BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
2
6
5
SB 265 (Runner)
As Introduced February 24, 2009
Hearing date: April 28, 2009
Penal Code
AA:mc
PAROLE:
"HOUSE ARREST" ALTERNATIVE TO PRISON FOR PAROLE VIOLATIONS
HISTORY
Source: Author
Prior Legislation: Proposition 6 - 2008 statewide ballot; failed
passage
SB 441 (Haynes) - 1997; died in Assembly Public
Safety Committee
SB 1698 (Haynes) - 1996; provisions amended out
SB 447 (Haynes) - 1995; died in Senate
Criminal Procedure Committee
Support: Los Angeles District Attorney's Office
Opposition:None known
KEY ISSUES
SHOULD a "house arrest" alternative to returning parole violators to
prison, with specified features, requirements and limitations, BE
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ENACTED?
SHOULD $20 million BE APPROPRIATED FOR a new Parole Reentry Fund for
offender reentry into communities, as specified?
PURPOSE
The purpose of this bill is to 1) enact a "house arrest"
alternative to returning parole violators to prison, with
specified features, requirements and limitations; and 2)
appropriate $20 million to a new Parole Reentry Fund for
offender reentry management and services, as specified.
Existing law generally provides that inmates serving a
determinate term of imprisonment shall be released on parole for
a period of three years. (Penal Code 3000, subd. (b)(1).) Sex
offenders who have served a determinate term of imprisonment are
released on parole for a period of five years. Specified sex
offenders serving indeterminate (life) terms are released on
parole for a period of 10 years. (Penal Code 3000, subd.
(b)(1) and (3).)
Existing law provides that any person released from prison on
parole may be released from parole after 1 year, or 2 years for
violent felonies, unless CDCR recommends to the contrary.
(Penal Code 3001.)
Existing law provides that longer periods of parole apply to
specified crimes, for example lifetime parole for persons
sentenced to life imprisonment with the possibility of parole.
(Penal Code 3000.1.)
Existing law includes these additional provisions:
Prisoners on parole shall remain under the legal custody of
the department and shall be subject at any time to be taken
back within the enclosure of the prison. (Penal Code 3056.)
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Any person who has been returned to prison after revocation of
parole may be held for 12 months, and an additional 12 months
for prison misconduct. The person shall then be released on
parole for the balance of the period of parole. (Penal Code
3057.)
Prisoners, with the exception of life prisoners, may earn
custody credits for work and approved programs to reduce the
period of custody following revocation of parole. (Penal Code
3057.)
The parole authority - now the Board of Parole Hearings -
shall have full power to suspend or revoke any parole, and to
order returned to prison any prisoner upon parole. The
written order of the parole authority shall be a sufficient
warrant for any peace or prison officer to return to actual
custody any conditionally released or paroled prisoner.
(Penal Code 3060.)
Parole revocation proceedings and parole revocation extension
proceedings may be conducted by a panel of one person. (Penal
Code 3063.6.)
No parole shall be suspended or revoked without cause, which
cause must be stated in the order suspending or revoking the
parole. (Penal Code 3063.)
Existing law creates the Board of Parole Hearings (BPH) and
makes certain provisions with respect to its powers and duties.
(Penal Code 5075 et seq.)
Under current law BPH has "full power to suspend or revoke any
parole and to order returned to prison any prisoner upon parole.
The written order of the parole authority shall be a sufficient
warrant for any peace or prison officer to return to actual
custody any conditionally released or paroled prisoner." (Penal
Code 3060.)
This bill would establish a mandatory "house arrest" parole
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violation sanction to be imposed in lieu of state prison for
certain parolees who have been found to have violated parole,
with the following features and requirements:
Eligibility
This bill would provide that BPH, or a presiding deputy
commissioner, upon finding that a person has violated parole,
shall require that person to serve a period of revocation on
GPS-monitored house arrest in lieu of imprisonment in the state
prison if all of the following apply:
The parolee has not violated parole for a felony offense
for which he or she is awaiting prosecution.
The parolee has never been convicted of a violent
felony, specified gang felonies,<1> or a registerable sex
offense, as specified.
The parolee has been evaluated by CDCR using COMPAS or
another standardized risk assessment tool and has not been
found to be violent or of high risk to public safety.
The maximum period of revocation is no greater than 10
months.
The parolee serves the term of revocation in an
appropriate residential property, as determined by BPH,
which is not occupied by any other person on parole.
