BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  SB 419
                                                                  Page  1

          Date of Hearing:  July 2, 2013
          Counsel:       Sandy Uribe


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                     SB 419 (Block) - As Amended:  June 18, 2013


           SUMMARY  :  Extends the use of a penalty known as "flash  
          incarceration" to defendants granted probation or placed on  
          mandatory supervision.  Specifically,  this bill  :  

          1)Authorizes the use of flash incarceration on persons subject  
            to probation supervision and mandatory supervision.

          2)Defines "flash incarceration" as "a period of detention in the  
            county jail due to a violation of an offender's conditions of  
            probation or mandatory supervision."  The detention period may  
            range between one and ten consecutive days.  Shorter, but if  
            necessary, more frequent periods of detention for violations  
            are permissible.

          3)States that in any case involving a grant of probation or a  
            sentence that includes mandatory supervision, the court shall  
            authorize the supervising agency to use flash incarceration  
            for any violation of the conditions of probation or mandatory  
            supervision if, at the time of granting probation or ordering  
            mandatory supervision, the court obtains from the defendant a  
            waiver to a court hearing prior to the imposition of a period  
            of flash incarceration.

          4)Allows each county agency responsible for probation or  
            mandatory supervision to utilize flash incarceration.

          5)Exempts any defendant convicted of a nonviolent drug  
            possession offense who receives probation under Proposition 36  
            from flash incarceration.

          6)Denies good-time/work-time credits for periods of flash  
            incarceration ordered in probation and mandatory supervision  
            cases.

          7)Sunsets the provisions on January 1, 2018.








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           EXISTING LAW  :

          1)Provides for intermediate sanctions for violating the terms of  
            post-release community supervision (PRCS), including flash  
            incarceration, for up to 10 days.  (Penal Code Section 3454.)

          2)Authorizes intermediate sanctions, including flash  
            incarceration, to be available for state parolees supervised  
            by state parole after July 1, 2013.  [Penal Code Section  
            3000.08(d), effective July 1, 2013.]

          3)Defines "flash incarceration" as a period of detention in  
            county jail due to a violation of a person's conditions of  
            parole or PRCS.  The length of the detention period can range  
            between one and ten consecutive days in a county jail.  [Penal  
            Code Sections 3000.08(d) and (e), and 3455(c).]

          4)Denies conduct credit to those parolees and post-release  
            community supervisees whose time is being served for flash  
            incarceration. Prohibits a defendant from earing conduct  
            credits for periods of flash incarceration under post-release  
            community supervision, or, after July 1, 2013, flash  
            incarceration under parole.  [Penal Code Section 4019(i).]

          5)Authorizes, as a general matter, the court to suspend a felony  
            sentence and order the conditional and revocable release of  
            the defendant in the community to probation supervision.   
            (Penal Code Section 1203.)

          6)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/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 Section  
            1203.2.)

          7)Gives the sentencing judge discretion to impose two types of  
            sentences to county jail.  The court may commit the defendant  
            for the entire term allowed by law, or the court may impose a  
            "split sentence" in which part of the term is served in  
            custody and the remaining part of the term is comprised of a  
            period of mandatory supervision.  [Penal Code Section  








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            1170(h)(5).]

          8)States that the traditional procedures used for violations of  
            probation will now be applicable to violations of mandatory  
            supervision.  Also states that procedures used to modify  
            probation are applicable to modify the conditions of mandatory  
            supervision.  (Penal Code Sections 1203.2 and 1203.3.)

           FISCAL EFFECT  :   Unknown

           COMMENTS  :   

           1)Author's Statement  :  According to the author, "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.  A tool that has been  
            successful in supervising the new PRCS offenders under county  
            probation supervision is the use of intermediate sanctions  
            like flash incarceration.

          "Currently if a serious violation of a condition of probation  
            occurs, the only option in our graduated sanctions after  
            exhausting what is available, is revocation which results in a  
            lengthier court process and potentially much longer periods of  
            incarceration than flash incarceration.  Revocations also harm  
            progress that the offender may have at work, with family  
            and/or at home and also increase the workload on an already  
            overburdened court system.

          "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 which falls in line with research that shows  
            that the use of swift and certain sanctions leads to more  
            positive outcomes in reducing recidivism.

          "As currently written, the bill would sunset in 4 years.  This  
            would allow probation, counties and the state to review the  
            data and outcomes regarding the use of flash as an  
            intermediate sanction."









