BILL ANALYSIS �
SB 419
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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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