BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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AB 2527 (Swanson) 7
As Amended June 7, 2012
Hearing date: June 19, 2012
Penal Code
SM:dl
EARLY TERMINATION OF PROBATION
HISTORY
Source: Author
Prior Legislation: None
Support: California Attorneys for Criminal Justice; California
Public Defenders Association, Drug Policy Alliance
Opposition:California District Attorneys Association
Assembly Floor Vote: Ayes 76 - Noes 0
KEY ISSUES
SHOULD A COURT BE REQUIRED TO TERMINATE THE PERIOD OF PROBATION AND
DISCHARGE THE PROBATIONER AT ANY TIME WHEN THE ENDS OF JUSTICE WILL
BE SUBSERVED, AND WHEN THE GOOD CONDUCT AND REFORM OF THE PERSON SO
HELD ON PROBATION WARRANT IT?
SHOULD THE FACTORS THAT THE COURT MAY CONSIDER IN DETERMINING
WHETHER TO TERMINATE THE PERIOD OF PROBATION FOR GOOD CONDUCT AND
REFORM BY THE PROBATIONER BE LISTED, AS SPECIFIED?
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PURPOSE
The purpose of this bill is to (1) require a court to terminate
the period of probation and discharge the probationer at any
time when the ends of justice will be subserved, and when the
good conduct and reform of the person so held on probation
warrant it, and (2) list the factors that the court may consider
in determining whether to terminate the period of probation for
good conduct and reform by the probationer, as specified.
Current law authorizes a court, at any time during the term of
probation, to revoke, modify, or change its order of suspension
of imposition or execution of sentence. (Penal Code Section
1203.3(a).)
Current law authorizes a court to terminate the period of
probation and discharge a person on probation when the ends of
justice will be subserved thereby, and when the good conduct and
reform of the person shall warrant it. (Penal Code Section
1203.3(a).)
Current law provides that the court's authority to revoke,
modify, terminate or change a previous order is subject to the
following:
Before any sentence or term or condition of probation is
modified, a hearing shall be held in open court before the
judge. The prosecuting attorney shall be given a two-day
written notice and an opportunity to be heard on the
matter, except that, as to modifying or terminating a
protective order in a case involving domestic violence, as
defined, the prosecuting attorney shall be given a five-day
written notice and opportunity to be heard.
If the sentence or term or condition of probation is
modified, the judge shall state the reasons for that
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modification on the record.
As used in this section, modification of sentence shall
include reducing a felony to a misdemeanor.
No order shall be made without written notice first
given by the court or the clerk thereof to the proper
probation officer of the intention to revoke, modify, or
change its order.
In all cases, if the court has not seen fit to revoke
the order of probation and impose sentence or pronounce
judgment, the defendant shall at the end of the term of
probation or any extension thereof, be by the court
discharged subject to the provisions of these sections.
The court may modify the time and manner of the term of
probation for purposes of measuring the timely payment of
restitution obligations or the good conduct and reform of
the defendant while on probation. The court shall not
modify the dollar amount of the restitution obligations due
to the good conduct and reform of the defendant, absent
compelling and extraordinary reasons, nor shall the court
limit the ability of payees to enforce the obligations in
the manner of judgments in civil actions.
Nothing in this section shall be construed to prohibit
the court from modifying the dollar amount of a restitution
order at any time during the term of the probation. (Penal
Code Section 1203.3(b)(1) to (5).)
This bill requires a court to terminate the period of probation
and discharge the probationer at any time when the ends of
justice will be subserved, and when the good conduct and reform
of the person so held on probation warrant it.
This bill states that in determining whether to terminate the
period of probation for good conduct and reform by the
probationer, the court may consider the following:
Whether the probationer is pursuing or has obtained a
GED or high school diploma;
Whether the probationer is performing community service;
and
Whether the probationer is participating in an
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internship with a government agency or with a nonprofit
entity.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code section 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
ineligible for jail and therefore subject to state prison.
