BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 1321 Hearing Date: April 19, 2016
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|Author: |Stone |
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|Version: |February 19, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|JM |
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Subject: Felonies: Crimes Committed While on Mandatory
Supervision
HISTORY
Source: Author
Prior Legislation: SB
443 (Emmerson) - failed passage in Senate Public Safety, 2013
SB 1441 (Emmerson) - failed passage in Senate
Public Safety, 2012
AB 109 (Committee on Budget) - Ch. 15, Stats.
2011
AB 117 (Committee on Budget) - Ch. 39, Stats.
2011
ABx1 17 (Blumenfield) - Ch. 12, Stats. 2011
AB 116 (Committee on Budget) - Ch. 136, Stats.
2011
Support: California State Sheriffs' Association; Crime Victims
of California
Opposition:American Civil Liberties Union of California;
California Public Defenders Association; Legal
Services for Prisoners with Children
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PURPOSE
The purpose of this bill is to require that a defendant
convicted of any felony while on "mandatory supervision" --
which is the community supervision piece of the "split sentence"
felony punishment created by the 2011 Realignment Legislation
-- serve his or her sentence in prison, not jail.
Current law generally provides that, for any person sentenced on
or after October 1, 2011, certain felonies - those which by
their statutory terms specifically so provide - are punishable
by a term of imprisonment in a county jail, as specified. (Penal
Code § 1170(h).)
Existing law authorizes the court, when imposing a sentence for
a county jail-eligible felony, to commit the defendant to county
jail as follows:
For a full term in custody as determined in accordance
with applicable sentencing law; or
For a "split" sentence, which is a term determined in
accordance with the applicable sentencing law, but where
the execution of a concluding portion of the term selected
in the court's discretion is suspended and the defendant
placed on mandatory supervision for the remaining unserved
portion of the sentence. The period of supervision shall
be mandatory and may not be earlier terminated except by
court order. During the period when the defendant is under
mandatory supervision, unless in actual custody, the
defendant shall be entitled to only actual time credit
against the term of imprisonment imposed by the court.
(Pen. Code, § 1170, subd. (h)(5).
Existing law, in relevant part, provides that the court's
authority to revoke, modify, terminate or change a previous
order as to a person on mandatory supervision is subject to the
following:
Before any sentence or term or condition of probation is
modified, a hearing shall be held in open court. The
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prosecuting attorney shall be given a two-day written
notice and an opportunity to be heard on the matter, except
as specified in domestic violence matters.
If the sentence or term or condition of probation is
modified, the judge shall state the reasons for that
modification on the record.
No order shall be made without written notice first
given to the probation officer of the intention to revoke,
modify, or change its order.
The court may modify the time and manner of the term of
probation for purposes of measuring the timely payment of
restitution obligations or the good conduct and reform of
the defendant while on probation. The court shall not
modify the dollar amount of the restitution obligations due
to the good conduct and reform of the defendant, absent
compelling and extraordinary reasons, nor shall the court
limit the ability of payees to enforce the obligations in
the manner of judgments in civil actions. (Penal Code
Section 1203.3, subd. (b)(1) to (5).)
Current law provides that where a defendant meets any of the
following criteria, an executed sentence for a felony punishable
pursuant to this subdivision shall be served in state prison:
the defendant has a prior or current felony conviction
for a serious felony described in subdivision (c) of
Section 1192.7;
the defendant has a prior or current conviction for a
violent felony described in subdivision (c) of Section
667.5;
the defendant has a prior felony conviction in another
jurisdiction for an offense that has all of the elements of
a serious felony described in subdivision (c) of Section
1192.7 or a violent felony described in subdivision (c) of
Section 667.5;
the defendant is required to register as a sex offender,
as specified; or
the defendant is convicted of a crime and as part of the
sentence an enhancement pursuant to Section 186.11 is
imposed. (Penal Code § 1170(h)(3).)
