BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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SB 742 (Nielsen)
As Amended April 2, 2013
Hearing date: April 23, 2013
Penal and Welfare and Institutions Codes
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ELECTRONIC MONITORING/GPS:
PENALTIES AND CONSEQUENCES
HISTORY
Source: Author
Prior Legislation: SB 566 (Hollingsworth) - 2009, held in Senate
Public Safety
SB 1203 (G. Runner) - 2008, failed in Assembly
Public Safety
AB 2417 (S. Runner) - 2008, never set for hearing
Proposition 83 -- November 2006 General Election
Support: Unknown
Opposition:Taxpayers for Improving Public Safety; American Civil
Liberties Union of
California (ACLU); Friends Committee on Legislation;
California Public Defenders Association; Legal Services
for Prisoners with Children
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KEY ISSUE
SHOULD ADDITIONAL PENALTIES AND CONSEQUENCES APPLY TO PERSONS WHO
DEFEAT ELECTRONIC MONITORING/GPS ATTACHED AS A CONDITION OF
COMMUNITY SUPERVISION, AS SPECIFIED?
PURPOSE
The purpose of this bill is to 1) impose additional penalties
for persons who have been put on electronic monitoring/GPS in a
variety of contexts - parole, probation, postrelease community
supervision, early release from jail on alternative custody, or
juvenile court order - and willfully and knowingly remove or
disable a device affixed to his or her person, or the person of
another; 2) require that a GPS violation by a person convicted
of a "sexually violent offense," as defined by the sexually
violent predator ("SVP") civil commitment laws, trigger an
evaluation as an SVP, as specified; and 3) require that SVP
evaluations be conducted face-to-face.
Parole
Current law generally provides for a period of post-prison
supervision immediately following a period of incarceration in
state prison. (Penal Code § 3000 et seq.)
Current law generally provides that persons released from state
prison for any of the following crimes are subject to parole
supervision by the Department of Corrections and Rehabilitation
(CDCR):
1) A serious felony as described in subdivision (c) of
Section 1192.7.
2) A violent felony as described in subdivision (c) of
Section 667.5.
3) A crime for which the person has been sentenced to a
life term under the 3-strikes law.
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4) Any crime where the person eligible for release from
prison is classified as a High Risk Sex Offender.
5) 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.
6) 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. ( Penal Code §
3000.08; see also Penal Code § 3451(b).)
Current law provides that every "inmate who has been convicted
for any felony violation of a 'registerable sex offense' . . .
or any attempt to commit any of the above-mentioned offenses and
who is committed to prison and released on parole . . . shall be
monitored by a global positioning system for the term of his or
her parole, or for the duration or any remaining part thereof,
whichever period of time is less." (Penal Code § 3000.07(a).)
Inmates released on parole pursuant to this section shall be
required to pay for the costs associated with the monitoring by
a global positioning system, subject to waiver by CDCR upon a
finding of an inability to pay, as specified. (Penal Code §
3000.07(c).)<1>
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<1> Current statute also provides, as enacted by Proposition
83 of 2006, that every "inmate who has been convicted for any
felony violation of a "registerable sex offense" . . . or any
attempt to commit (one of the enumerated sex offenses) and who
is committed to prison and released on parole . . . shall be
monitored by a global positioning system for life." (Penal Code
§ 3004(b).) Any inmate released on parole subject to this
provision "shall be required to pay for the costs associated
with the monitoring by a global positioning system. However,
the Department of Corrections and Rehabilitation shall waive any
or all of that payment upon a finding of an inability to pay.
The department shall consider any remaining amounts the inmate
has been ordered to pay in fines, assessments and restitution
fines, fees, and orders, and shall give priority to the payment
of those items before requiring that the inmate pay for the
global positioning monitoring." (Penal Code § 3004(c).)
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Current law authorizes CDCR to "utilize continuous electronic
monitoring to electronically monitor the whereabouts of persons
on parole, . . .", as specified. (Penal Code § 3010.)
Current law provides that, "Whenever a parole officer
supervising an individual has reasonable cause to believe that
the individual is not complying with the rules or conditions set
forth for the use of continuous electronic monitoring as a
supervision tool, the officer supervising the individual may,
without a warrant of arrest, take the individual into custody
for a violation of parole. (Penal Code § 3010.7.)
Current law authorizes parole 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
incarceration in a county jail. . . . 'Flash incarceration' is
a period of detention in county jail due to a violation of a
parolee's conditions of parole. The length of the detention
period can range between one and 10 consecutive days. Shorter,
but if necessary more frequent, periods of detention for
violations of a parolee's conditions of parole shall
appropriately punish a parolee while preventing the disruption
in a work or home establishment that typically arises from
longer periods of detention." (Penal Code § 3000.08(d).)
Current law further authorizes the following sanctions for
parole violations, as specified:
(1) Return the person to parole supervision with
modifications of conditions, if
appropriate, including a period of incarceration in county jail.
(2) Revoke parole and order the person to confinement in
the county jail.
(3) Refer the person to a reentry court pursuant to Section
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3015 or other evidence-based program in the court's discretion.
(g) Confinement shall not exceed a period of 180 days in
the county jail. (Penal Code § 3000.08(f).)
Postrelease Community Supervision
Under current law , "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.)
Under current law , felons released from prison after having
served a prison term for any of the crimes described above are
ineligible for PRCS, and therefore subject to supervision by
state parole. (Penal Code § 3451 (a).)
Current law authorizes county agencies responsible for
supervising persons subject to PRCS to "determine additional
appropriate conditions of supervision . . . consistent with
public safety, including the use of continuous electronic
monitoring . . . , order the provision of appropriate
rehabilitation and treatment services, determine appropriate
incentives, and 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. . . . 'Flash
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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).)
Current law further authorizes the following sanctions for PRCS
violations, as specified:
(1) Return the person to postrelease community supervision
with modifications of
conditions, if appropriate, including a period of incarceration
in county jail.
(2) Revoke and terminate postrelease community supervision
and order the person to confinement in the county jail.
(3) Refer the person to a reentry court pursuant to Section
3015 or other evidence-based program in the court's discretion.
(Penal Code § 3455(a).)
Current law provides that confinement sanctions shall not exceed
a period of 180 days in the county jail for each custodial
sanction. (Penal Code § 3455(d).)
Probation
Current law generally provides that if a court determines that
there are circumstances in mitigation of the punishment
prescribed by law or that the ends of justice would be served by
granting probation to a person who has been convicted of a
crime, the court may suspend the imposition or execution of a
sentence and order the conditional and revocable release of the
offender in the community under the supervision of a probation
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officer, as specified. (Penal Code § 1203.) Probation may not
be granted to certain persons except in unusual cases where the
interests of justice would best be served if the person is
granted probation. (See Penal Code § 1203(e); Penal Code §
1203.045; Penal Code § 1203.046; et seq.)
