BILL ANALYSIS                                                                                                                                                                                                    



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    SB 517        Hearing Date:  April 14, 2015       
          
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          |Author:    |Monning                                              |
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          |Version:   |February 26, 2015                                    |
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          |Urgency:   |No                     |Fiscal:    |No               |
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          |Consultant:|JM                                                   |
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                       Subject:  Supervised Persons:  Release



          HISTORY

          Source:   Judicial Council of California

          Prior Legislation:AB 109 (Committee on Budget) Ch. 15, Stats.  
          2011
                         AB 117 (Committee on Budget) Ch. 39, Stats. 2011


          Support:  Legal Services for Prisoners with Children; California  
                    Public Defenders Association, California Judges  
                    Association

          Opposition:         None known

                                       PURPOSE


          The purpose of this bill is to authorize a court to release a  
          person on mandatory supervision, post release community  
          supervision or parole who has been alleged to have violated a  
          condition of supervision, unless the supervised person is  
          serving a term of flash incarceration.

          Existing law requires all persons paroled before October 1, 2011  








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          to remain under the supervision of the California Department of  
          Corrections and Rehabilitation (CDCR) until jurisdiction is  
          terminated by operation of law or until parole is discharged.   
          (Pen. Code  3000.09.)

          Existing law requires the following persons released from prison  
          on or after October 1, 2011, be subject to parole under the  
          supervision of CDCR:

                 A person who committed a serious felony listed in Penal  
               Code Section 1192.7(c);

                 A person who committed a violent felony listed in Penal  
               Code Section 667.5(c); 

                 A person serving a Three-Strikes sentence;

                 A high risk sex offender; 

                 A mentally disordered offender;

                 A person required to register as a sex offender and  
               subject to a parole term exceeding three years at the time  
               of the commission of the offense for which he or she is  
               being released; and,

                 A person subject to lifetime parole at the time of the  
               commission of the offense for which he or she is being  
               released.  (Pen. Code  3000.08, subd. (a) and (c).)

          Existing law requires all other offenders released from prison  
          on or after October 1, 2011, to be placed on PRCS under the  
          supervision of a county agency, such as a probation department.   
          (Pen. Code  3000.08(b).)

          Existing law limits a PRCS term to three years.  (Pen. Code   
          3451(a).)

          Existing law provides for intermediate sanctions for violating  
          the terms of PRCS, including "flash incarceration" for up to 10  
          days.  (Pen. Code  3454.)

          Existing law specifies that if PRCS is revoked, the offender may  
          be incarcerated in the county jail for a period not to exceed  









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          180 days for each custodial sanction.  (Pen. Code  3455, subd.  
          (d).)

          Existing law prohibits the return of an offender who violates  
          conditions of PRCS to prison.  (Pen. Code  3458.)

          Existing law specifies that a parolee held in custody for a  
          pending parole violation before October 1, 2011, may be returned  
          to state prison for the violation for period not to exceed 12  
          months.  (Pen Code  3057, subd. (a).)

          Existing law specifies that a parolee held in custody for a  
          pending parole violation on or after October 1, 2011 will be  
          returned to county jail, rather than state prison, for up to 180  
          days of incarceration per revocation.  (Pen. Code  3056, subd.  
          (a).)

          Existing law generally authorizes the use of a penalty known as  
          "flash incarceration"<1> for felons who have been released from  
          prison, are subject to supervision by state parole or county  
          probation, and are believed to have violated a condition of  
          their supervision.  (Penal Code
           3008.8, 3450.)    

          Existing law specifically authorizes county agencies responsible  
          for supervising persons subject to postrelease community  
          ---------------------------
          <1>  Existing law, as enacted by the criminal justice  
          realignment of 2011, includes legislative findings and  
          declarations which, among other things, defines "community-based  
          punishment" to mean "evidence-based correctional sanctions and  
          programming encompassing a range of custodial and noncustodial  
          responses to criminal or noncompliant offender activity.   
          Intermediate sanctions may be provided by local public safety  
          entities directly or through public or private correctional  
          service providers and include, but are not limited to, the  
          following: . . . Short-term 'flash' incarceration in jail for a  
          period of not more than 10 days.  . . ."  (Pen. Code  3450.)