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           2)Flash Incarceration  :  One of the components of criminal  
            justice realignment was to restructure the State's parole  
            system.  Realignment shifted the supervision of some released  
            prison inmates from the California Department of Corrections  
            and Rehabilitation (CDCR) parole agents to local probation  
            departments.  Parole under the jurisdiction of CDCR for  
            inmates released from prison on or after October 1, 2011 is  
            limited to those defendants whose term was for a serious or  
            violent felony; were serving a Three-Strikes sentence; are  
            classified as high-risk sex offenders; who are required to  
            undergo treatment as mentally disordered offenders; or who,  
            while on certain paroles, commit new offenses.  [Penal Code  
            Sections 3000.08(a) and (c), and 3451(b).]  All other inmates  
            released from prison are subject to up to three years of PRCS  
            under local supervision.  [Penal Code Sections 3000.08(b) and  
            3451(a).]  This means that probation, not parole, now  
            supervises some felons coming out of prison.  

          The changes to the supervision of inmates released from prison  
            included establishing a new sanction for a violation of  
            supervised release known as flash incarceration.  Flash  
            incarceration is defined as "a period of detention in county  
            jail due to a violation of a parolee's conditions of parole"  
            that "can range between one and 10 consecutive days."  [Penal  
            Code Sections 3000.08(d) and (e), and 3455(c).]  

          With the creation of PRCS, the supervising agency was authorized  
            to employ "flash incarceration" as an "intermediate sanction"  
            for responding to both parole and PRCS violations.  [See Penal  
            Code Sections 3454(b) and (c); 3000.08(d) and (e), effective  
            July 1, 2013.]  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 following what can  
            be lengthy criminal proceedings."  [Legislative Analyst's  
            Office, The 2012-13 Budget:  The 2011 Realignment of Adult  
            Offenders-An Update (Feb. 22, 2012), pp. 8-9.] 








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          Flash incarceration as intermediate sanction for offenders under  
            state supervision who violate a term of their parole becomes  
            effective starting July 1, 2013.  [Penal Code Section  
            3000.08(d), effective July 1, 2013.]  Despite the new  
            authority to impose terms of flash incarceration upon  
            state-supervised parolees, the Division of Adult Parole  
            Operations (DAPO) has made a policy decision not to utilize  
            flash incarceration.  (See Valdivia v. Brown, Response to May  
            6 Order, filed 05/28/13, p. 17.)

           3)Due Process Considerations  :   The United States Supreme Court  
            has emphatically held that the state may not retain the right  
            to re-incarcerate released inmates at its whim.  Liberty, once  
            granted, is a substantial right that cannot be revoked without  
            some level of due process under the law.  Morrissey v. Brewer  
            (1972) 408 U.S. 471, is the seminal case on the procedural due  
            process rights of a supervised individual facing an alleged  
            violation.  Morrissey confirmed that a parolee's liberty,  
            although restricted, is a significant interest such that its  
            termination requires certain minimum due process protections.   
            (Id. at p.482.)  Before the state can return a parolee to  
            prison, it must provide due process, including procedures  
            which will prevent revocation because of "erroneous  
            information or because of an erroneous evaluation."  (Id. at  
            p. 484.)  The high court noted the necessity of a hearing  
            structured to assure that "the finding of a parole violation  
            will be based on verified facts and the exercise of discretion  
            will be informed by an accurate knowledge of the parolee's  
            behavior."  (Ibid.)

          In Gagnon v. Scarpelli (1973) 411 U.S. 778, 781-782, the United  
            States Supreme Court applied its parole revocation due process  
            jurisprudence to probation revocation.  Again the Court held  
            that the potential loss of liberty at stake at a probation  
            revocation hearing is a serious deprivation entitling the  
            probationer to be accorded due process.  (Ibid.)  The minimum  
            due process requirements for a probation revocation proceeding  
            are: (1) written notice of the claimed violation of probation;  
            (2) disclosure of the evidence against the probationer; (3) an  
            opportunity to be heard in person and to present witnesses and  
            documentary evidence; (4) the right to confront and  
            cross-examine adverse witnesses (unless the hearing officer  
            specifically finds good cause for not allowing confrontation);  
            (5) a neutral and detached hearing body; and (6) a written  








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            statement by the fact-finder as to the evidence relied on and  
            the reasons for revoking probation.  (Id. at p. 786.)

