BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              S
                             2013-2014 Regular Session               B

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          SB 225 (Emmerson)                                           
          As Amended April 1, 2013 
          Hearing date:  April 23, 2013
          Penal Code
          AA:mc

                         CRIMINAL JUSTICE REALIGNMENT OF 2011:

                        FELONY SENTENCES OF MORE THAN 3 YEARS  


                                       HISTORY

          Source:  Riverside County District Attorney

          Prior Legislation: SB 1441 (Emmerson) - failed passage Senate  
          Public Safety, 2012 
                       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: Sacramento County Board of Supervisors; Golden State  
                   Bail Agents Association; County of San Bernardino;  
                   Taxpayers for Improving Public Safety; California State  
                   Sheriffs' Association (in concept); California District  
                   Attorneys Association;
                   League of California Cities; Crime Victims Action  
                   Alliance; 

          Opposition:California Attorneys for Criminal Justice; California  
                   Public Defenders Association; American Civil Liberties  
                   Union




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                                         KEY ISSUE
           
          SHOULD THE CRIMINAL JUSTICE REALIGNMENT OF 2011 BE REVISED TO  
          REQUIRE THAT DEFENDANTS CONVICTED OF A FELONY AND SENTENCED TO AN  
          AGGREGATE TERM OF MORE THAN THREE YEARS SERVE THAT SENTENCE IN  
          PRISON, AS SPECIFIED?



                                       PURPOSE

          The purpose of this bill is to revise the criminal justice  
          realignment of 2011 by requiring that defendants convicted of a  
          felony and sentenced to an aggregate term of more than three  
          years shall serve that sentence in prison, as specified. 
          
           Current law  generally provides that, for any person sentenced on  
          or after October 1, 2011, certain felonies - those which by  
          their statutory terms specifically so provide - are punishable  
          by a term of imprisonment in a county jail, as specified.   
          (Penal Code  1170(h).)  

           Current law  provides that, notwithstanding this general  
          provision, where a defendant meets any of the following criteria  
          an executed sentence for a felony punishable pursuant to this  
          subdivision shall be served in state prison:

                 the defendant has a prior or current felony conviction  
               for a serious felony described in subdivision (c) of  
               Section 1192.7;
                 the defendant has a prior or current conviction for a  
               violent felony described in subdivision (c) of Section  
               667.5;
                 the defendant has a prior felony conviction in another  
               jurisdiction for an offense that has all of the elements of  
               a serious felony described in subdivision (c) of Section  
               1192.7 or a violent felony described in subdivision (c) of  
               Section 667.5;




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                 the defendant is required to register as a sex offender,  
               as specified; or
                 the defendant is convicted of a crime and as part of the  
               sentence an enhancement pursuant to Section 186.11 is  
               imposed.  (Penal Code  1170(h)(3).)

           This bill  would amend this provision to provide in addition that  
          where a defendant has been convicted of a felony or felonies  
          punishable pursuant to this subdivision and is sentenced to an  
          aggregate term of more than three years, the sentence shall be  
          served in state prison, as specified.<1>

                    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  

          ---------------------------
          <1>  See Comment 1 concerning amendments the author intends to  
          submit in Committee.



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          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."         

          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  




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               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.  Author's Amendments

           The author intends to amend this bill in Committee to enact a  
          new statute requiring the Secretary of the Department of  
          Corrections to transfer inmates who have six months or less  
          remaining to be served on their sentences to a county jail where  
          the inmate has been assessed by a validated risk instrument as  
          being a low risk to harm other people or to reoffend.  The  
          author intends that the bill be amended to provide that for each  
          of these prison inmates accepted into a county jail, an inmate  
          with more than three years of incarceration remaining to be  
          served on his or her sentence shall be transferred to CDCR for  
          the remainder of his or her term.  These amendments would  
          provide that the costs of incarcerating any prison inmate  
          transferred to a county under these provisions would be covered  
          by the county, and that the costs of incarcerating any county  
          jail felon transferred under these provisions to prison would be  
          covered by the state.

