BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 266 Hearing Date: March 24, 2015
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|Author: |Block |
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|Version: |February 19, 2015 |
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|Urgency: |No |Fiscal: |No |
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|Consultant:|AA |
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Subject: Community Supervision by Probation: Flash
Incarceration
HISTORY
Source: Chief Probation Officers of California
Prior Legislation: SB 419 (Block) - 2014, amended into unrelated
bill
Support: California State Sheriffs' Association
Opposition:California Attorneys for Criminal Justice; California
Public Defenders Association; Legal Services for
Prisoners with Children
PURPOSE
The purpose of this bill is to require that courts authorize
probation to use "flash incarceration" for violations of
probation or mandatory supervision, as specified.
Current law generally authorizes the use of a penalty known as
"flash incarceration" for felons who have been released from
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prison, are subject to supervision by state parole or county
probation, and are believed to have violated a condition of
their supervision. (Penal Code §§ 3008.8; 3450.)
Current law specifically authorizes county agencies responsible
for supervising persons subject to postrelease community
supervision ("PRCS") to:
. . . determine and order appropriate responses to
alleged violations, which can include, but shall not
be limited to, immediate, structured, and intermediate
sanctions up to and including referral to a reentry
court . . . , or flash incarceration in a county jail.
Periods of flash incarceration are encouraged as one
method of punishment for violations of an offender's
condition of postrelease supervision.
(c) "Flash incarceration" is a period of detention in
county jail due to a violation of an offender's
conditions of postrelease supervision. The length of
the detention period can range between one and 10
consecutive days. Flash incarceration is a tool that
may be used by each county agency responsible for
postrelease supervision. Shorter, but if necessary
more frequent, periods of detention for violations of
an offender's postrelease supervision conditions shall
appropriately punish an offender while preventing the
disruption in a work or home establishment that
typically arises from longer term revocations. (Penal
Code § 3454(b) and (c) (emphasis added).)
Current law also authorizes this use of flash incarceration on
parolees, who are supervised by state parole. (See Penal Code §
3008.08 (d), (e) and (f).)
Current law generally authorizes courts to suspend a felony
sentence and order the conditional and revocable release of an
offender in the community to probation supervision. (Penal Code
§ 1203.)
Current law also authorizes courts to impose what is known as a
"split sentence" on persons convicted of a felony for which any
custodial time will be served locally (not in state prison), and
where the court imposes a sentence comprised of both time in
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custody and time subject to what is termed "mandatory
supervision" in the community by probation. (Penal Code §
1170(h).)
This bill would require courts to authorize a county probation
officer to use flash incarceration for any violation of
conditions of probation or mandatory supervision if, at the time
of granting probation or ordering mandatory supervision, the
court obtains from the defendant a waiver to a court hearing
prior to the imposition of a period of flash incarceration.
This bill would require that if the person on probation or
mandatory supervision does not agree to accept a recommended
period of flash incarceration upon a finding of a violation, the
probation officer may address the alleged violation by filing a
declaration or revocation request with the court.
This bill would provide that for purposes of this section,
"flash incarceration" is a "period of detention in a county jail
due to a violation of an offender's conditions of probation or
mandatory supervision. The length of the detention period may
range between one and 10 consecutive days. Shorter, but if
necessary more frequent, periods of detention for violations of
an offender's conditions of probation or mandatory supervision
shall appropriately punish an offender while preventing the
disruption in a work or home establishment that typically arises
from longer periods of detention."
This bill would not apply to defendants subject to Proposition
36 of 2000, as specified.
This bill contains a sunset clause of January 1, 2021.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past eight years, this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
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overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In its most recent status report to the court (February 2015),
the administration reported that as "of February 11, 2015,
112,993 inmates were housed in the State's 34 adult
institutions, which
amounts to 136.6% of design bed capacity, and 8,828 inmates were
housed in out-of-state
facilities. This current population is now below the
court-ordered reduction to 137.5% of design
bed capacity."( Defendants' February 2015 Status Report In
Response To February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC,
3-Judge Court, Coleman v. Brown, Plata v. Brown (fn. omitted).
While significant gains have been made in reducing the prison
population, the state now must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
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proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1. Stated Need for This Bill
The author states:
As a result of AB 109 Realignment, counties are now
responsible for supervising Post Release Community
Supervision (PRCS) offenders. These offenders are now
under local supervision by county probation officers
instead of serving their parole time on a state parole
jurisdiction.
One of the tools that has been successful in
supervising and working with PRCS offenders is the use
of intermediate sanctions like "flash" incarceration
which was authorized under Realignment legislation.
"Flash" incarceration is a period of detention in
county jail triggered by a violation of a condition of
probation. The length of the detention period can
range from one to ten consecutive days. Intermediate
sanctions, like flash, balance holding offenders
accountable for violations of their conditions of
supervision while focusing on shorter disruptions from
work, home, or programing which often result from
longer term revocations.
While the authority to use flash for PRCS offenders
was provided under AB 109 Realignment, the statute
does not equally afford this authority for offenders
on felony probation or Mandatory Supervision. Thus,
the existing mechanism to address violations of
probation is to initiate revocation proceedings which
is a much lengthier process and can result in custody
time much longer than the 10 days.
