. . . . Id.
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allegedly murdered his grandmother.<10>
A snapshot of the CDCR parolee population data shows that on
December 31, 2012, there were 58,656 parolees.<11> Of those,
9,756 - 16.6 percent - were required to register as sex
offenders.
CDCR has assembled data describing both the number of sex
offender parolees for whom one or more warrants have been sought
for absconding, and the number of warrants issued for this
population. The number of warrants exceeds the number of
parolees because one parolee can generate multiple warrants.
GPS tampering or disabling is implied in the data for warrants
issued for sex offender parolees believed to have absconded. In
addition, this data includes warrants which were rescinded. In
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<10> "Deputy District Attorney Sherri Adams said DeAvila is a
sex offender and has been in and out of jail on parole
violations between five and 11 times over the past year.
More recently, he was released from jail early on his own
recognizance on Feb. 20, one day after pleading guilty to
charges of failing to register as a sex offender and being
sentenced to serve 30 days in jail. . . . DeAvila was
released on a court cap, a mandate to reduce jail population
when it reaches capacity. Under the current local justice
system, inmates are considered for release based on the current
charge - not necessarily on their criminal history. This is why
the county is trying to establish a system that would allow
corrections staff and judges to look at offenders' backgrounds
to determine whether they should be released. "We're
governed by the court cap," (a sheriff's office representative)
said. "And that's one of the reasons the sheriff is pushing for
the new jail to provide more space to have the ability to hold
more prisoners." Jennie Rodriguez-Moore, Stockton Record,
Prosecutors: Man Raped, Killed Grandmother (March 1, 2013).
<11> Dept. of Corrections and Rehabilitation, Parole Census
Data as of December 31, 2012,
(http://www.cdcr.ca.gov/Reports_Research/Offender_Information_Ser
vices_Branch/Annual/PCensus1 /PCENSUS1d1212.pdf.
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other words, the warrant data reflects a "zero tolerance"
approach to sex offender parolees, where agents issue warrants
immediately when contact with a parolee is broken. Thus, the
warrant data available for estimating the number of sex offender
parolees who are violating their GPS conditions includes cases
where, for example, a warrant was rescinded because the agent
determines the parolee had a reasonable explanation for the
break in contact (i.e. a device got wet, the parolee was in a
location where the signal was temporarily blocked, etcetera).
The available data suggests that while the overall rate of sex
offender parolees for whom a warrant for absconding has been
sought increased slightly between 2011 and 2012, the total
number of warrants generated by these parolees appears to have
gone up significantly during the same timeframe. Over the past
three years, more than 92 percent of sex offender absconders
have been located and the median number of days these parolees
are at large is 12.
The following chart shows the number of sex offender parolees
for whom warrants have been issued for absconding over the past
three years as a rate based on the average annual sex offender
parolee population for each of those years.<12> Based on this
data it appears that, while the numbers of sex offender parolees
generating warrants for absconding has increased somewhat, the
actual rate has been relatively stable:
Rates - Warrants Issued for Absconding Sex Offender Parolees
-------------------------------------------------------------------
| Year | 2010 | 2011 | 2012 |
|----------------+----------------+----------------+----------------|
| Average Sex | 8,543 | 9,674 | 10,076 |
| Offender | | | |
| Parolee | | | |
| Population | | | |
|----------------+----------------+----------------+----------------|
---------------------------
<12> Dept. of Corrections and Rehabilitation, Parole Census
Data as of December 31, 2010, 2011, and 2012.
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| No. of Sex | | | |
| Offenders for | 1,821 | 1,995 | 2,276 |
|Whom Absconding | | | |
| Warrants were | | | |
| Sought | | | |
|----------------+----------------+----------------+----------------|
| As a rate of | 21.3% | 20.6% |22.6% |
| total sex | | | |
| offender | | | |
| parolees | | | |
-------------------------------------------------------------------
In contrast, the annual data for the number of warrants sought
for sex offender parolees has increased significantly between
2011 and 2012.