          2.  Stated Need for This Bill

           The author states:

               Under realignment, low-level offenders are being  
               shifted from prisons to local jails.  As it stands,  
               approximately 32 counties are faced with overcrowding  
               or court-imposed caps on jail populations.  Therefore,  
               the realignment population shift is causing our local  
               jails to be even more over crowed than before.   
               Furthermore, California's jails were not built or  




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               designed to house prisoners for long periods of time.

          3.  What This Bill Would Do
           
          As explained above, as currently in print this bill would change  
          provisions in the 2011 criminal justice realignment concerning  
          which felonies must be served in prison.  Specifically, this  
          bill would widen the category of which executed felony sentences  
          must be served in state prison - not county jail - by providing  
          that sentences of an aggregate of more than 3 years must be  
          served in state prison.  Under current law, there is no  
          term-based threshold for which felonies must be served in prison  
          or jail.

          As amended in Committee, this bill also would provide a  
          mechanism for CDCR to transfer low-risk inmates out of prison  
          and into jail during the last six months of their time in prison  
          in exchange for a jail felon who has more than 3 years remaining  
          on his or her felony sentence.






          4.  Felony Sentencing Under the Criminal Justice Realignment of  
          2011

           The "2011 Realignment Legislation Addressing Public Safety"  
          ("criminal justice realignment") fundamentally altered how  
          convicted felons are handled under California law.<2>  Under  
          California law operative until October 1, 2011, a felony was a  
          ---------------------------
          <2>   AB 109 (Committee on Budget) (Ch. 15, Stats. 2011) is the  
          principal measure establishing the 2011 public safety  
          realignment.  As noted at the beginning of this analysis,  
          several subsequent measures revised AB 109 and enacted  
          additional provisions relating to certain aspects of  
          realignment. 





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          crime punishable by death or imprisonment in state prison.<3>   
          Effective October 1, 2011, criminal justice realignment  
          redefined the term "felony" to include crimes punishable by  
          imprisonment in a county jail, as specified, depending upon the  
          criminal history of the offender.<4> 

          As explained in a January 2012, article describing felony  
          sentencing after realignment:

               With respect to felony sentencing, it appears the  
               intent of the realignment legislation is merely to  
               change the place where sentences for certain crimes  
               are to be served.  The legislation has not changed the  
               basic rules regarding probation eligibility.  Courts  
               retain the discretion to place people on probation,  
               unless otherwise specifically prohibited, under the  
               law that existed prior to the realignment legislation.  
                There is no intent to change the basic rules  
               regarding the structure of a felony sentence contained  
               in sections 1170 and 1170.1.  Furthermore, there is no  
               change in the length of term or sentencing triad for  
               any crime.  Realignment comes into play when the court  
               determines the defendant should not be granted  
               probation, either at the initial sentencing or as a  
               result of a probation violation.<5>

          The confinement changes under criminal justice realignment -  
          ---------------------------
          <3>  Penal Code  17.  This classification does not affect the  
          ability of the court to suspend execution of a felony sentence  
          and impose conditions of probation where allowable, supervised  
          and performed locally.  (See Penal Code  1203.1.)  A  
          misdemeanor is a crime punishable by imprisonment by 6 months or  
          not more than one year.  (Penal Code  19 and 19.2.)
          <4>   Penal Code  17.
          <5>  Felony Sentencing After Realignment, J. Richard Couzens,  
          Judge of the Superior Court, County of Placer (Ret.); Tricia A.  
          Bigelow, Presiding Justice, Court of Appeal, 2nd Appellate  
          District, Div. 8, p. 3 (January 2012).  
          (http://www.courts.ca.gov/partners/documents/felony_sentencing.pd 
          f.)



