BILL ANALYSIS �
SB 57
Page 1
Date of Hearing: June 25, 2013
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 57 (Lieu) - As Amended: May 7, 2013
As Proposed to be Amended in Committee
SUMMARY : Creates a new penalty structure for a person who is
required to register as a sex offender who removes or disables
an electronic global positioning system (GPS) or other
monitoring device affixed as a condition of parole.
Specifically, this bill :
1)Provides the following penalties for a violation based on
removing or disabling a GPS device:
a) For a first violation, the parole authority shall revoke
the person's parole and require that he or she be
incarcerated in the county jail for a period of 180 days;
and,
b) For a second or subsequent violation, the parole
authority shall revoke the person's parole and require that
he or she be incarcerated in the county jail for a period
of 365 days.
2)States that, notwithstanding any other law, a person who has
had his or her parole revoked pursuant to these provisions
shall not be entitled to earn any time credits, including, but
not limited to, those described in Penal Code Section 4019,
and shall be required to serve the entire 180-day period on a
first violation, and the entire 365-day period on a second or
subsequent violation, in actual custody.
3)Exempts 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.
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4)Exempts 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.
EXISTING LAW :
1)Authorizes the California Department of Corrections and
Rehabilitation (CDCR) to utilize continuous electronic
monitoring, including GPS, to electronically monitor the
whereabouts of persons on parole as specified. (Penal Code
Section 3010.)
2)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 GPS 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 Section 3000.07(a).]
3)Specifies that inmates released on parole pursuant to this
section shall be required to pay for the costs associated with
the monitoring by GPS, subject to waiver by CDCR upon a
finding of an inability to pay, as specified. [Penal Code
Section 3000.07(b).]
4)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 GPS for life. [Penal
Code Section 3004(b).]
5)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 Section 3010.7.)
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6)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. [Penal Code Section 3000.08(d), operative
July 1, 2013.]
7)Authorizes the court, upon revocation of parole, to do any of
the following:
a) Reinstate parole with modification of conditions, if
appropriate, including a period of incarceration;
b) Revoke parole and order the parolee to serve time in the
county jail; or,
c) Refer the parolee to a reentry program or other
evidence-based program. [Penal Code Section 3000.08(f),
operative July 1, 2013.]
8)Limits confinement in the county jail for up to 180 days of
incarceration per revocation. [Penal Code Section 3000.08(g),
operative July 1, 2013.]
9)Authorizes good behavior and work performance credit for
prisoners confined in city or county jails, industrial farms
or road camps. (Penal Code Section 4019.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Sex offender
parolees who remove or disable their GPS monitoring devices is
and has been a significant problem. Our entire GPS monitoring
system is at risk of failure if we cannot keep thousands of
dangerous sex offender parolees from removing and disabling
their tracking devices.
"In 2010, a total of 1821 sex offender parolees absconded and
removed/disabled their GPS devices. That means that 25% of
all sex offender parolees absconded in 2010. In 2011, that
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total increased to nearly 2,000 sex offender parolees or 28%
of all sex offenders; and 2012 it was nearly 2,300 sex
offender parolees which equates to 30% of all sex offender
parolees.
"When you look at how often these sex offender parolees are
removing or disabling these devices, the numbers are even more
astonishing. In 2010, over 2,300 warrants were issued for sex
offenders who removed or disabled their ankle bracelets and
who absconded. In 2011, the number of warrants increased to
nearly 2,700 and in 2012 that number was over 4,100. In other
words, the percentage of warrants issued for sex offender
parolees have increased from just over 32% to now over 55%.
"There are far too many sex offenders cutting off their GPS
devices. We need a stronger deterrent and we must keep these
sex offender parolees on GPS monitoring.
"Research shows that when a sex offender is not being monitored
by a GPS device, the parolee's chances of committing new sex
crimes increases threefold.
"SB 57 strikes a balance between creating that deterrent while
also acknowledging the federal court's mandate to reduce
prison population. I believe this is the needed deterrent to
keep sex offender parolees from removing or disabling their
GPS devices."
2)Conduct Credits : Under existing law, all defendants, except
for those convicted of murder, are able to earn conduct or
good behavior credits in order to reduce the actual time
served on their sentences. Even those serving sentences for a
violent or serious felony receive a 15% reduction in their
sentences through credits. (Penal Code Section 2933.1.)
Inmates convicted of murder may not accrue credit (Penal Code
Section 2933.2); however, the incentive to refrain from
criminal conduct and to obey the administrative rules within
prison is the possibility of parole after serving a specified
term.