Rates - Total Number of Warrants Sought for Absconding Sex
Offender Parolees
-------------------------------------------------------------------
| Year | 2010 | 2011 | 2012 |
|----------------+----------------+----------------+----------------|
| Average Sex | 8,543 | 9,674 | 10,076 |
| Offender | | | |
| Parolee | | | |
| Population | | | |
|----------------+----------------+----------------+----------------|
|Total Number of | 2,351 | 2,672 | 4,153 |
| Absconding | | | |
| Warrants for | | | |
| Sex Offender | | | |
| Parolees | | | |
|----------------+----------------+----------------+----------------|
| As a rate of | 27.5% | 27.6% |41.2% |
| total sex | | | |
| offender | | | |
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| parolees | | | |
-------------------------------------------------------------------
The sex offender warrant data provided by CDCR suggests that not
all counties are facing the same levels with respect to sex
offender parolees for whom warrants have been sought for
absconding. The following chart provides a snapshot of this
data taken from December of 2010, 2011 and 2012 for selected
counties; this data reflects the number of warrants, not
individual parolees:
Total Number of Warrants Sought for Sex Offender Parolees
Believed to Have Absconded Select Counties, December
Snapshots<13>
--------------------------------------------------------------------------------------------------------
| | Dec. 2010 | Dec. 2010 | Dec. 2011 | Dec. 2011 | Dec. 2012 | Dec. 2012 |
| | Total Number | Number of | Total Number | Number of | Total Number | Number of |
| County | of Sex | Warrants | of Sex | Warrants | of Sex | Warrants |
| | Offender | Sought for | Offender | Sought for | Offender | Sought for |
| | Parolees | Absconding | Parolees | Absconding | Parolees | Absconding |
| | | Sex Off. | | Sex Off. | | Sex Off. |
| | | Parolees | | Parolees | | Parolees |
|--------------+--------------+--------------+--------------+--------------+--------------+--------------|
| Alameda | 483 | 12 (2.5%) | 616 | 12 (1.9%) | 590 | 9 (1.5%) |
|--------------+--------------+--------------+--------------+--------------+--------------+--------------|
| Fresno | 407 | 6 (1.5%) | 402 | 6 (1.5%) | 429 | 24 (5.6%) |
|--------------+--------------+--------------+--------------+--------------+--------------+--------------|
| Kern | 294 | 4 (1.4%) | 330 | 6 (1.8%) | 320 | 9 (2.8%) |
|--------------+--------------+--------------+--------------+--------------+--------------+--------------|
| Los Angeles | 2438 | 65 (2.6%) | 2,499 | 90 (3.6%) | 2,313 | 124 (5.4%) |
|--------------+--------------+--------------+--------------+--------------+--------------+--------------|
| Merced | 76 | 1 (1.3%) | 95 | 5 (5.3%) | 91 | 5 (5.5%) |
|--------------+--------------+--------------+--------------+--------------+--------------+--------------|
| Riverside | 683 | 16 (2.3%) | 735 | 15 (2%) | 668 | 13 (2%) |
|--------------+--------------+--------------+--------------+--------------+--------------+--------------|
| Sacramento | 695 | 11 (1.6%) | 867 | 20 (2.3%) | 806 | 24 (3%) |
|--------------+--------------+--------------+--------------+--------------+--------------+--------------|
---------------------------
<13> Id.
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| San | 642 | 23 (3.6%) | 795 | 27 (3.4%) | 771 | 20 (2.6%) |
| Bernardino | | | | | | |
|--------------+--------------+--------------+--------------+--------------+--------------+--------------|
| San Diego | 566 | 7 (1.2%) | 654 | 18 (2.7%) | 658 | 15 (2.3%) |
|--------------+--------------+--------------+--------------+--------------+--------------+--------------|
| San Joaquin | 263 | 4 (1.5%) | 256 | 11 (4.3%) | 259 |16 |
| | | | | | |(6%) |
--------------------------------------------------------------------------------------------------------
In addition to the data from CDCR, Committee staff asked the
Board of Parole Hearings for information that might further
illuminate incidents involving sex offender parolees defeating
the GPS devices they are required to wear as a special condition
of parole. The BPH data shows that the number of new GPS
violation charges for sex offender parolees initiated prior to
serving time in custody - in other words, new charges that
occurred when they should have been serving time for an earlier
violation -- has increased after realignment, from 99 cases in
the 15 months prior to realignment to 495 cases in the 15 months
following the start date of realignment.<14>
There was a similar increase reflected in the BPH data for cases
of sex offender parolees with absconding charges. The number of
new absconding cases initiated prior to serving 50% of ordered
return-to-custody time was 87 cases in the 15 months prior to
realignment, and 617 cases in the 15 months following its
enactment. This data suggests an increase in the number of
these parolees committing these violations during a time they
should have been in jail on earlier custody orders in the 15
months following the start of realignment.<15>
---------------------------
<14> The BPH data reflects only those parolees against whom a
revocation proceeding was initiated with the board; it does not
include parolees who never had a case initiated (i.e., absconded
and has not been located, warrant rescinded without parole
revocation charges being referred to the board, etcetera).
