BILL ANALYSIS                                                                                                                                                                                                    Ó



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

          Bill No:    SB 722        Hearing Date:    April 28, 2015    
          
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          |Author:    |Bates                                                |
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          |Version:   |February 27, 2015                                    |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|AA                                                   |
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          Subject:  Sex Offenders:  GPS Monitoring:  Penalties for Removal



          HISTORY

          Source:   Author

          Prior Legislation:SB 57 (Lieu) - Chapter 776, Statutes of 2013

          Support:  California District Attorneys Association; Crime  
                    Victims United of California; Peace Officers Research  
                    Association of California; Orange County District  
                    Attorney's Office; Orange County Board of Supervisors;  
                    Orange County   Sheriff's Department; California State  
                    Sheriffs' Association

          Opposition:American Civil Liberties Union; California Public  
                    Defenders Association; Legal Services for Prisoners  
                    with Children; California Attorneys for Criminal  
                    Justice; Public Interest Advocacy 

                                                


          PURPOSE

          The purpose of this bill is to enact a new felony, punishable by  
          imprisonment in the state prison for 16 months, or two or three  








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          years, for the willful removal or disabling of a GPS device "if  
          the device was affixed as a result of a criminal sentence or  
          juvenile court disposition for specified forcible sex crimes,"  
          as specified.

          Current law generally authorizes the use of electronic  
          monitoring or global positioning system devices ("GPS") in the  
          criminal justice system, as specified.  The following statutes  
          authorize the use of these devices, reflecting a variety of  
          criminal justice circumstances where they can be employed:

                 Alternative custody programs for female inmates in the  
               Department of Corrections and Rehabilitation ("CDCR")  
               (Penal Code § 1170.05(e));

                 Probation for certain sex offenders who have been  
               assessed as high risk, as specified (Penal Code § 1202.8);

                 Probation for other offenders, as specified (Penal Code  
               §§ 1210.12; See also 1210.7 et seq.);

                 Home detention programs for county inmates, as specified  
               (Penal Code §§ 1203.016, 1203.017);

                 County inmates being held in lieu of bail, as specified  
               (Penal Code § 1203.018);

                 Persons subject to an order protecting a victim or  
               witness of violent crime from all contact, as specified  
               (Penal Code § 136.2);

                 Persons on parole, as specified (Penal Code §§ 3004,  
               3010);

                 Persons on post release community supervision (Penal  
               Code §§ 3450, 3454); and

                 Prisoners subject to medical parole supervision (Penal  
               Code § 3550).

          Current law generally provides that removing or otherwise  
          defeating the operation of a GPS device is a violation of parole  
          or probation, or subject to return to custody from an  
          alternative custody program.  (Id.)









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          Current law provides that parolees who are registered sex  
          offenders and are required to have a GPS device as a condition  
          of parole shall be subject to parole revocation and incarcerated  
          in a county jail for 180 days if they remove or otherwise  
          disable the device, as specified.  (Penal Code § 3010.10.)

          Existing law includes an enhanced sentencing structure that  
          applies to crimes of rape, oral copulation, sodomy, and sexual  
          penetration committed by force, duress or threats; lewd conduct  
          with a child under the age of 14 and continuous sexual abuse of  
          a child<1> which, depending on the number and kinds of  
          aggravating factors attendant to the crime, require a term of 15  
          or 25-years-to-life, or life without parole for specified crimes  
          against a minor.  (Pen. Code § 667.61.)

          This bill would enact a new felony, providing that a "person who  
          willfully removes or disables an electronic, global positioning  
          system, or other monitoring device affixed to his or her person  
          or the person of another, if the device was affixed as a result  
          of a criminal sentence or juvenile court disposition for" any of  
          the sex crimes described above is guilty of a felony, punishable  
          by imprisonment in the state prison for 16 months, or two or  
          three years."

