BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
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SB 1150 (Dutton) 0
As Introduced February 21, 2012
Hearing date: April 24, 2012
Penal Code
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PUBLIC SAFETY REALIGNMENT OF 2011:
POSTRELEASE COMMUNITY SUPERVISION
HISTORY
Source: Author
Prior Legislation: AB 109 (Committee on Budget) - Ch. 15, Stats.
2011
ABx1 17 (Blumenfield) - Ch. 12, Stats. 2011
Support: California Correctional Peace Officers Association;
California District Attorneys Association; Peace
Officers Research Association of California; California
Police Chiefs Association; California State Sheriffs
Association; Kern County Board of Supervisors; Loma
Linda Chamber of Commerce
Opposition:Legal Services for Prisoners with Children
KEY ISSUE
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SHOULD ELIGIBILITY FOR "POSTRELEASE COMMUNITY SUPERVISION" - A
COMPONENT OF THE 2011 CRIMINAL JUSTICE REALIGNMENT UNDER WHICH
CERTAIN PERSONS RELEASED FROM PRISON ARE SUPERVISED BY LOCAL
PROBATION INSTEAD OF STATE PAROLE - BE NARROWED, AS SPECIFIED?
PURPOSE
The purpose of this bill is to narrow eligibility for local
"Postrelease Community Supervision," a component of the 2011
criminal justice realignment, thereby increasing the number of
persons supervised by state parole instead of local probation
upon release from prison, as specified.
Current law , enacted as part of the 2011 realignment legislation
addressing public safety, includes the "Postrelease Community
Supervision Act of 2011," ("PRCS") as specified. (Penal Code �
3450 et seq.)
Under current law , PRCS generally provides that certain felons
released from prison on and after October 1, 2011, "shall, upon
release from prison and for a period not exceeding three years
immediately following release, be subject to community
supervision provided by a county agency designated by each
county's board of supervisors which is consistent with
evidence-based practices, including, but not limited to,
supervision policies, procedures, programs, and practices
demonstrated by scientific research to reduce recidivism among
individuals under postrelease supervision." (Penal Code � 3451
(a).)
Under current law , felons released from prison after having
served a prison term for any of the following are ineligible for
PRCS (and therefore subject to supervision by state parole):
(1) A serious felony described in subdivision (c) of
Section 1192.7.
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(2) A violent felony described in subdivision (c) of
Section 667.5.
(3) A crime for which the person was sentenced pursuant to
paragraph (2) of subdivision (e) of Section 667 or
paragraph (2) of subdivision (c) of Section 1170.12.
(4) Any crime where the person eligible for release from
prison is classified as a High Risk Sex Offender.
(5) Any crime where the person is required, as a condition
of parole, to undergo treatment by the State Department of
Mental Health pursuant to Section 2962. (Penal Code �
3451(b).)
This bill would revise this provision to additionally exclude
from PRCS felons being released from prison who have a prior
conviction for any of the following:
(1) A serious felony described in subdivision (c) of
Section 1192.7.
(2) A violent felony described in subdivision (c) of
Section 667.5.
(3) A crime for which the person was sentenced pursuant to
3-Strikes (paragraph (2) of subdivision (e) of Section 667
or paragraph (2) of subdivision (c) of Section
1170.12).
(4) Any crime that resulted in the person's classification
as a High Risk Sex Offender.
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
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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,
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
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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 appear to aggravate the prison overcrowding
crisis described above under ROCA.
COMMENTS
1. Stated Need for This Bill
The author states:
California communities and neighborhoods are at
greater risk because some convicted felons are being
released under the states Post Release Community
Supervision program. Under current law, only the
felon's most recent crime is used in determining if
that individual is eligible for "Post Release
Community Supervision. Under Senate Bill 1150, the
felon's entire criminal history would have to be
reviewed before becoming eligible for this lower level
of probation supervision.