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          that is, modifications to where felons serve their executed  
          felony sentences in custody, either in state prison or in local  
          facilities - apply to persons sentenced on or after October 1,  
          2011.  These changes are not retroactive.<6>

          Criminal justice realignment provides that numerous felonies are  
          punishable by a term of imprisonment in county jail - not prison  
          - unless the crime of conviction or a defendant's criminal  
          history makes the defendant ineligible for serving their felony  
          sentence in jail.<7>  This change, contained in subdivision (h)  
          of Penal Code section 1170, applies only to criminal statutes  
          which have been expressly amended to provide for a felony jail  
          term where otherwise allowable.<8>   

          Certain felons are categorically prohibited from serving an  
          executed felony sentence in county jail.  The following persons  
          are statutorily ineligible to serve any executed felony sentence  
          in county jail:

          ---------------------------
          <6>  Paragraph (6) of subdivision (h) of Section 1170 of the  
          Penal Code states:  "The sentencing changes made by the act that  
          added this subdivision shall be applied prospectively to any  
          person sentenced on or after October 1, 2011."  With the  
          exception of the role of courts in adjudicating parole  
          violations, which starts on July 1, 2013, the major criminal law  
          provisions of realignment became operative on and after October  
          1, 2011.   
          <7>  Just like the law prior to realignment about the length of  
          terms, if a term is not specified in the underlying offense the  
          crime shall be punishable by a term of imprisonment for 16  
          months, or two or three years and, for crimes where the  
          underlying criminal statute specifies the term, the felony shall  
          be punishable by imprisonment for the term described in the  
          underlying offense.  (See Penal Code  18 and Penal Code Section  
          1170(h). )
          <8>  This feature of criminal justice realignment - that its  
          newly-created felony jail sanction can be applied only to those  
          criminal statutes expressly amended to include a cross-reference  
          authorizing that sanction - largely accounts for the length of  
          AB 109 (663 pages).  



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                 The defendant has a prior or current felony conviction  
               for:
              o     a serious felony described in subdivision (c) of  
                Section 1192.7, or
              o     a violent felony described in subdivision (c) of  
                Section 667.5;
                 The defendant has a prior felony conviction in another  
               jurisdiction for an offense that has all the elements of a  
               serious or violent felony in California, as specified;
                 The defendant is required to register as a sex offender;  
               or 
                 The defendant is convicted of a crime and as part of the  
               sentence receives an aggravated theft enhancement, as  
               specified.<9>

          This bill would alter how felony sentencing is handled under  
          realignment by providing that felony sentences of an aggregate  
          term of more than 3 years must be served in state prison.  

          For convicted felony offenders subject to confinement in a  
          county jail, courts are authorized to impose the felony sentence  
          to commit a defendant to county jail as follows:

                 For a full term in custody as determined in accordance  
               with the applicable sentencing law.
                 For a term as determined in accordance with the  
               applicable sentencing law, but suspend execution of a  
               concluding portion of the term selected in the court's  
               discretion, during which time the defendant shall be  
               supervised by the county probation officer in accordance  
               with the terms, conditions, and procedures generally  
               applicable to persons placed on probation, for the  
               remaining unserved portion of the sentence imposed by the  
               court.  The period of supervision shall be mandatory, and  
               may not be earlier terminated except by court order.   
               During the period when the defendant is under such  
               supervision, unless in actual custody related to the  
               sentence imposed by the court, the defendant shall be  

             --------------------------
          <9>   Penal Code  1170(h) (3), as amended in Sections 450 and  
          451 of AB 109.



