BILL ANALYSIS �
AB 179
Page 1
Date of Hearing: March 15, 2011
Counsel: Kimberly A. Horiuchi
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 179 (Gorell) - As Introduced: January 24, 2011
SUMMARY : Creates a new penalty for the unauthorized removal or
disabling of an electronic, global positioning system (GPS), or
other monitoring device affixed for purposes of a criminal
sentence, juvenile court disposition, parole, or probation.
Specifically, this bill :
1)Provides that willfully removing or disabling an electronic,
GPS, or other monitoring device where the underlying offense
is a misdemeanor is punishable by imprisonment in a county
jail for one year, a $1,000 fine, or both; and if the
underlying offense was a felony, by imprisonment in the state
prison for 16 months, 2 year, or 3 years.
2)Creates an exception to these penalties where the the
electronic, GPS, or other monitoring device is removed or
disabled by a physician, emergency medical services
technician, or by any other emergency response or medical
personnel when doing so is necessary during the course of
medical treatment or by law enforcement, probation, parole
authority or other entity responsible for placing the
electronic, GPS or other authority responsible for monitoring
electronic, GPS or monitoring device.
EXISTING LAW :
1)Provides that every inmate who has been convicted for any
felony violation of a "registerable sex offense", as
specified, or any attempt to commit any of the above-mentioned
offenses and who is committed to prison and released on parole
shall be monitored by a GPS for the term of his or her parole,
or for the duration or any remaining part thereof, whichever
period of time is less. �Penal Code Section 3000.07(a).]
2) Requires any inmate released on parole, as specified, be
required to pay for the costs associated with the monitoring
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by a GPS device. However, the California Department of
Corrections and Rehabilitation (CDCR) shall waive any or all
of that payment upon a finding of an inability to pay. CDCR
shall consider any remaining amounts the inmate has been
ordered to pay in fines, assessments and restitution fines,
fees, and orders, and shall give priority to the payment of
those items before requiring that the inmate pay for the GPS
monitoring. No inmate shall be denied parole on the basis of
his or her inability to pay for those monitoring costs.
�Penal Code Section 3000.07(b).]
3)Provides that every inmate who has been convicted for any
felony violation of a "registerable sex offense" as specified,
or any attempt to commit any of the above-mentioned offenses
and who is committed to prison and released on parole shall be
monitored by a global positioning system for life. �Penal
Code Section 3004(b).]
4)States that notwithstanding any other law, the parole
authority may require, as a condition of release on parole or
reinstatement on parole, or as an intermediate sanction in
lieu of return to prison, that an inmate or parolee agree in
writing to the use of electronic monitoring or supervising
devices for the purpose of helping to verify his or her
compliance with all other conditions of parole. The devices
shall not be used to eavesdrop or record any conversation,
except a conversation between the parolee and the agent
supervising the parolee which is to be used solely for the
purposes of voice identification. �Penal Code Section
3004(c).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Current law
does not deter an offender from trying to remove his or her
GPS device without authorization. We compromise the safety of
our neighborhoods by releasing parolees with the requirement
that they wear a GPS or other type of tracking device, while
tying the hands of our local public safety and the courts to
ensure proper monitoring of these offenders. By putting
appropriate penalties into statue, we are providing the tools
necessary for law enforcement to keep our communities as safe
as possible."
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"Various programs of in-home detention and monitoring include
wearing GPS devices, which allows electronic monitoring of the
person on probation or parole. Current law lacks any
enforcement provisions for those who purposefully remove or
break their GPS device. AB 179 addresses this problem by
putting penalties into statute for those who willfully removes
or disables the GPS, with full knowledge that the device was
affixed as a condition of a criminal sentence, parole, or
probation. For those who were convicted of a misdemeanor,
he/she is punishable by imprisonment in a county jail for one
year and/or a $1,000 fine. For those convicted of a felony,
by imprisonment in the state prison for 16 months, 2 years, or
3 years."
2)GPS Technology : The use of GPS for parole or probation
provides a level of surveillance not available by any other
means. GPS' ability to locate an offender 24 hours per day
makes GPS an invaluable tool for probation and parole agents.
The GPS is a system of 24 satellites 11,000 miles above Earth.
Using GPS tracking, a parolee or probationer can be precisely
located 24 hours per day, seven days per week. For the system
to work, the offender must carry a GPS receiver, complete with
a microprocessor and antennae, to record locations. The
offender carries the device in a waist pack. The offender
must also wear an ankle bracelet equipped with a radio
transmitter that works in tandem with the GPS receiver. Thus,
if the offender does not wear both the ankle bracelet and the
receiver, the receiver will set off an alarm at the monitoring
station. Both pieces of equipment also have tamper-detection
features to keep offenders from trying to remove or dismantle
them. New technology is being used in California and other
states that have only one piece, an ankle monitor, which must
be recharged every 12 to 18 hours.
