BILL ANALYSIS �
AB 1901
Page 1
Date of Hearing: April 29, 2014
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1901 (Muratsuchi) - As Amended: March 28, 2014
SUMMARY : Allows the court, upon motion of the district
attorney, or upon the court's own motion, to order a person who
will serve a term in prison for a crime that is a non-serious,
non-violent, or non-sex offense to be released on parole rather
than post release community supervision (PRCS). Specifically,
this bill :
1)States that, notwithstanding any other law, a defendant
released from prison for an offense that is not a serious,
violent, or strike conviction, or where the defendant is not
classified as a high-risk sex offender or as a mentally
disordered offender, may be released on parole rather than
PRCS.
2)Provides that the court, on its own motion or motion of the
district attorney, may order at the time of sentencing that a
defendant meeting the above criteria be released on parole
rather than PRCS after serving his or her sentence.
3)Requires the court to consider the following factors when
deciding whether a defendant shall be released on parole or
PRCS: the record in the case, the defendant's prior criminal
history and its severity, the probation officer's report,
statements submitted by the prosecution showing facts in
aggravation or facts in mitigation of ordering the defendant
to be released on parole, statements by the defendant, the
victim, or the family or next of kin if the victim is
deceased, and any further evidence the court finds
appropriate.
4)Requires the court to state on the record its reasons for
ordering a defendant to be released on parole.
EXISTING LAW :
AB 1901
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1)Requires the following persons released from prison prior to,
or on or after July 1, 2013, be subject to parole under the
supervision of the California Department of Corrections and
Rehabilitation (CDCR) (Pen. Code, � 3000.08, subds. (a) and
(i).):
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);
c) A person serving a Three-Strikes sentence;
d) A high risk sex offender;
e) A mentally disordered offender;
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.
2)Requires all other offenders released from prison to be placed
on PRCS under the supervision of a county agency, such as a
probation department. (Pen. Code, �� 3000.08, subd. (b), &
3451.)
3)Requires all persons paroled before October 1, 2011 to remain
under the supervision of the CDCR until jurisdiction is
terminated by operation of law or until parole is discharged.
(Pen. Code, � 3000.09.)
4)States that the parole period for most offenders is three
years, except as specified. (Pen. Code, � 3000, subd. (b).)
5)Limits the term for PRCS to three years. (Pen. Code, � 3451,
subd. (a).)
6)Provides for intermediate sanctions for violating the terms of
parole, including "flash incarceration" for up to 10 days.
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(Pen. Code, � 3000.08, subd. (d).)
7)Provides for intermediate sanctions for violating the terms of
PRCS, including "flash incarceration" for up to 10 days.
(Pen. Code, � 3454.)
8)Specifies that if parole 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, � 3000.08,
subd. (g).)
9)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).)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "This bill will
make a minor change to realignment by giving a sentencing
judge the discretion to order a defendant whose current charge
is a non-violent, non-serious, non-sexual offense to be
supervised by California Department of Corrections and
Rehabilitation (CDCR) parole upon release from prison based on
the record in the case, their past criminal history, probation
officer's report, statements submitted by the prosecution,
statements by the defendant or the victim, and any further
evidence that the court finds appropriate. This will ensure
that the offender's entire criminal history is considered and
that CDCR is able to supervise offenders that have committed
past violent crimes, but who are currently serving time for a
crime that would otherwise place them on PRCS."
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
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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,
while on certain paroles, commit new offenses. All other
inmates released from prison are subject to up to three years
of PRCS under local supervision.
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. 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.)
This bill would authorize the court, on its own motion or upon
motion of the district attorney, to place a defendant who
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would now be subject to PRCS on parole instead.
Data obtained from the Website of the Chief Probation Officers
of California shows that as of September 2013, there were
slightly over 33,000 individuals beings supervised on PRCS
statewide.
(http://www.cpoc.org/assets/Realignment/dashboard.swf ) One
of the premises of the Post Release Community Supervision Act
was that "Realigning the post release 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." (Pen.
Code, � 3450, subd. (b)(5).) This bill would significantly
undermine one of the major components of realignment, PRCS.
It is premature to start sending back to parole supervision
perhaps thousands of individuals without showing that local
supervision is less effective than parole supervision.
Also, there has been a wide variance in admission rates by
counties to CDCR. (See, e.g. CDCR 2012 Report on
Characteristics of New Admissions at p. 10,
http://www.cdcr.ca.gov/Reports_Research/Offender_Information_Se
rvices_Branch/Annual/ACHAR1/ACHAR1d2012.pdf ) For example,
"Historically, Fresno County sends about seven times as many
felons to state prison each year than similarly sized San
Francisco County, even though the latter had a higher rate of
violent crime from 2000 to 2009."
