BILL ANALYSIS Ó SENATE COMMITTEE ON PUBLIC SAFETY Senator Loni Hancock, Chair S 2013-2014 Regular Session B 4 1 9 SB 419 (Block) As Amended April 1, 2013 Hearing date: April 30, 2013 Penal Code AA:mc COMMUNITY SUPERVISION BY PROBATION: "FLASH INCARCERATION" HISTORY Source: Chief Probation Officers of California 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: California Probation, Parole and Correctional Association Opposition: California Public Defenders Association; California Attorneys for Criminal Justice; American Civil Liberties Union of California (More) SB 419 (Block) PageB KEY ISSUE SHOULD "FLASH INCARCERATION" BE EXTENDED TO APPLY TO PERSONS ON PROBATION AND MANDATORY SUPERVISION, AS SPECIFIED? PURPOSE The purpose of this bill is to 1) extend the authority for "flash incarceration" - where a parole agent or probation officer can order the detention of certain supervised persons in jail for up to 10 consecutive days for violating a condition of release - to include persons subject to probation supervision and mandatory probation, as specified; and 2) require that persons subject to probation or mandatory supervision "waive any right to a court hearing prior to the imposition of a period of flash incarceration in a county jail of not more than 10 consecutive days for any violation of his or her conditions of probation or mandatory supervision." Current law generally authorizes the use of a penalty known as "flash incarceration"<1> for felons who have been released from prison, are subject to supervision by state parole or county probation, and are believed to have violated a condition of their supervision. (Penal Code --------------------------- <1> Current law, as enacted by the criminal justice realignment of 2011, includes legislative findings and declarations which, among other things, defines "community-based punishment" to mean "evidence-based correctional sanctions and programming encompassing a range of custodial and noncustodial responses to criminal or noncompliant offender activity. Intermediate sanctions may be provided by local public safety entities directly or through public or private correctional service providers and include, but are not limited to, the following: . . . Short-term 'flash' incarceration in jail for a period of not more than 10 days. . . . " (Penal Code § 3450.) (More) SB 419 (Block) PageC §§ 3008.8; 3450.) Current law specifically authorizes county agencies responsible for supervising persons subject to postrelease community supervision<2> ("PRCS") to: . . . determine and order appropriate responses to alleged violations, which can include, but shall not be limited to, immediate, structured, and intermediate sanctions up to and including referral to a reentry court . . . , or flash incarceration in a county jail. Periods of flash incarceration are encouraged as one method of punishment for violations of an offender's condition of postrelease supervision. (c) " Flash incarceration " is a period of detention in county jail due to a violation of an offender's conditions of postrelease supervision. The length of the detention period can range between one and 10 consecutive days. Flash incarceration is a tool that may be used by each county agency responsible for postrelease supervision. Shorter, but if necessary more frequent, periods of detention for violations of an offender's postrelease supervision conditions shall appropriately punish an offender while preventing the disruption in a work or home establishment that typically arises from longer term revocations. (Penal Code § 3454(b) and (c) (emphasis added).) --------------------------- <2> "Postrelease Community Supervision ("PRCS") generally provides that certain felons released from prison "shall, upon release from prison and for a period not exceeding three years immediately following release, be subject to community supervision provided by a county agency designated by each county's board of supervisors which is consistent with evidence-based practices, including, but not limited to, supervision policies, procedures, programs, and practices demonstrated by scientific research to reduce recidivism among individuals under postrelease supervision." (Penal Code § 3451.) (More) SB 419 (Block) PageD Current law also authorizes this use of flash incarceration on parolees, who are supervised by state parole. (See Penal Code § 3008.08 (d), (e) and (f).) Current law generally authorizes courts to suspend a felony sentence and order the conditional and revocable release of an offender in the community to probation supervision. (Penal Code § 1203.) Current law also authorizes courts to impose what is known as a "split sentence" on persons convicted of a felony for which any custodial time will be served locally (not in state prison), and where the court imposes a sentence comprised of both time in custody and time subject to what is termed "mandatory supervision" in the community by probation. (Penal Code § 1170(h).) This bill would authorize the use of flash incarceration on persons subject to probation supervision and mandatory probation. Specifically, this bill would provide: Each county agency responsible for probation or mandatory supervision may determine and order additional appropriate conditions of