            With flash incarceration, the defendant has none of the legal  
            rights associated with a fully contested violation hearing in  
            front of a judge.  The person does not have the right to be  
            heard, to call witnesses, or to defend himself or herself.  In  
            fact, the defendant does not even have the right to a neutral  
            decision maker.  The probation officer is the accuser and the  
            trier of fact.  In Morrissey, the U.S. Supreme Court cautioned  
            that due process requires that this determination be made by  
            somebody "not directly involved in the case," because "[t]he  
            officer directly involved in making recommendations cannot  
            always have complete objectivity in evaluating them." (Id. at  
            pp. 485-486.)

            Last year, a Ventura County deputy public defender filed a  
            writ of habeas corpus challenging flash incarceration on  
            parolees, but the California Supreme Court recently denied  
            review.  (See In re Vanstane (Adam) On H.C., S201150, rev.  
            denied May 23, 2013.)  So, thus far, there have been no case  
            decisions yet on whether flash incarceration as established  
            under realignment violates due process.  However, nothing in  
            Morrissey or its progeny suggests that there is a  
            flash-incarceration exception to the due process required  
            before a freed person can be re-incarcerated.  

            It should be noted that Hawaii uses a program, Hawaii's  
            Opportunity Probation With Enforcement (HOPE), which includes  
            short periods of incarceration.    However, one significant  
            distinction between the custody sanction employed in the HOPE  
            program and flash incarceration as enacted under realignment  
            is that under the former, the court imposes the sanction,  
            while under the latter, the sanction is executed by a parole  
            agent or probation officer according to the policies and  
            procedures of the agency under whose authority they work.

            Moreover, the flash incarceration provisions permit the  
            sanction to be used successively for multiple violations.   
            [See e.g., Penal Code Sections 3454 (referencing "periods" of  
            flash incarceration and "shorter, but if necessary more  
            frequent, periods of detention").]  "It is not clear, however,  
            whether the supervising agency can impose up to 10 days for  
            each individual violation, or whether it can only impose a  
            maximum of 10 days for each 'incident.'  It does not seem  








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            likely the Legislature contemplated a literal application of  
            10 days for each individual violation out of a single  
            incident.  For example, if the supervised person incurred four  
            violations in a single incident, he potentially could receive  
            40 days in custody.   The longer the number of days imposed,  
            the less the time is a 'flash incarceration' as contemplated  
            by evidencebased practices.  Additionally, sentences longer  
            than 10 days may raise legitimate due process concerns because  
            they are being imposed without court involvement."  [See  
            Felony Sentencing After Realignment, by Judge Couzens (Ret.) &  
            Justice Bigelow, June 2013, at pp. 59-60, describing flash  
            incarceration ().]  Arguably, the imposition  
            of multiple periods of flash incarceration can result in the  
            same deprivation of liberty usually seen in the revocation  
            context but without the due process protections.

           4)Conditions of Probation  :  This bill requires a defendant to  
            waive the right to a court hearing and submit to flash  
            incarceration as a condition of probation or of mandatory  
            supervision.

          Generally, a trial court has broad discretion to prescribe  
            conditions of probation so long as the conditions serve the  
            purposes of the probation statute.  [Penal Code Section  
            1203.1(j); People v. Birkett (1999) 21 Cal.4th 226, 235.]  "A  
            condition of probation will not be held invalid 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.]  But, a probation condition that  
            infringes upon constitutional rights is subject to special  
            scrutiny.  Such a condition must be narrowly drawn and  
            constitute the least restrictive means to serve the dual  
            purposes of rehabilitation and protecting public safety.   
            [People v. Pointer (1984) 151 Cal.App.3d 1128, 1139.]

          As discussed above, the condition at issue here infringes on a  
            defendant's right to due process.  Therefore, it would be  
            subject to stricter scrutiny.  The question becomes whether it  
            is narrowly drawn and is the least restrictive means to serve  
            rehabilitation and protect public safety.  Arguably, this  
            condition is not the least restrictive means available since  
            there is already a well-established violation procedure with  








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            due process protections in place, and where alleged violations  
            are easily reviewed, found true, and punished.