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          supervision<2> ("PRCS") to do the following:

               ? [D]etermine and order appropriate responses to  
               alleged violations, which can include, but shall not  
               be limited to, immediate, structured, and intermediate  
               sanctions up to and including referral to a reentry  
               court . . . , or flash incarceration in a county jail.  
                Periods of flash incarceration are encouraged as one  
               method of punishment for violations of an offender's  
               condition of postrelease supervision.

               (c) "Flash incarceration" is a period of detention in  
               county jail due to a violation of an offender's  
               conditions of postrelease supervision.  The length of  
               the detention period can range between one and 10  
               consecutive days.  Flash incarceration is a tool that  
               may be used by each county agency responsible for  
               postrelease supervision.  Shorter, but if necessary  
               more frequent, periods of detention for violations of  
               an offender's postrelease supervision conditions shall  
               appropriately punish an offender while preventing the  
               disruption in a work or home establishment that  
               typically arises from longer term revocations.  (Pen.  
               Code  3454(b) and (c) (emphasis added).)

          Existing law authorizes the use of flash incarceration on  
          parolees, who are supervised by state parole.   (Pen. Code   
          3008.08, subds. (d), (e) and (f).) 

          Existing law provides that "flash incarceration" can be served  
          in a city jail.  (Pen. Code  3000.08, subds. (d)-(e).)

          This bill provides that if a person under supervision is alleged  
          ---------------------------
          <2> "Postrelease Community Supervision ("PRCS") generally  
          provides that certain felons  released from prison "shall, upon  
          release from prison and for a period not exceeding three years  
          immediately following release, be subject to community  
          supervision provided by a county agency designated by each  
          county's board of supervisors which is consistent with  
          evidence-based practices, including, but not limited to,  
          supervision policies, procedures, programs, and practices  
          demonstrated by scientific research to reduce recidivism among  
          individuals under postrelease supervision."  (Pen. Code  3451.)








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          to have violated the terms of probation, mandatory supervision,  
          post release community supervision or parole, the court may  
          order release of the person under any terms and conditions the  
          court deems appropriate.

          This bill provides that the authority and discretion of the  
          court to release a person facing a revocation hearing does not  
          apply if the person is serving a period of flash incarceration.   


                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the past eight years, this Committee has scrutinized  
          legislation referred to its jurisdiction for any potential  
          impact on prison overcrowding.  Mindful of the United States  
          Supreme Court ruling and federal court orders relating to the  
          state's ability to provide a constitutional level of health care  
          to its inmate population and the related issue of prison  
          overcrowding, this Committee has applied its "ROCA" policy as a  
          content-neutral, provisional measure necessary to ensure that  
          the Legislature does not erode progress in reducing prison  
          overcrowding.   

          On February 10, 2014, the federal court ordered California to  
          reduce its in-state adult institution population to 137.5% of  
          design capacity by February 28, 2016, as follows:   

                 143% of design bed capacity by June 30, 2014;
                 141.5% of design bed capacity by February 28, 2015; and,
                 137.5% of design bed capacity by February 28, 2016. 

          In February of this year the administration reported that as "of  
          February 11, 2015, 112,993 inmates were housed in the State's 34  
          adult institutions, which amounts to 136.6% of design bed  
          capacity, and 8,828 inmates were housed in out-of-state  
          facilities.  This current population is now below the  
          court-ordered reduction to 137.5% of design bed capacity."(  
          Defendants' February 2015 Status Report In Response To February  
          10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman  
          v. Brown, Plata v. Brown (fn. omitted).

          While significant gains have been made in reducing the prison  
          population, the state now must stabilize these advances and  
          demonstrate to the federal court that California has in place  









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          the "durable solution" to prison overcrowding "consistently  
          demanded" by the court.  (Opinion Re: Order Granting in Part and  
          Denying in Part Defendants' Request For Extension of December  
          31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,  
          Coleman v. Brown, Plata v. Brown (2-10-14).  The Committee's  
          consideration of bills that may impact the prison population  
          therefore will be informed by the following questions:

              Whether a proposal erodes a measure which has contributed  
               to reducing the prison population;
              Whether a proposal addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy;
              Whether a proposal addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
              Whether a proposal corrects a constitutional problem or  
               legislative drafting error; and
              Whether a proposal proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy.


