BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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SB 756 (Ashburn)
As Amended April 14, 2009
Hearing date: April 28, 2009
Penal Code
MK:mc
PAROLEES:
DRUG ALCOHOL, ANGER MANAGEMENT TREATMENT PROGRAM
HISTORY
Source: Taxpayers Improving Public Safety
Prior Legislation: None
Support: Unknown
Opposition: None known
KEY ISSUE
SHOULD PAROLE DIVERSION PILOT PROJECTS BE CREATED IN POMONA, SAN
BERNARDINO AND RIVERSIDE FOR THE PURPOSES OF PROVIDING QUALIFYING
PAROLEES WHO VIOLATE PAROLE WITH TREATMENT FOR DRUG ABUSE, ALCOHOL
ABUSE OR ANGER MANAGEMENT?
PURPOSE
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The purpose of this bill is to create parole diversion pilot
projects in three cities for the purposes of providing
qualifying parolees who violate parole with treatment for drug
abuse, alcohol abuse or anger management.
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 the California Department of
Corrections and Rehabilitation (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.)
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
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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 creates a pilot parole diversion program in Pomona,
San Bernardino and Riverside to provide qualifying parolees who
violate parole with treatment for drug abuse, alcohol abuse, or
anger management.
This bill provides that the 24 month pilot program will commence
on January 1, 2010, with a four month period to establish sites,
retain contractors, and select CDCR staff to provide program
analysis and supervision.
This bill provides that the program shall consist of three
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rehabilitation programs for substance abuse recovery, alcohol
abuse recovery and anger management and specifies that the
programs shall be on sites near public transportation; all
programs shall operate concurrently; a technician shall be on
site to collect urine samples; and the facility shall have
security on site during program hours.
This bill provides that the treatment programs are to be
conducted by private contractors that are not already CDCR
contractors if possible. Furthermore, the bill states that the
goal is to have three different contractors running the three
different programs at one site. The bill provides that the
service providers shall provide immediate reports to CDCR on
parole participation so that any violation of the program
provisions will result in immediate referral to the Board of
Parole Hearings for action.
This bill provides that when a parole officer determines that a
parolee has violated a condition of parole, the parolee will be
taken into custody pursuant to standard operating procedures,
and the violation referred to a deputy commissioner of the Board
of Parole Hearings for a determination of whether the parolee
would be a candidate to participate in the program.
This bill provides that the fact that the commitment offense for
the parolee was a serious or violent felony shall not disqualify
the parolee from participation in the program.
This bill provides that a parolee whose parole violation
consists of committing another crime shall not be eligible for
the program. A parolee who commits another parole violation
that is a crime, other than the use of drugs, alcohol, or an
anger event, while in the program, will not be allowed to
continue in the program.
This bill provides details on how the program shall work
including that the programming shall take place in three shifts
with multiple programs taking place concurrently; the program
shall last 16 weeks.
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This bill provides that each parolee shall be provided with a
transit pass to the location of the program.
This bill provides that each parolee will be allowed five
failures during the 24 month term of the program. If the
parolee successfully completes the program, and does not
recidivate within 24 months including treatment, the parolee
will be removed from parole supervision.
This bill provides that each parolee will be required to provide
a urine sample weekly for purposes of drug and alcohol testing,
although the actual number of tests shall be random, rather than
for each parolee for each sample.
This bill provides that an independent laboratory shall process
urine samples provided by parolees during the programming
period. A refusal to provide a sample or be tested will be
deemed a failure to participate or complete the program.
This bill provides that a failure to participate in an assigned
daily program without making up the absence immediately with a
drug test will be considered a violation of the program.
This bill provides that if a parolee fails to complete the
program and has been placed in the program based upon a decision
to revoke parole which was suspended to allow the parolee to
attend the program, the parolee shall be subject to an
incarceration period of nine months.
This bill provides that the standard for measuring program
success shall be reduction in recidivism. "Success" shall be
deemed to be a reduction to 50 percent from the current level of
70 percent. If recidivism is not reduced to 50 percent, the
program will be deemed to have failed.
This bill provides that the program is designed to be revenue
neutral, with operating funds coming from CDCR funds that would
otherwise be spent for incarceration of the parolees who are
enrolled in the program.
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RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
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.<1>
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
----------------------
<1> "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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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.
. . . 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
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period of two or three years.<2>
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.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1. Need for This Bill
According to the author:
CDCR has approximately 14,000 available seats for all
rehabilitation programs, for which less than a third are
for alcohol, substance abuse, and anger management.
