BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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SB 710 (Nielsen)
As Introduced: February 22, 2013
Hearing date: April 23, 2013
Penal Code
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CRIMINAL JUSTICE REALIGNMENT - PAROLE
HISTORY
Source: Author
Prior Legislation: AB 109 (Committee on Budget) Ch. 15, Stats.
2011
AB 117 (Committee on Budget) Ch. 39, Stats. 2011
Support: Crime Victims United of California; Golden State Bail
Agents Association
Opposition:California Attorneys for Criminal Justice
KEY ISSUES
SHOULD EVERY PERSON RELEASED FROM STATE PRISON BE PLACED ON PAROLE
UNDER THE SUPERVISION OF STATE PAROLE AGENTS?
SHOULD THE DEPARTMENT OF CORRECTIONS AND REHABILITATION OPEN AND
OPERATE ADJUSTMENT AND REHABILITATION CENTERS FOR PAROLE VIOLATORS?
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PURPOSE
The purposes of this bill are to 1) provide that all inmates
released from state prison shall be placed on parole under the
supervision of state parole officers; 2) require the Department
of Corrections and Rehabilitation (CDCR) to open at least three
"adjustment and rehabilitation centers"; 3) provide that parole
violators shall serve an additional year on parole; 4) provide
that a parolee shall not be discharged from parole without
completing 12 consecutive months without a parole violation or
being arrested on a new charge; 5) provide that parole violators
shall be "sentenced" by the Board of Parole Hearings (board) to
serve up to a year in adjustment center; 6) provide that a
specified drug-related violation of parole "shall be served on
nonrevoked status" if the parolee agrees to treatment in a
readjustment center for at least six months and then enters
residential treatment in the community; and 7) provide that CDCR
shall develop an individual parole plan for each parolee.
Postrelease Community Supervision
Existing law provides, that certain persons released from prison
after serving a determinate sentence for a non-excluded felony
are subject to postrelease community supervision (PRCS). PRCS
shall be provided by a county agency designated by the board of
supervisors and shall be consistent with evidence-based
practices. (Pen. Code � 3451, subd. (a).)
Existing law provides that any inmate pending release who is in
one of the following categories may not be placed on
postrelease community supervision:
An inmate imprisoned for serious or violent felony.
An inmate sentenced to a life term under the Three Strikes
law.
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An inmate classified as a high-risk sex offender.
A mentally disordered offender. (Pen. Code � 3451, subd.
(b).)
Existing law provides that PRCS shall not extend beyond three
years from the date of the person's initial entry onto PRCS,
except where the period is tolled, as specified. PRCS is
required to be 'implemented by a county agency according to a
strategy designated by each county's board of supervisors.'
(Pen. Code �� 3451, subd. (c)(1) and 3455.)
Existing law sets out mandatory conditions of release to PRCS
including, among others, the following:
The defendant shall report to the supervising agency
within two days of release and as directed thereafter.
The defendant shall follow the directives of the agency.
The defendant shall report to the agency during the
supervision period as directed.
The defendant shall inform the agency of his or her
place of residence, employment, education or training.
The defendant shall be subject to search and seizure
without a warrant.
The defendant shall report to the agency any anticipated
changes in residence, employment, education or training.
The defendant shall obtain prior approval before
traveling more than 50 miles from his or her residence and
shall obtain a travel pass to leave the state or country
for more than two days.
The defendant shall immediately inform the agency if he
or she is arrested or receives a citation for any offense.
The defendant shall not be in the presence of a firearm
or ammunition. (Penal Code � 3453.)
Existing law provides for "intermediate" and "appropriate"
sanctions for violations of the terms of PRCS before PRCS is
revoked. The sanctions include 'flash incarceration' for up to
10 days. (Pen. Code � 3454.)
Existing law requires CDCR to inform inmates subject to PRCS of
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the inmate's responsibility to report to the county agency that
will supervise the inmate. CDCR shall also notify the county of
all information otherwise required for parolees, as specified,
thirty days prior to the inmate's release, as specified. (Pen.
