BILL ANALYSIS
AB 2384
Page 1
Date of Hearing: April 6, 2010
Counsel: Nicole J. Hanson
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2384 (Gilmore) - As Amended: April 5, 2010
SUMMARY : Grants California Department of Corrections and
Rehabilitation (CDCR) parole agents whose duties are the same as
members of the Office of Correctional Safety of CDCR peace
officer status that extends to any place in California.
Specifically, this bill :
1)Provides that any member of CDCR's Division of Adult Parole
Operations or the Division of Juvenile Justice is a peace
officer whose authority extends to any place in California 24
hours per day if the primary duties of the peace officer shall
be the investigation or apprehension of inmates, wards,
parolees, parole violators, or escapees from state
institutions; the transportation of those persons; the
investigation of any violation of criminal law discovered
while performing the usual authorized duties of employment;
the enforcement of conditions of parole imposed on any person
in California on parole; the coordination of those activities
with other criminal justice agencies; and the rendering of
mutual aid to any other law enforcement agency.
2)Replaces the term "Youthful Offender Parole" with the "Board
of Parole Hearings".
3)Replaces the term "Director of the Department of Corrections"
(DOC) with "Secretary of the CDCR."
EXISTING LAW :
1)Provides that a parole officer of the DOC is a peace officer
whose authority extends to any place in California while
engaged in the performance of the duties of their respective
employment and for the purpose of carrying out the primary
function of their employment. Any parole officer of DOC
authorized to carry firearms, but only as determined by the
Director on a case-by-case or unit-by-unit basis and only
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under those terms and conditions specified by the Director or
Chairperson. [Penal Code Section 830.5(a).]
2)Requires parole officers of the DOC to qualify with the
firearm at least quarterly. It is the responsibility of the
individual officer or designee to maintain his or her
eligibility to carry concealable firearms off duty. Failure
to maintain quarterly qualifications by an officer or designee
with any concealable firearms carried off duty shall
constitute good cause to suspend or revoke that person's right
to carry firearms off duty. [Penal Code Section 830.5(d).]
3)States that any member of the Office of Correctional Safety of
CDCR is a peace officer whose authority extends to any place
in California, provided that the primary duties of the peace
officer shall be the investigation or apprehension of inmates,
wards, parolees, parole violators, or escapees from state
institutions, the transportation of those persons, the
investigation of any violation of criminal law discovered
while performing the usual and authorized duties of
employment, and the coordination of those activities with
other criminal justice agencies. [Penal Code Section
830.2(d)(1).]
4)Necessitates any person or persons desiring peace officer
status who are not presently entitled to be designated as
peace officers under current law to request Commission on
Peace Officers Standards and Training (POST) to undertake a
feasibility study regarding designating that person or persons
as peace officers. The request and study shall be undertaken
in accordance with regulations adopted by POST. POST may
charge any person requesting a study, a fee, not to exceed the
actual cost of undertaking the study. Nothing in this article
shall apply to or otherwise affect the authority of the
Director DOC, the Director of the California Youth Authority
(CYA), the Director of the Youthful Offender Parole Board, or
the Secretary of the Youth and Adult Correctional Agency to
designate peace officers as provided for in Penal Code Section
830.5. [Penal Code Section 13540(a).]
5)Requires any person or persons who are designated as peace
officers and who desire a change in peace officer designation
or status shall request POST to undertake a study to assess
the need for change in designation or status. The request and
study shall be undertaken in accordance with regulations
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adopted by POST. POST may charge any person, agency, or
organization requesting a study, a fee, not to exceed the
actual cost of undertaking the study. [Penal Code Section
13540(b).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Granting
California parole agents expanded peace officer authority is a
crucial step toward improving public safety in every community
throughout the state. Because the role of parole agents has
changed over time, granting 830.2 peace officer status to
agents will remove many of the impediments preventing the
state from maximizing their skills and knowledge."
2)Background : According to information provided by the author,
"AB 2384 would extend PC 830.2 peace officer authority to
CDCR parole agents. Currently, CDCR parole agents derive
their peace officer authority from PC 830.5, which is the
same section used to define institutional correctional
officers. The duties and responsibilities of CDCR parole
agents have changed, evolved, and increased infinitely since
the statute granting their peace officer status was enacted in
the early 1970s and are now in-line with PC 830.2 peace
officer authority. The peace officer authority currently
granted to parole agents under PC 830.5 is limited in scope,
and is not consistent with current parole agent duties. The
parole agents' current peace officer designation does have
limitations as to their level of involvement which limits the
benefit to public safety that could potentially be achieved.