The parolee agrees not to leave the premises except for
medical or natural emergencies, or as expressly permitted
for employment or drug treatment, and shall at all times
wear a GPS or other monitoring device.
The parolee posts a cash or surety bond of not less than
--------------------------
<1> Specifically, a felony violation of Penal Code section
186.22.
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$10,000, which would be required to be forfeited in the
event he or she leaves his or her residence without the
express consent of his or her parole agent or in response
to a verifiable medical or other emergency, as specified.
The parolee is prohibited from earning more than
one-half the credits he or she could earn were he or she
returned to prison.
The parolee abides by all additional conditions of
parole.
This bill would provide that a parolee shall be deemed to have
been returned to custody, as specified, during the period he or
she is on GPS-monitored house arrest.
GPS, Other Equipment
This bill would require that the GPS monitoring system or other
equipment necessary to monitor parolees under its provisions "be
procured through a competitive request for proposals (RFP)
process, which shall evaluate factors including cost
effectiveness and reliability of available products."
Penalties
This bill would require that a parolee on house arrest pursuant
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to the above-detailed terms "may be immediately returned to the
custody of (CDCR) for the remainder of his or her period of
revocation in the event the parolee violates any condition of
parole or GPS-monitored house arrest or if the monitoring device
ceases to function for any reason."
This bill would provide that the "(w)illful unauthorized
departure by the parolee from the designated residence, except
as required as a result of a verifiable medical or other
emergency, even temporarily, is flight from custody, a felony
punishable by imprisonment in the state prison for 16 months, or
two or three years."
Parolee Reentry Fund
This bill would establish "in the State Treasury the Parolee
Reentry Fund for the purpose of funding contracts for parolee
mentoring and workforce preparation programs to be awarded by
the Secretary of (CDCR), . . . ."
This bill would provide that the "purpose of these programs is
to target critical funding to assist and prepare offenders for
return to their communities in an effort to reduce recidivism
rates and the high costs and threat to public safety associated
with the prevalent cycle of incarceration, release, and return
to prison. The programs are also intended to provide support,
opportunities, mentoring, education, and training to offenders
on parole."
This bill would provide that the "parameters of the programs
shall be as follows:
(1) The programs shall focus on helping parolees make and
sustain long-term attachments to the workforce.
(2) The programs shall offer parolees critical support services
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and referral for housing, addiction, and other services through
a case management component. The program will also offer
opportunities for positive social support through a mentoring
component.
(3) The secretary may authorize programs that employ daily
check-in facilities, Global Positioning System (GPS) devices,
voiceprints, or other technologies to monitor the daily
activities of parolee participants, especially those who are not
actively employed or participating in classes."
This bill would require that recipients of these funds:
would be "required to have extensive expertise in
designing, managing, monitoring, and evaluating mentoring,
workforce, and comprehensive programs specific to parolees,
including demonstrated evidence of an effective prisoner
reentry program model.
For purposes of awarding contracts, contract recipients
shall be required to have extensive related experience
working with federal, state, or local government agencies."
This bill would appropriate $20 million from the General Fund to
the Parolee Reentry Fund for the 2009-10 fiscal year and
annually thereafter.
This bill makes specified legislative findings and declarations
concerning parole, the incidence and effect of parole
violations, and "the intent of the Legislature that the state
correctional system focus greater emphasis and resources on the
successful reintegration of parolees into our communities and
the Legislature accordingly enacts the Parolee Mentoring and
Monitoring Act of 2009."
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
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currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
incarceration.<2>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
----------------------
<2> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
period of two or three years.<3>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
---------------------------
<3> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (Feb. 9, 2009).
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This bill appears to aggravate the prison overcrowding crisis
outlined above.
COMMENTS
1. Stated Need for This Bill
The author states:
(1) California is the only state in the nation that annually
commits more offenders to state prison following parole
violation than from court after conviction of a felony.
(2) Use of limited prison cells for short term incarceration
of three to six months is a costly process that strains our
correctional system.
(3) Both the public and certain nonviolent offenders may be
better served with a system that includes greater use of
GPS-monitored house arrest as an alternative to a return to
prison.
(4) Savings achieved by implementing a monitored house
arrest option can be dedicated in part to a more
comprehensive and publicly accountable system of parole
mentoring and training programs designed to reduce
recidivism.