Current law generally sets forth the authority of the court to
impose conditions in the order of probation. (Penal Code §
1203.1.)
Current law provides that at any time during the period of
supervision of a person (1) released on probation under the care
of a probation officer, (2) released on conditional sentence or
summary probation not under the care of a probation officer, (3)
placed on mandatory supervision as part of a split jail felony
sentence, (4) subject to revocation of postrelease community
supervision, or (5) subject to revocation of parole supervision,
if any probation officer, parole officer, or peace officer has
probable cause to believe that the supervised person is
violating any term or condition of his or her supervision, the
officer may, without warrant or other process and at any time
until the final disposition of the case, rearrest the supervised
person and bring him or her before the court or the court may,
in its discretion, issue a warrant for his or her rearrest.
"Upon such rearrest, or upon the issuance of a warrant for
rearrest the court may revoke and terminate the supervision of
the person if the interests of justice so require and the court,
in its judgment, has reason to believe from the report of the
probation or parole officer or otherwise that the person has
violated any of the conditions of his or her supervision, has
become abandoned to improper associates or a vicious life, or
has subsequently committed other offenses, regardless whether he
or she has been prosecuted for such offenses. . . . " (Penal
Code § 1203.2)
Current law provides that "the court shall have authority at any
time during the term of probation to revoke, modify, or change
its order of suspension of imposition or execution of sentence.
. . . " (Penal Code § 1203.3.)
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Current law provides that "(n)otwithstanding 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. (Penal Code § 1210.7.)
Jails - Home Detention Programs
Current law provides that the board of supervisors of any county
may authorize the correctional administrator to offer a program
under which inmates committed to a county jail or other county
correctional facility or granted probation, or inmates
participating in a work furlough program, may voluntarily
participate or involuntarily be placed in a home detention
program during their sentence in lieu of confinement in the
county jail or other county correctional facility or program
under the auspices of the probation officer. (Penal Code §
1203.016.) Current law provides that these local officials may
prescribe reasonable rules and regulations for these programs,
including the use of electronic monitoring, as specified. (Id.)
Current law provides that, whenever "the peace officer
supervising a participant has reasonable cause to believe that
the participant is not complying with the rules or conditions of
the program, or that the electronic monitoring devices are
unable to function properly in the designated place of
confinement, the peace officer may, under general or specific
authorization of the correctional administrator, and without a
warrant of arrest, retake the person into custody to complete
the remainder of the original sentence." (Penal Code §
1203.016(c); see also, Penal Code § 1203.017.)
Jails - Electronic Monitoring Programs
Current law provides that the board of supervisors of any county
may authorize the correctional administrator to offer a program
under which inmates being held in lieu of bail in a county jail
or other county correctional facility may participate in an
electronic monitoring program, as specified. (Penal Code §
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1203.018.)
Current law provides that whenever "the peace officer
supervising a participant has reasonable cause to believe that
the participant is not complying with the rules or conditions of
the program, or that the electronic monitoring devices are
unable to function properly in the designated place of
confinement, the peace officer may, under general or specific
authorization of the correctional administrator, and without a
warrant of arrest, retake the person into custody. (Penal Code
§ 1203.018(f).)
Juvenile Court
Current law provides that minors under the age of 18 years may
be adjudged to be a ward of the court for violating "any law of
this state or of the United States or any ordinance of any city
or county of this state defining crime," as specified. (Welfare
and Institutions Code ("WIC") § 602.)
Current law generally provides that when a minor is adjudged a
ward of the court on the ground
that he or she is delinquent, the court may make any and all
reasonable orders for the care,
supervision, custody, conduct, maintenance, and support of the
minor, including medical treatment, subject to further order of
the court, as specified. (WIC § 727(a).)
This Bill
This bill would provide that any "person who willfully and
knowingly removes or disables an electronic monitoring or
supervising device, including a global positioning system (GPS)
or other monitoring device, affixed to his or her person or the
person of another, knowing that the device was affixed as part
of a criminal sentence or juvenile court disposition, as a
condition of parole or probation, or otherwise pursuant to law,
is guilty of a public offense, punishable as follows:
(1) If the crime that triggered the requirement that the
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monitoring device be affixed was a misdemeanor, the person
is guilty of a misdemeanor, punishable by imprisonment in a
county jail for up to one year, by a fine of up to . . .
$1,000, or by both that fine and imprisonment.
(2) If the crime that triggered the requirement that the
monitoring device be affixed was a felony, the person is
guilty of a felony, punishable by imprisonment in the state
prison for 16 months, or two or three years.
(3) If the person was on probation, parole, or postrelease
community supervision, then the probation, parole, or
postrelease community supervision of that person may be
revoked. No credit toward completion of probation, parole,
or postrelease community supervision may be earned during
the period that the monitoring device was disabled or
removed, and if the person is subject to the monitoring
device because of a conviction for a sex offense described
in Section 290, the person shall be subject to a revocation
period of up to one year, as determined by the authority
responsible for supervising the probation, parole, or
postrelease community supervision, without earning
credits."
This bill would provide that a "person with a current or prior
sex offense conviction who is returned to prison for a GPS
device violation . . . or a new felony conviction shall be
subject to the lifetime GPS device requirements applicable to
sex offenders pursuant to Section 3004."
This bill would provide that nothing in these provisions "shall
be construed to prevent punishment pursuant to any other law
that imposes a greater or more severe punishment, including, but
not limited to, Section 594."
This bill would provide that these provisions "shall not apply
to the removal or disabling of a monitoring device by a
physician, emergency medical services technician, or by any
other emergency response or medical personnel when doing so is
necessary during the course of medical treatment of the person
subject to the device. This section shall also not apply where
the removal or disabling of the device is authorized or required
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by a court of law or by the law enforcement, probation, or
parole authority or other entity responsible for placing the
device upon the person or that has the authority and
responsibility to monitor the device."
This bill would provide that "disable," for purposes of this
section, "includes, but is not limited to, a willful and knowing
failure to recharge an electronic monitoring or supervising
device, including a GPS device, on more than one occasion, or
for more than ___ hours."
Sexually Violent Predators
The Sexually Violent Predator (SVP) law provides for the civil
commitment for psychiatric and psychological treatment of a
prison inmate found to be a sexually violent predator after the
person has served his or her prison commitment. (WIC § 6600, et
seq.)