<15> This data reflects parolees required to register as sex
offenders (290 registrants) charged with an absconding parole
violation.
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Members may wish to consider how the information summarized
above informs the policy questions raised by this bill,
including the following notable features:
The percentage of sex offender parolees for whom
warrants for absconding have been issued over the past
three years appear to be relatively stable (a difference of
1.3 % between 2010 and 2012). In contrast, the total
number of these warrants has increased in both raw numbers
and as a percentage of the total sex offender parolee
population (13.7% between 2010 and 2012). Members may wish
to discuss whether this suggests that while the rate of sex
offenders parolees committing these violations has not
increased a lot, the number of sex offender parolees who
repeatedly commit these violations has increased and, if
so, why.
The BPH data suggests that many more sex offender
parolees may be committing the kinds of violations of
concern - GPS and absconding violations - during a time
when they should have been in jail for an earlier
violation. To what extent is the release of these
violators prior to serving their full custodial sanction
causing an increase in GPS violations?
Some counties stand out as facing an increase in the
number of absconding warrants for these offenders. Why?
In an effort to further understand the practices and
circumstances facing some counties with respect to managing
parolees who have been sanctioned with jail time for parole
violations, the Chair of this Committee sent a letter of inquiry
to the sheriff and presiding judge of San Joaquin County asking
for more information about how San Joaquin County manages its
jail inmate population. As noted above, San Joaquin stands out
as a county which appears to have experienced a greater number
of absconding warrants for this population in the last year.
In a letter dated March 27, 2013, Sheriff Moore responded to
this inquiry. Sheriff Moore explained that the county has
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operated under a Superior Court Consent Decree capping its jail
population since 1983, and that since 1993 the Pre-Trial
Services program operated through the county's probation
department has made felony release determinations under the
auspices of the jail population court cap order. This program
does not use a risk assessment instrument. In addition, the
sheriff notes that there is no risk assessment tool used by the
sheriff's Population Management Unit or by the court when the
court must make "special releases" necessary beyond the court
consent decree.
An article published in the Stockton Record on March 12, 2013,
described San Joaquin's method of releasing pretrial inmates
early from jail as 'archaic,' according to a consultant who
encouraged officials to overhaul the system. The article further
stated:
To meet a court-mandated population cap, dozens of
jail inmates are released daily based on their current
charge only. Nowhere in the process of deciding whom
to set free is their risk to reoffend or skip town
before trial considered.
. . . Chief Probation Officer Stephanie James . . .
says officials are committed to making significant
changes.
An evaluation process that takes into account criminal
history and court attendance records is under way for
determining whether inmates are suitable for release
on their own recognizance.
"This isn't a program," James said. "We're reforming
the criminal justice system. That's really what we're
doing."
. . . Out of the jail's more than 1,400 inmates, only
20 percent are interviewed and assessed for public
safety risks during the court process. The probation
department has eight people handling these interviews.
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Then, there is another chance for inmates to be
released on their own recognizance at arraignment, but
local Superior Court judges don't have access to a
defendant's criminal history or flight risk
information.
James said the need for an overhaul became more
apparent with the enactment of realignment law AB109,
which added hundreds more inmates to the jail who
otherwise would have been sent back to prison.
"With so many people getting released early, jail is
not a meaningful consequence," James said.
A local committee on realignment has allocated
$370,000 of AB109 funds for pretrial services.
James' preliminary vision is that risk-assessment
printouts would be provided to judges.
. . . (T)oday's overpopulation leads to more early
releases or alternative incarceration, such as
electronic monitoring. It includes people arrested on
state parole violations, as AB109 shifted revocation
incarceration from state prison to local jail.
Offenders with technical violations are considered for
pretrial release before others.
For example, state parolee Jerome DeAvila was capped
out of jail after pleading guilty to a misdemeanor of
failing to register as a sex offender. About a week
later, he was arrested and charged with the rape and
murder of his 76-year-old grandmother.
James said it's too early to know how a new pretrial
services system will impact the court cap decree.