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               entitled to only actual time credit against the term of  
               imprisonment imposed by the court.<10>

          As noted by Judge Couzens and Justice Bigelow:

               Sentences imposed under section 1170, subdivision  
               (h)(5)(B), have been characterized as "split" or  
               "blended" sentences because they have both custody and  
               non-custody elements.  The length and circumstances of  
               the suspended term are within the court's discretion;  
               presumably the court could suspend all or only a  
               portion of the sentence.  There are many sentencing  
               strategies available to the court, depending on the  
               defendant's circumstances, hopefully enlightened by a  
               current risk/needs assessment done by the probation  
               department.  The following represent just a few of the  
               options available to the court:

                           The court could impose a term from the  
                    triad, suspend a concluding portion of the term  
                    and set conditions of supervision.  Such an  
                    alternative may be appropriate when the time in  
                    custody will be relatively short such that the  
                    case plan developed at sentencing will be  
                    reasonably current when the defendant converts to  
                    mandatory supervision.

                           The court could impose a term from the  
                    triad, suspend a concluding portion of the term,  
                    but reserve jurisdiction to set the conditions of  
                    supervision shortly before the defendant is  
                    released from custody.  Such an alternative may  
                    be appropriate when the court realizes that  
                    supervision is necessary, but because of a  
                    lengthy custody period may want to have a new  
                    risk/needs assessment at the time the defendant  
                    is ready to be released.  Such a strategy will  
                    account for the changing nature of defendant's  
                    risk and will make the case plan more relevant to  


                  ---------------------
          <10>   Penal Code  1170(h) (5).



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                    defendant's actual circumstances at the time he  
                    is ready for release.

                           The court could choose to impose a  
                    sentence under the provisions of section 1170,  
                    subdivision (h)(5)(B), but reserve jurisdiction  
                    to set the actual time and conditions of release  
                    at a later time.  Such a strategy might be  
                    appropriate where the court wants to give the  
                    defendant encouragement to complete various  
                    custody programs and do well in custody, then set  
                    relevant terms when the court determines release  
                    is appropriate.<11>

          The Chief Probation Officers of California has compiled data  
          regarding sentencing decisions for felons sentenced under Penal  
          Code section 1170(h).<12>  Their data indicates that between  
          October 2011 and September 2011, 7,006 felons sentenced under  
          section 1170(h) were given split sentences, and 22,021 were  
          given jail time only.  Thus, only about 25 percent of jail  
          felony offenders received split sentences during the first year  
          of realignment.  

          Members may wish to discuss whether the use of split sentencing  
          matters in terms of the incidence of very long jail felony  
          sentences.  Based on survey data provided by the California  
          State Sheriffs' Association, Los Angeles County reports that as  
          of February of this year, it had 389 inmates in its jails  
          sentenced to between 5 and 10 years, and another 20 sentenced to  
                                                                               more than 10 years.  For the first year of realignment, only 5%  
          of jail felons in Los Angeles County were given split sentences.  
           Riverside County reports that in the same timeframe, it had 62  
          jail inmates sentenced to between 5 and 10 years, and 1 inmate  
          who was sentenced to more than 10 years in county jail.  For the  
          first year of realignment, 67 percent of jail felons in  
          Riverside were given split sentences.  Kern County saw 13  
          ---------------------------
          <11>  Felony Sentencing After Realignment, supra fn.4, at p. 8.
          <12>    
          http://www.cpoc.org/assets/Realignment/splitsentencedashboard.swf 
          .



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          percent of jail felons given split jail felony sentences in the  
          first year of realignment, and housed 54 inmates with sentences  
          for 5-10 years, and one sentenced to more than 10 years.  With  
          24 percent split sentenced jail felony offenders, San Diego  
          reports 145 inmates with 5-10 year sentences, and 2 inmates  
          sentenced to more than 10 years.  For the same period, Alameda  
          County reports that it has no inmates sentenced to more than 10  
          years, and 10 inmates with sentences ranging from 5 to 10 years.  
           Eight percent of Alameda's jail felons were given split  
          sentences in the first year of realignment.  Contra Costa  
          County, which shows 86% of its jail felons receiving split  
          sentences, indicated in the CSSA survey that it has no inmates  
          with terms exceeding three years.<13>

          TO WHAT EXTENT DOES (OR COULD) SPLIT SENTENCING USAGE AFFECT THE  
          INCIDENCE OF VERY LONG JAIL FELONY SENTENCES?

