BILL ANALYSIS Ó
SB 266
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Date of Hearing: June 30, 2015
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Bill Quirk, Chair
SB
266 (Block) - As Amended April 7, 2015
SUMMARY: Authorizes the use of a sanction known as "flash
incarceration" to defendants granted probation or placed on
mandatory supervision. Specifically, this bill:
1)Provides that in any case where the court grants probation or
imposes a sentence that includes a period of mandatory
supervision, the court may authorize the probation officer to
use flash incarceration for a violation of the conditions of
supervised release if, at the time of granting probation or
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ordering mandatory supervision, the defendant agrees to waive
a court hearing before the imposition of a period of flash
incarceration.
2)States that upon a finding of a violation, if the defendant
does not agree to accept a recommended period of flash
incarceration, then the probation officer may address the
alleged violation by filing a declaration or revocation
request with the court.
3)Defines "flash incarceration" as "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."
4)Excludes application of flash incarceration to any defendant
convicted of a nonviolent drug possession offense who receives
probation under Proposition 36 of 2000.
5)Sunsets this provision on January 1, 2021.
EXISTING LAW:
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1)Authorizes intermediate sanctions, including flash
incarceration, to be imposed on inmates released from prison
after July 1, 2013 and subject to parole. (Pen. Code, §
3000.08, subd. (d).)
2)Authorizes intermediate sanctions for violating the terms of
post-release community supervision (PRCS), including flash
incarceration, for up to 10 days. (Pen. Code, § 3454, subd.
(b).)
3)Defines "flash incarceration" as a period of detention in a
city or county jail due to a violation of a person's
conditions of parole or PRCS. The length of the detention
period can range between one and ten consecutive days in a
county jail. (Pen. Code, §§ 3000.08, subd. (e), and 3454,
subd. (c).)
4)Requires a person placed on PRCS to agree to specified
conditions of release, including the waiver of the right to a
court hearing prior to the imposition of a period of flash
incarceration for any violation of his or her PRCS conditions.
(Pen. Code, § 3453, subd. (q).)
5)Authorizes, as a general matter, the court to suspend a felony
sentence and order the conditional and revocable release of
the defendant in the community to probation supervision.
(Pen. Code, § 1203.)
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6)Provides if any probation officer, parole officer, or peace
officer has probable cause to believe that a supervised person
is violating any term or condition of his/her supervision, the
officer may arrest the person without a warrant at any time
and bring the person before the court for further disposition
such as modification, revocation or termination of the
person's supervision, as specified. (Pen. Code, § 1203.2.)
7)Gives the sentencing judge discretion to impose two types of
sentences to county jail. The court may commit the defendant
for the entire term allowed by law, or the court may impose a
"split sentence" in which part of the term is served in
custody and the remaining part of the term is comprised of a
period of mandatory supervision. However, the presumption is
that the defendant shall receive a split sentence, unless the
court finds that, in the interests of justice, it is not
appropriate in a particular case. (Pen. Code , §1170, subd.
(h)(5).)
8)States that the traditional procedures used for violations of
probation will now be applicable to violations of mandatory
supervision. Also states that procedures used to modify
probation are applicable to modify the conditions of mandatory
supervision. (Pen. Code , §1170, subd. (h)(5)(B).)
FISCAL EFFECT: Unknown
COMMENTS:
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1)Author's Statement: According to the author, "The passage of
Realignment in 2011 overhauled how certain convicted felons
would serve their sentences with a strong emphasis on
rehabilitation and keeping these offenders in their local
communities. As a result, probation departments now have the
responsibility to supervise a completely new class of
offenders, significantly augmenting the number of offenders
under their supervision.
"A tool currently afforded to probation departments to supervise
Post-Release Community Supervision (PRCS) offenders that has
been successful is the use of flash incarceration. This
immediate, evidence-based tool, allows departments to address
serious violations of a condition of probation while minimally
disrupting the offenders' rehabilitation progress.