supervision consistent with public safety, including the use of continuous electronic monitoring as defined in Section (More) SB 419 (Block) PageE 1210.7,<3> appropriate rehabilitation and treatment services, appropriate incentives, and appropriate responses to alleged violations, including, but not limited to, immediate, structured, and intermediate sanctions up to and including referral to a reentry court pursuant to Section 3015,<4> or flash incarceration in a county jail. Periods of flash incarceration are encouraged as one method of punishment for violations of an offender's condition of probation or mandatory supervision. ---------------------- <3> Penal Code section 1210.7 states: "(a) Notwithstanding any other provisions of law, a county probation department may utilize continuous electronic monitoring to electronically monitor the whereabouts of persons on probation, as provided by this chapter. (b) Any use of continuous electronic monitoring pursuant to this chapter shall have as its primary objective the enhancement of public safety through the reduction in the number of people being victimized by crimes committed by persons on probation. (c) It is the intent of the Legislature in enacting this chapter to specifically encourage a county probation department acting pursuant to this chapter to utilize a system of continuous electronic monitoring that conforms with the requirements of this chapter. (d) For purposes of this chapter, "continuous electronic monitoring" may include the use of worldwide radio navigation system technology, known as the Global Positioning System, or GPS. The Legislature finds that because of its capability for continuous surveillance, continuous electronic monitoring has been used in other parts of the country to monitor persons on formal probation who are identified as requiring a high level of supervision. (e) The Legislature finds that continuous electronic monitoring has proven to be an effective risk management tool for supervising high-risk persons on probation who are likely to reoffend where prevention and knowledge of their whereabouts is a high priority for maintaining public safety." This section was added in 2005 by SB 619 (Speier) (Ch. 484, Stats. 2005), which was sponsored by the Orange County Probation Department. <4> This section generally authorizes CDCR to establish a parole reentry accountability program for parolees which involves a reentry court program, as specified. (More) SB 419 (Block) PageF This bill would provide that for purposes of this chapter<5>: "(F)lash incarceration" is a period of detention in the county jail due to a violation of an offender's conditions of probation or mandatory supervision. The length of the detention period may range between one and 10 consecutive days. Flash incarceration is a tool that may be used by each county agency responsible for probation or mandatory supervision. Shorter, but if necessary more frequent, periods of detention for violations of an offender's probation or mandatory supervision shall appropriately punish an offender while preventing the disruption in a work or home establishment that typically arises from longer term revocations. This bill would require that, a "person subject to probation or mandatory supervision shall waive any right to a court hearing prior to the imposition of a period of flash incarceration in a county jail of not more than 10 consecutive days for any violation of his or her conditions of probation or mandatory supervision." Current law generally provides if any probation officer, parole officer, or peace officer has probable cause to believe that a supervised person is violating any term or condition of his or her supervision, the officer may arrest the person without a warrant at any time and bring the person before the court for further disposition such as modification, revocation or termination of the person's supervision, as specified. (Penal Code § 1203.2.) The statute enumerating this authority concerning supervised persons who are believed to be violating any term or condition of his or her supervision expressly states that nothing in its provisions "affects the authority of the supervising agency to --------------------------- <5> The "chapter" this provision would apply to would be Chapter 1 (The Judgment) of Title 8 (Of Judgment and Execution) of Part 2 (Criminal Procedure) of the Penal Code. (More) SB 419 (Block) PageG impose intermediate sanctions, including flash incarceration, to persons supervised on parole . . . or postrelease community supervision . . . . (Penal Code § 1203.2 (g).) This bill would amend this subdivision to also provide that nothing in this section affects the authority of probation to impose flash incarceration to persons supervised on probation and mandatory supervision. RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION For the last several years, severe overcrowding in California's prisons has been the focus of evolving and expensive litigation relating to conditions of confinement. On May 23, 2011, the United States Supreme Court ordered California to reduce its prison population to 137.5 percent of design capacity within two years from the date of its ruling, subject to the right of the state to seek modifications in appropriate