Existing law defines a sexually violent predator as an inmate
"who has been convicted of a sexually violent offense<2> against
one or more victims and who has a diagnosed mental disorder that
makes the person a danger to the health and safety of others in
---------------------------
<2> For purposes of the SVP law, ""Sexually violent offense"
means the following acts when committed by force, violence,
duress, menace, fear of immediate and unlawful bodily injury on
the victim or another person, or threatening to retaliate in the
future against the victim or any other person, and that are
committed on, before, or after the effective date of this
article and result in a conviction or a finding of not guilty by
reason of insanity, as defined in subdivision (a): a felony
violation of Section 261, 262, 264.1, 269, 286, 288, 288a,
288.5, or 289 of the Penal Code, or any felony violation of
Section 207, 209, or 220 of the Penal Code, committed with the
intent to commit a violation of Section 261, 262, 264.1, 286,
288, 288a, or 289 of the Penal Code."
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that it is likely that he or she will engage in sexually violent
criminal behavior." (WIC § 6600, subd. (a).)
Existing law provides that where, pursuant to a screening
process by the Department of Corrections and Rehabilitation or
Board of Parole Hearings, an inmate fits the criteria for
evaluation as an SVP, the inmate shall be referred for
evaluation to the Department of Mental Health. (WIC 6601, subd.
(b).)
Existing law provides that a qualifying prior conviction must be
predatory - committed against a stranger or a person with whom
no substantial relationship with the perpetrator, or against a
person with whom the perpetrator established or cultivated a
relationship for the purpose of victimization. (WIC §§ 6600,
subd. (e) and 6601, subd. (a).)
Existing law provides that the inmate "shall be evaluated by two
practicing psychiatrists or psychologists, or one practicing
psychiatrist and one practicing psychologist, designated by the
Director of Mental Health" (DMH). If both evaluators concur
that the person meets the criteria for SVP commitment, DMH shall
request the prosecutor to file a commitment petition. (WIC §
6601, subd. (d).)
This bill would require that this evaluation be conducted "in a
face-to-face evaluation."
This bill would provide that whenever an individual has been
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convicted, as specified,<3> of a sexually violent offense and
the individual has been found, in an adjudicatory proceeding, to
have willfully and knowingly removed or disabled, or to have
knowingly permitted another to remove or disable, an electronic
monitoring or supervising device, including a global positioning
system (GPS) device, affixed to his or her person, the agency
having supervisory authority over the individual shall refer the
individual to the State Department of State Hospitals for a full
evaluation of whether the person meets the criteria in Section
6600.
This bill would provide that for the purpose of this provision,
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<3> The SVP law provides in part, "(a) (1) "Sexually violent
predator" means a person who has been convicted of a sexually
violent offense against one or more victims and who has a
diagnosed mental disorder that makes the person a danger to the
health and safety of others in that it is likely that he or she
will engage in sexually violent criminal behavior. (2) For
purposes of this subdivision any of the following shall be
considered a conviction for a sexually violent offense: (A) A
prior or current conviction that resulted in a determinate
prison sentence for an offense described in subdivision (b). (B)
A conviction for an offense described in subdivision (b) that
was committed prior to July 1, 1977, and that resulted in an
indeterminate prison sentence. (C) A prior conviction in another
jurisdiction for an offense that includes all of the elements of
an offense described in subdivision (b). (D) A conviction for an
offense under a predecessor statute that includes all of the
elements of an offense described in subdivision (b).
(E) A prior conviction for which the inmate received a grant of
probation for an offense described in subdivision (b).
(F) A prior finding of not guilty by reason of insanity for an
offense described in subdivision (b). (G) A conviction resulting
in a finding that the person was a mentally disordered sex
offender. (H) A prior conviction for an offense described in
subdivision (b) for which the person was committed to the
Department of the Youth Authority pursuant to Section 1731.5.
(I) A prior conviction for an offense described in subdivision
(b) that resulted in an indeterminate prison sentence." (WIC §
6600.)
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"disable" would include, but is not limited to, "a willful and
knowing failure to recharge an electronic monitoring or
supervising device, including a GPS device, on more than one
occasion, or for more than ___ hours."
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, ". .
. 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
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. . . ." 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.
COMMENTS
1. Stated Need for This Bill
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The author states:
Senate Bill 742 provides that any person who willfully
removes or disables a GPS device, affixed to his or
her person as a consequence of a criminal conviction
is guilty of a misdemeanor or a felony depending on
the gravity of the underlying crime. If the offender
is on parole or PRCS at the time of the violation he
or she may, in addition, be subject to revocation
proceedings.
If the offender was required to wear the GPS device
because of a conviction for a felony sex offense he or
she shall, in addition to any criminal penalty, be
subject to a face to face evaluation by the State
Department of State Hospitals (SDSH)
to determine if he or she meets the statutory profile
for civil commitment under the Sexually Violent
Predator law. . . .
In February, The Los Angeles Times published an
investigative article exposing a disturbing increase
in the number of convicted sex offenders and gang
members who remove or disable their GPS monitoring
bracelets. The trend appears to be growing because,
currently, disabling trackers is at most classified as
a parole violation that can incur a maximum penalty of
90 days in county jail; however, this sentence often
is decreased to little or no jail time as a
consequence of
overcrowding at county jails. Some counties are so
impacted that they are no longer booking parole
violators at all, prompting one parole agent to
publicly assert, "It's a huge problem. If the public
knew, they'd be shocked."
The Times further reported that "more than 3,400
arrest warrants for GPS removal or tampering have been
issued since October 2011," most of which were for
dangerous sex offenders. . . .
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2. What This Bill Would Do
This bill would impose additional penalties for persons who have
been put on electronic monitoring/GPS in a variety of contexts -
parole, probation, post release community supervision, early
release from jail on alternative custody, or juvenile court
order - and willfully and knowingly removed or disabled a device
affixed to his or her person. The bill also would apply to
devices affixed to others. Specifically:
1) This bill would enact a new crime for the willful and
knowing removal or disabling of an EM/GPS device attached as
part of a criminal sentence or juvenile court disposition, as a
condition of parole or probation, or otherwise pursuant to law,
with the following penalties:
if the underlying offense is a misdemeanor, jail
for up to a year, fine of up to $1000, or both;
if the underlying offense is a felony, state
prison for 16 months, 2 or 3 years;
if the person was on parole, probation or PRCS,
they may be revoked; no credit during time of disabling;
if the person is on EM/GPS because they are a
registered sex offender, they shall be subject to a
revocation period of up to one year without credits, as
determined by the supervising agency; and
A person with a sex offense conviction returned to
prison for an EM/GPS violation or new felony conviction
shall be subject to lifetime GPS pursuant to Penal Code
section 3004.
2) This bill would provide that anyone convicted of a
"sexually violent offense," (see fn.3) who has been found to
have willfully and knowingly removed or disabled, or to have
knowingly permitted another to remove or disable, an EM/GPS
device affixed to his or her person, shall be referred to the
State Department of State Hospitals for a full evaluation of
whether the person meets SVP criteria, by the agency having
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supervisory authority over the individual.
3) This bill also would require that the evaluations required
for SVP determination be done "face-to-face."