2. What This Bill Would Do
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As explained above, this bill would change the provisions in the
2011 criminal justice realignment concerning postrelease
community supervision of felons being released from prison.
This bill would narrow PRCS eligibility and thereby expand the
category of felons who would be subject to state supervision
(parole) instead of local supervision (probation).
Current law generally determines PRCS eligibility based on the
crime for which the person has just served a prison term - not
priors. This bill would add prior convictions to this
determination, by providing that felons being released from
prison with a prior conviction for a serious felony, a violent
felony, or sentenced under 3-Strikes, or any crime that resulted
in the person's classification as a High Risk Sex Offender,
shall be ineligible for local supervision. This change would
essentially shift, as discussed below, these felons from local
probation supervision to state parole supervision during the
period immediately following their release from prison.
3. Background
Prior to realignment, California law generally provided that
persons who had served a determinate sentence in state prison
for a felony were subject to up to three years of conditional
release ("parole") supervised by the Department of Corrections
and Rehabilitation ("CDCR").<1> This policy of providing a
period of conditional, supervised release for felons immediately
following a determinate prison term has continued under
realignment.<2> Realignment requires, however, that on and
after October 1, 2011, some of these felons - generally
depending upon the crime that sent them to prison - are subject
instead to postrelease community supervision ("PRCS") by a local
entity determined by each county's board of supervisors - which
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<1> See Penal Code � 3000. Parole periods for certain
offenses, such as sex crimes, can exceed three years;
realignment does not change the length of these parole periods.
<2> See Penal Code � 3000(a) (1), as amended by Section 36 of
AB 117.
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in every county has been determined to be probation.
Certain inmates are categorically excluded from PRCS by statute;
these offenders are subject to state parole supervision.
Specifically, prison inmates conditionally released after
serving a sentence for one of the following crimes are
statutorily excluded from PRCS, and instead are supervised by
state parole:
(1) A serious felony as described in subdivision
(c) of Section 1192.7.
(2) A violent felony as described in subdivision
(c) of Section 667.5.
(3) A crime for which the person has been
sentenced to a life term under the 3-strikes law.
(4) Any crime where the person eligible for
release from prison is classified as a High Risk Sex
Offender.
(5) Any crime where the person is required, as a
condition of parole, to undergo treatment by the
Department of Mental Health as a mentally ill offender.
(6) Any felony committed while the person was on
parole for a period exceeding three years where the person
was required to register as a sex offender or was subject
to parole for life, as specified.<3>
On and after October 1, 2011, persons released from prison after
serving a determinate prison sentence who are not excluded
because of the above-enumerated reasons are subject to PRCS
provided by a county agency designated by each county's board of
supervisors "which is consistent with evidence-based practices,
including, but not limited to, supervision policies, procedures,
programs, and practices demonstrated by scientific research to
reduce recidivism among individuals under postrelease
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<3> Penal Code � 3000.08, as amended by Sections 37 and 38 of
AB 117, and Section 17 of ABx1 17; see also Penal Code �
3451(b), as amended by Section 47 of AB 117.
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supervision."<4> The criminal justice realignment codifies
legislative findings and declarations including, with respect to
PRCS, the following:
Realigning the postrelease supervision of certain felons
reentering the community after serving a prison term to
local community corrections programs, which are
strengthened through community-based punishment,
evidence-based practices, and improved supervision
strategies, will improve public safety outcomes among adult
felon parolees and will facilitate their successful
reintegration back into society.
