BILL ANALYSIS                                                                                                                                                                                                    Ó







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

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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).)

          ---------------------------
          <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.
               ----------------------
          <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  
          ---------------------------
          <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  
               ----------------------
          <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

          ---------------------------
          <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:

          ---------------------------
          <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  



               ----------------------
          <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. 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




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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.

                  ---------------------
          <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  












                                                             SB 419 (Block)
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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.)











                                                             SB 419 (Block)
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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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