          This bill would provide that its provisions would "not apply to  
          the removal or disabling of a monitoring device by a physician,  
          emergency medical services technician, or by any other emergency  
          response or medical personnel when doing so is necessary during  
          ---------------------------

          <1> Specifically, Penal Code section 667.61(c) enumerates the  
          following crimes:  (1) Rape, in violation of paragraph (2) or  
          (6) of subdivision (a) of Section 261. (2) Spousal rape, in  
          violation of paragraph (1) or (4) of subdivision (a) of Section  
          262. (3) Rape, spousal rape, or sexual penetration, in concert,  
          in violation of Section 264.1. (4) Lewd or lascivious act, in  
          violation of subdivision (b) of Section 288. (5) Sexual  
          penetration, in violation of subdivision (a) of Section 289. (6)  
          Sodomy, in violation of paragraph (2) or (3) of subdivision (c),  
          or subdivision (d), of Section 286.
          (7) Oral copulation, in violation of paragraph (2) or (3) of  
          subdivision (c), or subdivision (d), of Section 288a.
          (8) Lewd or lascivious act, in violation of subdivision (a) of  
          Section 288. (9) Continuous sexual abuse of a child, in  
          violation of Section 288.5.







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          the course of medical treatment of the person subject to the  
          device.  This section does not apply if the removal or disabling  
          of the device is authorized or required by a court, by law  
          enforcement, or by any other entity that is responsible for  
          placing the device upon the person or that has the authority and  
          responsibility to monitor the device."

                    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  
          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  









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          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.Stated Need for This Bill

          The author states:

               A recent serial-killing spree in Orange County, that  
               left four (and possibly five) women dead, has elevated  
               the need for tighter penalties when a GPS device is  
               removed.  Existing law does nothing to deter sex  
               offenders from cutting off or altering their ankle  
               bracelets and in consequence does little to prevent  
               future crimes from happening again.

               In 2012, two men on release from state prison for  
               prior convictions of child molestation cut off their  
               state-mandated GPS ankle bracelets and left California  
               on a bus.  By the time police caught up to the pair,  
               the penalty they ended up receiving for removing the  
               devices was minor and they served only a few short  
               months' time.  One was sentenced to ten months in  
               federal prison and the other received just eight  









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               months.  Again, upon their release, they were required  
               to wear ankle bracelets to track their whereabouts  
               throughout Orange County.

               In early 2014, four women went missing in Orange  
               County.  Within five months, all four of the women's  
               bodies had been found dead.  Shortly after, the two  
               men mentioned above were arrested for being linked to  
               the murders (and later convicted).  During the  
               investigation (prior to arresting either man), one of  
               the men was told he could remove his bracelet after  
               having served his full term on probation.  During the  
               two week period to which he had no tracking device,  
               the killing spree continued and a 27 year old mother  
               was found murdered.  When it was discovered 11 days  
               later that this man was deemed homeless, a federal  
               judge ordered he be outfitted with a new GPS device to  
               continue monitoring his whereabouts.

               After all these deaths late last year former State  
               Senate Pro Tem Darrell Steinberg ordered the Inspector  
               General (IG) to generate a review and report after the  
               arrests of both men who were connected to the four  
               killings.  He wanted the review to assess whether sex  
               offenders are adequately monitored in California.

               The Orange County Register later reported that  
               although the men were prohibited from being together,  
               records and interviews showed they routinely violated  
               this term of release without facing serious  
               consequences.  One news source went as far as calling  
               them "friends for years."  Twice these individuals  
               have cut off their tracking devices and absconded to  
               other states, clearly indicating they were in this  
               business together.

               The IG report did allude to the need for a serious  
               discussion about the effectiveness of GPS devices as a  
               crime deterrent.  Absent of harsh-enough penalties for  
               removing or altering an ankle bracelet, why would a  
               convicted sex offender not be tempted to cut off his  
               or her device knowing that the worst case scenario  
               they'd be given a few months behind bars and then be  
               sent back to where they left off?









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               SB 722 is needed in order to send the message to  
               convicted sex offenders that cutting off or altering  
               their ankle bracelet is a serious offense and will not  
               be taken lightly.  The two men mentioned earlier are  
               known to have re-offended on two different occasions.   
               When they first cut off their devices and fled to  
               Nevada, they should have been prosecuted with more  
               than just a short few months in county jail as this  
               was a deliberate attempt to run from law enforcement. 

               Additionally, the offenses listed in SB 722  
               deliberately spell out the most serious, egregious sex  
               crimes.  These offenses are rape, spousal rape, sexual  
               penetration, lewd or lascivious acts and children,  
               sodomy, oral copulation, and continuous sexual abuse  
               of a child.  SB 722 is needed today more than ever to  
               ensure that justice is being served to those that defy  
               law enforcement.

