BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
2
2
6
SB 226 (Emmerson)
As Introduced February 11, 2013
Hearing date: April 23, 2013
Penal Code
AA:mc
CRIMINAL JUSTICE REALIGNMENT OF 2011:
FELONY SENTENCES OF PERSONS WITH A "SEVERE MENTAL DISORDER"
HISTORY
Source: California District Attorneys Association
Prior Legislation: AB 109 (Committee on Budget) - Ch. 15, Stats.
2011
AB 117 (Committee on Budget) - Ch. 39, Stats. 2011
ABx1 17 (Blumenfield) - Ch. 12, Stats. 2011
AB 116 (Committee on Budget) - Ch. 136, Stats. 2011
Support: Crime Victims United of California; Golden State Bail
Agents Association; Crime Victims Action Alliance;
California State Sheriffs' Association
Opposition:Taxpayers for Improving Public Safety; California
Attorneys for Criminal Justice; Legal Services for
Prisoners with Children; Taxpayers for Improving Public
Safety; California Public Defenders Association
KEY ISSUE
(More)
SB 226 (Emmerson)
PageB
SHOULD REALIGNMENT BE REVISED TO PROVIDE THAT CERTAIN FELONS
BELIEVED TO BE "SEVERELY MENTALLY DISORDERED" BE ASSESSED AND,
IF FOUND TO BE SO, SENTENCED TO STATE PRISON INSTEAD OF A COUNTY
CORRECTIONAL FACILITY, AS SPECIFIED?
PURPOSE
The purpose of this bill is to revise the criminal justice
realignment of 2011 by 1) requiring that a defendant convicted
of any felony and found to have a "severe mental disorder," as
specified, serve their executed felony sentence in prison; and
2) requiring that a person who is released from state prison who
has been found to have a "severe mental disorder," as specified,
be supervised by state parole.
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
(More)
SB 226 (Emmerson)
PageC
Section 667.5;
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 determined to
have a "severe mental disorder, as specified, the sentence shall
be served in state prison.
This bill would enact a process for determining whether a
convicted person is subject to confinement in state prison
because he or she has been convicted of a felony under section
1170(h) and has a "severe mental disorder," with the following
features and requirements:
Applicability - Conviction Offenses
This bill would provide that its provisions would apply to
persons convicted of the following felonies punishable under
section 1170(h):
(More)
SB 226 (Emmerson)
PageD
A crime not enumerated in a cross-referenced section,<1>
"in which the prisoner used force or violence, or caused
--------------------------
<1> The bill employs a cross-reference here to a statute
applicable to the civil commitment of mentally disordered
offenders (Penal Code § 2960 et seq.) The crimes enumerated in
this cross-reference (Penal Code § 2962(e)(2) are: (A) Voluntary
manslaughter. (B) Mayhem. (C) Kidnapping in violation of Section
207. (D) Any robbery wherein it was charged and proved that the
defendant personally used a deadly or dangerous weapon, as
provided in subdivision (b) of Section 12022, in the commission
of that robbery. (E) Carjacking, as defined in subdivision (a)
of Section 215, if it is charged and proved that the defendant
personally used a deadly or dangerous weapon, as provided in
subdivision (b) of Section 12022, in the commission of the
carjacking. (F) Rape, as defined in paragraph (2) or (6) of
subdivision (a) of Section 261 or paragraph (1) or (4) of
subdivision (a) of Section 262. (G) Sodomy by force, violence,
duress, menace, or fear of immediate and unlawful bodily injury
on the victim or another person.
(H) Oral copulation by force, violence, duress, menace, or fear
of immediate and unlawful bodily injury on the victim or another
person. (I) Lewd acts on a child under the age of 14 years in
violation of Section 288. (J) Continuous sexual abuse in
violation of Section 288.5. (K) The offense described in
subdivision (a) of Section 289 where the act was accomplished
against the victim's will by force, violence, duress, menace, or
fear of immediate and unlawful bodily injury on the victim or
another person. (L) Arson in violation of subdivision (a) of
Section 451, or arson in violation of any other provision of
Section 451 or in violation of Section 455 where the act posed a
substantial danger of physical harm to others. (M) Any felony in
which the defendant used a firearm which use was charged and
proved as provided in Section 12022.5, 12022.53, or 12022.55.
(N) A violation of Section 18745. (O) Attempted murder.