3. Penalties
As explained in detail above, current law provides consequences
for persons who, essentially, defeat their electronic
monitoring/GPS. Execution of a felony sentence (in other words,
revocation of probation), revocation of post release custodial
supervision or parole for up to 180 days in jail, so-called
"flash incarceration" for parole or PRCS violations,
modification of a juvenile court disposition, and the return to
jail for inmates who had been put on home detention are
sanctions available under current law for violating conditions
of supervision pertaining to EM/GPS.
This bill would enact discrete criminal penalties for this
conduct, making it a misdemeanor if the offense that is the
basis for the monitoring is a misdemeanor, and a felony if the
offense that is the basis for the monitoring is a felony. This
bill also contains additional provisions, described above, based
on the nature of the person's status (i.e., parolee) or criminal
history (sex offenders).
Members may wish to discuss why the sanctions proposed by this
bill are necessary in addition to those available under current
law.
4. Public Safety Realignment of 2011; Considerations for This
Bill
Realignment made changes in how felons coming out of prison are
supervised in the community. Realignment generally provides
that post-prison supervision for felons is the responsibility of
parole or probation; whether a felon newly-released from prison
is supervised by state parole or county probation (under post
release community supervision ["PRCS"]) generally depends upon
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the crime that sent them to prison or other factors.<4>
Custody sanctions for parole and PRCS violations are served in
county jail. No person who is on PRCS may be returned to prison
for a violation of any condition of the person's postrelease
supervision agreement.<5> Similarly, no person who is on parole
for less than life may be returned to prison for a violation of
any condition of the person's parole.<6>
With respect to parole and PRCS violators, some of whom would be
subject to this bill, the Governor's Budget Summary for
2011-2012 describes the administration's reasoning for
realignments provisions limiting the return of parole violators
to state prison:
The large number of shortterm, lowerlevel offenders
and parole violators in prison has resulted in
overloaded reception centers, inefficient prison
operations, and difficulties with rehabilitation
efforts. . . . .<7>
The February 2013 analysis of the Governor's budget proposals
provided by the Legislative Analyst's Office includes the
following background regarding projections concerning
California's prison population:
The average daily prison population is projected to be
about 129,000 inmates
in 2013-14, a decline of roughly 3,600 inmates (3
percent) from the estimated current-year level. This
decline is largely due to the 2011 realignment of
lower-level felons from state to local responsibility.
----------------------
<4> Penal Code § 3000.08; see also Penal Code § 3451(b).
<5> Penal Code § 3458. This limitation applies solely to PRCS
violations, and does not apply to a conviction for a new felony
offense.
<6> Penal Code § 3000.08.
<7>
http://2011-12.archives.ebudget.ca.gov/pdf/BudgetSummary/Correcti
onsandRehabilitation.pdf.
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Although decreasing, the projected
inmate population for 2013-14 is still about 3,200
inmates higher than was projected by CDCR in spring
2012. According to the department, this is due in part
to higher-than-expected admissions to state prison.<8>
As noted above, on April 11th of this year, the federal court
reasserted its order that California reduce its prison
population to 137.5 percent of capacity by the end of this year.
With respect to prison population, members may wish to consider
the following questions:
How would this bill affect the prison population?
How would this bill affect the ongoing federal
litigation described above and, in particular, the ability
of the state to meet the court orders concerning reductions
in California's prison population?
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
----------------------
----------------------
<8> LAO, The 2013-14 Budget: Governor's Criminal Justice
Proposals (Feb. 15, 2013.)
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SB 742 (Nielsen)
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billion in 2011-12 to $2.2 billion in 2013-14.<9>
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 consider the following
questions:
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?
5. Reports, Data and Information Concerning Sex Offenders and
GPS/Electronic Monitoring
For the last several months there have been a number of news
reports regarding the number of sex offender parolees removing
---------------------------
<9> Id.
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or disarming their GPS.<10> Many of these reports describe
parolees who were released from local custody before having
fully served their ordered sanctions for parole violations.<11>
A particularly disturbing case in San Joaquin County involves a
parolee who had been sanctioned with jail time and released
early from jail several times - and after the last time
---------------------------
<10> For example, in February of this year, the Los Angeles
Times reported, "Thousands of paroled child molesters, rapists
and other high-risk sex offenders in California are removing or
disarming their court-ordered GPS tracking devices - and some
have been charged with new crimes including sexual battery,
kidnapping and attempted manslaughter. The offenders have
discovered that they can disable the monitors, often with little
risk of serving time for it, a Times investigation has found.
The jails are too full to hold them. "It's a huge problem,"
said Fresno parole agent Matt Hill. "If the public knew, they'd
be shocked." More than 3,400 arrest warrants for GPS
tamperers have been issued since October 2011, when the state
began referring parole violators to county jails instead of
returning them to its packed prisons. Warrants increased 28% in
2012 compared to the 12 months before the change in custody
began. Nearly all of the warrants were for sex offenders, who
are the vast majority of convicts with monitors, and many were
for repeat violations." Paige St. John, Los Angeles Times,
Paroled sex offenders disarming tracking devices (Feb. 23,
2013).
<11> "Before prison realignment took effect, sex offenders who
breached parole remained behind bars, awaiting hearings that
could send them back to prison for up to a year. Now, the
maximum penalty is 180 days in jail, but many never serve that
time. With so little deterrent, parolees "certainly are
feeling more bold," said Jack Wallace, an executive at the
California Sex Offender Management Board. . . . Arrest
warrants for GPS tamperers are automatically published online.
The Times reviewed that data as well as thousands of jail logs,
court documents and criminal histories provided by confidential
sources. The records show that the way authorities handle
violators can vary significantly by county. San Bernardino
County releases more inmates early from its cramped jails than
any other county in California, according to state reports. But
sex offenders who violate parole there generally serve their
terms. . . . By contrast, parole violators in San Joaquin
County are often set free within a day of arrest.
A review of the county's jail logs shows that nine of the 15 sex
offenders arrested for violating parole in December and January
were let out within 24 hours, including seven who immediately
tampered with their trackers and disappeared. . . . Id.
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SB 742 (Nielsen)
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allegedly murdered his grandmother.<12>
A snapshot of the CDCR parolee population data shows that on
December 31, 2012, there were 58,656 parolees.<13> Of those,
9,756 - 16.6 percent - were required to register as sex
offenders.
CDCR has assembled data describing both the number of sex
offender parolees for whom one or more warrants have been sought
for absconding, and the number of warrants issued for this
population. The number of warrants exceeds the number of
parolees because one parolee can generate multiple warrants.
GPS tampering or disabling is implied in the data for warrants
issued for sex offender parolees believed to have absconded. In
addition, this data includes warrants which were rescinded. In
other words, the warrant data reflects a "zero tolerance"
---------------------------
<12> "Deputy District Attorney Sherri Adams said DeAvila is a
sex offender and has been in and out of jail on parole
violations between five and 11 times over the past year.