(http://www.callawyer.com/Clstory.cfm?eid=92395.) Moreover,
some counties have been more resistant than others in
embracing realignment. One example is the use of split
sentencing by counties. (See Chief Probation Officers' of
California Split Sentencing Dashboard,
http://www.cpoc.org/assets/Realignment/splitsentencedashboard.s
wf .) Giving courts discretion to place defendants on parole
rather than PRCS, upon the court's own motion or that of the
district attorney, may prove to be a back door way to ending
PRCS in some places.
3)Effectiveness of Parole Supervision : One of the premises of
this bill is that individuals with prior serious, violent, or
"strike" convictions should be supervised by CDCR because
parole agents are better trained to supervise this population.
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A recent report by the Stanford Criminal Justice Center based on
interviews of county stakeholders charged with implementing
realignment makes the same 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
PetersiliaPh.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, the presumption that parole agents are more effective
at supervising individuals on supervised release is
questionable. A 2013 report by the Legislative 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
.)
4)Funding for Realignment Has Already Been Shifted to Local
Governments : As part of realignment the state shifted certain
revenues to local governments. As explained by the LAO:
"(T)he 2011-12 budget package included statutory changes to
realign several criminal justice and other programs from state
responsibility to local governments, primarily counties.
Along with the shift, or realignment, of programs, state law
realigned revenues to locals. Specifically, current law
shifts a share of the state sales tax, as well as Vehicle
License Fee revenue, to local governments. The passage of
Proposition 30 by voters in November 2012, among other
changes, guaranteed these revenues to local governments in the
future.
Would the counties have to return part of their
realignment-allotted revenues back to the State, or would the
State have to pay twice to incarcerate these individuals
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because the funding is constitutionally protected? (See Cal.
Const., Art. XIII, sec. 36.)
5)Argument in Support : According to the California Correctional
Peace Officers Association , "AB 1901 would allow the court to
consider, at the time of sentencing, state parole supervision
of any felon sentenced to state prison. This bill establishes
criteria that the court may consider in making the
determination. Such criteria includes the defendant's
criminal history. This measure recognizes that state parole
is best prepared to supervise the most serious cases, whether
or not the instant offense meets the existing criteria for
state supervision. AB 1901 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."
6)Argument in Opposition : According to the California Attorneys
for Criminal Justice , "Shifting responsibility to the
community where the person can be supervised, held
accountable, and connected with resources to help rehabilitate
the offender is the essence of Realignment. At the local
level, the emphasis can be more on rehabilitation so that the
person can hopefully receive needed substance abuse treatment,
education, and vocational training in order to escape the
revolving door of custody and recidivism. A study done by the
California Department of Corrections in 2013 (The 2013
Realignment report) indicates that the Post-Realignment
offenders were arrested at a slightly lower rate than
pre-Realignment offenders (56.2 percent and 58.9 percent
respectively. Notably, the post-Realignment cohort shows a
decline in arrests almost every month after October 2011. ?
"If AB 1901 was passes (sic), a good portion of the progress and
headway that we have made in order to supervise, to hold these
people accountable, and to rehabilitate would be lost."
7)Related Legislation : AB 1449 (V. Manuel Perez) requires any
person released from state prison on or after January 1, 2015,
for a non-serious, non-violent, non-sex offense, but who has a
prior serious, violent, or "strike" conviction, or a prior
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conviction classifying him or her as a high-risk sex offender,
or as a mentally disordered offender, to be subject to parole
supervision, rather than PRCS. AB 1449 will be heard by this
Committee today.
8)Prior Legislation :
a) AB 1334 (Conway), of the 2013-2014 Legislative Session,
required 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 CDCR. AB 1334 failed passage in this
Committee.
b) SB 226 (Emmerson), of the 2013-2014 Legislative Session,
required 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.
c) SB 287 (Walters), of the 2013-2014 Legislative Session,
made 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.
d) SB 710 (Nielsen), of the 2013-2014 Legislative Session,
made the provisions of PRCS applicable only to persons
released from prison prior to January 1, 2014, and required
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.
e) AB 109 (Committee on Budget), Chapter 15, Statutes of
2011, enacted Criminal Justice Realignment which, among
other things, limited which felons could be sent to state
prison, required that more felons serve their sentences in
county jails, and created PRCS.
REGISTERED SUPPORT / OPPOSITION :
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Support
California Correctional Peace Officers Association
Taxpayers for Improving Public Safety
Opposition
California Attorneys for Criminal Justice
Friends Committee on Legislation of California
Legal Services for Prisoners with Children
Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744