But the county's plan is to implement a comprehensive
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system that gives jail bed priority to the most
violent offenders, and a new pretrial process is part
of that. "We definitely need to move forward on
implementing it as quickly as we can," she said.
. . . Jail officials say they need more data on the
project, which is still in its infancy, to evaluate
the impact on the jail and the possible need for more
beds.
"It sounds like a project that we'll be extremely
interested in," said (a) . . . spokesman for the San
Joaquin County Sheriff's Office, which oversees the
jail. "But there has to be more details on how this is
going to work here in San Joaquin County." . . . .<16>
Members may wish to discuss how local jail population management
practices and circumstances impact decisions with respect to
holding sex offender parolee GPS violators for the full terms of
their return to custody orders, and whether these practices and
decisions are affecting the GPS violation trends among this
parolee population. In addition, members may wish to consider
how this bill would affect these local jail practices and
circumstances, and whether there are additional or other ways
the state can partner with local governments to promote the
effective management of these parolees.
TO WHAT EXTENT HAVE SEX OFFENDER PAROLEES ABSCONDED MORE OVER
THE PAST YEAR?
WHAT FACTORS ARE MOST LIKELY CONTRIBUTING TO A DESTABLIZATION OF
THIS PAROLEE POPULATION?
WILL THE REMEDY PROPOSED BY THIS BILL ADDRESS THESE FACTORS?
WILL THE REMEDY PROPOSED BY THIS BILL ERODE REALIGNMENT?
---------------------------
<16> Jennie Rodriguez-Moore, The Stockton Record, Consultants
recommend overhaul of county pretrial inmate releases (March 12,
2013).
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5. Sex Offender Management
The data suggests that while the overall percentage of sex
offender parolees for whom a warrant has been sought has
increased slightly, the number of warrants being issued has
increased significantly, which suggests individual sex offender
parolees are generating multiple warrants. Using absconding
warrants as a measure, it appears that roughly 20 percent of sex
offender parolees generate a warrant for absconding, both pre
and post-realignment. Members may wish to consider whether
incapacitation practices for this population - which the data
suggests has changed since realignment - is the main variable
underlying this change. Members also may wish to discuss why,
for this subset of sex offender parolees, the methods of
community supervision both before and after realignment have not
improved rates of compliance concerning GPS and whether, as
discussed below, greater implementation of the "Containment
Model" for sex offender management might improve this problem.
In 2006, the California Sex Offender Management Board was
created to "address any issues, concerns, and problems related
to the community management of adult sex offenders. The main
objective of the board, which shall be used to guide the board
in prioritizing resources and use of time, is to achieve safer
communities by reducing victimization."<17>
Since its creation, the Board has produced a number of
reports.<18> In January of 2010, the Board issued its
Recommendations Report, which included the following
observations about California's policies with respect to sex
offenders:
The reality in California is, rather than a coherent
and coordinated sex offender management system, the
state has multiple sex offender management strategies
created by various legislative, voter initiative and
----------------------
<17> Penal Code � 9002, enacted by AB 1015 (Chu and
Spitzer)(Ch. 338, Stats. 2006).
<18> See http://www.casomb.org/.
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executive branch actions with varied "mandates" and
very different funding requirements and funding
assurances. California's system of sex offender
management was created - for the most part - piece by
piece through separate and uncoordinated legislative
and administrative actions. Although various
components of the system have learned to work
together, the overall system could not be described as
coherent, cohesive and coordinated. . . .
Sexual crimes rightly outrage communities. The legacy
of sexual assault in the lives of victims is often
profound and long-lasting. In the aftermath of an
assault, communities often demand with great vehemence
that policymakers and public safety professionals DO
SOMETHING. The root of the desire to acknowledge the
serious nature of the crime is difficult to disparage
but, when combined with fear, misinformation and the
heat of media inquiry, the flame of community outrage
can create a political environment that rewards swift
action over more methodical, effective approaches. On
occasion, these swift approaches may address
short-term community outrage at the cost of directing
resources and skilled personnel away from investments
in strategies for long-term safety. . . .
Some of our most public and tragic sex offender
management failures have demonstrated the importance
of qualified, trained professionals working in concert
with other disciplines to identify emergent risks.
Tragedies are not averted because of a single data
point or tool, they are averted because qualified
professionals know how to interpret that data in
context, communicate with each other and respond
accordingly.
In a time of scarce resources, board members agree
that approaches that can demonstrate success should
take priority over those that are untested.