circumstances. Beginning in early 2007, Senate leadership initiated a policy to hold legislative proposals which could further aggravate the prison overcrowding crisis through new or expanded felony prosecutions. Under the resulting policy known as "ROCA" (which stands for "Receivership/ Overcrowding Crisis Aggravation"), the Committee held measures which created a new felony, expanded the scope or penalty of an existing felony, or otherwise increased the application of a felony in a manner which could exacerbate the prison overcrowding crisis. Under these principles, ROCA was applied as a content-neutral, provisional measure necessary to ensure that the Legislature did not erode progress towards reducing prison overcrowding by passing legislation which would increase the prison population. ROCA necessitated many hard and difficult decisions for the Committee. In January of 2013, just over a year after the enactment of the historic Public Safety Realignment Act of 2011, the State of California filed court documents seeking to vacate or modify the federal court order issued by the Three-Judge Court three years earlier to reduce the state's prison population to 137.5 percent of design capacity. The State submitted in part that the, ". . (More) SB 419 (Block) PageH . population in the State's 33 prisons has been reduced by over 24,000 inmates since October 2011 when public safety realignment went into effect, by more than 36,000 inmates compared to the 2008 population . . . , and by nearly 42,000 inmates since 2006 . . . ." Plaintiffs, who opposed the state's motion, argue in part that, "California prisons, which currently average 150% of capacity, and reach as high as 185% of capacity at one prison, continue to deliver health care that is constitutionally deficient." In an order dated January 29, 2013, the federal court granted the state a six-month extension to achieve the 137.5 % prisoner population cap by December 31st of this year. In an order dated April 11, 2013, the Three-Judge Court denied the state's motions, and ordered the state of California to "immediately take all steps necessary to comply with this Court's . . . Order . . . requiring defendants to reduce overall prison population to 137.5% design capacity by December 31, 2013." The ongoing litigation indicates that prison capacity and related issues concerning conditions of confinement remain unresolved. However, in light of the real gains in reducing the prison population that have been made, although even greater reductions are required by the court, the Committee will review each ROCA bill with more flexible consideration. The following questions will inform this consideration: whether a measure erodes realignment; whether a measure addresses a crime which is directly dangerous to the physical safety of others for which there is no other reasonably appropriate sanction; whether a bill corrects a constitutional infirmity or legislative drafting error; whether a measure proposes penalties which are proportionate, and cannot be achieved through any other reasonably appropriate remedy; and whether a bill addresses a major area of public safety or criminal activity for which there is no other reasonable, appropriate remedy. (More) SB 419 (Block) PageI COMMENTS 1. Stated Need for This Bill The author states: As a result of AB 109 Realignment, counties are now responsible for supervising Post Release Community Supervision (PRCS) offenders. These offenders are now under local supervision by county probation officers instead of serving their parole time on a state parole jurisdiction. Because Realignment directed more serious offenders to county jail, counties are increasingly releasing lower offenders who would have served time in county jail before Realignment. This has increased the responsibilities of probation officers by now having to supervise PRCS offenders and a larger amount of low level offenders. One of the tools that have been successful in supervising PRCS offenders is the use of intermediate sanctions like "flash" incarceration. "Flash" incarceration is a period of detention in county jail triggered by a violation of the condition of probation. The length of the detention period can range from between one and ten consecutive days. Shorter, but if necessary more frequent, periods of detention for violations of an offender's post release supervision conditions appropriately punish an offender while preventing the disruption in a work or home establishment that typically arises from longer term revocations. The probation department can use this sanction without having to go back to court by using an administrative process, thereby relieving workloads on courts and encouraging swift and certain sanctions consistent (More) SB 419 (Block) PageJ with Evidence Based Principals. A similar program in Hawaii has shown positive reports of decrease in recidivism, the likelihood of using drugs while on probation, and the likelihood of probation being revoked. SB 419 gives county probation departments the authority to use "flash" incarceration for any adult offender under their supervision for up to 10 days in county jail. By extending this authority, county probation departments can continue to use this effective, evidence based tool for offenders under their supervision. 