BILL ANALYSIS Ó SB 266 Page 1 Date of Hearing: June 21, 2016 Counsel: Sandy Uribe ASSEMBLY COMMITTEE ON PUBLIC SAFETY Reginald Byron Jones-Sawyer, Sr., Chair SB 266 (Block) - As Amended June 2, 2016 As Proposed to be Amended in Commmitee SUMMARY: Authorizes the use of a sanction known as "flash incarceration" to defendants granted probation or placed on mandatory supervision. Specifically, this bill: SB 266 Page 2 1)Provides that in any case where the court grants probation or imposes a sentence that includes mandatory supervision, the county probation department is authorized to use flash incarceration for any violation of the 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. 2)Prohibits the denial of probation for refusal to sign a waiver agreeing to flash incarceration. 3)Requires each county probation department to develop a response matrix that establishes protocols for the imposition of graduated sanctions for violations of the conditions of probation to determine appropriate interventions to include the use of flash incarceration. 4)Requires a probation department supervisor to approve a term of flash incarceration before its imposition. 5)Requires the probation department to notify the court, public defender, district attorney, and sheriff upon a decision to impose a period of flash incarceration. 6)States that 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. SB 266 Page 3 7)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." 8)States that in cases where there are multiple violations in a single incident, only one flash incarceration booking is authorized and may range between one and 10 consecutive days. 9)Excludes application of flash incarceration to any defendant convicted of a nonviolent drug possession offense who receives probation under Proposition 36 of 2000. 10)Provides that if the supervised person's probation or mandatory supervision is revoked, credits earned for a period of flash incarceration count towards the term to be served. 11)Sunsets these provisions on January 1, 2021. SB 266 Page 4 EXISTING LAW: 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, including flash incarceration, for violating the terms of post-release community supervision (PRCS). (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 10 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.) SB 266 Page 5 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 SB 266 Page 6 COMMENTS: 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 Post-Release Community Supervision (PRCS) offenders, along with persons on mandatory 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 an individual to serve up to 10 days in county jail after a violation is found. "The bill has recently been amended to do several important SB 266 Page 7 things. First, it will allow a person to decline flash at any time and choose to go the traditional court hearing route via a petition for revocation. Second, it prohibits probation from being denied for refusal to sign the waiver. Third, it sets forth a notification process to stakeholders upon an imposition of flash, requires development of a local response matrix based on evidence based practices, and requires supervisor approval of the imposition of flash. Additionally, the bill clarifies that while credits are not applied during a period of flash incarceration, credits earned during a period of flash would be applied to a custody term if the person on probation or mandatory supervision was revoked. Lastly, the bill includes a sunset date of 2022. "SB 266 utilizes evidence-based intermediate sanctions which balances holding offenders accountable while focusing on shorter and few disruptions from work, home, and programming" 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 SB 266 Page 8 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.) CDCR has informed this committee that, as of June 2016, DAPO was still not utilizing flash incarceration. Flash incarceration is currently being used by probation departments on the PRCS population. The Chief Probation Officers of California (CPOC), the sponsor of this bill, has provided this committee the following data: "Flash SB 266 Page 9 incarceration is currently being used by probation departments on the PRCS population of 31,494 people as of June 2015. "Probation departments used their authority to 'flash incarcerate' 20,326 times, on 12,759 PRCS offenders in FY 2014-2015. This ratio of 1.6 Flash Incarceration bookings in jail per person in the year implies the sanction was used multiple times on the same person. On average, 5% of the active PRCS population was booked into jail under flash incarceration per month in 2014-15." 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: 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 structured to assure that "the finding of a parole violation will be based on verified facts and the exercise of discretion SB 266 Page 10 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 revocations. 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 does not have the legal rights associated with a fully contested violation hearing in front of a judge. 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. 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 several 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. Probation cannot be denied for refusing to do so. This bill also requires notice to defense counsel about the imposition of a period of flash SB 266 Page 11 incarceration so that the defendant might seek his or her attorney's advice. Most importantly, this bill permits a defendant to refuse the imposition of a specified use of flash incarceration, and instead request revocation hearing in front of a judge. 4)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. 5)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. 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.) SB 266 Page 12 The provisions of this bill alter the rules of evidence against those on supervised release because a violation of a condition of supervised release need no longer be proven by a preponderance of evidence to result in additional jail time. 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].) 6)Argument in Support: According to the Chief Probation Officers of California, the sponsor of this bill, "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 programming which often results 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 violations of probation is to initiate revocation proceedings which is a much lengthier process and can result in custody time much longer than 10 days. ? "SB 266 would give county probation departments the ability to utilize flash incarceration for a person on probation or mandatory supervision similar to existing authority for PRCS SB 266 Page 13 offenders. By extending this authority, county probation departments can continue to use this effective, evidence based tool for offenders under their supervision." 7)Argument in Opposition: According to the Los Angeles County District Attorney, "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.? "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. "SB 266 would also permit a defendant who has committed a new criminal offense while on probation to be punished by flash incarceration. We believe a person committing a new crime should have his or her probation or mandatory supervision revoked." 8)Prior Legislation: SB 419 (Block), of the 2013-2014 Legislative session, would have 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: SB 266 Page 14 Support Chief Probation Officers of California (Sponsor) AFSCME Local 685 Association for Los Angeles Deputy Sheriffs Association of Deputy District Attorneys California College and University Police Chiefs California Narcotics Officers Assocation California Police Chiefs Association California Probation, Parole, and Correctional Association California State Association of Counties California State Lodge, Fraternal Order of Police California State Sheriffs Association Californians for Safety and Justice Contra Costa County Board of Supervisors Long Beach Police Officers Association Los Angeles County Professional Peace Officers Association Los Angeles Police Protective League Los Angeles Probation Officers Union Peace Officers Research Association of California Riverside Sheriffs Association Riverside County Board of Supervisors Rural County Representatives of California Sacramento County Deputy Sheriffs' Association Sonoma County Public Defender Urban Counties of California Opposition SB 266 Page 15 California Attorneys for Criminal Justice Los Angeles County District Attorney's Office Legal Services for Prisoners with Children Analysis Prepared by:Sandy Uribe / PUB. S. / (916) 319-3744