          5.  Reports of Very Long Jail Felony Sentences
           
          Since the enactment of realignment in October of 2011, there  
          have been anecdotal and press reports of very long felony  


















          ---------------------------
          <13>  The survey notes that Contra Costa's longest inmate term  
          has been 3.2 years so far.




















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          sentences required to be served in county jail.<14>  In addition  
          to issues surrounding jail overcrowding, these reports accompany  
          emerging issues concerning the conditions of jails, and their  
          capacity to house and manage long term offenders.  In a recent  
          editorial supporting the term-based limitation on jail felonies  
          proposed by this bill, the Press-Enterprise noted in part:

               California needs a better solution to the state's  
               prison ills than merely shifting that mess onto county  
               government.  But the lawsuits now hitting counties  
               over jail conditions offer an unpleasant echo of the  
               state's corrections travails.  And the legal cases  
               offer yet more evidence that legislators need to  
               revamp the state's criminal justice realignment.

               Riverside County this week became the latest target of  
               a class-action lawsuit over county jails.  The  
               lawsuit, filed by attorneys on behalf of three  
               inmates, claims the county jails provide inadequate  
               mental and physical health care.  The lawyers in the  
               case are the same ones who sued the state corrections  
               system, ultimately leading to a 2009 federal court  
               order to shrink the state prison population.  Other  
               counties, including Fresno and Alameda, face similar  
               cases, with more lawsuits in other counties on the  
               way. 

               . . .

               Counties face lawsuits primarily because county jails  
               were never intended for long-term incarceration, or  
               the health care, education and other services that  
               such confinement requires.  Inmates with long  
               sentences also take up space counties need for other  
               offenders.  Many counties already faced court-ordered  
               population caps even before the state pushed thousands  
               of felons into county jails.  The jail space crunch  
               also hinders parole supervision, because incarceration  
               ----------------------
          <14>   For example:  "Javier Miranda was arrested last November  
          while driving a truck full of methamphetamine up Interstate 5.   
          After a short trial, he received an 18-year sentence - but he  
          won't go to prison.  Instead, Miranda will serve his time in  
          county jail.    The length of Miranda's sentence is an unusual  
          but not a unique result of prison "realignment."  Counties  
          throughout California are now tasked with housing and  
          rehabilitating prisoners classified as non-serious, non-violent  
          and non-sexual, no matter the length of their sentence in their  
          jail.  Before realignment, prisoners like Miranda would likely  
          have faced prison time.  . . . There is a difference between  
          spending 18, seven or even two years in county jail as opposed  
          to prison.  Jails often lack the necessary resources for longer  
          stays, such as medical care and other social services programs  
          that help rehabilitate prisoners. .  . . Miranda is the first  
          person in Merced County to be handed such a long jail sentence.   
            Merced County Chief Deputy District Attorney Harold Nutt was  
          the prosecutor in Miranda's case and said the 18 years - four  
          years for the principal charge, 10 for weight of drugs he was  
          transporting (10 kilos), three years for a prior prison term for  
          a similar drug-related offense and one year for a prior prison  
          term - fit the crime.     Realignment, he said, took away a  
          hammer that law enforcement once had to hold people accountable.  
           Prison, he said, used to be a real threat to individuals  
          looking to offend and re-offend.  Without the option of prison,  
          county jails will increasingly have to bear the burden of long  
          sentences.    
          "This is highly unusual," he said of Miranda's 18 years in jail.  
           But, he added, "It wouldn't be inconceivable to sentence  
          someone to seven or eight years.  Realignment changed the way  
          everybody looks at things."    Merced is not the only county  
          that has seen jail sentences of longer than a year.  The longest  
          in Contra Costa County so far is five years.  In San Bernardino  
          the longest sentence was 10 years, and in Riverside, 14 years.   
          Santa Barbara County jail holds one inmate sentenced to 23  
          years.     Long jail sentences have mostly been in Southern  
          California, said Pazin, who is also president of the California  
          Sheriff's Association.  That area of the state also has the  
          largest population, he noted.    How many years of their  
          sentence that these inmates will actually serve behind bars  
          depends on the respective county's resources and realignment  
          plan.  Miranda is going to be in custody in Merced's jail for at  
          least two years, according to Antoinette Murillo, public  
          information officer for Merced County Corrections Department.    
            He'll spend another couple of years on electronic monitoring  
          before going under the supervision of probation, she said.   
          Miranda has a U.S. Immigration and Customs Enforcement hold, she  
          noted, which also might affect what happens to him once he is  
          released from jail.   Barely a year into realignment,  
          multi-year sentencing is an unintended consequence of reform,  
          Pazin said.  He added that he and his colleagues hope to discuss  
          the possibility of a legislative remedy to the problem with Gov.  
          Jerry Brown in the future.    In the meantime, he said, "We are  
          hoping that this won't become a trend."  Realignment Results in  
          Lengthy Jail Sentences, M. Perez, California Health Report  
          (http://www.healthycal. org/archives/8196.)