"Currently however, the use of flash incarceration is not
authorized on individuals under mandatory supervision (MS) or
those on probation. The result is that when an individual
under MS or probation commits a serious violation of a
condition of probation, the only existing mechanism to address
these violations is to initiate a petition for revocation of
probation. The revocation process disrupts offenders'
rehabilitation by removing them from their jobs, re-entry
programs, school, and/or family for a much longer period of
time compared to the use of flash incarceration.
"By authorizing flash incarceration on MS and probationers, SB
266 will provide an additional tool to local probation
departments to address serious violations of a condition of
probation while not disrupting an individual's progress to
re-entry. Flash incarceration requires at most an individual
to serve up to 10 days in county jail after a violation is
found.
"To address concerns of due process, the bill was amended to do
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two major things. First, it will only authorize the court, and
not require it, to allow the use of flash incarceration by a
probation department. Second, it will allow individuals, after
a serious violation is found, to reject the period of flash
incarceration and instead allow probation departments to
address the violation by initiating the revocation process.
This is how departments currently sanction probationers who
commit serious violations. This ensures that a probationer
continues to have the opportunity for a hearing should they
request it.
"SB 266 is about providing all the tools necessary for our local
probation departments to effectively manage all individuals
under their supervision. Not only does this bill strengthen
realignment, but it is consistent with its goals of keeping
offenders closer to home and emphasizing rehabilitation and
successful re-entry."
2)Flash Incarceration: One of the components of criminal
justice realignment was to restructure the State's parole
system. Realignment shifted the supervision of some released
prison inmates from the California Department of Corrections
and Rehabilitation (CDCR) parole agents to local probation
departments. Parole under the jurisdiction of CDCR for
inmates released from prison on or after October 1, 2011 is
limited to those defendants whose term was for a serious or
violent felony; were serving a Three-Strikes sentence; are
classified as high-risk sex offenders; who are required to
undergo treatment as mentally disordered offenders; or who,
while on certain paroles, commit new offenses. (Pen. Code, §
3000.08. subds. (a) & (b).) All other inmates released from
prison are subject to up to three years of PRCS under local
supervision by probation departments. (Pen. Code, § 3451,
subd. (a).)
The changes to the supervision of inmates released from prison
included establishing a new sanction for a violation of
supervised release known as flash incarceration. Flash
incarceration is defined as "a period of detention in county
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jail due to a violation of a parolee's conditions of parole"
that "can range between one and 10 consecutive days." (Pen.
Code, §§ 3000.08, subd. (e), & 3455, subd. (c).)
With the creation of PRCS, the supervising agency was authorized
to employ "flash incarceration" as an "intermediate sanction"
for responding to both parole and PRCS violations. (See Pen.
Code, §§ 3454, subd. (c), & 3000.08 (e).) The Legislative
Analyst's Office explained the context and reasoning behind
"flash incarceration" as part of realignment: "[T]he
realignment legislation provided counties with some additional
options for how to manage the realigned offenders. . . .
[T]he legislation allows county probation officers to return
offenders who violate the terms of their community supervision
to jail for up to ten days, which is commonly referred to as
"flash incarceration." The rationale for using flash
incarceration is that short terms of incarceration when
applied soon after the offense is identified can be more
effective at deterring subsequent violations than the threat
of longer terms following what can be lengthy criminal
proceedings." (Legislative Analyst's Office, The 2012-13
Budget: The 2011 Realignment of Adult Offenders-An Update
(Feb. 22, 2012), pp. 8-9.)
Flash incarceration as intermediate sanction for offenders under
state supervision who violate a term of their parole became
effective July 1, 2013. (Pen. Code, § 3000.08, subd. (d).)
Despite the new authority to impose terms of flash
incarceration upon state-supervised parolees, the Division of
Adult Parole Operations (DAPO) has made a policy decision not
to utilize flash incarceration. (See Valdivia v. Brown,
Response to May 6 Order, filed 05/28/13, p. 17.) As of April
2015, DAPO was still not utilizing flash incarceration.