(More)
SB 226 (Emmerson)
PageE
serious bodily injury, as specified<2>; or
A crime in which the perpetrator expressly or impliedly
threatened another with the use of force or violence likely
to produce substantial physical harm in such a manner that
a reasonable person would believe and expect that the force
or violence would be used. For purposes of this
subparagraph, substantial physical harm shall not require
proof that the threatened act was likely to cause great or
--------------------------
<2> The cross-reference here is to Penal Code section 243(f)(4),
which states that, "'Serious bodily injury' means a serious
impairment of physical condition, including, but not limited to,
the following: loss of consciousness; concussion; bone fracture;
protracted loss or impairment of function of any bodily member
or organ; a wound requiring extensive suturing; and serious
disfigurement."
(More)
SB 226 (Emmerson)
PageF
serious bodily injury.<3>
Applicability - Court Consideration
This bill would provide that if a defendant has been convicted
of an offense described above, the court would be required to
suspend the imposition of the sentence and transport the
defendant to the Department of Corrections and Rehabilitation
for evaluation, as specified below, "if the court has reason to
believe that the person has a severe mental disorder," as
specified.
"Severe mental disorder" would be defined as "an illness or
disease or condition that substantially impairs the person's
thought, perception of reality, emotional process, or judgment;
or which grossly impairs behavior; or that demonstrates evidence
of an acute brain syndrome for which prompt remission, in the
absence of treatment, is unlikely. The term "severe mental
disorder" as used in this section does not include a personality
or adjustment disorder, epilepsy, mental retardation or other
developmental disabilities, or addiction to or abuse of
intoxicating substances."<4>
Process
This bill would require that, within 90 days of receiving a
defendant for evaluation, a CDCR psychiatrist would be required
to "evaluate the defendant to determine whether he or she has a
severe mental disorder, that the disorder is not in remission,
or cannot be kept in remission without treatment, that the
severe mental disorder was one of the causes or was an
aggravating factor in the prisoner's criminal behavior, and that
by reason of his or her severe mental disorder the prisoner
---------------------------
<3> The cross-reference here is to Penal Code section
2962(e)(2)(Q), which is quoted in the text.
<4> The cross-reference here is to Penal Code section 2962(a),
which in addition to defining the meaning of "severe mental
disorder" employed by this bill, also describes "remission" and
its effect in the context of the mentally disordered offender
statutes.
(More)
SB 226 (Emmerson)
PageG
represents a substantial danger of physical harm to others."
This bill would require CDCR to report its findings to the
sentencing court in writing.
Sentencing
This bill would provide that, if the initial evaluation
determines that the defendant has a severe mental disorder as
described above, the court shall impose a sentence for the term
described in the underlying offense to be served in the state
prison, as specified.
This bill further would provide that if the initial evaluation
determines that the defendant does not have a severe mental
disorder, CDCR would be required to return the defendant to the
court for sentencing pursuant to subdivision (h) of Section
1170.
Post Custodial Supervision
This bill would provide that upon completion of the sentence to
prison of a felon found to have a severe mental disorder
pursuant to the provisions of this bill, the defendant shall be
subject to parole, as specified.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
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
(More)
SB 226 (Emmerson)
PageH
prosecutions. Under the resulting policy known as "ROCA" (which
stands for "Receivership/ Overcrowding Crisis Aggravation"), the
Committee held measures which created a new felony, expanded the
scope or penalty of an existing felony, or otherwise increased
the application of a felony in a manner which could exacerbate
the prison overcrowding crisis. Under these principles, ROCA
was applied as a content-neutral, provisional measure necessary
to ensure that the Legislature did not erode progress towards
reducing prison overcrowding by passing legislation which would
increase the prison population. ROCA necessitated many hard and
difficult decisions for the Committee.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order issued by the Three-Judge Court three years
earlier to reduce the state's prison population to 137.5 percent
of design capacity. The State submitted in part that the, ". .
. population in the State's 33 prisons has been reduced by over
24,000 inmates since October 2011 when public safety realignment
went into effect, by more than 36,000 inmates compared to the
2008 population . . . , and by nearly 42,000 inmates since 2006
. . . ." Plaintiffs, who opposed the state's motion, argue in
part that, "California prisons, which currently average 150% of
capacity, and reach as high as 185% of capacity at one prison,
continue to deliver health care that is constitutionally
deficient." In an order dated January 29, 2013, the federal
court granted the state a six-month extension to achieve the
137.5 % prisoner population cap by December 31st of this year.