2. What This Bill Would Do; Support and Opposition This bill would do two key things: 1) extend the use of "flash incarceration," as authorized in the criminal justice realignment of 2011, for parolees and persons on PRCS to also apply to persons on probation and mandatory supervision (that is, supervision that is part of a "split sentence" for a person convicted of a jail felony; and 2) require that these persons waive any right to a court hearing prior to the imposition of a period of flash incarceration. The Chief Probation Officers of California, which is the sponsor of this bill, submits in part: Without (flash incarceration) authority a probation department's only choice in dealing with a violation of a court ordered condition is to initiate revocation proceedings. Not only does this create more work on an overburdened court system, it is also not productive for the rehabilitation of an offender because a revocation results in breaking any ties to the community, job, family and programming. . . . The California Public Defenders Association, which opposes this (More) SB 419 (Block) PageK bill, submits in part: CPDA is concerned that while flash incarceration, as used prior to Realignment, had minimal due process protections for individuals, under Realignment the use of flash incarceration does not have that protection. A jail term is imposed without input from anyone, and is not imposed by a judge. It is left up to each probation department, what, if any, process is put in place for a supervised person to object, and have reviewed, the reason for, and length of a period, of flash incarceration. Anecdotally, we have heard that some probation officers are using only the maximum period of incarceration, ten (10) days. Similarly, the ACLU submits: As a preliminary matter, the ACLU of California has serious concerns regarding the constitutionality of the existing flash incarceration statute, and its requirement that a person placed on PRCS waive due process rights before being released. (Cal. Penal Code § 3453, subd. (q).) Similarly, AB 419 requires that persons on probation or mandatory supervision waive their rights to a court hearing before being incarcerated in county jail for up to ten days. The Due Process clause of the Constitution requires an individual be given notice and an opportunity to be heard before being deprived of his or her liberty. (U.S. Const. amend. XIV, § 2; see also Cal. Const. art. I. §3, cl. 4.) Flash incarceration constitutes a deprivation of liberty within the meaning of the 14th Amendment. (See Morrissey v. Brewer, 408 U.S. 471 (1972).) 3. Background - "Flash Incarceration" as Part of the Criminal Justice Realignment of 2011 (More) SB 419 (Block) PageL The "2011 Realignment Legislation Addressing Public Safety" fundamentally altered how convicted felons are handled under California law.<6> Two provisions in realignment critically altered the responsibilities of probation. First, realignment provided that some inmates released from state prison would be subject to "postrelease community supervision" instead of parole. This has meant that probation, not parole, now supervises some felons coming out of prison. Second, realignment provided that certain persons convicted of felonies would not go to prison, but instead would be sentenced to local punishment which could include jail time, mandatory community supervision, or both (a "split sentence"). Mandatory supervision as part of a "split sentence" is done by probation. With the creation of PRCS, probation was authorized by realignment to employ "flash incarceration" as an "intermediate sanction" for responding to both parole and PRCS violations.<7> The Legislative Analyst's Office explained the context and reasoning behind "flash incarceration" as part of realignment: . . . (T)he realignment legislation provided counties with some additional options for how to manage the realigned offenders. . . . (T)he legislation allows county probation officers to return offenders who violate the terms of their community supervision to jail for up to ten days, which is commonly referred to as "flash incarceration." The rationale for using flash incarceration is that short terms of incarceration when applied soon after the offense is identified can be more effective at deterring subsequent violations than the threat of longer terms ---------------------- <6> 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. <7> As explained in an earlier section of this analysis, parole likewise was authorized to use this tool. (More) SB 419 (Block) PageM following what can be lengthy criminal proceedings.