(5) If the state correctional system focuses greater
emphasis and resources on the successful reintegration of
parolees back into our communities, then long term savings
could be achieved and some of the human costs of crime
averted.
2. What This Bill Would Do
As explained in detail above, this bill would establish a
statutory framework for a "house arrest" alternative to
returning parole violators to prison, with the following key
features:
For eligible parole violators, the bill's "house arrest"
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alternative to return to custody would be mandatory on the
Board of Parole Hearings.
The program would apply to parolees never convicted of a
violent felony, specified gang felony, or registerable sex
offense.
Eligibility would be limited to parolees who do not
score "violent" or "high risk" on COMPAS, the risk needs
instrument used by CDCR.
The house arrest would be required to occur in an
appropriate residential property with no other person on
parole.
The parolee would be constrained to the premises except
for authorized treatment or employment, except for
emergencies, as specified.
The parolee would be required to wear a GPS or other
monitoring device at all times.
The parolee would be required to post a cash or surety
bond of not less than $10,000, to be forfeited if he or she
leaves the residence without authority.
The bill would provide that parolees who violate these terms, or
"if the monitoring device ceases to function for any reason,"
may "immediately" be returned to the custody of CDCR for the
remainder of his or her period of revocation. The bill also
would make it a felony for a "(w)illful unauthorized departure
by the parolee from the designated residence, except as required
as a result of a verifiable medical or other emergency, even
temporarily . . . "
Finally, the bill would appropriate $20 million to a new Parole
Reentry Fund for offender reentry into communities. These
programs would:
focus on helping parolees make and sustain long-term
attachments to the workforce;
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offer parolees critical support services and referral
for housing, addiction, and other services through a case
management component;
offer opportunities for positive social support through
a mentoring component; and
authorize programs that employ daily check-in
facilities, GPS, voiceprints, or other technologies to
monitor the daily activities of parolee participants,
especially those who are not actively employed or
participating in classes.
3. Parole Reform
As noted by the author, the current parole revocation
system resulting in a large number of parolees being
returned to prison for parole violations is a costly system
that may not support the long-term goals of successfully
reintegrating offenders into the community. The need for
parole reform in California has been underscored by many
experts for several years. In June of 2007 the Expert
Panel on Adult Offender and Recidivism Reduction
Programming<4> issued a number of recommendations
concerning parole reform in California. That report now
forms a basis for measuring progress in prison reform.<5>
The December 2007 report issued by the Governor's Rehabilitation
Strike Team ("RST") made the following observations and
---------------------------
<4> Expert Panel on Adult Offender and Recidivism Reduction
Programming, Report to the California State Legislature ("EPR")
(2007) (see http://www.cdcr.ca.gov/News/ExpertPanel.html).
<5> See AB 900 (Solorio) (Ch. 7, Stats. 2007).
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recommendations concerning parole reform in California:
Every major report on the California corrections
system since the early 1980s has recommended
fundamental parole reform. In fact, in nearly all of
these reports, parole reform is the major
recommendation. The RST reviewed these reports and
began its work by convening a one-day meeting with key
stakeholders to discuss how best to prioritize these
recommendations and address the AB 900 benchmarks . .
. . More than a dozen follow-up meetings were held
with subsets of the original attendees between
June-December, 2007 as the RST worked on specific
issues, as discussed below.
A consensus quickly emerged from these meetings that
California is using resources to send individuals in
and out of prison rather irrespective of the risk
posed by any given person. As a result, a large
percentage of nonviolent
criminals accumulate extensive criminal records as a
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souvenir of the catch-and-release system.<6> Despite
their records, they may not be any more dangerous than
their counterparts in other states who are
successfully handled through an array of
community-based intermediate sanctions. The key to
reducing the number of parolees who return to prison
lies in matching the risks and needs of individual
parolees to evidence-based rehabilitation and work
programs, providing incentives and rewards to parolees
to enroll and complete those programs, and
when parole violations do occur, using structured
parole violation guidelines to impose intermediate
community-based sanctions rather than prison if
appropriate. AB 900 and the (Expert Panel Report
----------------------
<6> Earlier in its report the RST explained "catch and release"
as follows: "The upshot is that more than 25,000 parole
violators annually go through the arduous parole violation
process-which includes a formal revocation hearing with a parole
commissioner, court reporter, parole officer, attorney
representing the parolee, and often law enforcement and
witnesses. If the parole violation charges are sustained at
this hearing (and they almost always are), the parolee is then
transported by bus to a reception center, his/her "C"
(corrections history) file requested from CDCR center records
storage (which can take weeks to retrieve), and the reception
center begins the process of assessing-physical, mental, gang
affiliations, sensitive needs-and recommending that the inmate
be "endorsed" to serve time in a specific prison. At some point
during that routine processing of parole violators, many
prisoners will be released, having served the required sentence
before the reception process is complete. They will parole
right out of the reception center, and the State will again pay
for their transportation back to their county of commitment. . .