Under SB 266, an offender would agree to the authority
to use flash incarceration as a part of their terms
and conditions of probation. If the person on
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probation or mandatory supervision does not agree to
accept a recommended period of flash incarceration
upon a finding of a violation, the probation
department may address the alleged violation by filing
a declaration or revocation request with the court for
purposes of a traditional revocation hearing. This
ensures that, upon finding of a violation, a defendant
may request that a petition for revocation be filed to
go through the existing hearing revocation process.
This will ensure that an offender has the option to
have their case heard in a revocation court proceeding
should they request it.
SB 266 gives county probation departments the
authority to use flash incarceration for a person on
probation or mandatory supervision similar to existing
authoring for PRCS offenders. By extending this
authority, county probation departments can continue
to use this effective, evidence based tool for
offenders under their supervision.
2.What This Bill Would Do
This bill would expand the sanction of "flash incarceration" - a
custodial sanction of up to 10 days for violating a term of
supervision without a specific court order -- to include persons
on probation or mandatory supervision if the offender expressly
waives his or her right to a hearing at the time probation or
mandatory supervision is ordered. Currently, flash
incarceration can be imposed only on offenders subject to parole
or PRCS. Under this bill, if an offender on probation or
mandatory supervision has not waived his or her hearing rights
he or she could not be "flashed," and probation would have to
file a petition with the court to address the alleged violation
with a custodial sanction.
"Flash incarceration" in this context is a "period of detention
in a county jail due to a violation of an offender's conditions
of probation or mandatory supervision. The length of the
detention period may range between one and 10 consecutive days.
Shorter, but if necessary more frequent, periods of detention
for violations of an offender's conditions of probation or
mandatory supervision shall appropriately punish an offender
while preventing the disruption in a work or home establishment
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that typically arises from longer periods of detention." This
bill excludes defendants subject to Proposition 36 of 2000, and
sunsets January 1, 2021.
3.Background - "Flash Incarceration" as Part of the Criminal
Justice Realignment of 2011
The "2011 Realignment Legislation Addressing Public Safety"
altered how convicted felons are handled under California
law.<1> Two provisions in realignment changed the
responsibilities of probation. First, realignment provided that
some inmates released from state prison would be subject to PRCS
instead of parole. Thus, probation, not parole, now supervises
some felons coming out of prison. Second, realignment provided
that certain persons convicted of felonies would not go to
prison, but instead would be sentenced to local punishment which
could include jail time, mandatory community supervision, or
both (a "split sentence"). Mandatory supervision as part of a
"split sentence" is done by probation.
With the creation of PRCS, probation was authorized by
realignment to employ "flash incarceration" as an "intermediate
sanction" for responding to PRCS violations.<2> The Legislative
Analyst's Office explained the context and reasoning behind
"flash incarceration" as part of realignment:
. . . (T)he realignment legislation provided counties
with some additional options for how to manage the
realigned offenders. . . . (T)he legislation allows
county probation officers to return offenders who
violate the terms of their community supervision to
jail for up to ten days, which is commonly referred to
as "flash incarceration." The rationale for using
flash incarceration is that short terms of
incarceration when applied soon after the offense is
identified can be more effective at deterring
subsequent violations than the threat of longer terms
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<1> AB 109 (Committee on Budget) (Ch. 15, Stats. 2011) was the
principal measure that established the 2011 public safety
realignment.
<2> Parole likewise was authorized to use this tool.
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following what can be lengthy criminal proceedings.<3>
4. Current Practices
The sponsor of this bill has provided the Committee with an
example from the Nevada County Probation Department
demonstrating that, in some jurisdictions, courts now are
including flash incarceration authority in their court orders
for probation and mandatory supervision offenders. The Nevada
County probation department, which the sponsor indicates is
reflective of how most of the counties using flash incarceration
for mandatory supervision and probation offenders are handling
this issue, employs a waiver which explicitly describes flash
incarceration, including when it may be used and what rights the
offender is giving up with the waiver. The waiver document also
provides the offender with the opportunity to not agree to flash
incarceration, in which case probation would be authorized to
address the alleged violation by filing a declaration or
revocation request with the court. This bill essentially would
codify this approach.
5. Previous Legislation
Last session, this Committee heard SB 419 (Block), which
addressed the same issue. As heard by the Committee, that bill
would have required persons subject to probation or mandatory
supervision to waive any right to a court hearing. SB 419 was
amended in Committee to an approach similar to this bill, and
passed this Committee unanimously. SB 419 was amended in the
Assembly to address an unrelated matter.
6. Opposition
California Attorneys for Criminal Justice, which opposes this
bill, argues in part that the "usage of flash incarceration is a
waste of state resources when those resources could be better
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<3> Legislative Analyst's Office, The 2012-13 Budget: The 2011
Realignment of Adult Offenders-An Update (Feb. 22, 2012).
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served by focusing on rehabilitation programs such as community
education, counseling, and reentry services."
7. Author's Amendment
The author intends to amend this bill to give the court
discretionary authority to include flash incarceration as a term
of probation or mandatory supervision.
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