<8> The statutory framework authorizing flash incarceration does not provide guidelines on how it should be used. A 2012 draft student paper from the Stanford Criminal Justice Center at Stanford Law School described examples of how three counties - Los Angeles, Santa Clara and Sonoma counties - differed as they began to use flash incarceration during the very initial stages of realignment: Los Angeles, Santa Clara, and Sonoma counties present widely divergent examples of counties using flash incarceration in connection with PRCS and the way in which they administer the sanction. In each county, the discretion to flash incarcerate rests with the deputy probation officer (DPO). However, each county uses various modes of control to constrain this discretion in different ways. In Los Angeles, flash incarceration is constrained on a violation dimension and can only be used where an individual absconds. In Santa Clara, constraint operates on a process dimension and the judgment of the DPO must be explained to a supervising officer before flash incarceration can be used. Sonoma does not constrain discretion a priori, but constrains discretion on a correctional dimension by allowing the PRCS parolee a review of the facts before determining the appropriateness of the sanction.<9> 4. Current Practices --------------------------- <8> Legislative Analyst's Office, The 2012-13 Budget: The 2011 Realignment of Adult Offenders-An Update (Feb. 22, 2012). <9> Arroyo, Flash Incarceration: Due Process in an Era of Intermediate Sanctions (DRAFT FOR COMMENTS) (March 1, 2012); Stanford Criminal Justice Center, Stanford Law School (http://www.law.stanford.edu/sites/default/ files/child-page/183091/doc/slspublic/Flash_Incarceration_Arroyo. pdf.) (More) SB 419 (Block) PageN The sponsor of this bill has provided the Committee with an example from the Sutter County Probation Department demonstrating that, in some jurisdictions, courts now are including flash incarceration authority in their court orders for probation and mandatory supervision offenders. Sutter County probation policies and procedures describe this authority: For probationers and split sentence offenders, the Court's approved use of flash incarceration as an administrative sanction is addressed in the initial Court order as follows: The defendant understands and waives the right to a court hearing prior to the imposition of a period of "flash incarceration" in the county jail of not more than 10 consecutive days for a violation of supervision conditions as determined by the probation officer. The defendant further understands that he is not entitled to conduct credits for any period of "flash incarceration." The above language is included in the initial report of probation. In order for the Court to acknowledge a defendant's understanding of flash incarceration as an administrative sanction in lieu of revocation, the Flash Incarceration Waiver of Hearing . . . will need to be reviewed and signed by the defendant and the intake PO. . . . The Sutter probation policies also describe how flash incarceration is to be used: Per department policy, the use of the Response Matrix is required to determine an appropriate intervention, to include the use of flash incarceration as a sanction. Refer to the procedures for the use of the Response Matrix for further explanation. It is noted (More) SB 419 (Block) PageO that flash incarceration is one of the many Level 3 and 4 sanctions, all of which require supervisor approval. Per Level 3 guidelines, a flash incarceration period may range from one to five days in jail. Level 4 flash incarceration periods must be between five and ten days in length. Imposing Flash Incarceration: If the matrix determines a Level 3 or 4 response option and flash incarceration is considered by the probation officer and the supervisor to be an appropriate sanction, then the offender is notified of the alleged violation, the imposition of flash incarceration is explained, to include the specific length of time in custody and release date, and he/she is arrested and transported to the Sutter Co. Jail for booking. . . . If the offender denies he committed the violation and/or refuses to accept the recommended period of flash incarceration, it MAY NOT be imposed. A violation of probation may be filed with the Court, if approved by the supervisor. Post-Flash Incarceration Follow Up: Flash Incarceration is seen as an alternative to a (violation of probation) declaration; therefore, once a period of jail time is served and the offender is released, any future declarations may NOT allege those previous violations. It is further noted that on PRCS cases, the 6 month termination date will need to be adjusted. However, all offender behavior can still be considered when using the Matrix and may direct future responses used by the probation officer. The Sutter County example suggests a few considerations members (More) SB 419 (Block) PageP may wish to discuss. First, it appears that at least in one county "flash incarceration" already is being extended to probationers and persons on mandatory supervision through court orders. Members may wish to consider whether this bill is drafted in a way that would dispense with the necessity of authorizing flash incarceration in individual court orders of probation and mandatory supervision, and instead provide a blanket statutory authority for flash incarceration that would apply to all persons in these classes of supervision status. Second, under the approach described by Sutter County probation, offenders must knowingly waive their right to a hearing prior to the imposition of a flash incarceration sanction. This bill would state that a "person subject to probation or mandatory supervision shall waive any right to a court hearing prior to the imposition of a period of flash incarceration in a county jail of not more than 10 consecutive days for any violation of his or her conditions of probation or mandatory supervision." Members may wish to consider whether if implicit in the bill's language is a requirement that a person sign such a waiver in conjunction with a court order that includes flash incarceration (the Sutter approach described above). 