. This system of 'catch and release' makes little sense from
either a deterrence, incapacitation, treatment, or economic
standpoint. Parolees quickly learn that being revoked from
parole doesn't carry serious consequences, and the State will
have paid thousands of dollars to classify, assess, test, and
endorse inmates to prison who will not be there long enough to
serve a prison term." (RST report, Id, ft. 4, pp. 77-78.)
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("EPR")) report endorse these recommendations as well,
calling for:
The use of a California validated
risk-of-recidivism assessment tool to match
parolee risks with available resources.
"The CDCR shall conduct assessments of
all inmates that include ? criminal activity ?
which shall be used to place inmates in programs
that will aid their reentry to society and that
will most likely reduce the inmate's chances of
reoffending." (AB 900, . 2.5, 3020)
Select and utilize a risk assessment tool
to assess offender risk to reoffend. (EPR
recommendation 3)
Incentives and rewards to encourage
parolee progress and success:
o "The Department of Corrections
and Rehabilitation shall determine and
implement a system of incentives to increase
inmate participation in, and completion of,
academic and vocational education ?" (AB 900
2054.2)
o "Enact legislation to expand ?
positive reinforcements for offenders who
successfully complete their rehabilitation
program requirements and fulfill their
parole obligations in the community." (EPR
recommendation 2)
o "Implement an earned discharge
parole supervision strategy for all parolees
released from prison after serving a period
of incarceration for an offense other than
those listed as serious and violent . . .
(EPR recommendation 2c)
Policy-driven approaches to parole
violations using a decision-making matrix and
graduated community-based sanctions:
o "CDCR will develop and
implement a plan to obtain additional
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rehabilitation and treatment services for
prison inmates and parolees." (AB 900
2062)
o "Reentry program facilities
shall provide programming to inmates and
parole violators tailored to the specific
problems faced by this population when
reintegrating into society." (AB 900
6272)
o "Develop structured
guidelines to respond to technical parole
violations based on the risk to re-offend
level of the offender and the seriousness
of the violation." (EPR recommendation
11)<7>
As explained in detail above, this bill would set up a mandatory
"house arrest" alternative for parole revocations for certain
parolees in lieu of returning them to prison. The author and/or
members of the Committee may wish to discuss how this bill's
approach is consistent with, or differs from, the expert
recommendations for parole reforms described above.
IS THIS BILL CONSISTENT WITH THE PAROLE REFORMS RECOMMENDED BY
NUMEROUS EXPERTS WHO HAVE STUDIED CALIFORNIA'S PAROLE SYSTEM?
4. Current Practice and Authority; The "PVDMI"
---------------------------
<7> Meeting the Challenges of Rehabilitation in California's
Prison and Parole System, A Report From Governor
Schwarzenegger's Rehabilitation Strike Team (Dec. 2007), pp.
79-80 (emphasis added).
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CDCR currently is piloting a new Parole Violation Decision
Making Instrument (PVDMI). This instrument is consistent with
recommendations made by the Expert Panel, the Rehabilitation
Strike Team, and others who have examined CDCR's parole
system.<8> The instrument is being used in four parole units,
one in each of four parole regions. CDCR expects PVDMI to be
used in all of its parole units by the end of this year.
As explained by CDCR, the PVDMI is a validated instrument for
determining the most appropriate sanctions for parole
violations.
The Parole Violation Decision Making Instrument
(PVDMI) brings evidence based risk assessment,
research and best practices into the parole revocation
decision making process. Prior to the implementation
of the PVDMI, the parole violation decision making
process was based entirely on the experience and/or
subjective opinion of the parole agent. This process
dictated program placement or responses to violations
that often varied by agent to agent, parole unit, or
parole region.
