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