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               is a hollow threat when jails have no room for parole  
               violators. . . .<15>

          As discussed above, the California State Sheriffs' Association  
          conducted a survey regarding numbers of long-term offenders in  
          county jail.  CSSA summarizes this data as follows:

               Below is a short summary of the information collected  
               as of 2/25/13:

                     Number of county jail inmates sentenced 5-10  
                 years = 1109 
                     Number of county jail inmates sentenced to over  
                 10 years = 44
                     Most common crimes for those sentenced to 5-10  
                 years = vehicle theft, drug trafficking, receiving  
                 stolen property, identity theft, commercial  
                 burglary.
                     Largest number of crimes for over 10 years =  
                 drug trafficking.  However, over 10 years is not  
                 exclusively drug trafficking.  For example, Solano  
                 County sentenced someone for multiple thefts w/  
                 theft priors for 10.5 years and Riverside County  
                 sentenced someone for 12 years, 8 months for  
                 multiple counts of felony child abuse (PC 273d).
                     Longest sentence = 43 years (Los Angeles)
                     Breakdown in Los Angeles - 92% sentenced to  
                 3-years or less. 2% sentenced to more than 5 years.
                     Survey data is from 52 counties.
                 
          In the last five years the state has provided significant  
          support to counties seeking to improve their jail conditions and  
          capacity.  The Legislative Analyst's Office ("LAO") provided an  
          update on this funding in its February 2013 analysis of the  
          Governor's criminal justice proposals, including the following:

          ---------------------------
          <15>   Press-Enterprise Editorial: State needs to revamp prison  
          realignment (March 23, 2012), http://www.pe.com/ opinion  
          /editorials-headlines/20130323-editorial-state-needs-to-revamp-pr 
          ison-realignment.ece



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                                                          SB 225 (Emmerson)
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               Since 2007, the Legislature has approved two measures  
               authorizing a total of $1.7 billion in lease-revenue  
               bonds to fund the construction and modification of  
               county jails.  Assembly Bill 900 provided $1.2 billion  
               to help counties address jail overcrowding.  Chapter  
               42, Statutes of 2012 (SB 1022, Committee on Budget and  
               Fiscal Review), authorized an additional $500 million  
               to help counties construct and modify jails to  
               accommodate longer-term inmates who would be shifted  
               to county responsibility under the 2011 realignment of  
               lower-level offenders.<16>

          SB 1022, last year's measure which included $500 million in  
          lease-revenue bonds for county jails, including the following  
          legislative intent language:

               In support of this state financing, the Legislature  
               finds and declares all of the following:
               (a) The county adult criminal justice system needs  
               more housing, program, and treatment space to manage  
               the adult offender population under its jurisdiction.
               (b) Appropriate county adult criminal justice housing,  
               program, and treatment space will enhance public  
               safety throughout the state by providing increased  
               access to appropriate programs or treatment.
               (c) By expanding county adult criminal justice  
               capacity, this financing will serve a critical state  
               purpose by promoting public safety.