This bill would amend this provision to provide that if a
defendant committed any felony offense while on mandatory
supervision, an executed sentence for that felony shall be
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served in state prison.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past several 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 December of 2015 the administration reported that as "of
December 9, 2015, 112,510 inmates were housed in the State's 34
adult institutions, which amounts to 136.0% of design bed
capacity, and 5,264 inmates were housed in out-of-state
facilities. The current population is 1,212 inmates below the
final court-ordered population benchmark of 137.5% of design bed
capacity, and has been under that benchmark since February
2015." (Defendants' December 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).) One
year ago, 115,826 inmates were housed in the State's 34 adult
institutions, which amounted to 140.0% of design bed capacity,
and 8,864 inmates were housed in out-of-state facilities.
(Defendants' December 2014 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 must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
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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
The author states:
Following the Proposition 47 changes and "realignment"
individuals are allowed to serve their sentences for
certain crimes in county jail. Mandatory supervision,
which involves people serving "prison time" out of
custody, is specifically encouraged within statute.
An issue that has arisen is that once released to the
public they reoffend immediately and then simply
return to county jail. Recently, parts of Riverside
County, specifically the Coachella Valley, have
experienced in uptick in crime. Robbery and
Aggravated assault are up by 3.2% and 8.3%, vehicle
theft and larceny are up 14.1% and 10.5%,
respectively. After speaking with the Riverside County
DA's office, Senator Stone became aware of a revolving
door of criminals committing realigned felonies, being
released on mandatory supervision, and reoffending.
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The law is currently deficient in handling repeat
offenders for certain offenses that allow for
mandatory supervision as opposed to prison time. This
bill is not designed to send people to prison for
technical violations committed while on mandatory
supervision, but is meant to strengthen our commitment
to public safety by making sure that individuals who
reoffend while on mandatory supervision with bona fide
felonies will be sent to prison.
2.The Chief Probation Officers of California Report on
Mandatory Supervision
Defendants are placed on mandatory supervision as part of a
"split sentence" imposed pursuant Penal Code Section 1170,
subdivision (h)(5). In a split sentence, the defendant serves
the first portion of the sentence in a county jail. The second
part of the sentence is served under supervision by the
probation department in the community. By statute,
consideration of alleged violations of the terms of mandatory
supervision is made pursuant to the procedures and standards for
alleged probation violations. Defendants who violate mandatory
supervision are subject to a range of sanctions and outcomes.
The Chief Probation Officers of California (CPOC), in the winter
of 2012, issued an explanation of and report on mandatory
supervision.<1> As of that time, approximately 5,000 convicted
felony defendants had received a split sentence that included a
period of mandatory supervision upon release from jail.
CPOC argued that split sentences, including a period of
mandatory supervision are effective:
The balanced approach of incarceration followed by a
period of supervision using targeted interventions
based on offender needs will do more to reduce
recidivism than straight jail or incarceration
sentences alone. National evidence supports the
balanced approach of probation supervision as being
more effective than a model focusing only on
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<1> http://www.cpoc.org/assets/Realignment/issuebrief2.pdf
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surveillance or only on therapeutic intervention to
manage offender behavior. Realignment is an
opportunity to get the balance right between
incarceration and supervision for both of these
populations.
Split sentences are an important public safety tool
that is currently being underutilized in some areas of
California. Plea bargaining and sentencing practices
vary, but the research is clear that a period of
supervision following incarceration, rather than just
incarceration will lead to reduced recidivism.
Probation Departments have the tools and experience
with felony offenders to effectively balance community
safety with rehabilitation. The Chief Probation
Officers of California believe, based on years of
research and experience that California citizens are
better served with increased use of split sentencing.
3.Comparing Probation and Mandatory Supervision
Mandatory supervision is similar to probation in that the
defendant is supervised by a probation officer, and the
defendant's release is subject to the terms and conditions
imposed by the judge or the probation department. Like
probation, the failure to comply with terms and conditions can
result in the person being sent back to custody. However, the
court cannot impose mandatory supervision until the judge denies
probation and imposes a split sentence, not an alternative to an
executed sentence.