          COMMENTS



          1.Need for This Bill

          According to the author:

               Prior to the implementation of criminal justice  
               realignment under AB 109, the California Department of  
               Corrections and Rehabilitation had the authority to  
               issue arrest warrants for parole violations along with  
               issuing and recalling parole holds. While the courts  
               were given the statutory authority to issue arrest  
               warrants for parole violations under realignment, the  
               legislation failed to give explicit statutory  
               authority for the courts to recall a parole hold.  
               Without this statutory authority, a supervising parole  
               or probation officer has the sole authority over  
               custody decisions of a supervised individual in jail  
               on a parole hold.









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               When a supervised person is rearrested and placed in  
               custody, the supervising officer can either impose  
               sanctions on the offender, such as flash  
               incarceration, or petition the courts to have their  
               parole revoked.  Until that happens, however, the  
               courts have no statutory authority to release the  
               individual from the parole hold. Additionally, an  
               October 2014 appellate court decision, Williams v.  
               Superior Court (2014) 230 Cal.App.4th 636, now  
               requires the supervising officer to act within 10 days  
               of placing a supervised person on a parole hold, by  
               either imposing sanctions or initiating revocation  
               proceedings with the courts.

               SB 517 will provide the courts with discretion when  
               determining the custody status of an individual on  
               probation, parole, or post release community  
               supervision who is placed in county jail on a parole  
               hold for violating their terms of supervision.  This  
               measure will correct an oversight of realignment and  
               ensure that courts have the same authority CDCR had  
               prior to realignment.     

          1.Changes to Parole and Other Forms of Supervision as a Result  
            of Criminal Justice Realignment

          Prior to realignment in 2011, inmates released from prison were  
          placed on parole and supervised in the community by parole  
          agents of the Department of Corrections and Rehabilitation  
          (CDCR).  If it was alleged that a parolee had violated a  
          condition of parole, he or she would have a revocation  
          proceeding before the Board of Parole Hearings (BPH).  If parole  
          was revoked, the offender would be returned to state prison for  
          violating parole.


          Realignment shifted the supervision of some released prison  
          inmates from 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  









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          disordered offenders; or who, while on certain paroles, commit  
          new offenses.  All other inmates released from prison are  
          subject to up to three years of postrelease community  
          supervision (PRCS) under local supervision.  (Pen. Code   
          3000.08, subds. (a)-(c) and 3451, subd. (a).) 

          Realignment also changed where an offender is incarcerated for  
          violating parole or PRCS.  Most individuals can no longer be  
          returned to state prison for violating a term of supervision;  
          offenders serve the revocation term in county jail.  There is a  
          180-day limit to incarceration.  The only offenders who are  
          eligible for return to prison for violating parole are life-term  
          inmates paroled pursuant to Penal Code Section 3000.1 (e.g.,  
          murderers, specific life term sex offenses).  (Pen. Code   
          3056, subd. (a), 3455, subd. (c) and 3458.)  

          Additionally, realignment changed the process for revocation  
          hearings, but this change is being implemented in phases.  Until  
          July 1, 2013, individuals supervised on parole by state agents  
          continue to have revocation hearings before the BPH.  After July  
          1, 2013, the trial courts will assume responsibility for holding  
          all revocation hearings for those individuals who remain under  
          the jurisdiction of CDCR.  In contrast, since the inception of  
          realignment, individuals placed on PRCS stopped appearing before  
          the BPH for revocation hearings.  Their revocation hearings are  
          handled by the trial court.  PRCS currently provides for lesser  
          or "intermediate" sanctions before PRCS is revoked for a  
          violation.  This includes "flash incarceration" for up to 10  
          days.  (Pen. Code  3454.)  Intermediate sanctions, including  
          flash incarceration, will also be available for state parolees  
          after July 1, 2013.  (Pen. Code  3000.08(d).)

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