Furthermore, policymakers should insist on ongoing
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evaluation of sex offender management strategies to
ensure that quality is maintained and that new
approaches are effective.<19>
The Board stated in its January 2010 report that it "strongly
recommends that the sex offender management strategies
collectively known as the Containment Model be implemented
statewide."
The Containment Model has been identified by the
CASOMB as the best practice for community supervision
of sex offenders. While the Governor's High-Risk Sex
Offender Task Force and the CASOMB have endorsed
implementation of the Containment Model, it has not
been implemented in any uniform or continuous manner.
A few counties have their own version of the
Containment Model; most counties do not, nor does CDCR
use this model.
The Containment Model calls for a collaborative effort
of sex offender specific treatment providers, law
enforcement supervising agents such as probation
officers or parole agents, polygraphists providing
specialized testing as both a treatment and monitoring
tool and victim advocacy participants whenever
possible. The offender is supervised and overseen
within this context. If these aspects of containment
are not in place, efficacy is reduced. CDCR does not
use the Containment Model; there is no treatment being
funded and no polygraph testing being conducted. . . .
Supervision alone is not as effective as the full
Containment Model. Public safety would be increased
if the Containment Model were required throughout the
State for all sex offenders, whether on parole or
probation.<20>
The Board's January 2010 report summarized the Board's "Key
---------------------------
<19> California Sex Offender Management Board, Recommendations
Report January 2010, pp. 8-10.
<20> Id at 32-33 (emphasis added).
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Recommendations," including the following particularly pertinent
to the issues raised by this bill:
GPS monitoring should only be utilized in
conjunction with some form of community supervision,
with the understanding that some high-risk offenders
may need to be subject to extended supervision
(including lifetime supervision for exceptionally
high-risk offenders).
California should identify a more efficient method
of determining when a parole violation is related to
reoffense risk and appropriately triggers a clinical
reevaluation versus parole violations not related to
risk that should not require an additional evaluation
for parolees who have been previously evaluated and
rejected for the Sexually Violent Predator
Program.<21>
In a letter to the author of AB 1844 (Fletcher) ("Chelsea's
Law") in 2010, the Board made the following comments relating to
the supervision of sex offenders:
(N)either lifetime nor less-than-lifetime supervision
can be effective without implementation of the
Containment Model during probation or parole. Most
sex offenders, no matter how long their prison terms,
will be released back into the community, yet
California does not have an effective system for
monitoring sex offenders once released. To address
this, CASOMB has recommended adoption of the
Containment Model, which requires sex
offender-specific management programs to be provided
to all sex offenders on probation or parole, by
approved sex offender management professionals. . . .
Without the adoption of the full model, sex offenders
will continue to pose a greater risk after release,
with less chance of being flagged and closely
----------------------
<21> Recommendations Report, California Sex Offender
Management Board, pp. 5-6 (January 2010).
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monitored in appropriate cases. . . .<22>
As enacted into law in 2010, "Chelsea's Law" included the
foundational elements of the Containment Model described above.
In February of this year, the Board issued a report on Chelsea's
Law implementation. That report states in part:
In the 2010 Legislative Session, AB 1844, known as the
Chelsea King Child Predator Prevention Act, passed
both houses of the Legislature with bipartisan
support. It was signed into law by the Governor on
September 17, 2010. The Law made many changes to the
California Penal Code.
Of particular importance was the requirement that
after July 1, 2012, the terms of probation or parole
for all registered sex offenders under probation or
parole supervision in the community must include the
requirement to participate in and
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----------------------
<22>
http://www.cce.csus.edu/conferences/cdcr/casomb/docs/CASOMB%20Let
ter%20to%20Assemblyman%20
Fletcher.pdf.
complete an approved sex offender management program,
including sex offender-specific treatment and
polygraph examinations.
. . .
Chelsea's Law requires that CDCR develop control and
containment programming for all high risk sex
offenders. The Containment Model requires that
supervising agencies work collaboratively with the
treatment professionals who provide the mandated
specialized services to sex offenders on county
probation or state parole. There is to be, at a
minimum, monthly feedback to supervision officers
regarding each offender's progress in treatment and
any changes to dynamic risk factors or identified
risks to community safety. . . .<23>
The report concludes by emphasizing the importance of
leadership, training and collaboration among both state parole
and local probation in successfully implementing the Containment
Model.<24>
Members of the Committee and the author may wish to discuss how
the growing implementation of the Containment Model by the
Division of Parole Operations and probation might impact the
compliance of sex offenders on both parole and PRCS.