Under these principles, ROCA has been applied as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress towards reducing prison
overcrowding by passing legislation which could increase the
prison population. ROCA will continue until prison overcrowding
is resolved.
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
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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 January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
than the following:
167 percent of design capacity by December 27, 2011
(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
COMMENTS
1. Need for This Bill
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According to the author:
California has one of the highest recidivism rates in
the nation, which is a glaring symptom of a broken
system. With seven out of every ten offenders
returning to jail or prison within a few years, the
state must meet the needs of California's most
vulnerable populations in a fiscally responsible way
by allowing individuals to make a successful
transition from prison back to our communities.
Studies show that people are less likely to offend or
recidivate if they are gainfully employed. By
providing individuals who enter the penal system with
incentives to increase their knowledge and skills, we
provide practical alternatives to criminal acts and
behaviors and produce a more responsible citizen who
is better equipped with the ability and confidence to
succeed in society.
AB 2527 uses this strategy by specifying criteria that
the courts may consider when determining whether to
terminate a person's period of probation, which
includes the pursuit or attainment of a GED or high
school diploma, community service, and internships.
This provides incentives for individuals to complete
their probation while obtaining the tools to help them
achieve employment and lead productive and meaningful
lives.
Additionally, AB 2527 helps address the increased
caseloads and unnecessary spending counties may face
by requiring courts to terminate an individual's
period of probation when the court has determined that
he or she has served their term and has demonstrated
good conduct and reform. This allows counties to
adequately use available resources for the proper
supervision of individuals who are at a higher risk of
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reoffending.
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2. What This Bill Will Do
Under existing law, a court may, at any time when the ends of
justice will be served and when the good conduct and reform of
the person so held on probation shall warrant it, terminate the
period of probation. This bill changes the word "may" and
replaces it with "shall." While the language of this bill
requires that a judge grant termination of probation "when the
ends of justice will be subserved thereby, and when the good
conduct and reform of the person so held on probation shall
warrant it," it is still within the judge's discretion to
determine whether these requirements have been met. Under
existing law and under the language of this bill it remains
within the judge's discretion to find that terminating probation
would not be in the interest of justice or that the probationer
has not been reformed or has not demonstrated good conduct.
Additionally, this bill provides specified conditions that a
judge may consider when determining whether the good conduct and
reform of a person should warrant termination of probation. The
bill specifies that this is not an exclusive list, but simply
enumerates some of the factors that a judge is free to consider
when deciding whether to terminate probation early. Current law
does not limit what factors the judge may consider when making
this determination.
3. Statement in Support
The California Attorneys for Criminal Justice state:
The purpose of probation is to guide and supervise
people who have committed low level offenses, but have
the capacity to reform. When these probationers
succeed - when they demonstrate good conduct and have
actually rehabilitated themselves - probation is no
longer necessary.
Under current law, a Judge can find that the interests
of justice would be served by terminating probation,
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find that the probationer has reformed and has
demonstrated good conduct, and still refuse to
terminate probation.
AB 2527 would eliminate this anomalous result. It
would provide certainty to probationers who are
working diligently toward the goal of terminating
their probation. It would ensure that the limited
resources of County probation departments are spent
where they will do the most good, not on supervision
of probationers who do not need it.
4. Statement in Opposition
The California District Attorneys Association states:
Under current law, a court is permitted to terminate a
person's probation period if the court finds that such
termination is in the interests of justice and
warranted by the probationer's behavior. We feel this
bill is unnecessary given that changing the word "may"
to "shall" does not alter the fact that the court
retains ultimate jurisdiction to determine if the
conditions necessary for an early termination of
probation have been met. The net result is that this
bill is unlikely to change the frequency with which
early probation terminations are granted.
We do fear, however, that this change will have an
impact on court calendars inasmuch as this bill will
likely inspire numerous frivolous petitions for early
termination given the presumption that replacing the
word "may" with "shall" will somehow result in a
wholesale change to the way courts consider the
existing provision.
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