There is another significant difference between probation and
mandatory supervision: a defendant can refuse probation and
instead choose to serve the sentence. (People v. Beal (1997) 60
Cal.App.4th 84, 87.) In contrast, a defendant does not have the
right to refuse a split sentence requiring mandatory
supervision. "Since the commitment under section 1170(h)
generally is the equivalent of a prison sentence, the defendant
need not agree to the terms and conditions of supervision in the
same manner as a sentence involving a grant of probation." (See
Felony Sentencing After Realignment, by Judge Couzens (Ret.) &
Justice Bigelow, June 2013, at p. 13 [discussing split
sentences],
.)
4.Inmates Sentenced to Prison under this Bill would be
Effectively Treated as Serious or Violent Offenders
Under criminal justice realignment, only defendants who have
been convicted of a current or prior serious or violent felony,
or who are required to register as sex offenders, serve executed
jail felonies in prison. All other convicted defendants serve
their terms in a county jail. Sentencing judges can impose on
these defendants a split felony sentence, with a period of jail
and a period in the community on mandatory supervision. A
person on mandatory supervision who commits a felony must be
sentenced to prison if the offense is serious or violent, or
requires sex offender registration. Thus, persons on mandatory
supervision who are subject to a realignment jail felony
sentence could only have been convicted of a non-serious,
non-violent, non-sex crime. The bill thus raises the issue
whether a person who commits a non-serious felony on mandatory
supervision should be treated as though he or she committed a
serious felony.
The author's statement argues that "once [persons on mandatory
supervision are] released to the public they reoffend
immediately and then simply return to county jail." It is not
clear whether this refers to judges revoking mandatory
supervision and returning offenders to jail, judges imposing
split executed felony sentences, including a period mandatory
supervision, for new felonies committed on mandatory
supervision, or judges imposing full executed felony jail terms
on persons who commit new crimes on mandatory supervision.
Where a judge imposes a full executed sentence under Penal Code
Section 1170 (h), the defendant would be released no sooner than
if he or she were committed to prison.
5.Punishment Issues Relevant to This Bill
It could be argued that a person who commits a crime on
mandatory supervision after serving the custody part of a split
felony sentence in a county jail should receive what would
generally be considered the more punitive sentence of a term in
prison, not jail. The use of criminal sentences to punish,
rather than rehabilitate or incapacitate an offender, is
described as "just deserts" in criminology. A 2002 article in
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the Journal of Personality and Social Psychology succinctly
described the theory:
The theory of just deserts is retrospective rather than
prospective. The punisher need not be concerned with
future outcomes, only with providing punishment
appropriate to the given harm. Although it is
certainly preferable that the punishment serve a
[deterrence] function? its justification lies in
righting a wrong, not a ? future benefit. The central
precept? is that the punishment be proportionate to the
harm. The task ?is to assess the magnitude of the harm
and to devise a punishment that is proportionate in
severity, if not in kind. Kant (1952) recommended
censure proportionate to a perpetrator's "internal
wickedness," a quantity that may be approximated by
society's sense of moral outrage over the crime. (Why
do We Punish?, Journal of Personality and Social
Psychology, (2002) Vol. 83, No. 2, 284-299, Carlsmith,
Darley and Robinson.)<2>
6.Research on Specific 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.<3>
A comprehensive report published in 2014, entitled The
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<2>
http://www.colgate.edu/portaldata/imagegallerywww/184416d4-5863-4
a3e-a73b-b2b6b86e7b60/ImageGallery/Carlsmith_Darley_Robinson_2002
.pdf
<3> 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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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.
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.
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."<4>
Members may wish to discuss whether requiring that
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<4> Id. at 132-133.
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sentences for felonies committed on mandatory supervision
be served in prison would deter supervised persons from
committing felonies.
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 postrelease
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.<5>
WOULD REQUIRING THAT SENTENCES FOR CRIMES COMMITTED ON MANDATORY
SUPERVISION BE SERVED IN PRISON DETER PERSONS FROM COMMITTING
SUCH OFFENSES?
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<5> Id. at 155-156 (emphasis added).