However, treatment is often interrupted and compromised
due to illness of instructor, prison lockdowns, staff
training, and inefficient scheduling. Typically less
than 50% of the seats are in use on a daily basis. That
means that on any given day, out of 180,000 inmates,
less than 2,500 inmates are engaged in drug, alcohol,
and anger management therapy. Even though numerous
studies have cited the importance of post prison
therapy, government rehabilitation treatment outside of
a prison is almost non-existent.
Currently, the Parole Division of CDCR and BPH have very
limited options for parolees who violate parole because
of substance abuse and/or anger management issues.
Parolees have the option to check themselves into
private rehabilitation facilities. However, these
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<2> 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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private clinics are only accessible to parolees from
wealthy families, parolees who can afford access to such
programs and parolees least at risk for violence to
recidivate. The only option for most parolees is to
return to prison for a term of 16 weeks to one year.
During their reincarceration, parole violators cannot
participate in rehabilitative activities because their
time in prison is too short to be assigned to a program.
These populations of parole violators are ill served by
short returns to prison, where they receive few services
and sanctions are insufficient to deter relapsing
behavior. This leads to a never ending cycle of catch
and release without any rehabilitative services.
2. Parolee Drug, Alcohol and Anger Treatment Pilot Program
This bill creates a pilot parole diversion project in Pomona,
San Bernardino and Riverside close to public transportation.
Each pilot project site will have three programs in drug,
alcohol and anger management run by three different service
providers who do not currently contract with CDCR. When a
parolee has been determined to have violated a condition of
parole, the parolee will be taken into custody and referred to a
deputy commissioner of the Board of Parole Hearings for a
determination of whether the parolee is a candidate for
participation in the program. The fact that the commitment
offense was a serious or violent felony shall not disqualify the
parolee from participation in the program. A parolee whose
violation consists of committing another crime shall not be
eligible for the program. The pilot program will last 24 months
with each offender participating for 16 weeks. Success of the
programs will be determined if the recidivism rate falls from 70
percent to 50 percent.
The author states that the sites for the pilot project were
chosen because they are three cities "with documented high rates
of substance abuse recidivism." These cities are also all
within about 30 miles of each other. Would it be more
appropriate to try pilot projects in different regions of the
state?
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A person is not eligible for the program if his or her parole
violation consisted of committing another crime. What is
considered crime? Would drugs in a urine test be considered a
crime? If so who would be eligible for this program, only those
who violate specific parole rules but not those related to drug
use?
This bill is very specific as to the time the programs run, in
three daily shifts and that all programs run concurrently. Is
it appropriate to be that specific in a bill? What if there are
not enough clients for three shifts of each type of program?
SHOULD THE PILOT PROJECTS BE SPREAD THOUGHOUT THE STATE?
IS DRUG USE CONSIDERED A CRIME AND A BASIS FOR INELIGIBLITY?
ARE THE SPECIFICS IN THE BILL AS TO WHEN THE PROGRAM SHOULD RUN
NECESSARY OR APPROPRIATE?
3. Parole Reform
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<3>
issued a number of recommendations concerning parole reform in
California. That report now forms a basis for measuring
progress in prison reform.<4>
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<3> 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).
<4> See AB 900 (Solorio)(Ch. 7, Stats. 2007).
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The December 2007 report issued by the Governor's Rehabilitation
Strike Team ("RST") made the following observations and
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 souvenir of the
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catch-and-release system.<5> 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
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<5> 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 SEC. 2.5, Section 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)<6>
4. Current Practice and Authority; The "PVDMI"
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.<7> 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.
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<6> 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).
<7> 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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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
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.
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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.<8>
The PVDMI is tooled for a wide range of sanctions that can be
imposed for violations:
There are many alternative sanctions that are
available utilizing the PVDMI. Examples of sanctions
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<8> See http://www.cdcr.ca.gov/PVDMI/Q_and_A.html.
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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.<9>
Since CDCR is currently piloting the PVDMI which would provide
for the assessment of parole violators with the possible result
being that the parolee be required to attend a specific type of
program, how would this bill work within that existing framework
of PVDMI? If the PVDMI is being used to determine proper
programs for an individual parole violator, is it appropriate in
this bill to have the decision made by the Board of Parole
hearings?
HOW WILL THIS BILL WORK WITH THE PVDMI?
IS IT APPROPRIATE TO CREATE A NEW PILOT PROGRAM WHILE CDCR IS
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<9> Id.
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PILOTING THE PVDMI?
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