More recently, he was released from jail early on his own
recognizance on Feb. 20, one day after pleading guilty to
charges of failing to register as a sex offender and being
sentenced to serve 30 days in jail. . . . DeAvila was
released on a court cap, a mandate to reduce jail population
when it reaches capacity. Under the current local justice
system, inmates are considered for release based on the current
charge - not necessarily on their criminal history. This is why
the county is trying to establish a system that would allow
corrections staff and judges to look at offenders' backgrounds
to determine whether they should be released. "We're
governed by the court cap," (a sheriff's office representative)
said. "And that's one of the reasons the sheriff is pushing for
the new jail to provide more space to have the ability to hold
more prisoners." Jennie Rodriguez-Moore, Stockton Record,
Prosecutors: Man Raped, Killed Grandmother (March 1, 2013).
<13> Dept. of Corrections and Rehabilitation, Parole Census
Data as of December 31, 2012,
(http://www.cdcr.ca.gov/Reports_Research/Offender_Information_Ser
vices_Branch/Annual/PCensus1 /PCENSUS1d1212.pdf.
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approach to sex offender parolees, where agents issue warrants
immediately when contact with a parolee is broken. Thus, the
warrant data available for estimating the number of sex offender
parolees who are violating their GPS conditions includes cases
where, for example, a warrant was rescinded because the agent
determines the parolee had a reasonable explanation for the
break in contact (i.e. a device got wet, the parolee was in a
location where the signal was temporarily blocked, etcetera).
The available data suggests that while the overall rate of sex
offender parolees for whom a warrant for absconding has been
sought increased slightly between 2011 and 2012, the total
number of warrants generated by these parolees appears to have
gone up significantly during the same timeframe. Over the past
three years, more than 92 percent of sex offender absconders
have been located and the median number of days these parolees
are at large is 12.
The following chart shows the number of sex offender parolees
for whom warrants have been issued for absconding over the past
three years as a rate based on the average annual sex offender
parolee population for each of those years.<14> Based on this
data it appears that, while the numbers of sex offender parolees
generating warrants for absconding has increased somewhat, the
actual rate has been relatively stable:
Rates - Warrants Issued for Absconding Sex Offender Parolees
-------------------------------------------------------------------
| Year | 2010 | 2011 | 2012 |
|----------------+----------------+----------------+----------------|
| Average Sex | 8,543 | 9,674 | 10,076 |
| Offender | | | |
| Parolee | | | |
| Population | | | |
|----------------+----------------+----------------+----------------|
| No. of Sex | | | |
---------------------------
<14> Dept. of Corrections and Rehabilitation, Parole Census
Data as of December 31, 2010, 2011, and 2012.
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| Offenders for | 1,821 | 1,995 | 2,276 |
|Whom Absconding | | | |
| Warrants were | | | |
| Sought | | | |
|----------------+----------------+----------------+----------------|
| As a rate of | 21.3% | 20.6% |22.6% |
| total sex | | | |
| offender | | | |
| parolees | | | |
-------------------------------------------------------------------
In contrast, the annual data for the number of warrants sought
for sex offender parolees has increased significantly between
2011 and 2012.
Rates - Total Number of Warrants Sought for Absconding Sex
Offender Parolees
-------------------------------------------------------------------
| Year | 2010 | 2011 | 2012 |
|----------------+----------------+----------------+----------------|
| Average Sex | 8,543 | 9,674 | 10,076 |
| Offender | | | |
| Parolee | | | |
| Population | | | |
|----------------+----------------+----------------+----------------|
|Total Number of | 2,351 | 2,672 | 4,153 |
| Absconding | | | |
| Warrants for | | | |
| Sex Offender | | | |
| Parolees | | | |
|----------------+----------------+----------------+----------------|
| As a rate of | 27.5% | 27.6% |41.2% |
| total sex | | | |
| offender | | | |
| parolees | | | |
-------------------------------------------------------------------
The sex offender warrant data provided by CDCR suggests that not
all counties are facing the same levels with respect to sex
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offender parolees for whom warrants have been sought for
absconding. The following chart provides a snapshot of this
data taken from December of 2010, 2011 and 2012 for selected
counties; this data reflects the number of warrants, not
individual parolees:
Total Number of Warrants Sought for Sex Offender Parolees
Believed to Have Absconded Select Counties, December
Snapshots<15>
--------------------------------------------------------------------------------------------------------
| | Dec. 2010 | Dec. 2010 | Dec. 2011 | Dec. 2011 | Dec. 2012 | Dec. 2012 |
| | Total Number | Number of | Total Number | Number of | Total Number | Number of |
| County | of Sex | Warrants | of Sex | Warrants | of Sex | Warrants |
| | Offender | Sought for | Offender | Sought for | Offender | Sought for |
| | Parolees | Absconding | Parolees | Absconding | Parolees | Absconding |
| | | Sex Off. | | Sex Off. | | Sex Off. |
| | | Parolees | | Parolees | | Parolees |
|--------------+--------------+--------------+--------------+--------------+--------------+--------------|
| Alameda | 483 | 12 (2.5%) | 616 | 12 (1.9%) | 590 | 9 (1.5%) |
|--------------+--------------+--------------+--------------+--------------+--------------+--------------|
| Fresno | 407 | 6 (1.5%) | 402 | 6 (1.5%) | 429 | 24 (5.6%) |
|--------------+--------------+--------------+--------------+--------------+--------------+--------------|
| Kern | 294 | 4 (1.4%) | 330 | 6 (1.8%) | 320 | 9 (2.8%) |
|--------------+--------------+--------------+--------------+--------------+--------------+--------------|
| Los Angeles | 2438 | 65 (2.6%) | 2,499 | 90 (3.6%) | 2,313 | 124 (5.4%) |
|--------------+--------------+--------------+--------------+--------------+--------------+--------------|
| Merced | 76 | 1 (1.3%) | 95 | 5 (5.3%) | 91 | 5 (5.5%) |
|--------------+--------------+--------------+--------------+--------------+--------------+--------------|
| Riverside | 683 | 16 (2.3%) | 735 | 15 (2%) | 668 | 13 (2%) |
|--------------+--------------+--------------+--------------+--------------+--------------+--------------|
| Sacramento | 695 | 11 (1.6%) | 867 | 20 (2.3%) | 806 | 24 (3%) |
|--------------+--------------+--------------+--------------+--------------+--------------+--------------|
| San | 642 | 23 (3.6%) | 795 | 27 (3.4%) | 771 | 20 (2.6%) |
| Bernardino | | | | | | |
|--------------+--------------+--------------+--------------+--------------+--------------+--------------|
| San Diego | 566 | 7 (1.2%) | 654 | 18 (2.7%) | 658 | 15 (2.3%) |
|--------------+--------------+--------------+--------------+--------------+--------------+--------------|
---------------------------
<15> Id.