5. Due Process Committee staff is unaware of any case law addressing due process issues relating to flash incarceration. As explained above, realignment authorizes supervising agents - either parole agents or probation officers - to impose a custody sanction on a parolee or person on PRCS for up to 10 days without any right to hearing by that person. It is not clear that this approach is - or is not - consistent with constitutional standards of due process. Last year, a Ventura County deputy public defender filed a writ with the Supreme Court challenging the constitutionality of flash incarceration. That writ was denied, but a newspaper article framed the issue: (More) SB 419 (Block) PageQ Attorney Michael McMahon, a chief deputy with the Public Defender's Office, filed the writ last month on behalf of Adam Vanstane with the Supreme Court asking it to review the policy which, he says, allows some parolees in the state to be put in jail for up to 10 days without any hearing and based solely on the strength of county probation officers' word. "The parolee doesn't have the right to be heard or call witnesses or defend himself or herself," said McMahon said Friday. The case landed in the state Supreme Court because the writ of mandate was rejected without a hearing by a Ventura County Superior Court and the appeals court in Ventura. McMahon said this case could wind its way to the highest court in the land. "I don't say this often. This issue could go all the way to the U.S. Supreme Court," he said. . . . Michael Schwartz, special assistant district attorney, said his office joined the county's counsel in supporting flash incarceration on post-release community supervision or PCS, arguing that flash incarceration is lawful. Adding, "Because those released on PCS have agreed to supervision terms, including possibility of flash incarceration, they are not entitled to a hearing or counsel before this brief period of incarceration is imposed."<10> By way of reference, the California Judges Benchguides includes the following guidance with respect to probation revocations: --------------------------- <10> Hernandez, Local "Flash Incarceration" Case Lands at State Supreme Court, Ventura County Star (April 14, 2012). (More) SB 419 (Block) PageR Following the notice of the alleged violations, the court should advise the probationer of the following rights: (a) To formal revocation hearing. The probationer has the right to a formal hearing on the alleged probation violations; the hearing must be held within a reasonable time after the probationer's arrest. Morrissey v Brewer (1972) 408 US 471, 488, 92 S Ct 2593, 33 L Ed 2d 484; People v Vickers (1972) 8 C3d 451, 457, 105 CR 305. (b) To counsel. The probationer has a right to be represented by an attorney. If the probationer is indigent and desires the assistance of an attorney, the court must appoint an attorney to represent the probationer without charge. 8 C3d at 461. (c) To appear and present evidence on own behalf. The probationer has the right to be heard in person and to present witnesses and documentary evidence. 8 C3d at 457. Evidence may be admitted at the hearing that would not be admissible in an adversary criminal trial. Morrissey v Brewer, supra, 408 US at 489. See §§ 84.18-84.21. (d) To confront and cross-examine adverse witnesses. People v Vickers, supra, 8 C3d at 457. (e) To disclosure of evidence to be used against the probationer. 8 C3d at 457; In re Love (1974) 11 C3d 179, 184, 113 CR 89. (f) To written statement of the reasons for and evidence relied on in revoking probation. People v (More) SB 419 (Block) PageS Vickers, supra, 8 C3d at 457; see §84.22.<11> With respect to the waiver of rights in a probation revocation context the Benchguide states: The probationer may deny the alleged probation violations or waive his or her right to a revocation hearing and admit to the alleged probation violations. The probationer should be discouraged from admitting the violation until given an opportunity to confer with counsel. The probationer, however, may admit to violations over defense counsel's objection. People v Robles (2007) 147 CA4th 1286, 1289-1290, 54 CR3d 916. The court is not required to advise the probationer of the consequences of his or her admission of violation of probation. People v Garcia (1977) 67 CA3d 134, 137, 136 CR 398. In addition, the court need not inform the probationer of his or her constitutional rights and obtain an express personal waiver of each before accepting the probationer's plea. People v Clark (1996) 51 CA4th 575, 581, 59 CR2d 234 (advisement of right to evidentiary hearing and waiver of that right alone was sufficient); People v Dale (1973) 36 CA3d 191, 194, 112 CR 93 (Boykin/Tahl advisements not applicable to probation revocation proceedings). However, if the probationer wishes to proceed without counsel and admit the alleged violations, many judges will advise the probationer of his or her rights and secure a knowing and intelligent waiver of each of those rights . See In re Moss (1985) 175 CA3d 913, 930, 221 CR 645 (pro per defendant did not waive rights by signing plea form in a subsequent prosecution that provided that the guilty plea could subject defendant to additional penalties in any other case in which ---------------------- <11> California Judges Benchguides, Benchguide 84, Probation Revocation § 84.10. (Revised 2011.) (More) SB 419 (Block) PageT defendant was on probation).