The PVDMI assesses the parolee's risk for recidivism
using the California Static Risk Assessment (CSRA) in
conjunction with the severity of the parole violation
(based on a severity index) to determine an
appropriate and proportionate response to the
violation. The parolee's risk score and the severity
----------------------
<8> See December 2007 Rehabilitation Strike Team Report to the
Governor; June 2007 California Expert Panel Report; and November
2003 Little Hoover Commission Report entitled, "Back to the
Community: Safe and Sound Parole Policies."
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of the violation determine the recommended response to
the violation. As the offender's risk level or the
severity of the violation escalates, the recommended
response escalates as well.
Additionally, the PVDMI gives the agent a
recommendation of specific programs that fall within a
range of responses that are consistent with the risk
and severity of the violation. This process not only
reduces subjective responses, it keeps a consistent
approach to program placement and violation of parole
responses by parole agents regardless of where they
are working within the state.
. . . The instrument is being piloted in four parole
units in order to determine its effectiveness within
the CDCR population. During the pilot phase the
procedures will be closely monitored to determine the
instrument's usefulness and effectiveness. Similar
instruments have been developed and are currently
utilized in numerous other states. According to a
2001 National Institute of Corrections (NIC) study, of
29 jurisdictions involved in the research, none
reported an increase in new crimes among parolees and
many actually experienced a reduction in parole
revocations. The CDCR Office of Research is working
with the University of California, Irvine Center for
Evidence-Based Corrections to determine whether this
instrument delivers similar positive results in
California.<9>
The PVDMI is tooled for a wide range of sanctions that can be
imposed for violations:
---------------------------
<9> See http://www.cdcr.ca.gov/PVDMI/Q_and_A.html.
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There are many alternative sanctions that are
available utilizing the PVDMI. Examples of sanctions
include a referral to the Board of Parole Hearings
(BPH) recommending revocation, placement in a
community based program, electronic in-home detention
(EID), placement in a residential program and a
referral to closely supervised in-custody programs
such as In Custody Drug Treatment Program (ICDTP).
Through continued use of the PVDMI, the Division of
Adult Parole Operations (DAPO) will be able to
effectively evaluate program utilization and make
adjustments accordingly. As additional data related
to program placement and utilization is received, DAPO
will be able to effectively identify the need for
specific programs. The information collected through
the PVDMI process will enable CDCR/DAPO to more
effectively expand programs based on the specific
needs of the returning parolee population within each
community.<10>
As currently drafted this bill would mandate that its "house
arrest" sanction be imposed for eligible parolees in lieu of
returning them to prison. With the exception of the bond, the
sanctions this bill would mandate already can be employed as
parole violation sanctions, and to some extent already are part
of the PVDMI. For example, geographic restrictions and curfew
requirements are part of the PVDMI "moderately intensive"
response. In addition, parole agents have begun to implement
intermediate sanctions, such as electronic monitoring, in lieu
---------------------------
<10> Id.
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of prison for non-serious parole violators.<11> Presumably,
because this bill frames its sanctions as an alternative to
sending a violator back to prison, it essentially would operate
as one sanction tool included in the most intensive violation
responses on the PVDMI. However, in light of the PVDMI, the
author may wish to refine this bill to clarify and potentially
narrow this sanction proposal in a manner clearly consistent
with, and reflected by, the PVDMI.
IS THIS BILL CONSISTENT WITH THE PVDMI?
IS THE APPROACH PROPOSED BY THIS BILL EVIDENCE BASED?
5. Eligible Parolees; COMPAS
Among other things, this bill would limit parolee eligibility
for its proposal to parolees who have never been convicted of
a violent felony, specified gang felonies, or a registerable sex
offense, as specified. The author may wish to consider
specifying, through a cross reference, the term "violent
felony." In addition, the bill would limit its application to
parolees who have "been evaluated by CDCR using COMPAS or
another standardized risk assessment tool and (have) not been
found to be violent or of high risk to public safety." The risk
assessment conducted by CDCR does not find an inmate or parolee
to not be violent. CDCR assessments are on an inmate's "risk to
reoffend" broken down into three categories -- low risk, medium
risk, and high risk to reoffend. The author may wish to amend
the bill to reflect the CDCR assessments.
---------------------------
<11> RST Report, p. 16.
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SHOULD THIS BILL BE REFINED TO REFLECT THE FUNCTIONAL FINDINGS
OF A COMPAS ASSESSMENT?