In an order dated April 11, 2013, the Three-Judge Court denied
the state's motions, and ordered the state of California to
"immediately take all steps necessary to comply with this
Court's . . . Order . . . requiring defendants to reduce overall
prison population to 137.5% design capacity by December 31,
2013."
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
(More)
SB 226 (Emmerson)
PageI
prison population that have been made, although even greater
reductions are required by the court, the Committee will review
each ROCA bill with more flexible consideration. The following
questions will inform this consideration:
whether a measure erodes realignment;
whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
whether a bill corrects a constitutional infirmity or
legislative drafting error;
whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and
whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Stated Need for This Bill
The author states:
SB 226 would require a felony offender that is
suspected by the courts to have a severe mental
disorder, and would otherwise be sentenced to
imprisonment in county jail pursuant to realignment,
to be transferred to the California Department of
Corrections and Rehabilitation for an evaluation. If
the offender is determined to have a severe mental
disorder, he or she must serve their sentence in state
prison. This is necessary because state authorities
have the ability to require the offender to receive
the proper mental health treatment before being
released and as a condition of parole, whereas in
county jail there is no authority or opportunity to
screen these offenders that may need this treatment
(More)
SB 226 (Emmerson)
PageJ
before they can safely re-enter society.
2. What This Bill Would Do
Broadly speaking, this bill would narrow the category of felons
eligible to serve a felony sentence locally instead of in
prison, which was a feature of realignment. Specifically, this
bill would provide that convicted felons determined by the court
to have a "severe mental disorder" would be statutorily
ineligible to serve a felony sentence in jail - they would be
required to serve an executed felony sentence in prison and be
supervised by parole upon release. The bill uses the
definitions of "severe mental disorder" currently reflected in
the statutes pertaining to the civil commitment of mentally
disordered offenders. The bill proposes an evaluation process
in which the court, if it has reason to believe a defendant has
a severe mental disorder, would refer the person to CDCR where a
psychiatrist would conduct an evaluation of the defendant to
determine whether or not they have a "severe mental disorder,"
and provides their report to the court. If they do, they must
serve their time in prison and not jail. The bill uses the
definitions and standards of the existing mentally disordered
offender statutes.
3. Felony Sentencing Under the Criminal Justice Realignment of
2011; Proponent's Arguments for This Bill
This bill would alter how felony sentencing is handled under
realignment by providing that in addition to the persons now
statutorily ineligible to serve an executed felony sentence in
jail, convicted felons determined by the court to have a "severe
mental disorder" also would be statutorily ineligible to serve a
felony sentence in jail; they would have to serve an executed
felony sentence in prison.
The "2011 Realignment Legislation Addressing Public Safety"
fundamentally altered how convicted felons are handled under
(More)
SB 226 (Emmerson)
PageK
California law.<5> Under California law operative until October
1, 2011, a felony was a crime punishable by death or
imprisonment in state prison.<6> Effective October 1, 2011,
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.<7>
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
----------------------
<5> 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.
<6> 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.)
<7> Penal Code § 17.
(More)
SB 226 (Emmerson)
PageL
result of a probation violation.<8>
The confinement changes under realignment - 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.<9>
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.<10> 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
---------------------------
<8> 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.)
<9> 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.
<10> 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).)
(More)
SB 226 (Emmerson)
PageM
otherwise allowable.<11>
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:
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.<12>
Under current law, 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
--------------------------
<11> 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).
<12> Penal Code § 1170(h) (3), as amended in Sections 450 and
451 of AB 109.
(More)
SB 226 (Emmerson)
PageN
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
entitled to only actual time credit against the term of
imprisonment imposed by the court.<13>
The California District Attorneys Association, which is the
sponsor of this bill, essentially submits that realignment
excludes some felons from the potential for civil commitment as
mentally disordered offenders who could have been found to be
MDOs under the former law. CDAA explains in part:
Specified prisoners with severe mental disorders
wherein the disorder was a cause or aggravating factor
in the commission of a crime for which the prisoner
was sentenced to prison are required to be treated, as
a condition of parole, by the State Department of
State Hospitals (DSH), if certain criteria exist.
These persons who are civilly committed for treatment
are known as mentally disordered offenders (MDO).