These limitations are brought about by both statutory and
training restrictions."
3)Feasibility Study Not Required : Since 1989, California law
has required that "[a]ny person or persons desiring [a
designation of] peace officer status . . . shall request POST
to undertake a feasibility study regarding designating that
person or persons as peace officers. The request and study
shall be undertaken in accordance with regulations adopted by
the commission. The commission may charge any person
requesting a study, a fee, not to exceed the actual cost of
undertaking the study. Nothing in this article shall apply to
or otherwise affect the authority of the Director of
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Corrections, the Director of the Youth Authority, the Director
of the Youthful Offender Parole Board, or the Secretary of the
Youth and Adult Correctional Agency to designate peace
officers as provided for in Section 830.5." [Penal Code
Section 13540(a).]
Peace officer status is a highly coveted designation for any
public employee. Persons designated as peace officers enjoy
enhanced retirement benefits, the protections of the Peace
Officers' Bill of Rights (Government Code Section 3300, et
seq.), powers of arrest, the authority to carry concealed
firearms, as well as various other legal distinctions.
Because of the desirability of peace officer status and the
proliferation of legislative proposals to grant that status to
various constituent groups, the Legislature established the
feasibility study requirement in Penal Code Section 13540 as a
vetting process for such requests. POST was considered the
most qualified agency to determine whether the job duties of
the requesting person or persons justify their being granted
the powers and privileges of peace officers.
This bill modifies the current peace officer classification of
parole agents from Penal Code Section 830.5 to Penal Code
Section 830.2. According to POST:
"After careful review of Penal Code Section 13540(a), it is
staff's position that all, Corrections peace officer positions
are exempt from the feasibility study requirement.
"Therefore, it is POST's position that no feasibility study is
required.
"The 'change in designation or status' section (PC 13540[b])
was added to the Penal Code later than 13540(a) and omitted
any reference to Corrections. It is POSTS' belief that the
omission of Corrections was intentional by the Legislature,
and therefore, the feasibility study requirement does not
apply." [Alan Deal, POST, Letter to Assembly Committee on
Public Safety (March 29, 2010).]
4)Arming Parole Agents : In California State Employees'
Association v. Way (1982) 135 Cal.App.3d 1059, the plaintiffs'
action was based upon the job of a parole agent being so
dangerous that the CYA had a duty (Labor Code Section 6400, et
seq.) to furnish or pay for service revolvers as "safety
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devices." This contention is founded on Labor Code Section
6401, which provides: "Every employer shall furnish and use
safety devices and safeguards, and shall adopt and use
practices, means, methods, operations, and processes which are
reasonably adequate to render such employment and place of
employment safe and healthful. Every employer shall do every
other thing reasonably necessary to protect the life, safety,
and health of employees."
In the motion for summary judgment, CYA argued in light of Penal
Code Section 830.5 (effective September 30, 1980), "The
following persons are peace officers whose authority extends
to any place in the state while engaged in the performance of
the duties of their respective employment . . . . Such peace
officer[s] may carry firearms only if authorized and under
such terms and conditions as are specified by their employing
agency: (a) A parole officer of the . . . Department of the
Youth Authority (emphasis added)." CYA contended that by this
amendment, the Legislature manifested intent to defer the
question of arming its agents to CYA itself.
The court agreed and concluded that "by adopting the amendment
to section 830.5 that allows Department parole agents to be
armed 'only if authorized and under such terms and conditions
as are specified by their employing agency,' the Legislature
has implicitly determined that a firearm is not a necessary
safety device for parole agents. However, the Legislature has
granted the Department the option to arm its agents . . . . "
(California State Employees' Assn. v. Way, supra, Cal.App.3d
1059, 1065.)
Parole agents have been allowed to carry firearms as determined
by the CDCR Director on a case-by-case or unit-by-unit basis
and only under those terms and conditions specified by the
Director or Chairperson of CDCR since 1980. It is the
author's contention that "the role of parole agents has
changed over time" thus lending themselves to be designated as
peace officers under Penal Code Section 830.5 and allowing all
parole agents to carry firearms?