This bill requires a person who removes or disables a GPS device
affixed as a condition of parole to serve either 180 days on a
first parole violation, or one year in county jail on a second
or subsequent parole violation. This bill specifies that the
person may not earn any time credits, including, but not
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limited to, those described in Penal Code Section 4019, and
shall be required to serve the entire period in actual
custody. The disallowance of conduct credits raises several
concerns:
a) Jail Safety and Management : The legislative intent
behind conduct credits is to provide incentives for inmates
to refrain from criminal conduct and to encourage
participation in rehabilitative activities by allowing
inmates to reduce their sentences for good behavior.
[People v. Cooper (2002) 27 Cal. 4th 38, 42, citing People
v. Austin (1981) 30 Cal. 3d 155, 163.] Conduct credits
provide an incentive for inmates to behave while in custody
so that he or she may be released prior to the actual time
sentenced. An inmate who does not have this incentive will
be more likely to engage in criminal behavior or commit
violent acts while in custody. This creates a safety issue
for other inmates as well as correctional officers.
Additionally, the strict requirement that these inmates
must serve the actual period of time, either 180 days or
one year, impedes the ability of individual sheriffs to
manage their jail populations. Several county jails are
facing overcrowding issues, which began prior to
realignment, and these jails are operating under court
orders limiting the number of inmates in their jails.
[Public Policy Institute of California, Capacity Challenges
in California's Jails (September 2012), p. 5; see also
California State Sheriffs' Association, Do the Crime, Do
the Time? Maybe Not in California (June 2006), p. v.]
After the implementation of realignment, many inmates are
receiving lengthy felony sentences, further exacerbating
jail overcrowding. (See
.) Considering
these current challenges faced by county jails, would this
bill create more pressure on county jails' efforts to
manage its population?
b) Equal Protection Concerns : The Equal Protection Clause
of the Fourteenth Amendment commands that no state shall
"deny to any person within its jurisdiction the equal
protection of the laws." The California Constitution has a
similar provision. (Cal. Const., art. I, sec. 7.) Under
the Equal Protection Clause, a classification "must be
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reasonable, not arbitrary, and must rest upon some ground
of difference having a fair and substantial relation to the
object of the legislation, so that all persons similarly
circumstanced shall be treated alike." [Royster Guano Co.
v. Virginia (1920) 253 U.S. 412, 415.]
If the classification does not discriminate against a
protected class or infringe upon a fundamental right, the
level of scrutiny that applies is rational basis review.
A defendant does not have fundamental interest in a
specific term of imprisonment [People v. Wilkinson (2004)
33 Cal.4th 821, 838; People v. Flores (1986) 178 Cal. App.
3d 74, 88], thus rational basis review would apply. This
requires the classification to be rationally related to a
legitimate government purpose. The question of what
constitutes a "legitimate government purpose" has been
heavily litigated. However, the U.S. Supreme Court has
explained that "if the constitutional conception of equal
protection of laws means anything, it must at the very
least mean a bare congressional desire to harm a
politically unpopular group cannot constitute a legitimate
government purpose." [U.S. Department of Agriculture v.
Moreno (1973) 413 U.S. 528, 534; see also Romer v. Evans
(1996) 517 U.S. 620.]
This bill disallows conduct credits for persons registered as
sex offenders serving a term for a first or second parole
violation of disabling their GPS devices. The unequal
treatment of this class of offenders versus all others
raises equal protection concerns which may run afoul of the
Constitution unless it is justified by a legitimate
government purpose. While the act of cutting off one's GPS
device is a serious offense, other offenses that are
arguably more serious are eligible for credits. Is there a
legitimate government purpose for treating sex offenders
who disable their GPS devices more harshly than other
offenders?
3)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
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prison for violating parole.
Realignment shifted the supervision of some released prison
inmates from CDCR parole agents to local probation
departments. Parole under the jurisdiction of CDCR for
inmates released from prison on or after October 1, 2011 is
limited to those defendants whose term was for a serious or
violent felony; were serving a Three-Strikes sentence; are
classified as high-risk sex offenders; who are required to
undergo treatment as mentally disordered offenders; or who,
while on certain paroles, commit new offenses. [Penal Code
Sections 3000.08(a) and (c), and 3451(b).] All other inmates
released from prison are subject to up to three years of
post-release community supervision (PRCS) under local
supervision. [Penal Code Sections 3000.08(b) and 3451(a).]
