BILL ANALYSIS                                                                                                                                                                                                    



          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  
               ----------------------
               ----------------------
          <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  
          ---------------------------
          <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.

          

                                      -- END --