WILL THE CONTAINMENT MODEL, AS IT IS BEING IMPLEMENTED BY PAROLE
AND PROBATION, IMPROVE COMPLIANCE AMONG SEX OFFENDERS ON PAROLE
AND PRCS?
The board also has expressed its ongoing concerns about the
impact of residency restrictions on the ability of the state to
provide effective sex offender management:
---------------------------
<23> California Sex Offender Management Board, Chelsea's Law
Implementation (February 2013); on file in Committee offices.
<24> Id.
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California's current state of affairs with regard
to homelessness and transient status among sex
offenders, particularly those under CDCR parole
supervision, can be expected to have a significant
negative impact on the success of the Containment
approach as envisioned and mandated by Chelsea's Law.
As CASOMB has repeatedly pointed out in previous
reports, approximately one-third of those parolees are
known to be homeless. Almost all are so because of the
residence restrictions imposed by Jessica's Law
(Proposition 83). Treatment providers report that
providing effective specialized services to homeless
clients is extremely difficult. Many factors arising
from their homelessness interfere with their
successful attendance at and full engagement in the
treatment process. Management and treatment efforts
are working toward life stability and pro-social
engagement. Residence restrictions have the exact
opposite effect. Homeless sex offenders are often
psychologically incapable of attending to anything
besides their daily survival and are unprepared to
engage in the self-reflection and behavioral changes
expected in the treatment process. Supervision is a
key part of Containment and transient sex offenders
are much more difficult to supervise and so leave less
time and energy for the collaboration expected under
the Containment model. The Board is compelled to once
again express its concerns that the homeless status of
a significant proportion of sex offenders is working
at strong cross purposes with the intent and the
effective implementation of Containment as established
by Chelsea's Law - and is therefore interfering with
efforts to make California's citizens safer from
potential sex offender recidivism.<25>
Members may wish to discuss whether the residency restrictions
imposed by Jessica's Law have any relation to the GPS issues
raised by this bill. In other words, to what extent are sex
offender parolees unable to comply both with the residency
---------------------------
<25> Id.
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restrictions and their GPS conditions without having to become
homeless?
DO THE RESIDENCY RESTRICTIONS OF JESSICA'S LAW IMPACT GPS
COMPLIANCE AMONG SEX OFFENDER PAROLEES?
WILL THIS BILL, BY MAKING GPS VIOLATIONS A FELONY, EFFECTIVELY
DEAL WITH THE TRANSIENT PROBLEM DESCRIBED ABOVE?
6. Alternative Approach
Data indicates that in some counties, the number of warrants
issued for sex offender parolees who have absconded has
increased significantly since realignment became operative.
There also appears to be an increase in the number of repeat
violations among this subset of parolee sex offenders, and, in
some counties, many parolees are not being held for the full
term of the revocation orders they receive for these violations.
As members consider the public safety concerns giving rise to
this bill, and the prison capacity and fiscal consequences
relevant to these issues, they may wish to discuss amending this
bill to focus its impact on achieving sustainable improvements
in compliance among this parolee population. Members may wish
to consider the following shared approach between state and
local corrections to promote improved accountability among sex
offender parolees through custodial sanctions that are enforced
swiftly and with certainty:
Apply the provisions of the bill to sex offender
parolees only;
Provide that sex offender parolees who remove their GPS
must be sanctioned with county jail and serve 180 days. A
sex offender parolee may be sanctioned for a subsequent GPS
violation by up to one year in custody, housed in state
prison, if the parolee is found to be high risk for
violence based on a validated risk assessment instrument
and if they previously served 180 days in jail custody for
a GPS violation; and
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In counties subject to a court-ordered jail population
cap, provide that if early jail releases are necessary, the
county shall use a validated risk assessment instrument to
ensure that low risk offenders are released first,
regardless of their status as a parolee, pre-trial
detainee, committed inmate, or any other class of jail
inmate. If a sex offender parolee is found to have been
sanctioned previously with jail time for violating GPS
while on parole, and as a result of that sanction actually
served at least 90 days in jail custody, the parolee may be
sanctioned for a subsequent GPS violation by up to 1 year
in state prison if the parolee is found to be high-risk for
violence based on a validated risk instrument.
***************