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| San Joaquin | 263 | 4 (1.5%) | 256 | 11 (4.3%) | 259 |16 |
| | | | | | |(6%) |
--------------------------------------------------------------------------------------------------------
In addition to the data from CDCR, Committee staff asked the
Board of Parole Hearings ("BPH") for information that might
further illuminate incidents involving sex offender parolees
defeating the GPS devices they are required to wear as a special
condition of parole. The BPH data shows that the number of new
GPS violation charges for sex offender parolees initiated prior
to serving time in custody - in other words, new charges that
occurred when they should have been serving time for an earlier
violation -- has increased after realignment, from 99 cases in
the 15 months prior to realignment to 495 cases in the 15 months
following the start date of realignment. <16>
There was a similar increase reflected in the BPH data for cases
of sex offender parolees with absconding charges. The number of
new absconding cases initiated prior to serving 50% of ordered
return-to-custody time was 87 cases in the 15 months prior to
realignment, and 617 cases in the 15 months following its
enactment. This data suggests an increase in the number of
these parolees committing these violations during a time they
should have been in jail on earlier custody orders in the 15
months following the start of realignment. <17>
Members may wish to consider how the information summarized
above informs the policy questions raised by this bill,
including the following notable features:
The percentage of sex offender parolees for whom
--------------------------
<16> The BPH data reflects only those parolees against whom a
revocation proceeding was initiated with the board; it does not
include parolees who never had a case initiated (i.e., absconded
and has not been located, warrant rescinded without parole
revocation charges being referred to the board, etcetera).
<17> This data reflects parolees required to register as sex
offenders (290 registrants) charged with an absconding parole
violation.
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warrants for absconding have been issued over the past
three years appear to be relatively stable (a difference of
1.3 % between 2010 and 2012). In contrast, the total
number of these warrants has increased in both raw numbers
and as a percentage of the total sex offender parolee
population (13.7% between 2010 and 2012). Members may wish
to discuss whether this suggests that while the rate of sex
offenders parolees committing these violations has not
increased a lot, the number of sex offender parolees who
repeatedly commit these violations has increased and, if
so, why.
The BPH data suggests that many more sex offender
parolees may be committing the kinds of violations of
concern - GPS and absconding violations - during a time
when they would have been expected to be incapacitated in
jail for an earlier violation. To what extent is the
release of these violators prior to serving their full
custodial sanction causing an increase in GPS violations?
Some counties stand out as facing an increase in the
number of absconding warrants for these offenders. Why?
In an effort to further understand the practices and
circumstances facing some counties with respect to managing
parolees who have been sanctioned with jail time for parole
violations, the Chair of this Committee sent a letter of inquiry
to the sheriff and presiding judge of San Joaquin County asking
for more information about how San Joaquin County manages its
jail inmate population. As noted above, San Joaquin stands out
as a county which appears to have experienced a greater number
of absconding warrants for this population in the last year. In
a letter dated March 27, 2013, Sheriff Moore responded to this
inquiry. Sheriff Moore explained that the county has operated
under a Superior Court Consent Decree capping its jail
population since 1983, and that since 1993 the Pre-Trial
Services program operated through the county's probation
department has made felony release determinations under the
auspices of the jail population court cap order. This program
does not use a risk assessment instrument. In addition, the
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SB 742 (Nielsen)
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sheriff notes that there is no risk assessment tool used by the
sheriff's Population Management Unit or by the court when the
court must make "special releases" necessary beyond the court
consent decree.
An article published in the Stockton Record on March 12, 2013,
described San Joaquin's method of releasing pretrial inmates
early from jail as 'archaic,' according to a consultant who
encouraged officials to overhaul the system. The article further
stated:
To meet a court-mandated population cap, dozens of
jail inmates are released daily based on their current
charge only. Nowhere in the process of deciding whom
to set free is their risk to reoffend or skip town
before trial considered.
. . . Chief Probation Officer Stephanie James . . .
says officials are committed to making significant
changes.
An evaluation process that takes into account criminal
history and court attendance records is under way for
determining whether inmates are suitable for release
on their own recognizance.
"This isn't a program," James said. "We're reforming
the criminal justice system. That's really what we're
doing."
. . . Out of the jail's more than 1,400 inmates,
only 20 percent are interviewed and assessed for
public safety risks during the court process. The
probation department has eight people handling these
interviews.
Then, there is another chance for inmates to be
released on their own recognizance at arraignment, but
local Superior Court judges don't have access to a
defendant's criminal history or flight risk
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information.
James said the need for an overhaul became more
apparent with the enactment of realignment law AB109,
which added hundreds more inmates to the jail who
otherwise would have been sent back to prison.
"With so many people getting released early, jail is
not a meaningful consequence," James said.
A local committee on realignment has allocated
$370,000 of AB109 funds for pretrial services.
James' preliminary vision is that risk-assessment
printouts would be provided to judges.
. . . (T)oday's overpopulation leads to more early
releases or alternative incarceration, such as
electronic monitoring. It includes people arrested on
state parole violations, as AB109 shifted revocation
incarceration from state prison to local jail.
Offenders with technical violations are considered for
pretrial release before others.
For example, state parolee Jerome DeAvila was capped
out of jail after pleading guilty to a misdemeanor of
failing to register as a sex offender. About a week
later, he was arrested and charged with the rape and
murder of his 76-year-old grandmother.
James said it's too early to know how a new pretrial
services system will impact the court cap decree.
But the county's plan is to implement a comprehensive
system that gives jail bed priority to the most
violent offenders, and a new pretrial process is part
of that. "We definitely need to move forward on
implementing it as quickly as we can," she said.
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. . . Jail officials say they need more data on the
project, which is still in its infancy, to evaluate
the impact on the jail and the possible need for more
beds.
"It sounds like a project that we'll be extremely
interested in," said (a) . . . spokesman for the San
Joaquin County Sheriff's Office, which oversees the
jail. "But there has to be more details on how this is
going to work here in San Joaquin County." . . . .<18>
Members may wish to discuss how local jail population management
practices and circumstances impact decisions with respect to
holding sex offender parolee GPS violators for the full terms of
their return to custody orders, and whether these practices and
decisions are affecting the GPS violation trends among this
parolee population. In addition, members may wish to consider
how this bill would affect these local jail practices and
circumstances, and whether there are additional or other ways
the state can partner with local governments to promote the
effective management of these parolees.
TO WHAT EXTENT HAVE SEX OFFENDER PAROLEES ABSCONDED MORE OVER
THE PAST YEAR?
WHAT FACTORS ARE MOST LIKELY CONTRIBUTING TO A DESTABLIZATION OF
THIS PAROLEE POPULATION?