Code �� 3003, subd. (e) and 3451, subd. (c)(2).)
Existing law provides that where a prison inmate is released on
PRCS, CDCR shall release the inmate to the county of last legal
residence prior to incarceration, unless it is in the best
interest of the public to release the person to another county.
(Pen. Code � 3003, subd. (a).)
Parole
Existing law generally provides for a period of post-prison
supervision immediately following a period of incarceration in
state prison. (Penal Code � 3000 et seq.)
Existing law includes indeterminate sentencing schemes under
which a defendant is committed to prison for life and is
eligible for parole after a specified number of years, including
any determinate term. If no other minimum term is specified,
the minimum term is seven years. (Pen. Code �� 1168 and 3046)
Current law generally provides that persons released from state
prison on or after October 1, 2011, for any of the following
crimes are subject to parole supervision by the Department of
Corrections and Rehabilitation (CDCR):
A serious felony as described in subdivision (c) of
Section 1192.7.
A violent felony as described in subdivision (c) of
Section 667.5.
A crime for which the person has been sentenced to a
life term under the 3-strikes law.
Any crime where the person eligible for release from
prison is classified as a HighRisk Sex Offender.
Any crime where the person is required, as a condition
of parole, to undergo treatment by the Department of Mental
Health as a mentally ill offender.
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Any felony committed while the person was on parole for
a period exceeding three years where the person was
required to register as a sex offender or was subject to
parole for life, as specified. (Pen. Code � 3000.08; see
also Penal Code � 3451, subd. (b).)
Existing law authorizes parole officials to "impose additional
and appropriate conditions of supervision," upon a finding of
good cause that the parolee has committed a violation of law or
violated his or her conditions of parole; those may include
"rehabilitation and treatment services and appropriate
incentives for compliance, and impose immediate, structured, and
intermediate sanctions for parole violations, including flash
[short term] incarceration in a county jail. . . . (Penal
Code � 3000.08, subd. (d).)
Existing law provides that the parole agent or peace officer may
bring a parolee before the court for a violation of the
conditions of parole. If the court finds that the parolee has
violated a condition of parole, the court may impose any of the
following sanctions for parole violations, as specified:
Return the person to parole supervision with
modifications of conditions, if appropriate, including a
period of incarceration in county jail.
Revoke parole and order the person to confinement in the
county jail.
Refer the person to a reentry court pursuant to Section
3015 or other evidence-based program in the court's
discretion.
Confinement shall not exceed a period of 180 days in the
county jail. (Penal Code � 3000.08, subd. (f).)
This bill provides that every person released from state prison
shall be placed on parole for at least three years and
supervised by the Department of Corrections and Rehabilitation
(CDCR) and the Board of Parole Hearings.
This bill provides that no person shall be released from parole
until he or she has completed "12 consecutive months of
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supervision without a parole violation or arrest on new criminal
charges."
This bill authorizes an additional year of parole for parole
violators.
This bill requires CDCR to establish at least three parole
violator "adjustment and rehabilitation facilities."
This bill requires that parole violators be confined for up to
one year in such a facility.
This bill provides that a parolee who commits a drug related
parole violations must serve a term of at least 6 months in an
adjustment and rehabilitation facility; requires that parolee
who commits any other parole violation shall have his or her
parole revoked and serve the rest of his or her term in the
facility.
This bill requires CDCR to develop a treatment and programming
plan for each parole violator.
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
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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, ". .
. 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:
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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.
COMMENTS
1. Need for this Bill
According to the author:
SB 710 requires the Board of Parole Hearings to have
exclusive jurisdiction over the supervision and
revocation of parole of all inmates upon their release
from prison, thereby repealing the scheduled transfer
of that authority to the courts on July 1, 2013. The
bill provides that no person may be discharged from
parole while incarcerated or if his or her whereabouts
are unknown. Additionally,
SB 710 would make the provisions of postrelease
community supervision applicable only to persons
released from prison prior to January 1, 2014. It
would require the department of Corrections and
Rehabilitation to develop a minimum of three parole
violator adjustment and rehabilitation facilities;
and, parolees who violate the conditions of parole
shall be sentenced to up to one year in one facility.
