BILL ANALYSIS �
AB 1334
Page 1
Date of Hearing: January 14, 2014
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1334 (Conway) - As Amended: April 9, 2013
FOR VOTE ONLY
SUMMARY : Requires all persons released from prison for a
current, or prior, conviction or juvenile adjudication requiring
sex-offender registration to be subject to parole supervision by
the California Department of Corrections and Rehabilitation
(CDCR). Specifically, this bill :
1)Specifies that the provisions of post-release community
supervision (PRCS) do not apply to any person who is currently
being released from prison for an offense requiring the person
to register as a sex offender.
2)Specifies that the provisions of PRCS do not apply to any
person released from prison who has a prior conviction or a
juvenile adjudication requiring him or her to register as a
sex offender.
EXISTING LAW :
1)Requires all persons paroled before October 1, 2011 to remain
under the supervision of the California Department of
Corrections and Rehabilitation (CDCR) until jurisdiction is
terminated by operation of law or until parole is discharged.
(Pen. Code, � 3000.09.)
2)Requires the following persons released from prison on or
after October 1, 2011, be subject to parole under the
supervision of CDCR:
a) A person who committed a serious felony listed in Penal
Code section 1192.7, subdivision (c);
b) A person who committed a violent felony listed in Penal
Code section 667.5, subdivision (c);
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c) A person serving a Three-Strikes sentence;
d) A high risk sex offender;
e) A mentally disordered offender (Pen. Code, �3000.08,
subd. (a));
f) A person required to register as a sex offender and
subject to a parole term exceeding three years at the time
of the commission of the offense for which he or she is
being released; and,
g) A person subject to lifetime parole at the time of the
commission of the offense for which he or she is being
released. (Pen. Code, � 3000.08, subds. (a) and (c).)
3)Requires all other offenders released from prison on or after
October 1, 2011, to be placed on PRCS under the supervision of
a county agency, such as a probation department. (Pen. Code,
� 3000.08, subd. (b).)
4)Limits the term for PRCS to three years. (Pen. Code, � 3451,
subd. (a).)
5)Provides for intermediate sanctions for violating the terms of
PRCS, including "flash incarceration" for up to 10 days.
(Pen. Code, � 3454.)
6)Specifies that if PRCS is revoked, the offender may be
incarcerated in the county jail for a period not to exceed 180
days for each custodial sanction. (Pen. Code, � 3455, subd.
(d).)
7)Prohibits the return of an offender who violates conditions of
PRCS to prison. (Pen. Code, � 3458.)
8)Specifies that a parolee held in custody for a pending parole
violation before October 1, 2011, may be returned to state
prison for the violation for period not to exceed 12 month.
(Pen. Code, � 3057, subd. (a).)
9)Specifies that a parolee held in custody for a pending parole
violation on or after October 1, 2011 will be returned to
county jail, rather than state prison, for up to 180 days of
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incarceration per revocation. (Pen. Code, � 3056, subd. (a).)
10)Requires any person who has been or hereafter is released,
discharged, or paroled from a penal institution where he or
she was confined because of the commission or attempted
commission of specified sex offenses to register as a sex
offender. (Pen. Code, � 290.003.)
11)Establishes the State-Authorized Risk Assessment Tool for Sex
Offenders (SARATSO) Review Committee and requires the
committee to research and to adopt risk assessment tools, as
well as define tiers of risk based on SARATSO. (Pen. Code, �
290.04.)
12)Requires the static SARATSO be administered as follows:
a) CDCR shall assess every eligible person who is
incarcerated in state prison. Whenever possible, the
assessment shall take place at least four months, but no
sooner than 10 months, prior to release from incarceration.
b) CDCR shall assess every eligible person who is on parole
if the person was not assessed prior to release from state
prison.
c) CDCR shall assess every person on parole transferred
from any other state or by the federal government to this
state who has been, or is hereafter convicted in any other
court, including any state, federal, or military court, of
any offense that, if committed or attempted in this state,
would be required to register.
d) The State Department of State Hospitals shall assess
every eligible person who is committed to that department.
e) Commencing January 1, 2010, CDCR and the Department of
State Hospitals shall send the scores obtained from the
SARATSO to the Department of Justice Sex Offender Tracking
Program no later than 30 days after the date of the
assessment. The risk assessment score of an offender shall
be made part of his or her file maintained by the
Department of Justice Sex Offender Tracking Program.
f) Each probation department shall, prior to sentencing,
assess every person required to register as a sex offender.