Community corrections programs require a partnership
between local public safety entities and the county to
provide and expand the use of community-based punishment
for offenders paroled from state prison. Each county's
local Community Corrections Partnership . . . should play a
critical role in developing programs and ensuring
appropriate outcomes for persons subject to postrelease
community supervision.<5>
Prison inmates eligible for PRCS are required to enter into a
postrelease community supervision agreement prior to, and as a
condition of, their release from prison.<6> This agreement
includes 19 statutorily-enumerated conditions of their release
from prison. These conditions generally reflect parole
conditions applicable to inmates released on parole, and
additionally require an inmate to agree to a period of "flash
incarceration" in county jail of not more than 10 consecutive
days for any violation without the right to a court hearing. <7>
Every person placed on PRCS, and his or her residence and
possessions, are required by statute to be subject to search or
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<4> Penal Code � 3451 as enacted by Section 479 of AB 109 and
amended by Section 47 of AB 117. Realignment requires counties
notify CDCR on or before August 1, 2011, of the county agencies
that have been designated as the local entity responsible for
providing postrelease supervision. (Section 69, AB 117.)
<5> Penal Code � 3450, as enacted by Section 479 of AB 109 and
amended by Section 27 of ABx1 17.
<6> Penal Code � 3452, as enacted by Section 479 of AB 109.
<7> Penal Code � 3453, as enacted by Section 479 of AB 109,
and amended by Section 48 of AB 117 and Section 28 of ABx1 17.
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seizure at any time of the day or night, with or without a
warrant, by an agent of the supervising county agency or by a
peace officer.<8>
Criminal justice realignment provides that PRCS shall not extend
beyond three years from the date of the person's initial entry
onto postrelease supervision, except when a bench or arrest
warrant has been issued by a court or its designated hearing
officer and the person has not appeared. During the time the
warrant is outstanding the supervision period shall be tolled
and when the person appears before the court or its designated
hearing officer the supervision period may be extended for a
period equivalent to the time tolled.<9> PRCS is required to be
"implemented by a county agency according to a postrelease
strategy designated by each county's board of supervisors."<10>
PRCS continues until one of the following occurs:
(1) The person has been subject to postrelease supervision
pursuant to this title for three years at which time
the offender shall be immediately discharged from postrelease
supervision.
(2) Any person on postrelease supervision for six consecutive
months with no violations of his or her conditions
of postrelease supervision that result in a custodial sanction
may be considered for immediate discharge by the
supervising county.
(3) The person who has been on postrelease supervision
continuously for one year with no violations of
his or her conditions of postrelease supervision that result in
a custodial sanction shall be discharged from
supervision within 30 days.
(4) Jurisdiction over the person has been terminated by
operation of law.
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<8> Penal Code � 3465, as enacted by Section 33 of ABx1 17.
<9> Penal Code � 3455, as enacted by Section 479 of AB 109 and
amended by Section 50 of AB 117 and Section 30 of ABx1 17.
<10> Penal Code � 3451(c) (1), as amended by Section 47 of AB
117.
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(5) Jurisdiction is transferred to another supervising county
agency.
(6) Jurisdiction is terminated by the revocation hearing
officer upon a petition to revoke and terminate
supervision by the supervising county agency.<11>
Time during which a person on PRCS is suspended because the
person has absconded shall not be credited toward any period of
PRCS.<12> Criminal justice realignment also provides a
statutory process for the transfer of persons subject to PRCS
between counties, as specified.<13>
Since October 1, 2011, CDCR has been required to inform inmates
subject to PRCS of the inmate's responsibility to report to the
county agency that will supervise the inmate. CDCR also is
required to notify the county of all information otherwise
required for parolees, as specified, thirty days prior to the
inmate's release, as specified.<14>
4. Parole and Probation Supervision
The California Correctional Peace Officers Association, which
supports this bill, submits that this bill "recognizes that
state parole is best prepared to supervise these most serious
cases, whether or not the instant offense meets the existing
criteria for state supervision. Just because the most recent
offense is less serious, does not diminish the risk posed by
these individuals."
Others have argued that realigning parole, as the 2011 criminal
justice realignment did, would promote public safety. In 2008,
the Legislative Analyst's Office stated:
In past years, our office has proposed state parole
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<11> Penal Code � 3456 as enacted by Section 479 of AB 109 and
amended by Section 51 of AB 117 and Section 31 of ABx1 17.