Finally, the bill would allow the board sufficient
autonomy to protect the rights of crime victims.
2. Unlimited Extensions of Parole
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Indefinite Parole Generally
This bill provides that where a parolee violates a condition of
parole, an additional year of parole can be added to his or her
parole period. The bill also provides that no person may be
discharged from parole unless he or she has completed 12
consecutive months of parole without a parole violation or
arrest for a new charge.<1>
This bill thus arguably creates the equivalent of a life
sentence through unlimited extensions of parole. The
California Supreme Court has described the differences between
parole for a determinate sentence and parole for a life term:
"As we have pointed out, under the current [determinate]
sentencing scheme the parole release date marks the end of the
prison term." The parole period for a determinate term prison
sentence constitutes a separate, determinate term. (People v.
Jefferson (1999) 21 Cal.4th 86, 93, 95, emphasis added.) Under
the indeterminate sentencing law, the period of parole is "part
of a defendant's prison term . . ." The inmate remains in the
constructive custody of the Department of Corrections throughout
the entire period of parole, including his or her life for a
life sentence. (Id, at pp. 93 and 95.)
That is, a person who does not complete 12 continuous months
without a parole violation or arrest for a new crime can remain
on parole for life. He or she can also be returned to custody
for up to one year at a time for any violation of parole.
The Prohibition on Ex-Post Facto Criminal Penalties would
Require this Bill to Apply Prospectively only
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<1> The bill creates an exception to the limits on parole terms
specified in Penal Code Section 3000 (b)(6). Section 3000,
subdivision (b))6) provides that a person subject to a three
years of parole shall be held in custody or on parole
supervision for a period no longer than four years. The maximum
period of custody or parole supervision is seven years for a
person subject to five-year parole term and 15 years for a
person subject to a 10-year parole term.
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A law that changes the punishment for a crime after the crime
has been committed is a constitutionally prohibited ex-post
facto law. (U.S. Const., Art. I, � 9, 10; Cal. Const., Art. I,
� 9; In re Arafiles (1992) 6 Cal.App.4th 1467, 1481-1482.) The
parole period is a part of a defendant's punishment. A change
in the length of a parole period of a change in the basic nature
of parole is an ex-post facto law if it applies to crimes
committed before the change in the law. (In re Arafiles, supra,
at pp. 1481-1487.) Thus, this bill can only apply to defendants
sentenced for determinate terms for crimes committed after the
effective date of the bill.
DOES THIS BILL EFFECTIVELY CREATE A FORM OF INDEFINITE PAROLE
FOR ANY PAROLEE WHO DOES NOT COMPLETE ONE CONTINUOUS YEAR OF
PAROLE WITHOUT A VIOLATION OR ARREST FOR A NEW CRIME?
3. This Bill may be in Conflict with the Substance Abuse and
Crime Prevention Act of 2000
The Substance Abuse Treatment and Crime Prevention Act of
2000<2> (SACPA), provides that parole shall not be suspended or
revoked if the parolee commits a "non-violent drug possession
offense" or violates a "drug-related" condition of parole.
Such a parolee must be offered treatment in the community
without return to custody. (Pen. Code � 3063.1, subd. (a) and
(c).)
This bill requires that any parolee who commits a drug related
violation of probation shall serve a term of at least six month
in an "adjustment and rehabilitation" facility. The term can be
served on "nonrevoked status" if the parolee agrees to submit to
drug treatment. This bill thus appears to conflict with SACPA.
SACPA is an initiative measure that can only be amended by a 2/3
vote of the Legislature or another initiative submitted to the
voters. SACPA also provides
that all amendments to the act must further its purpose.
(Gardener v. Schwarzenegger (2009) 178 Cal.App.4th 1366, 1370.)