6. GPS
This bill would require parolees on house arrest to "at all
times wear a GPS or other monitoring device." Currently, CDCR
uses GPS for its sex offender parolees. In addition, according
to its website CDCR notes that, "GPS has proven to be an
effective risk management tool for supervising high-risk persons
on parole who are likely to reoffend, where prevention and
knowledge of their whereabouts is a high priority for
maintaining public safety." In addition, the Division of Adult
Parole Operations ("DAPO") "can utilize EID (electronic in-home
detention) as a supervision tool to monitor a curfew restricting
parolee's to their home. The DAPO's parole agents can utilize
the EID program as an additional casework supervision tool. EID
may be considered when addressing violations of parole, the law,
or for enhanced supervision."
Members and/or the author may wish to discuss the current
ability of DAPO to use GPS and electronic monitoring for
parolees, and how this bill, which would make it a mandatory
tool for certain parole violators, would or would not improve
this current capability. As suggested above, members and/or the
author may wish to consider whether the GPS aspect of this bill
should be addressed in the context of the current PVDMI process
for identifying and imposing an appropriate parole violation
sanction.
WOULD THE GPS/ELECTRONIC MONITORING PROVISIONS OF THIS BILL
PROMOTE PUBLIC SAFETY BY PROMOTING PAROLE COMPLIANCE?
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IS THE GPS PROVISION OF THIS BILL CONSISTENT WITH THE PVDMI?
7. Bond
This bill would require that parolees subject to "house arrest"
under its provisions post a cash or surety bond of not less than
$10,000, which would be "forfeited in the event he or she leaves
his or her residence without the express consent of his or her
parole agent or in response to a verifiable medical or other
emergency." The forfeiture of cash or the surety bond and the
relief from such forfeiture would be governed by laws applicable
to bail bonds.
This proposal appears to be intended as analogous to a bail
bond. However, imposing a bond requirement as part of a parole
revocation is different from the traditional concept of a bail
bond.
The right to freedom by bail pending trial is
interrelated to the Anglo-Saxon doctrine that one
accused is presumed innocent until proven guilty
beyond a reasonable doubt. A pretrial detainee's
traditional right to freedom before conviction permits
the unhampered preparation of a defense, and serves to
prevent the infliction of punishment prior to
conviction. The right to bail is a fundament of
liberty underpinning our criminal proceedings, and is
an essential guardian of the presumption of innocence.
Furthermore, the right of an accused to freedom
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pending trial is inherent in the concept of a liberty
interest protected by the due process clause of the
Fourteenth Amendment. Even so, the states are free to
deny bail completely in appropriate cases.<12>
"The purpose of bail is to assure the defendant's attendance in
court when his or her presence is required, whether before or
after conviction. Bail is not a means of punishing the
defendant, nor should there be a suggestion of revenue to the
government."<13> "Excessive bail may not be required. In
fixing the amount of bail, the court must take into
consideration: (a) the seriousness of the offense charged; (b)
the previous criminal record of the defendant; and (c) the
probability of the defendant appearing at the trial or hearing.
Moreover, a person may be released on his or her own
recognizance in the court's discretion. (Cal. Const., Art. I,
12.)."<14> "Although the "right" to bail has constitutional
recognition in the prohibition against excessive bail, bail is
not always a matter of right. However, with certain exceptions,
a defendant charged with a criminal offense "shall be released
on bail." (Cal. Const., Art. I, 12) . . . ."<15>
There are a number of considerations the Committee and/or the
author may wish to discuss concerning this novel proposal for
the use of bonds in the context of parole, including:
Would this proposal be in violation of the Fourteenth
Amendment's guarantee of due process and equal protection
of the law in that only the privileged would be able to
post the bond?
Would this proposal violate the Eighth Amendment
--------------------------
<12> 8A Am Jur 2d Bail and Recognizance 11 (citations
omitted).
<13> 4 Witkin Cal. Crim. Law Pretrial 78 (citations
omitted).
<14> 4 Witkin Cal. Crim. Law Pretrial 79 (citations
omitted).
<15> 4 Witkin Cal. Crim. Law Pretrial 80 (some citations
omitted).
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protections against cruel and unusual punishment in that
financial status could become the determining factor for
punishment over and above what the law prescribes for
punishment?
Would this proposal place additional burdens on offender
families and friends by holding them responsible for bond
forfeiture if they offer a bond and the offender violates
the conditions of the bond?
What new role in the criminal justice system would
result for private bondsmen?