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          <16>   Legislative Analyst's Office, The 2013-14 Budget:  
          Governor's Criminal Justice Proposals 9Feb. 15, 2013;  
          http://www.lao.ca.gov/analysis/2013/crim_justice/criminal-justice 
          -proposals/criminal-justice-proposals-021513.aspx








               (d) This purpose represents valuable consideration in  
               exchange for this state action.<17>

          This legislation also included statutory guidance for funding  
          consideration which reflects an understanding of the need for  
          local custodial space which can provide treatment,  
          rehabilitation and mental health services:

               Funding consideration shall be given to counties that  
               are seeking to replace existing compacted, outdated,  
               or unsafe housing capacity or are seeking to renovate  
               existing or build new facilities that provide adequate  
               space for the provision of treatment and  
               rehabilitation services, including mental health  
               treatment.<18>

          In addition to these state bonds, 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  
               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  


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          <17>   SB 1022, Ch. 42, Stats. 2012.
          <18>   Id., Government Code  15820.926.



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                                                          SB 225 (Emmerson)
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               2013-14.<19>

          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 felon population now  
          subject to incarceration at the local level back to the state  
          without a readjustment to the revenue shifts that were part of  
          realignment.

          SHOULD JAIL FELONIES BE LIMITED TO SENTENCING TERMS THAT ARE  
          LESS THAN THREE YEARS IN THE AGGREGATE?

          SHOULD SOME OF THE FELONS REALIGNED UNDER AB 109 BE  
          "RE-REALIGNED" BACK TO THE STATE?  

          SHOULD REALIGNED FELONS BE "RE-REALIGNED" TO THE STATE WITHOUT  
          AN ADJUSTMENT TO THE FUNDING REALIGNED TO LOCAL GOVERNMENTS?

          HOW WOULD THE AUTHOR'S PROPOSED AMENDMENTS AFFECT THESE ISSUES?

          6.  Prison Population Considerations

           This bill would result in more felons serving their custodial  
          time in prison.  Committee staff is unaware of data estimating  
          the impact of this particular bill on the prison population and  
          the state's ability to make progress on meeting the reductions  
          ordered by the court in  Plata.   The overall estimated impact of  
          realignment on the state's prison population is noted in a  
          Legislative Analyst's Office's February 2013 analysis of the  
          Governor's budget proposals:

               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 2011 realignment of  
               lower-level felons from state to local responsibility.  
                Although decreasing, the projected



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          <19>   See footnote 16, supra.











                                                          SB 225 (Emmerson)
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               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.<20>

          TO WHAT EXTENT WOULD THIS BILL IMPACT THE PRISON POPULATION?

          TO WHAT EXTENT WOULD THIS BILL IMPACT THE FEDERAL COURT ORDER  
          PERTAINING TO THE PRISON POPULATION?

          TO WHAT EXTENT WOULD THIS BILL ERODE REALIGNMENT?

          TO WHAT EXTENT WOULD THE AUTHOR'S AMENDMENTS PROVIDING FOR  
          LOW-RISK PRISON INMATES TO BE TRANSFERRED TO LOCAL CUSTODY FOR  
          THE LAST 6 MONTHS OF THEIR PRISON TERM IN EXCHANGE FOR A JAIL  
          FELON WITH 3 OR MORE YEARS LEFT ON A JAIL FELONY TERM MITIGATE  
          THE POTENTIAL PRISON POPULATION ISSUES PRESENTED BY THIS BILL?


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          <20>   Id.