Flash incarceration is currently being used by probation
departments on the PRCS population. "Probation departments
used their authority to "flash incarcerate" 20,000 times, on
13,000 PRCS offenders in FY 2012-2013. This ratio of 1.5
Flash Incarceration bookings in jail per person in the year
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implies the sanction was used multiple times on the same
person. On average, 3% of the active PRCS population was
booked into jail under flash incarceration per month since the
start of realignment, along with 3% booked for revocation
hearings." (See Chief Probation Officers of California (CPOC)
Issue Brief, Graduated Sanctions: Strategies for Responding to
Violations of Probation Supervision, Spring 2014,
http://www.cpoc.org/assets/Realignment/graduatedsanctions%20bri
ef%205.pdf .)
Current law does not authorize the use of flash incarceration
as a sanction for probationers and persons released on
mandatory supervision. However, the sponsor of the bill has
informed this committee that it is the practice of about eight
counties, including Marin, Nevada, Butte, Sierra, and Sutter,
to use flash incarceration on probationers and individuals on
mandatory supervision. In these jurisdictions, the probation
departments obtains a waiver from the defendant to use the
practice, and also provides the defendant with an opportunity
to decline flash, in which case the probation department uses
the normal revocation process to address violation of the
conditions of release. This bill seeks to codify that
practice.
3)Due Process Considerations: The United States Supreme Court
has emphatically held that the state may not retain the right
to re-incarcerate released inmates at its whim. Liberty, once
granted, is a substantial right that cannot be revoked without
some level of due process under the law. Morrissey v. Brewer
(1972) 408 U.S. 471, is the seminal case on the procedural due
process rights of a supervised individual facing an alleged
violation. Morrissey confirmed that a parolee's liberty,
although restricted, is a significant interest such that its
termination requires certain minimum due process protections.
(Id. at p.482.) Before the state can return a parolee to
prison, it must provide due process, including procedures
which will prevent revocation because of "erroneous
information or because of an erroneous evaluation." (Id. at
p. 484.) The high court noted the necessity of a hearing
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structured to assure that "the finding of a parole violation
will be based on verified facts and the exercise of discretion
will be informed by an accurate knowledge of the parolee's
behavior." (Ibid.)
In Gagnon v. Scarpelli (1973) 411 U.S. 778, 781-782, the United
States Supreme Court applied its parole revocation due process
jurisprudence to probation revocation. Again the Court held
that the potential loss of liberty at stake at a probation
revocation hearing is a serious deprivation entitling the
probationer to be accorded due process. (Ibid.) The minimum
due process requirements for a probation revocation proceeding
are: (1) written notice of the claimed violation of probation;
(2) disclosure of the evidence against the probationer; (3) an
opportunity to be heard in person and to present witnesses and
documentary evidence; (4) the right to confront and
cross-examine adverse witnesses (unless the hearing officer
specifically finds good cause for not allowing confrontation);
(5) a neutral and detached hearing body; and (6) a written
statement by the fact-finder as to the evidence relied on and
the reasons for revoking probation. (Id. at p. 786.)
With flash incarceration, the defendant has none of the legal
rights associated with a fully contested violation hearing in
front of a judge. The person does not have the right to be
heard, to call witnesses, or to defend himself or herself. In
fact, the defendant does not even have the right to a neutral
decision maker. The probation officer is the accuser and the
trier of fact. In Morrissey, the U.S. Supreme Court cautioned
that due process requires that this determination be made by
somebody "not directly involved in the case," because "[t]he
officer directly involved in making recommendations cannot
always have complete objectivity in evaluating them." (Id. at
pp. 485-486.)
To date, although several cases have raised the question about
the constitutionality of flash incarceration, the courts have
thus far declined to decide the issue. (See e.g., People v.
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Superior Court (Ward) (2014) 232 Cal.App.4th 345, 352, fn. 11;
In re Denson (Oct. 15, 2013, G048279) [nonpub. opn.]; People
v. Cuadras (March 6, 2015, E061367) [nonpub. opn.].)