Criminal justice realignment limits the felonies that
qualify for state prison and thus parole, thereby
limiting the number of felons that might otherwise be
screened and qualify for MDO treatment. This gap in
the law potentially endangers the public. Further,
custodial sanctions for parole violators are limited
to a maximum of 90 days in county jail, eliminating
that source of commitment as well. (MDOs released
from prison are still subject to parole, and not
postrelease community supervision.)
Some felons committing crimes of force or violence, or
----------------------
<13> Penal Code § 1170(h) (5).
(More)
SB 226 (Emmerson)
PageO
threats of force or violence, are not sent to prison
because they must be sent to county jail under Penal
Code section 1170(h). Those felons who suffer from a
severe mental disorder, as defined, might otherwise
have been committed to DSH for treatment as a
condition of parole had they been sent to prison and
paroled upon completion of their term. Felony county
jail commitments under PC 1170(h) do not require a
term of parole, and there exists no opportunity for
the MDO commitment prerequisites of treatment,
evaluation, certification by a Chief Psychiatrist of
the California Department of Corrections and
Rehabilitation (CDCR), and a hearing by the Board of
Parole Hearings (BPH).
PC 2962(e) lists those commitment offenses that make a
prisoner subject to MDO treatment. There are 15
listed crimes, all of which are excluded from PC
1170(h) sentencing by virtue of being either a serious
or violent felony or a crime involving a life
sentence. PC 2962(e), however, also makes a parolee
subject to MDO commitment for a crime of force or
violence, or a crime involving a serious threat of
force or violence. Under realignment, only those
felons whose crime of force or violence is on the
exclusion list, or involves infliction of great bodily
injury or personal firearm use (a serious felony), are
subject to a prison sentence and therefore parole.
Similarly, only those threats that fall under PC 422,
i.e. threats of death or great bodily injury (a
serious felony) are subject to a prison sentence and
therefore parole.<14>
Thus, the proponents argue that before realignment all felons
served their executed felony sentences in prison, where a felon
who might be an MDO would be assessed and, if found to be an
MDO, subject to civil commitment after they served their
sentence. With realignment, since not all felons now serve
their custodial sentences in prison, those felons kept at the
---------------------------
<14> On file in Committee offices.
(More)
SB 226 (Emmerson)
PageP
local level are outside of the MDO process. Members may wish to
ask the proponents for specific examples of the kinds of crimes
that could fall into the gap described by the proponents.
This bill would provide a mechanism for sending an offender to
prison based on an MDO evaluation conducted after they have been
convicted; that evaluation would occur before the sentence for
the person is executed (in other words, right after their
conviction). This would vary from the current MDO process,
where the determination of severe mental disorder for prison
inmates is not made until he or she has been in prison. One
requirement for MDO consideration, for example, is that the
prisoner has been in treatment for the severe mental disorder
for 90 days or more within the year prior to the prisoner's
parole or release. (Penal Code § 2962(c).) The MDO law
requires only that the inmate's mental disorder to have been a
cause or aggravating factor in the commission of the offense;
members may wish to consider whether this bill essentially would
make the crime of conviction the main basis for an MDO referral
and commitment.
Members also may wish to consider how many defendants courts
would refer to CDCR under this bill. The categories of offenses
this bill would apply to include the following; members may wish
to consider how many of these would apply in an 1170(h) case:
the defendant's crimes involved the use of force or
violence, caused serious bodily injury;
the defendant expressly or impliedly threatened another
with the use of force or violence likely to produce
substantial physical harm in such a manner that a
reasonable person would believe and expect that the force
or violence would be used.
In addition, if a defendant has a severe mental disorder
immediately after a trial and conviction, it would seem likely
that incompetent to stand trial issues would arise during the
proceedings. Why would the case get to the conviction stage if
the defendant has been in court with a severe mental disorder?
(More)
SB 226 (Emmerson)
PageQ
Finally, members may wish to consider whether potential MDO
defendants under this bill would have a reasonable argument that
full due process must be afforded them (i.e., a jury trial) in
the trial court's determination that results in a prison
sentence and, potentially, a later MDO commitment.
In assessing the need and function of this bill, members may
wish to discuss whether the objectives of this bill could be met
in a manner more consistent with current law. Members may wish,
to consider whether the bill should be reframed to provide that
the process for determining whether a jail felon is an MDO occur
towards the end of their sentence, which is consistent with the
MDO laws today. For example, where a local felon is determined
to have a severe mental disorder and otherwise meets the
requirements of MDO determination, the supervising agency
(sheriff or probation) could petition the court to have the
offender transferred to prison at that time.