<12> Historically, courts have made a "clear distinction between probation and parole with regard to consent. A probationer explicitly agrees to being placed on probation, often in exchange for an opportunity to avoid incarceration in state prison. Likewise, a probationer who is subject to a search clause has explicitly consented to that condition. (Woods, supra, 21 Cal.4th at p. 674; People v. Bravo, supra, 43 Cal.3d 600, 605-607; People v. Mason (1971) 5 Cal.3d 759, 764 [97 Cal. Rptr. 302, 488 P.2d 630], disapproved on another ground in People v. Lent (1975) 15 Cal.3d 481, 486, fn. 1 [124 Cal. Rptr. 905, 541 P.2d 545].) By contrast, in parole cases we have not relied on the consent principle that naturally applies in probation." (People v. Schmitz, 55 Cal. 4th 909 (2012). Committee staff is unaware of any case law which would address the question of whether flash incarceration could be employed in every case as a statutory element establishing a condition of probation or mandatory supervision. Under current law, "Some conditions, such as serving time, making restitution to the victim, participating in counseling or education programs, going to work and earning money for the support of dependents or to pay any fine imposed or reparation condition of probation, and losing a driver's license, are specifically authorized by statute. Some code provisions require certain conditions of probation if the defendant has committed a specific offense."<13> Generally, courts are afforded great discretion in constructing conditions of probation: A "condition of probation will not be held invalid ---------------------- <12> Id., § 84.12. <13> California Criminal Defense Practice (2012), Matthew Bender & Company, Inc., a member of the LexisNexis Group, Division X SENTENCING & PROBATION, CHAPTER 90 PROBATION, PART A. GRANT OR DENIAL OF PROBATION, 5-90 California Criminal Defense Practice § 90.04 (2)(a) (footnotes omitted). (More) SB 419 (Block) PageU unless it '(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality ? .'" (People v. Lent (1975) 15 Cal.3d 481, 486 . . .) "Stated another way," . . . "'a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality.'" People v. Brandão, 210 Cal. App. 4th 568 (2012). However, the California Criminal Defense Practice notes the analysis may be different when a constitutional right is at issue: Conditions that require the waiver of a constitutional right must be narrowly drawn and courts will not enforce an overly broad condition. For example, conditions of probation which limit a probationer's political rights are carefully scrutinized by courts. A probation condition may limit a person's right to demonstrate if the person has been convicted of a demonstration-related offense, but may not limit the right to picket, carry signs, or pass out leaflets. The condition may prohibit active participation in political demonstrations, but not mere membership in organizations that conduct such demonstrations. A probation condition that requires a probationer to obtain prior consent before making a public speech would probably be invalid. A probation condition is invalid if it unreasonably infringes on the probationer's right to travel, such as when the court imposes a blanket condition in all sex offense cases that the probationer cannot leave the county without first having considered the individual offender's particularized needs, or on the right to privacy, such as a no-pregnancy condition. A probation condition that requires a probation officer to approve of (More) SB 419 (Block) PageV (More) the probationer's residence also raises constitutional questions, and has been found invalid at least when there was no evidence that the probationer's home life contributed to his or her criminality. On the other hand, a probation condition that the probationer notify the probation officer of the presence of any pets at the probationer's residence is not invalid, as it is reasonably related to future criminality in aiding the officer's ability to perform a search of the premises at any time.<14> Members may wish to consider whether due process considerations suggest that there may be merit to clarifying the statutory structure proposed by this bill for applying flash incarceration to persons who are subject to court-ordered probation or mandatory supervision. Specifically, members may wish to discuss whether flash incarceration should be included as a condition of supervision that could be imposed by the court and enforced, as authorized by the court order, by probation. 