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(Pen. Code, � 290.06, subd. (a).)
13)States that any person required to register as a sex offender
who has not otherwise been evaluated, may be evaluated upon
request of the law enforcement agency where the individual is
required to register, or upon request of the individual
required to register. (Pen. Code, � 290.06, subd. (b).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "This bill will
ensure that all sex offenders released from state prison are
supervised by state parole agents that are trained to
supervise sex offenders. Under realignment's parole
provisions many dangerous sex offenders will be supervised by
county probation officers. This is because the law shifts
responsibility from parole to probation. If the felon's prior
conviction includes a serious felony, a violent felony, or has
a history of committing sex crimes but is deemed by the system
as not "high risk," they will no longer be supervised by
parole agents trained to supervise sex offenders. The
determination of whether an offender is a "high risk" sex
offender has failed in the past. Specifically, John Gardner,
the killer of Chelsea King and Amber DuBois, was designated as
"low risk."
2)Changes to Parole As a Result of Criminal Justice Realignment :
Prior to realignment, individuals released from prison were
placed on parole and supervised in the community by CDCR
parole agents. If it was alleged that a parolee had violated
a condition of parole, he or she would have a revocation
proceeding before the Board of Parole Hearings (BPH). If
parole was revoked, the offender would be returned to state
prison for violating parole.
Realignment shifted the supervision of some released prison
inmates from CDCR parole agents to local probation
departments. Parole under the jurisdiction of CDCR for
inmates released from prison on or after October 1, 2011 is
limited to those defendants whose term was for a serious or
violent felony; were serving a Three-Strikes sentence; are
classified as high-risk sex offenders; who are required to
undergo treatment as mentally disordered offenders; or who,
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while on certain paroles, commit new offenses. (Pen. Code, ��
3000.08, subds. (a) and (c), and 3451, subd. (b).) All other
inmates released from prison are subject to up to three years
of PRCS under local supervision. (Pen. Code, �� 3000.08,
subd. (b), and 3451, subd. (a).)
Realignment also changed where an offender is incarcerated for
violating parole or PRCS. Most individuals can no longer be
returned to state prison for violating a term of supervision;
offenders serve the revocation term in county jail. (Pen.
Code, �� 3056, subd. (a) and 3458.) The only offenders who
are eligible for return to prison for violating parole are
life-term inmates paroled pursuant to Penal Code section
3000.1 (e.g., murderers, specific life term sex offenses).
Additionally, realignment changed the process for revocation
hearings, but this change was implemented in phases. Until
July 1, 2013, individuals supervised on parole by state agents
continued to have revocation hearings before the BPH. After
July 1, 2013, trial courts assumed responsibility for holding
all revocation hearings for those individuals who remain under
CDCR's jurisdiction. In contrast, since the inception of
realignment, individuals placed on PRCS stopped appearing
before the BPH for revocation hearings; their revocation
hearings were handled by the trial court.
PRCS provides for lesser, or "intermediate" sanctions, before
supervision is revoked for a violation. This includes "flash
incarceration" for up to 10 days. (Pen. Code, � 3454.)
Intermediate sanctions, including flash incarceration, became
available for state parolees after July 1, 2013. (Pen. Code,
� 3000.08, subd. (d).) However, despite the new authority to
impose terms of flash incarceration upon state-supervised
parolees, the Division of Adult Parole Operations (DAPO) has
made a policy decision not to utilize flash incarceration.
(See Valdivia v. Brown, Response to May 6 Order, filed
05/28/13, p. 17.)
CDCR informed this Committee that as of December 19, 2013, there
are 6,423 sex offenders on parole. Of those, 2,820 of them
are classified as high-risk sex offenders, and 3,603 are
non-high risk. The majority of non-high risk sex offenders
under current parole supervision are "left over" from
pre-realignment parole. CDCR also has informed this Committee
that between October 1, 2011, and November 30, 2013, there
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were 2,213 offenders required to register as a sex offender
released to PRCS. In the past year, the monthly release
numbers have been relatively consistent - in the mid 60's to
mid 70's.