          2.Summary of What This Bill Would Do and Current Law

          As explained in detail above, there are several  
          circumstances when criminal offenders can be required to  
          wear a GPS device during a period of community supervision  
          or conditional release.  Under current law, the consequence  
          for disabling or removing a GPS device generally is the  
          loss of the conditional release (for example, loss of  
          placement in alternative custody and a return to jail), or  
          a revocation of probation or parole.  For sex offender  
          parolees who are required to have a GPS device as a  
          condition of parole, the sanction for removing or otherwise  
          disabling a GPS device is incarceration in a county jail  
          for 180 days.  (Penal Code §3010.10.)  This sanction was  
          enacted in 2013 pursuant to SB 57 (Lieu).

          This bill would enact a new felony, punishable by  
          imprisonment in the state prison for 16 months, or two or  
          three years, for the willful removal or disabling of a GPS  
          device "if the device was affixed as a result of a criminal  
          sentence or juvenile court disposition for specified  
          forcible sex crimes."

          3.Recent Special Review by The Inspector General









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          As noted by the author, in October of 2014 the Office of  
          the Inspector General (OIG) issued a report entitled,  
          Special Review: Assessment of Electronic Monitoring of Sex  
          Offenders on Parole and the Impact of Residency  
          Restrictions.  This review, conducted at the request of the  
          Senate Rules Committee pursuant to Penal Code section  
          6126(b), included the following observations:

                     There exists little objective evidence to  
                 determine to what extent, if any, GPS tracking is a  
                 crime deterrent, although a small 2012 study funded  
                 by the National Institute of Justice of 516  
                 high-risk sex offenders found that offenders who  
                 were not subjected to GPS monitoring had nearly  
                 three times more sex-related parole violations than  
                 those who were monitored by GPS technology.  Despite  
                 the rarity of studies defending GPS as a crime  
                 deterrent, the OIG's interviews with parole agents  
                 and local law enforcement personnel found that they  
                 value GPS technology as a tool for its ability to  
                 locate parolees, track their movements, and provide  
                 valuable information in solving crimes.

                     GPS technology adds to parole agents' workloads  
                 in certain aspects, while affording time-savings in  
                 others.  For example, agents spend approximately two  
                 hours reviewing and analyzing parolees' tracks for a  
                 single-day period.  On the other hand, GPS  
                 facilitates mandatory face-to-face contacts between  
                 parole agents and parolees by allowing the agent to  
                 locate parolees more quickly than might be the case  
                 in locating a non-GPS parolee.

                     Over 60 percent of parole agents who supervise  
                 sex-offender parolees have caseloads exceeding  
                 established departmental ratios (parolee-to-agent)  
                 when taking into consideration the mix of high-risk  
                 vs low-risk parolees per caseload.  In addition, the  
                 department has a disparity of caseloads across its  
                 parole units, with 14 of the 37 parole units that  
                 supervise sex offenders reporting caseload sizes  
                 exceeding the department's established ratios for  
                 all agents assigned to those units.  Simultaneously,  









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                 five other parole units report caseload sizes below  
                 the department's established ratios for all of their  
                 parole agents.<2> 

          The OIG also presented data over the five years prior to  
          the report demonstrating that "transient sex offenders have  
          committed a majority of parole violations among parolee sex  
          offenders over the five year period.  In fact, in the most  
          recently completed fiscal year (2013-14), over 76 percent  
          of the sex offender parolees whom the department charged  
          with violating their parole terms were transient. . . .   
          According to the parole administrators the OIG talked to,  
          there are various reasons transient sex offenders violate  
          the conditions of their parole more often than those with a  
          residence.  Among the reasons voiced were increased  
          prevalence of mental health issues, lack of a stable  
          support network, increased exposure to drugs and  
          prostitution on the streets, and challenges finding  
          employment."

          With respect to recidivism among sex offender parolees the  
          OIG report states:


               . . . (T)he OIG's analysis of CDCR's records of  
               violations by sex offender parolees, . . . reveals  
               that a very low proportion of violations - roughly 1  
               percent - over the five-year period were for  
               sex-related crimes.  This runs contrary to the popular  
               belief that sex offenders have a high rate of  
               recidivism compared to other types of felons, an  
               underlying premise to placing Proposition 83  
               (Jessica's Law) on the California ballot.  It also  
               reflects the findings of studies released by the U.S.  
               Department of Justice in 2003 and by CDCR in 2012.