6. "Flash Incarceration" - Hawaii's HOPE Model Employing "swift and certain" sanctions for probation violations has been demonstrated to be an effective tool for improving compliance among probationers. The National Institute of Justice describes evaluations conducted of the "HOPE" program - "Hawaii's Opportunity Probation With Enforcement," which includes periods of short incarceration: NIJ-funded researchers evaluated HOPE to determine if it worked and results were positive. Compared to probationers in a control group, after one year the HOPE probationers were: Fifty-five percent less likely to be arrested for a new crime. Seventy-two percent less likely to use drugs. --------------------- <14> Id. (More) SB 419 (Block) PageX Sixty-one percent less likely to skip appointments with their supervisory officer. Fifty-three percent less likely to have their probation revoked. As a result, HOPE probationers served or were sentenced to 48 percent fewer days, on average, than the control group. . . . HOPE starts with a formal warning, delivered by a judge in open court, that any violation of probation will result in an immediate, brief jail stay. . . . Before HOPE, probationers in Hawaii typically received notice of drug tests as much as a month ahead of time. Under HOPE, probationers are given a color code at the warning hearing. Every morning, they must call a hot line to hear which color has been selected for that day. If it is their color, they must appear at the probation office before 2 p.m. for a drug test. If a HOPE probationer fails to appear for the drug test, a bench warrant is issued and served immediately. A probationer who fails the random drug test is immediately arrested and within 72 hours is brought before a judge. If the probationer is found to have violated the terms of probation, he or she is immediately sentenced to a short jail stay. Typically, the term is several days, servable on the weekend if the probationer is employed; sentences increase for successive violations. HOPE differs from other programs by: Focusing on reducing drug use and missed appointments rather than on drug treatment and imposing drug treatment on every participant. Mandating drug treatment for probationers SB 419 (Block) PageY only if they continue to test positive for drug use, or if they request a treatment referral. A HOPE probationer who has a third or fourth missed or "dirty" drug test may be mandated into residential treatment as an alternative to probation revocation. Requiring probationers to appear before a judge only when a violation is detected - in this respect, HOPE requires less treatment and court resources than drug courts. Having probationers who are employed serve any jail time, at least initially, on a weekend so they do not jeopardize their employment.<15> California also has a pilot program of the HOPE model.<16> One difference between the brief custody sanction employed by the HOPE program and "flash incarceration" as enacted in realignment is that with HOPE, the court imposes the sanction, while flash incarceration, both under current law and as broadened by this bill, is executed by a parole agent or a probation officer, according to the policies and procedures of the agency under whose authority they work. Members may wish to discuss whether this is an important distinction between these two approaches. 7. Proposition 36; Opposition Proposition 36 of 2000 - the Substance Abuse and Crime Prevention Act (SACPA) -- was a voter-approved initiative mandating judges to offer "first or second time non-violent adult drug offenders who use, possess, or transport illegal --------------------------- <15> National Institute of Justice, "Swift and Certain" Sanctions in Probation Are Highly Effective: Evaluation of the HOPE Program (http://www.nij.gov/topics/corrections/community/drug-offenders/h awaii-hope.htm#positive) <16> See Evaluation of the HOPE Pilot Program (http://ucicorrections.seweb.uci.edu/node/104.) SB 419 (Block) PageZ drugs for personal use" drug treatment in lieu of incarceration. In 2006, the Legislature amended Proposition 36 to allow for flash incarceration for up to five days (SB 1137 (Ducheny). That provision was struck down in court. The ACLU, which opposes this measure, notes in part: Provisions of SB 419 may violate the state constitution as applied to the Substance Abuse and Crime Prevention Act of 2000 (hereinafter "SACPA"). SACPA expressly prohibits the use of incarceration as a response to violations of probation by persons convicted of nonviolent drug possession offenses. (See Penal Code Section 1210.1(a) (providing that incarceration may not be imposed as an additional condition of probation.)) Because SB 419 authorizes the use of flash incarceration for all probationers, including individuals participating in SACPA probation, it would contravene the express language and purpose of the initiative. In 2006, a legislative attempt to permit the use of flash incarceration for SACPA probationers was legally challenged and struck down as unconstitutional because the amendments did not comply with constitutional requirements for amendments to initiative statutes. (See Gardner v. Schwarzenegger (2009) 178 Cal.App.4th 1366.) If enacted, this bill would similarly violate the California Constitution. SHOULD THIS BILL BE AMENDED TO EXCLUDE FROM ITS PROVISIONS PERSONS SUBJECT TO PROPOSITION 36? SHOULD THIS BILL BE AMENDED TO PROVIDE FOR FLASH INCARCERATION PURSUANT TO COURT ORDER? *************** SB 419 (Block) PageA