Members also may wish to discuss with the author and proponents
whether the existing LPS system can be employed to address the
issues raised by jail felons with very severe mental health
issues.
WHAT SPECIFIC EXAMPLES ILLUSTRATE THE KINDS OF CRIMES THAT COULD
FALL INTO THE GAP DESCRIBED BY THE PROPONENTS?
HOW MANY DEFENDANTS WOULD BE REFERRED TO CDCR UNDER THIS BILL?
COULD DEFENDANTS BE FOUND TO BE COMPETENT TO STAND TRIAL AT THE
BEGINNING OF A TRIAL, AND THEN FOUND TO BE "SEVERELY MENTALLY
DISORDERED" ONCE THEY ARE CONVICTED?
SHOULD THIS BILL BE REVISED TO PROVIDE THAT ITS PROVISIONS
REQUIRING AN "MDO" EVALUATION OCCUR ONLY IF THE DEFENDANT
PREVIOUSLY HAS BEEN FOUND TO BE COMPETENT TO STAND TRIAL?
SHOULD THIS BILL BE REFRAMED TO MOVE ITS "MDO" CONSIDERATION
PROVISIONS, AND POTENTIAL FOR A TRANSFER TO STATE PRISON, TO THE
END OF A JAIL FELON'S SENTENCE?
(More)
SB 226 (Emmerson)
PageR
4. Public Safety Realignment of 2011; Additional Considerations
for This Bill
The Governor's Budget Summary for 2011-2012 describes the
administration's reasoning for realignment's provisions
realigning some felons from the state to the counties:
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. The number of shortterm, lowerlevel
offenders has increased dramatically since California
changed to a determinate sentencing model. Lowerlevel
offenders currently represent almost half of the
prison population on any given day. . . . The
constant cycling of parole violators and shortterm
offenders creates a situation in which many inmates
are housed in gyms and day rooms. The reception
centers must process 250,000 to 300,000 individual
offenders in any given year. Due to limited resources
for county probation departments, many of these
shortterm offenders have previously failed to turn
their lives around after being convicted of crimes at
the county level. With more resources, shortterm
offenders can be better managed and can become more
successful through a combination of probation services
and jail time.<15>
The Governor's Budget Summary for 2013-14, released in January
of this year, notes the following with respect to prison
overcrowding and the ongoing federal litigation and court orders
summarized earlier in this analysis:
In November 2006, plaintiffs filed a motion to convene
a threejudge panel in the Plata lawsuit under the 1996
Prison Litigation Reform Act, claiming that
----------------------
<15>
http://2011-12.archives.ebudget.ca.gov/pdf/BudgetSummary/Correcti
onsandRehabilitation.pdf.
(More)
SB 226 (Emmerson)
PageS
overcrowded conditions in Californias prisons resulted
in unconstitutional medical care. The second lawsuit
joined in the threejudge panel, Coleman, involves
mental health services for inmates. Both lawsuits
claim that care for inmates violates the Eighth
Amendment of the U.S. Constitution, which prohibits
cruel and unusual punishment of the incarcerated.
In 2007, a threejudge panel was convened to address
claims that overcrowding in state prisons results in
unconstitutional medical care. In 2009, the panel
ordered the state to reduce its adult institution
population to 137.5 percent of design capacity within
two years, equivalent to a reduction of about 40,000
inmates. The state appealed this decision, but in
2011, the U.S. Supreme Court upheld the panel's
finding.
Since 2007, California has taken numerous actions to
reduce overcrowding. The most significant ongoing
actions are realigning lowerlevel offenders and parole
violators to local jurisdictions, and increasing
prison health care bed and treatment capacity. These
actions have been effective in reducing the prison
population while maintaining public safety,
eliminating the use of all nontraditional beds, and
allowing CDCR to focus on providing rehabilitation
programs to reduce recidivism.
The threejudge panel issued another order in October
2012 requiring the state to develop two plans to
reduce the prison population to 137.5 percent of
design capacity by June 27, 2013 and December 27,
2013. The plans were submitted to the Court on
January 7, 2013, as ordered.
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:
(More)
SB 226 (Emmerson)
PageT
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.<16>
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:
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.<17>
SB 1022, last year's measure which included $500 million in
lease-revenue bonds for county jails, including the following
---------------------------
<16> LAO, The 2013-14 Budget: Governor's Criminal Justice
Proposals (Feb. 15, 2013.)
