BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     SB 266


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          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:  










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          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.









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          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.













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          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.)











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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













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          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  








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            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  








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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.)  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  








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            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  








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            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  








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            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.)









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            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  








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            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:












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          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








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          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