This bill seeks to address due process concerns in two ways.
First, an offender would have to agree to the use of flash
incarceration as a condition of probation or mandatory
supervision at the time of granting probation or ordering
mandatory supervision. Additionally, the bill permits a
defendant to refuse the imposition of flash incarceration at
the time a condition of release is violated, and instead
request revocation hearing in front of a judge.
It is true that a defendant can waive a constitutional right
and agree to an otherwise unconstitutional condition of
probation. (People v. Bravo (1987) 43 Cal.3d 600, 608 (Fourth
Amendment); People v. Peck (1996) 52 Cal.App.4th 351, 362
(freedom of association).) However, it bears mentioning that
a defendant's ultimate acceptance of the conditions of
probation does not preclude him or her from challenging them
on appeal: "'[I]t is established that if a defendant accepts
probation, he may seek relief from the restraint of an
allegedly invalid condition of probation on appeal from the
order granting probation.'" (People v. Penoli (1996) 46
Cal.App.4th 298, 302, fn. 2.) Moreover, at least as to
probationers, requiring a defendant to waive a court hearing
prior to the use of flash incarceration at the time of
sentence, is arguably coercive because the defendant may be
denied probation if he or she does not accept the use of flash
incarceration.
4)Effect on Persons Already on Supervised Release: The
defendants currently on probation or mandatory supervision
have not agreed to be subject to flash incarceration or to
waive a court hearing before this punishment is imposed. As
to these defendants, it is arguable that the changes to the
probationary process could not be retroactively applied
without violating the ex post facto clause.
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Ex post facto laws are those that: (1) criminalize and punish
an act innocent when done, (2) aggravate or make a crime
greater than it was when committed, (3) increase the
punishment for a crime and apply such increases to crimes
committed before the enactment of the law, or (4) alter the
rules of evidence to require less or different evidence than
required when the crime was committed. (See e.g., Stogner v.
California (2003) 539 U.S. 607, 612; quoting Calder v. Bull
(1798) 3 U.S. 386, 390-391.)
The provisions of this bill alter the rules of evidence
against those on supervised release because a violation of a
condition of supervised need no longer be proven by a
preponderance of evidence to result in additional jail time.
Additionally, the amended statute creates a significant risk
of prolonging the defendant's incarceration because it allows
all probation officers to incarcerate any probationer or
person on mandatory supervision for any violation. So, an
argument can be made that applying the new procedures in this
bill to persons already on supervised release would violate
the ex post facto clause. (But see John L. v. Superior Court
(2004) 33 Cal.4th 158 [rejecting ex post facto challenge to
the retroactive application of Proposition 21 which enacted
changes in procedure to prove violations of juvenile
probation.)
5)Probationers vs. Mandatory Supervisees: A defendant can
refuse probation and instead choose to serve the sentence.
(People v. Beal (1997) 60 Cal.App.4th 84, 87.) In contrast, a
defendant does not have the right to refuse a split sentence
requiring mandatory supervision. 1170(h)(5) specifies that the
supervision period is mandatory. (People v. Rahbari (2014)
232
Cal.App.4th 185, 194.) As such, the court can impose a split
sentence under whatever conditions it deems appropriate, and
regardless of the defendant's willingness to be supervised or
to accept the conditions of release. "Since the commitment
under section 1170(h) generally is the equivalent of a prison
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sentence, the defendant need not agree to the terms and
conditions of supervision in the same manner as a sentence
involving a grant of probation." (See J. Couzens and T.
Bigelow, Felony Sentencing After Realignment, February 2015,
at p. 16,
< http://www.courts.ca.gov/partners/documents/felony_sentencing.
pdf >.)