               ----------------------
          <2>   Office of the Inspector General, Special Review:  
          Assessment of Electronic Monitoring of Sex Offenders on Parole  
          and the Impact of Residency Restrictions (footnotes omitted)  
          (http://www.oig.ca.gov/media/reports/Reports/Reviews /OIG_  
          Special_Review_Electronic_Monitoring  
          of_Sex_Offenders_on_Parole_and_Impact_of_Residency  
          _Restrictions_November_2014.pdf.)









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               A 2003 study of over 9,000 male sex offenders released  
               from State prisons in 14 different states conducted by  
               the U.S. Department of Justice provides some objective  
               evidence as to recidivism rates of sex offenders.  The  
               study found that "Compared to non-sex offenders  
               released from State prison, sex offenders had a lower  
               overall re-arrest rate" for any type of crime (not  
               just sex crimes) - 43 percent for sex offenders as  
               compared to 68 percent for non-sex offenders.   
               However, a more telling statistic concerns  
               reconvictions for a sex crime; the study found that  
               "of the 9,691 released sex offenders, 3.5 percent (339  
               of 9,691) were reconvicted of a sex crime within the  
               three-year follow up period."


               A study released by CDCR's Office of Research in  
               October 2012 provides further context to sex  
               offenders' recidivism rate in California.  Based on  
               its study of inmates released three years earlier, the  
               recidivism rate of sex offenders required to register  
               under California Penal Code Section 290 was just over  
               69 percent.  However, the study's deeper analysis of  
               the recidivist group found that nearly 87 percent were  
               returned to prison for technical parole violations  
               unrelated to sex crimes.  Only 1.9 percent (111  
               offenders out of 8,490 studied) were returned to  
               prison for new sex crimes.<3>


          Members may wish to discuss the potential scope of this  
          bill, and the amendments suggested in Comment 6 below.   
          "Willful" removal or disabling "implies simply a purpose or  
          willingness to commit the act, or make the omission  
          referred to.  It does not require any intent to violate  
          law, or to injure another, or to acquire any advantage."   
          (Penal Code § 7.)  Thus, members may wish to discuss  
          whether a felony would be an effective and proportionate  
          penalty in every case where a GPS has been "willfully"  
          removed or disabled for these particular offenders -- for  
          example, an otherwise-compliant transient sex offender who  


          -------------------------

          <3>   Id. at 18-19 (footnotes omitted).)








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          may or may not have easy access to an outlet and fails to  
          re-charge a GPS device before it goes dead, or cases where  
          there is a reasonable explanation for a break in contact  
          (i.e. a device got wet, the parolee was in a location where  
          the signal was temporarily blocked, etcetera). 


          ARE THE EXISTING SANCTIONS FOR SEX OFFENDERS WHO DISABLE OR  
          REMOVE A GPS DEVICE INADEQUATE?


          SHOULD THE PENALTY FOR DISABLING OR REMOVING A GPS DEVICE  
          BE BASED ON THE OFFENDER'S UNDERLYING OFFENSE, REGARDLESS  
                                               OF THE OFFENDER'S INTENT OR THE CIRCUMSTANCES?

          1.Recent Legislation Compared to This Bill; Likely Effect of  
            This Bill
          
          As explained above, this bill would apply to a limited class of  
          persons who have been convicted of serious sex crimes, including  
          child molestation.  While the bill's literal scope as drafted  
          would include any of these offenders if a GPS device has been  
          affixed as a result of a criminal sentence or juvenile court  
          disposition, as a practical matter the bill would appear to be  
          limited primarily to persons on parole or postrelease community  
          supervision.  Probation generally is prohibited under current  
          law for these categories of sex offenses.  (Penal Code §§  
          1203.06, 1203.066.)  Similarly, prison inmates with these  
          convictions would be ineligible for the alternative custody  
          program described above.  While the jail alternative custody  
          statutes do not expressly exclude these offenders from  
          eligibility, it seems likely that county jail administrators  
          would not include them in their local programs.  Thus, this bill  
          would appear to apply to parolees and persons coming out of  
          prison on postrelease community supervision.

          Last session, this Committee passed SB 57 (Lieu), which  
          originally sought to enact a new felony for felons being  
          supervised in the community - either on parole or postrelease  
          community supervision -- who willfully defeat their  
          GPS/electronic monitoring.  The bill was passed by the Committee  
          as amended to impose the mandatory jail term in current law.  