WILL THE REMEDY PROPOSED BY THIS BILL ADDRESS THESE FACTORS?
WILL THE REMEDY PROPOSED BY THIS BILL ERODE REALIGNMENT?
6. Sex Offender Management
As discussed in detail above, the data suggests that while the
overall percentage of sex offender parolees for whom a warrant
---------------------------
<18> Jennie Rodriguez-Moore, The Stockton Record, Consultants
recommend overhaul of county pretrial inmate releases (March 12,
2013).
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has been sought has increased slightly, the number of warrants
being issued has increased significantly, which suggests
individual sex offender parolees are generating multiple
warrants. Using absconding warrants as a measure, it appears
that roughly 20 percent of sex offender parolees generate a
warrant for absconding, both pre and post-realignment. Members
may wish to consider whether incapacitation practices for this
population - which the data suggests has changed since
realignment - is the main variable underlying this change.
Members also may wish to discuss why, for this subset of sex
offender parolees, the methods of community supervision both
before and after realignment have not improved rates of
compliance concerning GPS and whether, as discussed below,
greater implementation of the "Containment Model" for sex
offender management might improve this problem.
In 2006, the California Sex Offender Management Board was
created to "address any issues, concerns, and problems related
to the community management of adult sex offenders. The main
objective of the board, which shall be used to guide the board
in prioritizing resources and use of time, is to achieve safer
communities by reducing victimization."<19>
Since its creation, the Board has produced a number of
reports.<20> In January of 2010, the Board issued its
Recommendations Report, which included the following
observations about California's policies with respect to sex
offenders:
The reality in California is, rather than a coherent
and coordinated sex offender management system, the
state has multiple sex offender management strategies
created by various legislative, voter initiative and
executive branch actions with varied "mandates" and
very different funding requirements and funding
assurances. California's system of sex offender
management was created - for the most part - piece by
----------------------
<19> Penal Code § 9002, enacted by AB 1015 (Chu and
Spitzer)(Ch. 338, Stats. 2006).
<20> See http://www.casomb.org/.
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piece through separate and uncoordinated legislative
and administrative actions. Although various
components of the system have learned to work
together, the overall system could not be described as
coherent, cohesive and coordinated. . . .
Sexual crimes rightly outrage communities. The legacy
of sexual assault in the lives of victims is often
profound and long-lasting. In the aftermath of an
assault, communities often demand with great vehemence
that policymakers and public safety professionals DO
SOMETHING. The root of the desire to acknowledge the
serious nature of the crime is difficult to disparage
but, when combined with fear, misinformation and the
heat of media inquiry, the flame of community outrage
can create a political environment that rewards swift
action over more methodical, effective approaches. On
occasion, these swift approaches may address
short-term community outrage at the cost of directing
resources and skilled personnel away from investments
in strategies for long-term safety. . . .
Some of our most public and tragic sex offender
management failures have demonstrated the importance
of qualified, trained professionals working in concert
with other disciplines to identify emergent risks.
Tragedies are not averted because of a single data
point or tool, they are averted because qualified
professionals know how to interpret that data in
context, communicate with each other and respond
accordingly.
In a time of scarce resources, board members agree
that approaches that can demonstrate success should
take priority over those that are untested.
Furthermore, policymakers should insist on ongoing
evaluation of sex offender management strategies to
ensure that quality is maintained and that new
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approaches are effective.<21>
The Board stated in its January 2010 report that it "strongly
recommends that the sex offender management strategies
collectively known as the Containment Model be implemented
statewide.
The Containment Model has been identified by the
CASOMB as the best practice for community supervision
of sex offenders. While the Governor's High-Risk Sex
Offender Task Force and the CASOMB have endorsed
implementation of the Containment Model, it has not
been implemented in any uniform or continuous manner.
A few counties have their own version of the
Containment Model; most counties do not, nor does CDCR
use this model.
The Containment Model calls for a collaborative effort
of sex offender specific treatment providers, law
enforcement supervising agents such as probation
officers or parole agents, polygraphists providing
specialized testing as both a treatment and monitoring
tool and victim advocacy participants whenever
possible. The offender is supervised and overseen
within this context. If these aspects of containment
are not in place, efficacy is reduced. CDCR does not
use the Containment Model; there is no treatment being
funded and no polygraph testing being conducted. . . .
Supervision alone is not as effective as the full
Containment Model. Public safety would be increased
if the Containment Model were required throughout the
State for all sex offenders, whether on parole or
probation.<22>
The Board's January 2010 report summarized the Board's "Key
Recommendations," including the following particularly pertinent
to the issues raised by this bill:
---------------------------
<21> Id. pp. 8-10.
<22> Id at 32-33 (emphasis added).
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GPS monitoring should only be utilized in
conjunction with some form of community supervision,
with the understanding that some high-risk offenders
may need to be subject to extended supervision
(including lifetime supervision for exceptionally
high-risk offenders).
California should identify a more efficient method
of determining when a parole violation is related to
reoffense risk and appropriately triggers a clinical
reevaluation versus parole violations not related to
risk that should not require an additional evaluation
for parolees who have been previously evaluated and
rejected for the Sexually Violent Predator
Program.<23>
In a letter to the author of AB 1844 (Fletcher) ("Chelsea's
Law") in 2010, the Board made the following comments relating to
the supervision of sex offenders:
(N)either lifetime nor less-than-lifetime supervision
can be effective without implementation of the
Containment Model during probation or parole. Most
sex offenders, no matter how long their prison terms,
will be released back into the community, yet
California does not have an effective system for
monitoring sex offenders once released. To address
this, CASOMB has recommended adoption of the
Containment Model, which requires sex
offender-specific management programs to be provided
to all sex offenders on probation or parole, by
approved sex offender management professionals. . . .
Without the adoption of the full model, sex offenders
will continue to pose a greater risk after release,
with less chance of being flagged and closely
----------------------
<23> Recommendations Report, California Sex Offender
Management Board, pp. 5-6 (January 2010).
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monitored in appropriate cases. . . .<24>
As enacted into law in 2010, "Chelsea's Law" included the
foundational elements of the Containment Model described above.
In February of this year, the Board issued a report on Chelsea's
Law implementation. That report states in part:
In the 2010 Legislative Session, AB 1844, known as the
Chelsea King Child Predator Prevention Act, passed
both houses of the Legislature with bipartisan
support. It was signed into law by the Governor on
September 17, 2010. The Law made many changes to the
California Penal Code.
Of particular importance was the requirement that
after July 1, 2012, the terms of probation or parole
for all registered sex offenders under probation or
parole supervision in the community must include the
requirement to participate in and complete an approved
sex offender management program, including sex
offender-specific treatment and polygraph
examinations.
. . .
