BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
4
1
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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
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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.)
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�� 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).)
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<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.)
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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
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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.
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<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.
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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
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<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.
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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, ". .
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. 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.
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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
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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
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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
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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
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<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.
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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
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<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.)
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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
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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
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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:
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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:
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<10> Hernandez, Local "Flash Incarceration" Case Lands at
State Supreme Court, Ventura County Star (April 14, 2012).
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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
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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
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<11> California Judges Benchguides, Benchguide 84, Probation
Revocation � 84.10. (Revised 2011.)
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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).
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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. Brand�o, 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
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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.
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<14> Id.
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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
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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.)
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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?
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