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<2> Prop. 36 of the November 2000 General Election
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DOES THIS BILL CONFLICT WITH THE SUBSTANCE ABUSE AND CRIME
PREVENTION ACT OF 2,000 BY REQUIRING THAT PAROLEES WHO COMMIT A
DRUG RELATED VIOLATION OF PAROLE BE PLACED IN CUSTODY FOR AT
LEAST SIX MONTHS?
3. This Bill Authorizes the Board of Parole Hearings to
"Sentence" a Parole Violator to a term in Custody
This bill provides that "parolees who violate the conditions of
parole shall be sentenced up to one year in a parole adjustment
and rehabilitation facility." If this bill is interpreted to
mean that the Board of Parole Hearings may revoke a person's
parole and return him or her to custody pursuant to the sentence
imposed by the court, this provision was likely found to simply,
but in-artfully describe a proper function of the board.
However, if the bill actually allows the board to impose some
sort of sentence, the bill is likely unconstitutional. Judges
alone have the power to sentence. (People v. Tenorio (1970) 3
Cal.3d 89, 90-93; People v. Navarro (1972) 7 Cal.3d 248, 258;
People v. Superior Court (Fellman) (1976) 59 Cal.App.3d 270,
275.) A discretionary power to impose a penalty for an offense,
where that penalty was not part of the original sentence, cannot
be exercised by the board.
DOES THIS BILL GRANT A JUDICIAL POWER TO THE BOARD TO IMPOSE A
"SENTENCE" ON A PAROLEE FOR A VIOLATION OF A CONDITION OF
PAROLE?
4. Parole Population; Parole and Probation Supervision Issues
This bill eliminates post release supervision and reinstates the
parole system. The bill appears to essentially create an
indefinite parole period for any parole or parolee who does not
avoid a parole violation of arrest for a new offense within a
period of 12 consecutive months This bill requires CDCR to
open new parole revocation facilities and authorizes the parole
board to impose 'sentences" of up to one year, with minimum
terms for specified violations.
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This bill would thus substantially change the provisions of
realignment applicable to released felony offenders. These
changes would have significant costs and affect the pending
prison receivership matters. The bill squarely presents issues
of the benefits and efficacy of parole supervision in contrast
with supervision by county probation officers.
In its analysis of the Governor's proposed 2013-14 budget the
Legislative Analyst's Office states in part:
The average daily parole population is projected to be
about 43,000 parolees in the budget year, a decline of
about 15,000 parolees (25 percent) from the
estimated current-year level. This decline is also
largely a result of the 2011 realignment, which
shifted from the state to the counties the
responsibility for supervising certain offenders
following their release from prison. The average
daily population projected for 2013-14 is about 4,500
parolees lower than was initially projected by the
department in spring 2012. According to CDCR, this is
due to more parolees being discharged from supervision
than expected in the first six months of 2012. In
addition, CDCR projections show that the decline in
the parole population is expected to slow down and
even increase in coming years.
. . . The current-year net reduction in costs is
primarily due to savings from the larger than expected
decline in the 2012-13 parolee population . . .<3>
In its 2013 "primer" on California's criminal justice system,
LAO noted in part:
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<3> The Legislative Analyst's Office, The 2013-14 Budget:
Governor's Criminal Justice Proposals.
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In 2010, the probation "failure" rate-measured as
the percent of the probation population that committed
violations resulting in incarceration or absconded
from supervision-in California was somewhat lower than
in other states. California parolees, on the other
hand, failed at a much higher rate than parolees in
other states.
Some differences among states are likely due to
factors such as policy differences regarding who goes
onto probation and parole, the amount of supervision
provided, revocation decisions, and the availability
of treatment services.
One Goal of Realignment Was a More Cost-Effective
Correctional System.