Chelsea's Law requires that CDCR develop control and
containment programming for all high risk sex
offenders. The Containment Model requires that
supervising agencies work collaboratively with the
treatment professionals who provide the mandated
specialized services to sex offenders on county
probation or state parole. There is to be, at a
minimum, monthly feedback to supervision officers
regarding each offender's progress in treatment and
any changes to dynamic risk factors or identified
----------------------
<24>
http://www.cce.csus.edu/conferences/cdcr/casomb/docs/CASOMB%20Let
ter%20to%20Assemblyman%20
Fletcher.pdf.
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risks to community safety. . . .<25>
The report concludes by emphasizing the importance of
leadership, training and collaboration among both state parole
and local probation in successfully implementing the Containment
Model.<26>
Members of the Committee and the author may wish to discuss how
the growing implementation of the Containment Model by the
Division of Parole Operations and probation might impact the
compliance of sex offenders on both parole and PRCS.
WILL THE CONTAINMENT MODEL, AS IT BECOMES MORE REFLECTIVE OF
PAROLE AND PROBATION SUPERVISION PRACTICES FOR SEX OFFENDERS ON
GPS, IMPROVE COMPLIANCE AMONG SEX OFFENDERS ON PAROLE AND PRCS?
The board also expresses its ongoing concerns about the impact
of residency restrictions on the ability of the state to provide
effective sex offender management:
California's current state of affairs with regard
to homelessness and transient status among sex
offenders, particularly those under CDCR parole
supervision, can be expected to have a significant
negative impact on the success of the Containment
approach as envisioned and mandated by Chelsea's Law.
As CASOMB has repeatedly pointed out in previous
reports, approximately one-third of those parolees are
known to be homeless. Almost all are so because of the
residence restrictions imposed by Jessica's Law
(Proposition 83). Treatment providers report that
providing effective specialized services to homeless
clients is extremely difficult. Many factors arising
from their homelessness interfere with their
successful attendance at and full engagement in the
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<25> California Sex Offender Management Board, Chelsea's Law
Implementation (February 2013); on file in Committee offices.
<26> Id.
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treatment process. Management and treatment efforts
are working toward life stability and pro-social
engagement. Residence restrictions have the exact
opposite effect. Homeless sex offenders are often
psychologically incapable of attending to anything
besides their daily survival and are unprepared to
engage in the self-reflection and behavioral changes
expected in the treatment process. Supervision is a
key part of Containment and transient sex offenders
are much more difficult to supervise and so leave less
time and energy for the collaboration expected under
the Containment model. The Board is compelled to once
again express its concerns that the homeless status of
a significant proportion of sex offenders is working
at strong cross purposes with the intent and the
effective implementation of Containment as established
by Chelsea's Law - and is therefore interfering with
efforts to make California's citizens safer from
potential sex offender recidivism.<27>
Members may wish to discuss whether the residency restrictions
imposed by Jessica's Law have any relation to the GPS issues
raised by this bill. In other words, to what extent are sex
offender parolees unable to comply both with the residency
restrictions and their GPS conditions without having to become
homeless?
DO THE RESIDENCY RESTRICTIONS OF JESSICA'S LAW IMPACT GPS
COMPLIANCE AMONG SEX OFFENDER PAROLEES?
7. Additional Issues of Consideration
This bill appears to provide that registered sex offenders who
violate their EM/GPS would be subject to a revocation period of
up to a year, as determined by the agency supervising them.
(Section 1 of the bill, 645.5(a)(3).) The author and/or members
of the Committee may wish to consider whether due process would
require that a person subject to this provision would be
entitled to a hearing process prior to the imposition of this
---------------------------
<27> Id.
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custodial sanction.
SHOULD THIS PROVISION BE REVISED TO PROVIDE FOR DUE PROCESS?
This bill would provide that a person with a current or prior
sex offense conviction who is returned to prison for a GPS
device violation or a new felony conviction would be subject to
the lifetime GPS device requirements applicable to sex offenders
pursuant to Section 3004. (Section 1, 645.5(b).) The author
and/or members of the Committee may wish to discuss what agency
would provide the lifetime GPS monitoring for these persons once
they no longer are subject to supervision.
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WHAT AGENCY WOULD PROVIDE LIFETIME GPS MONITORING ONCE A PERSON
NO LONGER IS SUBJECT TO SUPERVISION?
The bill states that ""Disable," for purposes of this section,
includes, but is not limited to, a willful and knowing failure
to recharge an electronic monitoring or supervising device,
including a GPS device, on more than one occasion, or for more
than ___ hours." The author and members of the Committee may
wish to discuss how many hours this should be.
8. Sexually Violent Predators
This bill also would require that the evaluations required for
SVP determination be done "face-to-face." Members may wish the
author to describe any concerns he has that these evaluations
currently are not being done in this fashion.
This bill also would provide that anyone with a conviction for a
"sexually violent offense," as defined in the SVP laws, who
disables their EM/GPS would be required to be referred to the
State Department of State Hospitals for a full evaluation of
whether the person meets SVP criteria, by the agency having
supervisory authority over the individual. In this way, this
bill would appear to treat a GPS violation as an indication that
a person may be an SVP. The author and/or members of the
Committee may wish to discuss using a GPS violation as an
indicator that a registered sex offender is a "sexually violent
predator," for purposes of the civil commitment SVP law.
IS A GPS VIOLATION A GOOD INDICATOR THAT A SEX OFFENDER MAY BE A
"SEXUALLY VIOLENT PREDATOR"?
In addition, members may wish to consider whether requiring an
SVP evaluation for parole and PRCS violations is necessary and
fiscally sensible, since presumably these persons were given SVP
evaluations before their release from prison.
SHOULD CERTAIN SEX OFFENDERS RELEASED FROM PRISON BE SUBJECT TO
AN ADDITIONAL SVP EVALUATION IF THEY VIOLATE THEIR GPS
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CONDITIONS?
Similarly, members may want to inquire further into any case
where a jail inmate who had a criminal history that included a
sexually violent offense would be released from jail under an
alternative custody program and put on GPS, and whether there is
a bigger public safety matter at issue if this in fact is
occurring.
ARE SHERIFFS RELEASING JAIL INMATES WHO HAVE BEEN CONVICTED OF A
"SEXUALLY VIOLENT OFFENSE" ON ALTERNATIVE CUSTODY USING GPS OR
ELECTRONIC MONITORING? IF SO, SHOULD THIS PRACTICE BE
RECONSIDERED?
Under current law, the SVP evaluation is conducted for inmates
in CDCR prior to an inmate's release from prison. Members may
wish to discuss how the bill's provision to refer GPS violators
for an SVP evaluation would work in terms of due process (i.e.,
after a hearing), evaluation (unlike the current SVP statute,
these persons would not be evaluated after a period of
incarceration; they would be coming out of the community), and
costs compared to likelihood that they would be found to be an
SVP.
HOW WOULD THIS PROCESS WORK?
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