Opponents to a similar bill in 1997, SB 441 (Haynes), expressed
concerns about that measure, which are equally relevant to this
bill:
This provision also raises serious concerns about the
possibility of creating a dual standard of justice.
Consider two convicted felons, both of whom have
violated parole in the same fashion. The first felon
does not have the resources to post a parole bond and
is sent back to state prison. The second felon,
having the financial resources to post a parole bond,
remains free in society . . . (T)he unintended
consequence of this state of affairs would be to
undermine such rational basis as currently exists for
the parole revocation process.<16>
It is difficult to determine what role the bail agent
would have in the supervision of a parole violator as
this legislation is amended. Why have a parole
violator placed on a bail bond when his or her parole
violation is not serious enough to have their parole
revoked? Is the state now entering into a new program
of having bail agents supervise certain parole
violators who have the funding to put up bail? What
will the role of the parole officer then be in
----------------------
<16> Comments of the California Peace Officers Association and
California Police Chiefs Association, as cited in the Assembly
Committee on Public Safety Analysis of SB 441 (Haynes), July 8,
1997.
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continuing the supervision of parolees when they have
purchased a parole bond?<17>
DO THESE CONCERNS AND CONSIDERATIONS OUTWEIGH ANY POTENTIAL
BENEFIT OF THE BOND PROPOSAL IN THIS BILL?
8. New Felony
This bill would enact a new felony for the "(w)illful
unauthorized departure by the parolee from the designated
residence, except as required as a result of a verifiable
medical or other emergency, even temporarily, . . . " This
provision would violate ROCA; therefore, the author may wish to
delete this provision from the bill.
SHOULD THE NEW FELONY ENACTED BY THIS BILL BE DELETED?
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<17> Comments of the California State Sheriffs' Association,
as cited in the Assembly Committee on Public Safety Analysis of
SB 441 (Haynes), July 8, 1997.
9. Violations; Potential for Savings
As explained above, the author's intent with this bill in part
is to achieve savings. However, the current structure of the
bill suggests that any savings resulting from a reduction in
parolees returned to prison for parole violations may be
diminished by the bill's broad provisions for revoking a parolee
to prison if its provisions are violated. This bill would
provide that a parolee on house arrest pursuant to the
above-detailed terms may be immediately returned to the custody
of CDCR for the remainder of his or her period of revocation in
the event the parolee violates any condition of parole, or if
the GPS or monitoring device ceases to function for any reason.
These are very broad revocation bases. The author may wish to
consider refining this language to employ the PVDMI instrument
described above for violations of this bill's provisions.
10. Parole Reentry Fund
This bill would appropriate $20 million annually from the
General Fund for a Parolee Reentry Fund. Funds from this
program would be intended to assist in offender reentry into the
community through workforce attachment, housing addition and
other case management services and "programs that employ daily
check-in facilities, Global Positioning System (GPS) devices,
voiceprints, or other technologies to monitor the daily
activities of parolee participants, especially those who are not
actively employed or participating in classes." Recipients
would be required to have "extensive expertise in designing,
managing, monitoring, and evaluating mentoring, workforce, and
comprehensive programs specific to parolees, including
demonstrated evidence of an effective prisoner reentry program
model," and "extensive related experience working with federal,
state, or local government agencies."
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There are existing models for statutory grant programs which
address matters the Committee and/or the author may regard as
appropriate for this provision. Those issues include but are
not limited to:
establishing competitive grants for these monies;
establishing standards and processes for weighing and
awarding grants;
requiring that programs be evidence-based;
requiring reporting and evaluation provisions;
requiring that programs not supplant existing programs
(if recipients are publicly funded); and
providing for the costs of administering these programs.
SHOULD THESE DETAILS BE INCLUDED IN THIS PROPOSAL?
11. Valdivia
This bill would provide that a parolee on house arrest pursuant
to its terms may be "immediately returned" to prison for the
remainder of his or her period of revocation in the event the
parolee violates any condition of parole or GPS-monitored house
arrest or if the monitoring device ceases to function for any
reason. The Valdivia v. Schwarzenegger lawsuit requires the
Board of Parole Hearings to provide parolees facing revocation
with an attorney, a probable cause hearing, and a revocation
hearing, as specified. Providing for an immediate return to
prison, if it bypasses these requirements, would appear to
violate Valdivia .
WOULD THIS BILL VIOLATE VALDIVIA ?
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