As described above, the state enacted several bills in 2011
to realign to county governments the responsibility for
managing and supervising certain lower level offenders. In
adopting this realignment, the Legislature had multiple
goals, including
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reducing the prison population to meet a federal
court-ordered cap (in a case related to inmate health care
discussed in more detail below) and to reduce state
correctional costs. Another stated goal of realignment was
to improve public safety outcomes by keeping lower-level
offenders in local communities where treatment services
exist and where local criminal justice agencies can
coordinate efforts to ensure that offenders get the
appropriate combination of incarceration, community
supervision, and treatment. The expectation was that
counties would be more effective and efficient than the
state at managing these offenders and could reduce the high
recidivism rates experienced by state parolees.<4>
Ten years ago, the Little Hoover Commission called California's
parole system "a billion dollar failure."<5> In its Winter
2012 issue brief, the Chief Probation Officers of California
stated in part:
Probation has reduced caseload sizes of high risk
offenders to ensure proper levels of supervision by
officers; implemented tools for assessing risks and
needs; and trained officers in techniques proven to
increase chances of successful supervision, and reduce
recidivism. These investments have led to probation's
demonstrated success in supervising California's
felony offenders. California Probation Departments
have made a commitment to the use of evidence based
practices to match offender's actual needs with
appropriate services and structure supervision around
an offenders risk to reoffend. These improvements and
techniques should also be successful with the new
realigned populations, but the entire justice system
must be addressed in order to make the system
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<4> Legislative Analyst's Office, California's Criminal
Justice System: A Primer (Jan. 2013).
<5> Little Hoover Commission, Back to the Community: Safe and
Sound Parole Policies (Nov. 2003).
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successful and our communities safer.<6>
Members may wish to discuss whether this bill is premised on the
assumption that parole supervision is more effective than
probation supervision and, if so, if that assumption is correct.
WOULD THE PAROLE SUPERVISION REQUIRED BY THIS BILL BE MORE
EFFECTIVE THAN PROBATION SUPERVISION?
IS PAROLE "BETTER" THAN PROBATION IN TERMS OF ACHIEVING PUBLIC
SAFETY OUTCOMES FROM AN OFFENDER POPULATION SUPERVISED IN THE
COMMUNITY?
5. Realignment Funding Shift
As part of realignment, the state shifted certain revenues to
local governments. As explained by the LAO:
. . . (T)he 2011-12 budget package included statutory
changes to realign several criminal justice and other
programs from state responsibility to local
governments, primarily counties. Along with the
shift-or realignment-of programs, state law realigned
revenues to locals. Specifically, current law shifts
a share of the state sales tax, as well as Vehicle
License Fee revenue, to local governments. The
passage of Proposition 30 by voters in November 2012,
among other changes, guaranteed these revenues to
local governments in the future. The Governor's
budget includes an estimate of revenues projected to
go to local governments over the next few years.
These estimates are generally in line with prior
estimates. . . . (T)otal funding for the criminal
justice programs realigned is expected to increase
from $1.4 billion in 2011-12 to $2.2 billion in
2013-14.<7>
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<6> Chief Probation Officers of California, Mandatory
Supervision: The Benefits of Evidence Based Supervision
under Public Safety Realignment (Winter 2012.)
<7> Id.
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This bill does not make any changes to the funding realigned
pursuant to realignment and guaranteed to local governments by
Proposition 30. Members may wish to discuss the fiscal
implications of this bill, including:
What are the implications of this bill with respect to
the fiscal guarantees assured in Proposition 30, passed
last November?
What are the implications of this bill with respect to
the state's General Fund?
IF OFFENDERS ARE SHIFTED FROM COUNTY PROBATION SUPERVISION TO
STATE SUPERVISION, WOULD THE STATE ESSENTIALLY "PAY TWICE" FOR
THE SUPERVISION OF THESE OFFENDERS?
IS PROBATION LIMITED IN SOME COUNTIES BECAUSE OF THE
DISTRIBUTION OF REALIGNMENT FUNDING? IF SO, IS THAT CONCERN
BEST ADDRESSED BY SHIFTING SOME OF PROBATION'S "PRCS" POPULATION
BACK TO THE STATE?
WOULD THIS BILL ERODE REALIGNMENT?
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