<17> 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
(More)
SB 226 (Emmerson)
PageU
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.
(d) This purpose represents valuable consideration in
exchange for this state action.<18>
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.<19>
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
----------------------
<18> SB 1022, Ch. 42, Stats. 2012.
<19> Id., Government Code § 15820.926.
(More)
SB 226 (Emmerson)
PageV
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 2013-14.<20>
This bill would provide a framework for re-aligning some of the
felony offenders now subject to local corrections, but does not
make any changes to the funding realigned pursuant to
realignment and guaranteed to local governments by Proposition
30. Committee staff has not estimated how many felons would be
"re-realigned" to prison under this bill, and what that
realignment would mean in terms of costs for incarceration,
mental health treatment and assessment and, potentially, civil
commitment under the MDO laws. The author's office has provided
information prepared by a deputy district attorney in San Luis
Obispo County attempting to assess the potential impact of this
bill. His report states in part:
In an effort to determine the impact on the prison
population reduction effort by (this bill), a sample
of Penal Code section 2966(b) petitions filed in 2011
was analyzed. The year 2011 was chosen because it was
the last year before (realignment) . . . took effect.
A sample of these "initial" Mentally Disordered
Offender (MDO) petitions was studied to determine how
many of them would have been sentenced under PC
1170(h) had it been in effect, and thus unidentified
as MDOs.
----------------------
<20> Id.
(More)
SB 226 (Emmerson)
PageW
Only "initial" MDO petitions filed under PC 2966(b)
were examined. The 83 "annual" petitions filed under
PC 2966(c) were not included. Neither were petitions
filed in late 2011 that did not result in District
Attorney cases until 2012.
(More)
. . . There were 323 initial MDO petitions filed in
the San Luis Obispo Superior Court in 2011 that fit
the above criteria. Of the 323 petitions, 230 were
examined. Of the 230, 39 would have been sentenced
under PC 1170(h). The 39 represented approximately
17% of the petitions. Stated another way, about 1 in
6 of the MDO commitments would have been unidentified
had PC 1170(h) sentencing been in effect.
Extrapolating the sample size figures to the entire
petition population, approximately 55 of 323 initial
MDO petitions filed in 2011 would have been
unidentified as MDOs due to PC 1170(h) sentencing.
To determine the impact of the proposed legislation on
prison overcrowding concerns, however, it is important
to remember that not all of the 55 MDOs were sentenced
in the same year.
Of the 39 in the sample size of 230, the commitment
year was as follows:
1 in 2002
1 in 2004
6 in 2007
2 in 2008
10 in 2009
15 in 2010
4 in 2011
Thus, the greater numbers were in the years 2009 and
2010. This is not surprising given that most of those
sentenced in prior years would be "off parole" and
therefore subject to PC 2970 commitments if they were
still being treated in custody. Most of those
sentenced in 2011 would not have reached their release
date from prison and would not be on parole and
subject to an MDO commitment.
Extrapolating the sample size numbers to the full
population figures, approximately 14 would have been
(More)
SB 226 (Emmerson)
PageY
PC 1170(h) sentences in 2009 and approximately 21
would have been 1170(h) sentences in 2010.
. . . Approximately 55 of the 323 MDO patients
filing PC 2966(b) petitions in 2011 would never have
been identified as MDOs had they been sentenced under
PC 1170(h). They would have been released on parole
while they still represented a substantial danger of
physical harm to others by reason of their severe
mental disorder. . . . On the other hand, the impact
on prison population reduction efforts would be
minimal. Had both PC 1170(h) and the proposed
legislation been in effect in 2009 and 2010 (the years
of greatest impact), the prison population would have
increased by a mere 14 and 21 prisoners respectively.
Members may wish to discuss how this bill would impact
realignment, including with respect to the following questions:
Should felons with severe mental disorders as defined by
the mentally disordered offender statutes who were
realigned under AB 109 be "re-realigned" back to the state?
Would this bill address a "gap" in current law relating
to how mentally disordered felons are handled?
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?
Should realigned felons be "re-realigned" to the state
without an adjustment to the funding realigned to local
governments and guaranteed by proposition 30?
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?
TO WHAT EXTENT WOULD THIS BILL ERODE REALIGNMENT?
SB 226 (Emmerson)
PageZ
***************