6)Exemption for Proposition 36 Probationers: Proposition 36 of
2000, the Substance Abuse and Crime Prevention Act, was a
voter-approved initiative mandating judges to offer "first or
second time non-violent adult drug offenders who use, possess,
or transport illegal drugs for personal use" drug treatment in
lieu of incarceration. In 2006, the Legislature amended
Proposition 36 to allow for flash incarceration for up to five
days [SB 1137 (Ducheny), Chapter 63, Statutes of 2006]. That
provision was struck down in court because the amendments did
not comply with constitutional requirements for amendments to
initiative statutes. (See Gardner v. Schwarzenegger (2009)
178 Cal.App.4th 1366.)
This bill does not raise the same concerns because it excludes
from its provisions persons subject to Proposition 36.
7)Arguments in Support:
a) The Chief Probation Officers of California, the sponsors
of this bill, state, "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
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their conditions of supervision while focusing on shorter
disruptions from work, home, or programming 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 probation or
mandatory supervision. Thus, the existing mechanism to
address the violations 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 use of flash
incarceration as a part of their terms and conditions of
probation. 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 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 a 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."
b) The Sonoma County Office of the Public Defender writes,
"[T]he 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. Formal revocation proceedings
must then involve the entire court staff, the Public
Defender's Office, The District Attorney's office, the
Sheriff's Office, and jail staff. Many of the violations
are minor in nature and could best be handled by the flash
process thereby alleviating the need for multiple court
appearances involving many different entities."
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8)Arguments in Opposition:
a) The Los Angeles County District Attorney's Office
argues, "Our office is concerned that the proposed
expansion of flash incarceration to defendants on probation
or mandatory supervision will cede too much discretion to
local probation departments to manage these populations.
The use of flash incarceration provides little in the way
of transparency because neither the court, the district
attorney, nor defense counsel know when a defendant is
flash incarcerated. The only way our office learns of a
defendant's flash incarceration history is when the
probation department voluntarily shares this information
with our office, or upon the filing of a declaration or
revocation request with the court for the purpose of a
revocation hearing.
"SB 266 places no limit on the number of times flash
incarceration terms may be imposed by probation
departments. We believe that a person who has been
punished multiple times by up to 10 days of flash
incarceration, and then re-offends, should have his or her
probation or mandatory supervision revoked. Moreover,
repeated use of flash incarceration raises due process
concerns as a defendant has no right to a hearing to
contest the truth of the allegations that are the basis for
the incarceration."
b) According to the California Public Defenders
Association, "California should not allow incarceration as
punishment except as ordered by a judge. Letting probation
officers to hand out incarceration punishment breeds
confusion, resentment, and fear of reporting to probation
officers.
"Whatever justification there might be for allowing this for
people on parole, or its-near equivalent PRCS, diminishes
for people who have not gone to prison. Indeed, as the
proposed new statute ? is written, this would also apply to
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misdemeanants."
9)Prior Legislation: SB 419 (Block), of the 2013-2014
Legislative session, authorized the use of flash incarceration
on defendants granted probation or placed on mandatory
supervision. SB 419 was amended into unrelated bill.
REGISTERED SUPPORT / OPPOSITION:
Support
Chief Probation Officers of California (Sponsor)
AFSCME Local 685
Association for Los Angeles Deputy Sheriffs
Association of Deputy District Attorneys
California Police Chiefs Association
California Probation, Parole and Correctional Association
California State Association of Counties
California State Lodge, Fraternal Order of Police
Californians for Safety and Justice
Contra Costa County Board of Supervisors
County of Riverside
Long Beach Police Officers Association
Los Angeles County Professional Peace Officers Association
Los Angeles Police Protective League
Los Angeles Probation Officers Union
Riverside Sheriffs Association
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Rural County Representatives of California
Sacramento County Deputy Sheriffs' Association
Sonoma County Public Defender
Urban Counties Caucus
Opposition
California Attorneys for Criminal Justice
California Public Defenders Association
Legal Services for Prisoners with Children
Los Angeles County District Attorney
Analysis Prepared by:Sandy Uribe / PUB. S. / (916)
319-3744