In various degrees, GPS is used to track parolees in Michigan,
Florida, Texas, Washington and California. Reported GPS
problems include loss of signal creating false alarms, high
costs, and required technical training. Lost signals are
typical in cars, large buildings, and underground basements.
These false alarms must be investigated, which is costly to do
so. The Florida Department of Corrections estimates that each
parolee on GPS will generate about 10 to 15 false alarms per
month. There have also been reports of loss of GPS signals as
a result of battery and equipment failure. Also, frequent
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problems occurred with battery life. Offenders are required
to recharge a battery very 8 to 18 hours depending on the
unit, proving very inconvenient and also resulting in a number
of false alarms. In a discussion of the uses of GPS in
California, CDCR and Department of Mental Health
representatives speaking before this Committee indicated that
GPS is an effective monitoring tool for a small manageable
class of offenders.
3)Existing Law and the Use of GPS : As noted above, GPS
technology is used with increasing frequency by county
probation, CDCR's Division of Adult Operations, and courts to
track offenders. Proposition 83, passed by the voters on
November 6, 2006 required, inter alia, that all felony sex
offenders released from prison be monitored by GPS device for
the term of parole and then for the rest of the offender's
life. According to CDCR's Web site:
"The Division of Adult Operations (DAPO) has been utilizing GPS
technology since June 2005 to enhance public safety. GPS is
used as a tool to assist parole agents and local law
enforcement with the supervision of high-risk parolees. Since
that time the DAPO has become one of the nation's largest
users of GPS. The DAPO has paved the way for other agencies
when it comes to supervising offenders through the use of GPS.
The DAPO dictates that all parolees, who are required to
register pursuant to PC 290, be supervised utilizing GPS for
their entire parole period." However, there is no indication
that CDCR has the resources to mandate an offender not on
probation or parole to wear a GPS device. Although
Proposition 83 requires a felony registered sex offender who
has been released from prison to wear a GPS device for life,
cost and constitutional concerns have prevented CDCR from
enforcing that provision."
CDCR documents indicate that 6,862 sex offenders and 919 gang
members are on GPS; 2,051 sex offenders on active monitoring
and 4811 on passive monitoring. SB 619 (Speier), Chapter 484,
Statutes of 2005, authorized county probation departments and
CDCR to use GPS monitoring as a condition of probation or
parole.
4)Conditions of Probation or Parole : GPS may be used as a
condition of probation or parole and is required for persons
on parole for specified sex offenses. �Penal Code Sections
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1210.7 and 3004(b).] If an offender removes or tampers with a
GPS device, he or she is in violation of parole or probation
and may be returned to custody. Penal Code Section 1210.14
states:
"Whenever a probation officer supervising an individual has
reasonable cause to believe that the individual is not
complying with the rules or conditions set forth for the use
of continuous electronic monitoring as a supervision tool, the
probation officer supervising the individual may, without a
warrant of arrest, take the individual into custody for a
violation of probation." (Penal Code Section 1210.14.)
This bill states that any person placed on GPS affixed for the
purpose of a criminal sentence, juvenile disposition,
probation or parole may be charged with a misdemeanor or
felony depending on the underlying offense. However, any
tampering with the device will likely result in a violation of
probation or parole. Does it make sense to create an
additional criminal penalty? Additionally, Proposition 83
requires that any offender who has been released from prison
for a sex offense must be monitored for life. �Penal Code
Section 3004(b).] The term of parole is three to twenty years
depending on the offense. It is unclear what authorization
CDCR might use to GPS an offender who is no longer on parole.
If CDCR were attempt to place an offender no longer on parole
on GPS, any attempt to tamper with or remove the device would
result in a felony conviction.
5)Concerns for Prison Overcrowding : The California Policy
Research Center (CPRC) issued a report on the status of
California's prisons. The report stated, "California has the
largest prison population of any state in the nation, with
more than 171,000 inmates in 33 adult prisons, and the state's
annual correctional spending, including jails and probation,
amounts to $8.92 billion. Despite the high cost of
corrections, fewer California prisoners participate in
relevant treatment programs than comparable states, and its
inmate-to-officer ratio is considerably higher. While the
nation's prisons average one correctional officer to every 4.5
inmates, the average California officer is responsible for 6.5
inmates. Although officer salaries are higher than average,
their ranks are spread dangerously thin and there is a severe
vacancy rate." �Petersilia, Understanding California
Corrections, CPRC (May 2006).] California's prison population
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will likely exceed 180,000 by 2010.