3)Classification of Offenders : State law established the
SARATSO Committee to consider the selection of the risk
assessment tools. Research has shown that the most accurate
way of predicting whether a sex offender will reoffend is by
utilizing a validated risk assessment instrument. The
Static-99R is the most widely used such instrument and the one
used in California. Many research studies have proven its
predictive accuracy. Recent research has shown that the
predictive accuracy of re-offense can be increased slightly
when dynamic (changeable) factors are combined with static
(unchangeable) factors such as substance abuse, personality
disorder, deviant sexual interests, emotional identification
with children, and self-regulation problems. A sex offender
in a mandated treatment program will also be assessed on other
risk factors by a certified treatment provider using dynamic
and violence risk assessment instruments designated by the
SARATSO Committee. The combined risk level will be used to
determine appropriate levels of supervision and treatment.
(See .)
The SARATSO Committee has informed this Committee that a
Static-99 risk assessment score is completed by the probation
department before sentencing and this score is given to the
judge. The score then goes to CDCR in the defendant's prison
packet. Prior to release from prison, CDCR staff rescores the
offender. (See also Sex Offender Risk Assessment Frequently
Asked Questions,
; and Pen. Code, � 290.06, subd. (a).)
The author's statement says that the state parole system's
classification of high-risk sex offenders has failed in the
past because it did not classify John Gardner, the killer of
Chelsea King and Amber Dubois, as a high-risk sex offender.
First, it should be noted that this bill does not change the
risk assessment tools used by CDCR. Moreover, the risk
assessments have in fact changed as a result of Chelsea's Law.
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Finally, according to a recent report prepared by the Council
of State Governments Justice Center, commissioned by the
police departments of the Cities of Los Angeles, Sacramento,
Redlands, and San Francisco, the assessment of a parolee's
risk of re-offense is an effective indicator of the likelihood
that he or she would be rearrested. The report states, "Since
2006, CDCR has made a concerted effort to employ
evidence-based supervision practices, including the use of a
validated risk assessment tool to assign individuals on parole
to appropriate treatment and supervision. Based on the study
data, individuals under parole supervision identified as high
risk represented the majority of parolee arrests, which is
consistent with their risk-level determination and suggests
that CDCR's validated risk assessment instrument was able to
successfully identify individuals most likely to reoffend."
(The Impact of Probation and Parole Population on Arrests in
Four California Cities, Council of State Governments Justice
Center 2013, at p. 25 . )
4)Effectiveness of Parole Supervision : The premise of this bill
is that sex offenders should be supervised by CDCR because
parole agents are better trained to supervise this population.
A recent report by the Stanford Criminal Justice Center based
on interviews of county stakeholders charged with implementing
realignment seems to make a similar claim. The report states,
"Probation officers, already facing increasing caseloads, are
ill equipped to manage such serious and sophisticated
offenders." (See Voices from the Field, How California
Stakeholders View Criminal Justice Realignment, by Joan
Petersilia Ph.D., Draft for Review and Comments, November
2013, with updates December 2013, at p. 217
.) The report cites to the fact that some counties are now
arming their probation officers. (Ibid.) As such, the report
recommends that all offenders with prior or serious violent
convictions should be ineligible for PRCS. (Id. at p. 218.)
However, it should be noted that probation departments have been
supervising some sex offenders since before the passage of
realignment. Moreover, the presumption that parole agents are
more effective at supervising individuals on supervised
release is questionable. A report by the Legislative
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Analyst's Office noted that in 2010 the parolee failure rate
in California was higher than the probationer failure rate.
The probation "failure rate" was at about 40%, whereas the
parolee failure rate was close to 70%. (See California's
Criminal Justice System - A Primer, January 2013
.)
5)Practical Considerations : Published per capita cost per
parolee supervised by CDCR is over $10,500.
(.) Since there are 2,213 individuals subject to sex
offender registration requirements currently on PRCS, a
conservative figure as to the cost of supervision by CDCR is
$23,000,000.
Proposition 30 of the November 2012 election guaranteed funding
for public safety services realigned from state to local
governments. This funding is now constitutionally protected.
(Cal. Const., Article XIII, Section 36.) Does the
constitutional provision allow the state to reclaim funding
from the counties if the duties of supervision are reverted
back to CDCR, or will the state be paying twice to supervise
these individuals?
6)Argument in Support : The California Correctional Peace
Officers Association says, "This measure 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. AB 1334 would allow local officials to
concentrate their resources on those cases they are best
suited to handle by way of experience.