           Members may wish to discuss this bill compared to the Lieu  









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          bill of last session, and whether the likely effect of this  
          bill would be very similar to the Lieu bill before it was  
          amended in Committee.


          SHOULD THE CURRENT SANCTION FOR PAROLEES WHO VIOLATE THEIR  
          GPS REQUIREMENTS - WHICH WERE ENACTED IN 2013 -- BE  
          INCREASED TO A FELONY? 


          WOULD A NEW FELONY OF 16 MONTHS, 2 OR 3 YEARS, BE MORE  
          EFFECTIVE THAN THE NEW SANCTION ENACTED IN 2013?

            
          2.Research on Sentences as a Deterrent to Crime
          
          Criminal justice experts and commentators have noted that, with  
          regard to sentencing, "a key question for policy development  
          regards whether enhanced sanctions or an enhanced possibility of  
          being apprehended provide any additional deterrent benefits.

               Research to date generally indicates that increases in  
               the certainty of punishment, as opposed to the  
               severity of punishment, are more likely to produce  
               deterrent benefits.<4>

          A comprehensive report published in 2014, entitled The  
          Growth of Incarceration in the United States, discusses the  
          effects on crime reduction through incapacitation and  
          deterrence, and describes general deterrence compared to  
          specific deterrence:

               A large body of research has studied the effects of  
               incarceration and other criminal penalties on crime.   
               Much of this research is guided by the hypothesis that  
               incarceration reduces crime through incapacitation and  
               deterrence.  Incapacitation refers to the crimes  
               averted by the physical isolation of convicted  
               offenders during the period of their incarceration.   
               ----------------------
          <4>   Valerie Wright, Ph.D., Deterrence in Criminal Justice  
          Evaluating Certainty vs. Severity of Punishment (November 2010),  
          The Sentencing Project  
          (http://www.sentencingproject.org/doc/Deterrence%20Briefing%20.pd 
          f.)








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               Theories of deterrence distinguish between general and  
               specific behavioral responses.  General deterrence  
               refers to the crime prevention effects of the threat  
               of punishment, while specific deterrence concerns the  
               aftermath of the failure of general deterrence-that  
               is, the effect on reoffending that might result from  
               the experience of actually being punished.  Most of  
               this research studies the relationship between  
               criminal sanctions and crimes other than drug  
               offenses.  A related literature focuses specifically  
               on enforcement of drug laws and the relationship  
               between those criminal sanctions and the outcomes of  
               drug use and drug prices.<5>

          In regard to deterrence, the authors note that in "the  
          classical theory of deterrence, crime is averted when the  
          expected costs of punishment exceed the benefits of  
          offending.  Much of the empirical research on the deterrent  
          power of criminal penalties has studied sentence  
          enhancements and other shifts in penal policy. . . .

               Deterrence theory is underpinned by a rationalistic  
               view of crime.  In this view, an individual  
               considering commission of a crime weighs the benefits  
               of offending against the costs of punishment.  Much  
               offending, however, departs from the strict decision  
               calculus of the rationalistic model.  Robinson and  
               Darley (2004) review the limits of deterrence through  
               harsh punishment.  They report that offenders must  
               have some knowledge of criminal penalties to be  
               deterred from committing a crime, but in practice  
               often do not."<6>

          Members may wish to discuss whether the "rationalistic  
          view" of crime described above likely would apply to  
          persons who willfully disable or remove a GPS device - that  
          -------------------------
          <5>   The Growth of Incarceration in the United States (2014),  
          Jeremy Travis, Bruce Western and Steve Redburn, Editors,  
          Committee on Causes and Consequences of High Rates of  
          Incarceration, The National Research Council, p. 131 (citations  
          omitted)  
          (http://johnjay.jjay.cuny.edu/nrc/NAS_report_on_incarceration.pdf 
          ,)
          <6>   Id. at 132-133.








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          is, whether the new felony would discourage the wrongful  
          conduct.

          WOULD A NEW FELONY DETER THE SEX OFFENDERS TARGETED BY THIS  
          BILL FROM REMOVING OR DISABLING A GPS DEVICE?