According to the Little Hoover Commission, "Lawsuits filed in
three federal courts alleging that the current level of
overcrowding constitutes cruel and unusual punishment ask that
the courts appoint a panel of federal judges to manage
California's prison population. United States District Judge
Lawrence Karlton, the first judge to hear the motion, gave the
State until June 2007 to show progress in solving the
overpopulation crisis. Judge Karlton clearly would prefer not
to manage California's prison population. At a December 2006
hearing, Judge Karlton told lawyers representing the
Schwarzenegger administration that he is not inclined 'to
spend forever running the state prison system.' However, he
also warned the attorneys, 'You tell your client June 4 may be
the end of the line. It may really be the end of the line.'
"Despite the rhetoric, thirty years of 'tough on crime' politics
has not made the state safer. Quite the opposite: today
thousands of hardened, violent criminals are released without
regard to the danger they present to an unsuspecting public.
Years of political posturing have taken a good idea -
determinate sentencing - and warped it beyond recognition with
a series of laws passed with no thought to their cumulative
impact. And these laws stripped away incentive s for
offenders to change or improve themselves while incarcerated.
"Inmates, who are willing to improve their education, learn a
job skill or kick a drug habit find that programs are few and
far between, a result of budget choices and overcrowding.
Consequently, offenders are released into California
communities with the criminal tendencies and addictions that
first led to their incarceration. They are ill-prepared to do
more than commit new crimes and create new victims . . . . "
�Little Hoover Commission Report, Solving California's
Corrections Crisis: Time is Running Out, pg. 1, 2 (2007).]
In January 2010, the Three Judge Panel issued its final ruling
ordering the State of California to reduce its prison
population by approximately 50,000 inmates in the next two
years. �Coleman/Plata vs. Schwarzenegger (2010) No. Civ
S-90-0520 LKK JFM P/NO. C01-1351 THE.] The United States
Supreme Court heard oral argument in November 2010 and is
expected to rule by June 2011 on whether the Three Judge
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Panel's "prisoner release order" is an appropriate and
narrowly tailored remedy contemplated by the Prison Litigation
Reform Act. �Docket No. 09-1233; November 30, 2010.] Given
the immediacy of the final disposition of this landmark case,
great care ought to be paid to any exacerbation of
California's already overcrowded prisons.
Additionally, creating any new felony implicates California's
"Three Strikes" law. Existing law differentiates between the
severity of crimes. Thus, some felony offenses (such as rape
or murder) have higher penalties than others (such as theft).
Under Three Strikes, any felony conviction - not only a
serious or violent felony conviction - following a violent or
serious prior results in a sentence of twice the normal
length. With any two violent or serious felony priors, a new
felony conviction results in a life sentence. Thus, Three
Strikes makes no distinction in severity between the different
felonies. For example, a person who was convicted of breaking
into a neighbor's garage (whether attached to the home or not)
on two occasions in order to steal a bicycle and receives
probation for the acts would have two serious prior offenses.
All residential burglary is defined as a "serious" felony,
whether it occurs during the day or night and whether or not a
person is actually in the residence. A third felony, such as
possession of a controlled substance, results in a life term
under the provisions of Three Strikes regardless of whether or
not the accused had ever acted violently or dangerously.
Hence, an offender with two prior strikes may be sentenced to
a term of 25-years-to-life for disabling a GPS device if the
device was ordered for a previous felony conviction.
6)Arguments in Support : According to the Chief Probation
Officers of California , "Various programs of in-home detention
and monitoring include wearing global position system (GPS)
devices, which allows electronic monitoring of the person on
probation or parole. Current law fails to provide sufficient
provisions for those who purposefully break their GPS devices.
AB 179 addresses this problem by putting penalties into
statute for those who willfully remove or disable the GPS,
with full knowledge that the device was affixed as a condition
of a criminal sentence, parole or probation."
7)Arguments in Opposition : According to the California Public
Defenders Association , "AB 179 would create the new crime of
willfully disabling or removing a court or state ordered GPS
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or other electronic monitoring device. If it is ordered for a
misdemeanor, the removal of the device would be a misdemeanor.
If it was ordered for a felony, the removal of the device
would be a felony. It is already a violation of probation or
parole for the wearer of the device to remove it and the
removal could be punished as a violation at much lower cost
than would be associated with prosecuting for a new crime. As
to those who aid the wearer in removing the device, there are
other offenses (aiding escape, obstructing an officer, etc.)
which would cover those acts. Creation of a new crime would
require additional police, prosecutors' courts, public
defenders, and probation officers, and additional use of court
time. As to felony versions of this offense, it provides just
one more non-violent, non-serious felony that could become a
'third strike' and lead to 25 to life sentences at enormous
cost to the state ($45,000 per year at last count)."
REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State, County and
Municipal Employees, AFL-CIO
Association for Los Angeles Deputy Sheriffs
California District Attorneys Association
California State Sheriffs' Association
Chief Probation Officers of California
Los Angeles County Probation Officers' Union, AFSCME, Local 685
Oxnard Police Department
Riverside Sheriffs' Association
Undersheriff, Santa Barbara County
Opposition
California Public Defenders Association
Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744