Realignment also 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 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.
Additionally, realignment 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 on a parole or PRCS violation.
[Penal Code Sections 3056(a) and 3455(c).]
This bill mandates a parole revocation sentence of one year in
the county jail on a second violation even though the current
maximum sentence on all parole or PRCS violations is 180 days.
This bill creates an anomaly by carving out one group of
defendants who will receive an enhanced sentence on a second
parole violation that is not currently authorized for other
defendants. Will this lead to more statutory carve-outs in
the future, diminishing the Legislature's original intent that
all parole violators will serve no more than 180 days on a
parole violation?
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4)Argument in Support : According to the Los Angeles County
District Attorney's Office (the sponsor of this bill), "Our
office believes that SB 57 will serve as a deterrent to many
parolees who would otherwise remove/disable their GPS
monitoring devices. We believe that the current lack of a
swift and certain punishment for this behavior has played a
significant reason for the nearly 400% increase in the number
of parolees who willfully removed/disabled their GPS
monitoring devices in the first 15 months following the start
of realignment.
"When utilized properly, studies have shown that the use of GPS
monitoring is far more effective at reducing incidents of
recidivism than more traditional parole supervision. We hope
with the creation of a sufficient punishment in place SB 57,
along with the other deterrent and rehabilitative tools
created as part of realignment, will result in a significant
reduction in the recidivism rate among high-risk sex offender
parolees who remove/disable their GPS monitoring devices."
5)Argument in Opposition : The American Civil Liberties Union
argues, "[P]rovisions of this bill specify that any person
sentenced for violating post-release community supervision or
mandatory supervision as a result of tampering with an affixed
GPS device, is not eligible for custody credits. Hence,
pursuant to the terms of the legislation, a person sentenced
for tampering with a GPS device must be sentenced to one
hundred eighty days on the first violation, and three hundred
sixty five days on any second violation - with no application
of custody credits. (See Cal. Penal Code � 4019.) These
provisions may have a substantial effect on already
overcrowded jails, and further hamstrings the efforts of local
law enforcement to manage its own jail population. In the
alternative, each county should be encouraged to adopt a
validated risk assessment tool that will accurately gage the
dangerousness of persons being held in the county jail."
6)Related Legislation :
a) AB 63 (Patterson) creates an alternative
felony/misdemeanor offense for removal of a GPS monitoring
device affixed as a condition of post-release community
supervision or parole. AB 63 failed passage in this
Committee and was granted reconsideration.
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b) AB 1334 (Conway) requires all persons released from
prison for a current, or prior, conviction or juvenile
adjudication requiring sex-offender registration to be
subject to parole supervision by CDCR. AB 1334 failed
passed in this Committee and was granted reconsideration.
c) 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 failed passage in
the Senate Public Safety Committee and was granted
reconsideration.
7)Prior Legislation :
a) AB 2016 (Gorell), of the 2011-12 Legislative Session,
prohibits a person from willfully removing or disabling an
electronic, GPS or other monitoring device affixed to his
or her person or the person of another, knowing that the
device was affixed as a condition of a criminal sentence,
juvenile court disposition, parole, probation, post-release
community supervision or mandatory supervision. AB 2016
was not heard by this Committee.
b) AB 179 (Gorell), of the 2011-12 Legislative Session, was
substantially similar to AB 2016. AB 179 failed passage in
this Committee.
c) SB 566 (Hollingsworth), of the 2009-10 Legislative
Session, would have established a penalty scheme for
persons who have been lawfully ordered to submit to a GPS
or electronic monitoring device, and willfully interfered
with the device, with penalties ranging from misdemeanors
to felonies depending upon the offense underlying the GPS
sanction. SB 566 failed passage in the Senate Public
Safety Committee.
d) SB 619 (Speier), Chapter 484, Statutes of 2005,
authorized the use of GPS technology to supervise persons
on probation and parole.
REGISTERED SUPPORT / OPPOSITION :
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Support
Los Angeles County District Attorney's Office (Sponsor)
Kern County Board of Supervisors
Los Angeles County Sheriff's Department
Golden State Bail Agents Association
Los Angeles County Probation Officers Union
Riverside Sheriffs' Association
Los Angeles Police Protective League
Association for Los Angeles Deputy Sheriffs
Peace Officers Research Association of California
Opposition
American Civil Liberties Union
California Attorneys for Criminal Justice
Legal Services for Prisoners with Children
Taxpayers for Improving Public Safety
Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744