<12> Id.
<13> Penal Code � 3460 as enacted by Section 32 of ABx1 17.
<14> Penal Code � 3451(c) (2), as enacted by Section 479 of AB
109 and amended by Section 47 of AB 117.
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for realignment for several reasons. In particular,
realignment could result in better public safety
outcomes because the realignment of resources and
responsibilities provides an incentive for local
governments to have a greater stake in the outcomes of
these offenders, develop innovative approaches to
supervision, and reduce crime. Moreover, realignment
would enable local governments to better meet their
public safety priorities, as well as reduce the
current duplication of effort that occurs by the state
and counties supervising similar offenders in the
community.<15>
LAO's analysis of the 2011 realignment proposal concerning
parole remained consistent with its 2008 recommendation:
� Improved Outcomes and Innovation. Giving
local governments a direct stake in the success
of offenders living in their communities is
likely to improve offender outcomes and reduce
their risk of reoffending. Moreover, parole
realignment would encourage small-scale
experimentation and piloting of projects at the
local level to improve offender outcomes.
� Improved Incentive Structure. Local
governments would have a greater incentive to
intervene and treat these criminal offenders
early because they would be responsible for the
costs of reincarcerating offenders who commit
violations of their parole.
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<15> The 2008-09 Budget: Perspectives and Issues, Report From
the Legislative Analyst's Office to the Joint Legislative Budget
Committee
(http://www.lao.ca.gov/analysis_2008/2008_pandi/pandi_08.pdf#page
=133.)
� Eliminates Duplication of Efforts. Local
probation departments and the state's parole
agency fulfill very similar functions. In
particular, they supervise criminal offenders
living in the community, monitor their compliance
with state laws and other conditions of their
supervision, and provide programs and services
designed to reduce recidivism.
� Greater Coordination of Programs. Since
most health and human services programs in
California are administered at the local level,
local governments are better positioned to
provide rehabilitation services for
offenders-which research suggests can reduce
recidivism.<16>
Members may wish to discuss whether parole is "best prepared" to
supervise the felons targeted by this bill, as submitted by the
proponent quoted above; whether probation, implementing the
"evidence-based" practices described by the PRCS statutory
framework and funded with realignment dollars, may be at least
equally prepared to supervise these felons, as suggested by the
LAO; and whether PRCS should be changed after only several
months of being the law.
5. Impact of Parole Realignment on State Parole Population and
CDCR Budget
In February of this year, LAO noted:
The 2011 realignment is projected to result in an even
greater reduction in the number of parolees supervised
by the state. . . . CDCR projects that the average
daily parole population will be nearly 4,300 parolees,
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<16> Governor's Realignment Plan-Criminal Justice, Legislative
Analyst's Office (January 25, 2011)( http://www.
lao.ca.gov/handouts/crimjust/2011/CJ_Realignment_Plan_01_25_11.pd
f.)
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or 5 percent lower, in 2011-12 than it would have been
in the absence of realignment. By 2016-17, the
department estimates that the parole population will
be nearly 51,000 parolees, or 66 percent lower, than
it otherwise would have been absent the 2011
realignment. By the end of this projection period, the
state parole system is expected to have about 26,000
parolees.<17>
According to CDCR, the change proposed by this bill is estimated
to increase the average daily population of CDCR parole at full
implementation by over 3,000 persons beginning fiscal year
2013/14, with an increased cost of state parole services from
approximately $10 to $12 million annually.
Members and the author may wish to discuss whether PRCS should
be revised this early into its implementation, and the fiscal
implications to the state and to realignment dollars going to
local governments should PRCS-eligibility be narrowed as
proposed by this bill.
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<17> The 2012-13 Budget: Refocusing CDCR After The 2011
Realignment, Legislative Analyst's Office (February 23, 2012.)
(http://www.lao.ca.gov/analysis/2012/crim_justice/cdcr-022312.pdf
.)