"In our view, this measure would improve public safety by having
the state concentrate its community resources on serious risks
and local officials on those with a less serious criminal
history."
7)Argument in Opposition : The American Civil Liberties Union of
California argues, "AB 1334 proposes to return all inmates
required to register as a sex offender to state parole,
regardless of when said registration requirement was imposed.
For instance, under current law, a person who was previously
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convicted of masturbating in public and required to register
as a sex offender, but is now in state prison for
transportation of a controlled substance, would be placed on
post-release community supervision. Moreover, even if all
offenders required to register as a sex offender were
supervised by state parole, any sentence for violating parole
would be served in the county jail.
"Counties are in the best position to monitor these offenders in
the community. CDCR and specifically Adult Parole Operations
have absorbed significant cuts to funding due to the State's
fiscal crisis. County probation departments, on the other
hand, have received funds to monitor returning inmates under
Proposition 30 and AB 109. Post-Realignment, county probation
departments likely have more resources and better risk
assessment tools than state parole agents. It makes little
sense to return these offenders back to state parole when
counties were only recently tasked with the responsibility of
supervision. Given the State's abysmal record in reducing
rates of re-offense, counties may be better suited to ensuring
these offenders remain crime-free."
8)Related Legislation :
a) AB 2 (Morrell) requires a person who violates the
conditions of parole or of PRCS by failing to fulfill
sex-offender registration requirements to serve time for
the violation in prison rather than in the county jail. AB
2 failed passage in this Committee.
b) AB 63 (Patterson) provides that a person on PRSC or
parole who is ordered pursuant to a revocation hearing to
serve a term of imprisonment, incarceration, or confinement
for violating the conditions of release, when the violation
was based on the removal or disabling of an electronic,
global positioning system (GPS), or other monitoring device
affixed as a condition of release, and the person has not
been prosecuted for that conduct, shall serve that term in
the state prison. AB 63 failed passage in this Committee.
c) AB 222 (Cooley) requires any person convicted of the
sale or possession for sale of a controlled substance with
a weight and volume enhancement be sentenced to the state
prison. AB 222 failed passage in this Committee.
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d) AB 601 (Eggman) authorizes a court upon revocation of
parole to commit the person to state prison for one year.
AB 601 was referred for an interim study.
e) AB 605 (Linder) provides that a defendant who is
released on parole or PRCS, who has suffered a prior or
current felony requiring registration as a sex offender,
and who violates parole or PRCS shall serve any period of
incarceration ordered for that violation in the state
prison. AB 605 failed passage in this Committee.
f) SB 57 (Lieu), Chapter 776, Statutes of 2013, requires a
felon being supervised on parole or PRCS who willfully
defeat their global positioning system/electronic
monitoring, to serve a mandatory 180 days of incarceration.
g) SB 226 (Emmerson) requires that a defendant convicted of
a felony and found to have a "severe mental disorder" as
specified, serve their sentence in state prison rather than
county jail and also be supervised on state parole upon
release. SB 226 failed passage in the Senate Public Safety
Committee.
h) SB 287 (Walters) makes the provisions for PRCS
inapplicable to any person released from prison who has a
prior conviction for a serious or violent felony, a crime
for which the person received a third strike, or a crime
that resulted in the person being classified as a High Risk
Sex Offender. SB 287 failed passage in the Senate Public
Safety Committee.
i) SB 710 (Nielsen) makes the provisions of PRCS applicable
only to persons released from prison prior to January 1,
2014, and requires all offenders released from prison on or
after that to be subject to parole supervision by CDCR for
a minimum period of three years. SB 710 failed passage in
the Senate Public Safety Committee.
9)Prior Legislation : AB 109 (Committee on Budget), Chapter 15,
Statutes of 2011, created the Post Release Community
Supervision Act, which provides, among other things, that
inmates released from prison who are not required to be on
parole are subject to up to three years of local supervision.
REGISTERED SUPPORT / OPPOSITION :
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Support
California Correctional Peace Officers Association
California District Attorneys Association
Central City East Association
Crime Victims United of California
Criminal Justice Legal Foundation
Golden State Bail Agents Association
Peace Officers Research Association of California
San Bernardino County Sheriff's Office
Opposition
American Civil Liberties Union
California Attorneys for Criminal Justice
California Public Defenders Association
Legal Services for Prisoners with Children
Taxpayers for Improving Public Safety
Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744