          A defendant can waive a constitutional right and agree to an  
            otherwise unconstitutional condition of probation.  [People v.  
            Bravo (1987) 43 Cal.3d 600, 608 (Fourth Amendment); People v.  
            Peck (1996) 52 Cal.App.4th 351, 362 (freedom of association).]  
             However, it bears mentioning that a defendant's ultimate  
            acceptance of the conditions of probation does not preclude  
            him or her from challenging them on appeal:  "'[I]t is  
            established that if a defendant accepts probation, he may seek  
            relief from the restraint of an allegedly invalid condition of  
            probation on appeal from the order granting probation.'"  
            [People v. Penoli (1996) 46 Cal.App.4th 298, 302, fn. 2.]

           5)Effect on Persons Already on Supervised Release  :  The  
            defendants currently on probation or mandatory supervision  
            have not agreed to be subject to flash incarceration or to  
            waive a court hearing before this punishment is imposed.  As  
            to these defendants, it is arguable that the changes to the  
            probationary process could not be retroactively applied  
            without violating the ex post facto clause.  

          Ex post facto laws are those that:  (1) criminalize and punish  
            an act innocent when done, (2) aggravate or make a crime  
            greater than it was when committed, (3) increase the  
            punishment for a crime and apply such increases to crimes  
            committed before the enactment of the law, or (4) alter the  
            rules of evidence to require less or different evidence than  
            required when the crime was committed.  [See e.g., Stogner v.  
            California (2003) 539 U.S. 607, 612; quoting Calder v. Bull  
            (1798) 3 U.S. 386, 390-391.]  

          The provisions of this bill alter the rules of evidence against  
            those on supervised release because a violation of a condition  
            of supervised need no longer be proven by a preponderance of  
            evidence to result in additional jail time.  Additionally, the  
            amended statute creates a significant risk of prolonging the  
            defendant's incarceration because it allows all probation  
            officers to incarcerate any probationer or person on mandatory  
            supervision for any violation.  So, an argument can be made  
            that applying the new procedures in this bill to persons  
            already on supervised release would violate the ex post facto  
            clause.  [But see John L. v. Superior Court (2004) 33 Cal.4th  
            158 [rejecting ex post facto challenge to the retroactive  








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            application of Proposition 21 which enacted changes in  
            procedure to prove violations of juvenile probation.]

           6)Credits  :  Generally, but subject to exceptions, a defendant is  
            entitled to credit for actual time spent in custody and  
            worktime and good behavior credits (collectively referred to  
            as "conduct credits").  [People v. Dieck (2009) 46 Cal.4th  
            934, 939, fn. 3.]  A defendant is entitled to actual credit  
            from the date the defendant is processed into jail or other  
            custodial situation until release.  A partial day is counted  
            as a full day.  [People v. Smith (1989) 211 Cal.App.3d 523,  
            526.]

          As to conduct credits, effective October 1, 2011, for a  
            defendant sentenced to four days or longer, for every two days  
            of actual time served, the defendant will receive two days of  
            actual time credit and two days of conduct credit, for a total  
            of four days of credit, or essentially halftime credit.   
            [Penal Code Section 4019(b), (c), an7)d (f).]  However, no  
            conduct credit is given a defendant on PRCS or parole who is  
            serving a period of "flash incarceration" imposed by the  
            probation or parole officer.  [Penal Code Section 4019(i).]

          Custody credit is applied against the defendant's "term of  
            imprisonment."  [Penal Code Section 2900.5(a).]  This  
            "includes any period of imprisonment imposed as a condition of  
            probation or otherwise ordered by a court in imposing or  
            suspending the imposition of any sentence, and also includes  
            any term of imprisonment, including any period of imprisonment  
            prior to release on parole and any period of imprisonment and  
            parole, prior to discharge ?." [Penal Code Section 2900.5(c).]

            A defendant can waive his or her entitlement to presentence  
            credits, but the waiver must be knowing and intelligent.  This  
            is commonly referred to as a "Johnson waiver."  [People v.  
            Johnson (2002) 28 Cal.4th 1050, 1054-1055; see also People v.  
            Johnson (1978) 82 Cal.App.3d 183, 187-188.]  A Johnson waiver  
            applies to any future use of the credits if probation is later  
            terminated and [the sentence] imposed, even if appellant was  
            not specifically so advised, and even if appellant will have  
            already served the equivalent amount of time in jail for the ?  
            sentence.  [People v. Arnold (2004) 33 Cal.4th 294, 307-309.]