"Parole was founded primarily to foster offender reformation
rather than to increase punitiveness or surveillance.
Abandoning parole's historical commitment to rehabilitation
worries correctional professionals." [Petersilia, Parole and
Prisoner Reentry in the United States (1999), 26 Crime & Just.
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479, 482-83.] "Parole agents were viewed as paternalistic
figures who mixed authority with help. Officers provided
direct services (e.g., counseling) and also knew the community
and brokered services (e.g., job training) to needy offenders.
Parole was originally designed to make the transition from
prison to the community more gradual, and, during this time,
parole officers were to assist the offender in addressing
personal problems and searching for employment and a place to
live." (Id. at 506-507.)
Increasingly, however, parole supervision has shifted away from
providing services to parolees. As a whole, parole agents
have become "less kind and gentle" in supervising released
prisoners. [Petersilia, When Prisoners Come Home: Parole and
Prisoner Reentry (2003), p. 11.] Parole agent training
generally provides little emphasis on casework and service
referrals, but much more on law enforcement techniques.
(Ibid.) This bias towards law enforcement "increasingly
reinforces the image of parole officers as cops rather than
social workers." (Ibid.) To enforce their powers, parole
agents have legal authority to carry and use firearms; to
search people, places, and property free of Fourth Amendment
concerns; to order arrests without probable cause; and to
confine parolees without bail. (Id. at 81-82.) As Joan
Petersilia has observed, "[t]he ability to arrest, confine,
and . . . reimprison the parolee for violating conditions of
the parole agreement makes the parole agent a walking court
system." (Id. at 82.)
Today, parole agents tend to have large caseloads and little
money to truly supervise, help rehabilitate, or even meet with
their released prisoners on a regular basis. [Bamonte, The
Viability of Morrisey v. Brewer and the Due Process Rights of
Parolees and Other Conditional Releasees (1993) 18 S. Ill. U.
L.J. 121, 134.] "Spending on parole services in California
was cut 44 percent in 1997, causing parole caseloads to nearly
double (now standing at a ratio of 82:1). When caseloads
increase, services decline, and even parolees who are
motivated to change have little opportunity to do so.
Job-training programs are cut, and parolees often remain at
the end of long waiting lists for community-based drug and
alcohol treatment." (Parole and Prisoner Reentry, supra, 26
Crime & Just. at p. 523.)
In light of prison overcrowding and increasing caseloads, does
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California want to arm all parole officers or is California
eliminating the rehabilitation element from parole?
5)Related Legislation :
a) SB 5 (Maldonado) requires POST, if requested, to conduct
a feasibility study regarding designating as peace officers
members of a fire department bomb squad unit. SB 5 was
placed in the Assembly Floor's Inactive File.
b) AB 2157 (Logue) allows deputy probation officers
permitted to carry firearms, either on or off duty, to
qualify with the firearm at least every six months instead
of every three months. AB 2157 pending hearing by the
Assembly Committee on Appropriations.
6)Prior Legislation :
a) AB 1494 (Wildman), Chapter 96, Statutes of 2000,
mandates that any peace officer who desires a change in
status to request POST to study the need for a change in
status. The study undertaken by POST will assess the need
for a change in designation or status shall include: (a)
the current and proposed duties and responsibilities of
those seeking the change, (b) their field law enforcement
duties and responsibilities, and (c) the extent to which
their current duties and responsibilities require
additional peace officer powers and authority. AB 1494
requires, as a prerequisite to POST's favorable
recommendation for a change in status, that those seeking
the change be employed by an agency currently participating
in POST.
b) SB 795 (Perata), of the 1999-1000 Legislative Session,
designated correctional counselors employed by the DOC as
peace officers, and allowed them to carry firearms whilst
not on duty. SB 795 was vetoed for reasons unrelated to
this bill.
c) AB 1502 (Washington), Chapter 1502, Statutes of 1999,
revised the peace officer status of CDCR Office of Internal
Affairs officers from Penal Code Section 830.5 to 830.2.
REGISTERED SUPPORT / OPPOSITION :
AB 2384
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Support
None
Opposition
None
Analysis Prepared by : Nicole J. Hanson / PUB. S. / (916)
319-3744