          The authors of the 2014 report discussed above conclude  
          that incapacitation of certain dangerous offenders can have  
          "large crime prevention benefits," but that incremental,  
          lengthy prison sentences are ineffective for crime  
          deterrence:

               Whatever the estimated average effect of the  
               incarceration rate on the crime rate, the available  
               studies on imprisonment and crime have limited utility  
               for policy. The incarceration rate is the outcome of  
               policies affecting who goes to prison and for how long  
               and of policies affecting parole revocation.  Not all  
               policies can be expected to be equally effective in  
               preventing crime.  Thus, it is inaccurate to speak of  
               the crime prevention effect of incarceration in the  
               singular.  Policies that effectively target the  
               incarceration of highly dangerous and frequent  
               offenders can have large crime prevention benefits,  
               whereas other policies will have a small prevention  
               effect or, even worse, increase crime in the long run  
               if they have the effect of increasing post-release  
               criminality.

               Evidence is limited on the crime prevention effects of  
               most of the policies that contributed to the post-1973  
               increase in incarceration rates.  Nevertheless, the  
               evidence base demonstrates that lengthy prison  
               sentences are ineffective as a crime control measure.   
               Specifically, the incremental deterrent effect of  
               increases in lengthy prison sentences is modest at  
               best.  Also, because recidivism rates decline markedly  
               with age and prisoners necessarily age as they serve  
               their prison sentence, lengthy prison sentences are an  
               inefficient approach to preventing crime by  
               incapacitation unless they are specifically targeted  
               at very high-rate or extremely dangerous offenders.   
               For these reasons, statutes mandating lengthy prison  
               sentences cannot be justified on the basis of their  









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               effectiveness in preventing crime.<7>


          WOULD MAKING THE DISABLING OR REMOVING OF A GPS DEVICE BY  
          THE SEX OFFENDERS TARGETED BY THIS BILL A FELONY RESULT IN  
          CRIME PREVENTION BENEFITS? 


          3.Amendments for Possible Consideration


          Members and the author may wish to discuss tightening this  
          bill to ensure this new felony would apply only to  
          dangerous persons under supervision who intentionally evade  
          supervision with the purpose of causing further harm, as  
          distinguished from hapless supervised persons who, without  
          this intent, nevertheless allow or cause their GPS to fail.  
           Understanding that the current law mandating 180 days in  
          county jail for sex offender parolees who defeat their GPS  
          still would apply, members may wish to consider the  
          following refined scope for this bill:

               A person who willfully removes or disables, or permits  
               another person to remove or disable,  an electronic,  
               global positioning system, or other monitoring device  
               affixed to his or her person  or the person of another  ,  
               if the device was affixed as a condition of parole,  
               postrelease community supervision or probation as a  
               result of a conviction of any offense specified in  
               subdivision (c) of Section 667.61, if the person  
               intended to evade supervision and either does not  
               surrender, or is not apprehended, within one week of  
               the issuance of a warrant for absconding   as a result  
               of a criminal sentence or juvenile court disposition  
               for any offense specified in subdivision (c) of  
               Section 667.61,  is guilty of a felony, punishable by  
               imprisonment in the state prison for 16 months, or two  
               or three years.  There shall be a rebuttable  
               presumption that the person intended to evade  
               supervision.

          Thus, the elements for the new felony would be:




          -------------------------
          <7>   Id. at 155-156 (emphasis added).








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                 The new felony would apply to persons on parole,  
               PRCS or probation for a serious sex offense (defined  
               under the 1-strike rape law);


                 The person willfully thwarts the GPS affixed as a  
               condition of supervision, as specified;


                 The person intended to evade supervision;


                 The person did not surrender or was not apprehended  
               within one week of the issuance of a warrant for  
               absconding (In 2013, when this Committee considered SB  
               57 (Lieu), a similar bill, it was learned that parole  
               has a "zero tolerance" approach to sex offender  
               parolees, where agents issue warrants immediately when  
               contact with a parolee is broken.); and


                 There shall be a rebuttable presumption that the  
               person intended to evade supervision. 


          In addition, members may wish to consider amending this  
          bill to ensure that a person convicted of its new felony  
          also would be subject to the level of supervision -  
          commonly known as the Containment Model -- now applicable  
          to sex offenders coming out of prison on parole.   
          Otherwise, sex offenders convicted of this new offense  
          would avoid supervision pursuant to the Containment Model,  
          which could inadvertently incentivize commission of this  
          new crime.<8>


          SHOULD THESE AMENDMENTS BE MADE?




          -------------------------

          <8>   A cross-reference to a new felony enacted by this bill  
          should be added to Penal Code sections 1203.067 and 3008. 








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