            This bill provides that periods of flash incarceration ordered  
            in probation and mandatory supervision cases will not be given  








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            conduct credits.  Theoretically, this makes sense given the  
            short time of a single period of flash incarceration - if  
            conduct credits were awarded and deducted from the period of  
            flash incarceration, then, using the current conduct credit  
            formula, the most time a defendant would serve for a period of  
            flash incarceration would be five days.  However, the credits  
            statute is vague as to whether the conduct credits would be  
            awarded in the event supervised released is ultimately  
            revoked.  Since, as noted above, the realignment provisions  
            related to flash incarceration allows the supervising agency  
            to use flash incarceration repeatedly, the use of this  
            sanction rather than the formal revocation process may  
            ultimately deprive a defendant of a significant amount of  
            credits in the event probation or mandatory supervision is  
            ultimately revoked.  
             
           8)Probationers vs. Mandatory Supervisees  :  A defendant can  
            refuse probation and instead choose to serve the sentence.   
            [People v. Beal (1997) 60 Cal.App.4th 84, 87.]  In contrast, a  
            defendant does not have the right to refuse a split sentence  
            requiring mandatory supervision. "Since the commitment under  
            section 1170(h) generally is the equivalent of a prison  
            sentence, the defendant need not agree to the terms and  
            conditions of supervision in the same manner as a sentence  
            involving a grant of probation."  [Felony Sentencing After  
            Realignment, supra, at p. 13, discussing split sentences  
            ().]   
           
           9)Exemption for Proposition 36 Probationers  :  Proposition 36 of  
            2000, the Substance Abuse and Crime Prevention Act, was a  
            voter-approved initiative mandating judges to offer "first or  
            second time non-violent adult drug offenders who use, possess,  
            or transport illegal 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), Chapter 63, Statutes of 2006].  That  
            provision was struck down in court because the amendments did  
            not comply with constitutional requirements for amendments to  
            initiative statutes.  [See Gardner v. Schwarzenegger (2009)  
            178 Cal.App.4th 1366.]

          This bill does not raise the same concerns because it excludes  
            from its provisions persons subject to Proposition 36.









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           10)Argument in Support  :  The  Chief Probation Officers of  
            California  , the sponsors of this bill, argue, "Without this  
            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.  Flash incarceration is also only up to 10 days  
            where a typical revocation lasts much longer.  Flash  
            incarceration has proven to be successful in other states and  
            probation departments are now established with policies to  
            implement this process as they have been using this tool on  
            one type of their caseloads, PRCS.  This bill will expand its  
            use to probation supervision of traditional felony probation  
            and mandatory supervision."

           11)Argument in Opposition  :  The  American Civil Liberties Union   
            states, "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, SB  
            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).)

          "Additionally, expanding the use of flash incarceration will  
            likely exacerbate California's correctional overcrowding  
            crisis.  This bill encourages the use of flash incarceration  
            as a method of punishment for any violation of a person's  
            condition of probation or mandatory supervision, without  
            limit. The bill offers no restrictions on the type of  
            probation or supervision violations that would be subject to  
            flash incarceration.  It leaves open the possibly that any  
            violation, including technical or minor violations, would be  
            punished with jail stays of up to ten consecutive days.  This  
            would have the effect of increasing jail crowding and related  








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            costs to counties."

           12)Related Legislation  :  AB 986 (Bradford) allows flash  
            incarceration in a city jail as well as in a county jail.  AB  
            986 is pending a floor vote in the Senate.

           13)Prior Legislation  :

             a)   AB 109 (Committee on Budget), Chapter 15, Statutes of  
               2011, created the Postrelease Community Supervision Act,  
               which provides, among other things, that inmates released  
               from prison who are not required to be on parole are  
               subject to up to three years of local supervision.  

             b)   AB 117 (Committee on Budget), Chapter 39, Statutes of  
               2011, amended some provisions of the Postrelease Community  
               Supervision Act.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          Chief Probation Officers of California (Sponsor)
          American Federation of State, County, and Municipal Employees
          California District Attorneys Association
          California Probation, Parole, and Correctional Association
          Judicial Council of California
          Los Angeles Probation Officers' Union
          Riverside Sheriffs' Association

           Opposition 
           
          American Civil Liberties Union
          American Friends Service Committee
          California Attorneys for Criminal Justice
          California Public Defenders Association
          California Society of Addiction Medicine
          Drug Policy Alliance
          Friends Committee on Legislation of California
          Legal Services for Prisoners with Children
           

          Analysis Prepared by  :    Sandy Uribe / PUB. S. / (916) 319-3744 










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