BILL ANALYSIS �
AB 2121
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Date of Hearing: March 25, 2014
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2121 (Gray) - As Introduced: February 20, 2014
SUMMARY : Increases the penalty for the removal of a Global
Positioning System (GPS) device by a parolee who is required to
register as a sex offender from a mandatory 180 days of
incarceration, to a minimum of 180 days and a maximum of one
year.
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);
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,
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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) & (i).)
3)Authorizes CDCR to utilize continuous electronic monitoring,
including GPS, to electronically monitor the whereabouts of
persons on parole. (Pen. Code, � 3010.)
4)Provides that every inmate who has been convicted for any
felony violation of a registerable sex offense 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 GPS for the term of his or her parole, or for the duration
or any remaining part thereof, whichever period of time is
less. (Pen. Code, � 3000.07, subd. (a).)
5)Provides, as enacted by Proposition 83 of 2006, that every
inmate who has been convicted for any felony violation of a
registerable sex offense or any attempt to commit (one of the
enumerated sex offenses) and who is committed to prison and
released on parole shall be monitored by GPS for life. (Pen.
Code, � 3004, subd. (b).)
6)Authorizes the court, upon revocation of parole, to do any of
the following:
a) Reinstate parole with modification of conditions, if
appropriate, including a period of incarceration;
b) Revoke parole and order the parolee to serve time in the
county jail; or,
c) Refer the parolee to a reentry program or other
evidence-based program. (Pen. Code, � 3000.08, subd. (f).)
7)Limits confinement in the county jail for up to 180 days of
incarceration per revocation. (Pen. Code, �� 3000.08, subd.
(g), and 3056, subd. (a).)
8)Prohibits a person who is required to register as a sex
offender and who is subject to parole supervision from
removing or disabling a GPS device affixed as a condition of
parole. (Pen. Code, � 3010.10, subd. (a).)
9)Requires a mandatory 180-day term of incarceration in the
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county jail for a sex offender on parole who removes or
disables a GPS device. (Pen. Code, � 3010.10, subd. (d).)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "AB 2121 seeks
to address a dangerous lapse in supervision over a narrow
population of sex offenders that California voters,
legislators, law enforcement and the state's leading criminal
justice experts have adamantly and repeatedly said need to be
treated differently to ensure the safety of our communities.
"This bill strikes a compromise between the reality of prison
overcrowding and the need to ensure public safety by requiring
a minimum mandatory180 days of incarceration in local jail,
and, if an offender repeatedly violates this condition of
parole, he could spend a year in local custody. This proposal
simply attempts to bring the pendulum back to the middle, so
that real deterrents to GPS tampering exist for paroled
offenders.
"AB 2121 ensures this high risk population, that voters have
consistently segregated by lengthy prison sentences,
registration, posting of their pictures on the internet and
life-time monitoring, be held accountable for violating their
parole."
2)Adequacy of Existing Law : Last year, SB 57 (Lieu), Chapter,
776, Statutes of 2013 was signed into law. The statute
requires a mandatory 180-day term of incarceration for a sex
offender on parole who removes or disables a GPS device. The
law went into effect on January 1, 2014. It has been in
effect less than three full months. Given the short time that
has passed since enactment, and without any definitive
evidence that the new law is not a deterrent, it seems
speculative to say that an increase in penalty is necessary.
3)Ineffectiveness of GPS Devices : A recent Los Angeles Times
article reported about the problems of GPS devices. It
reported, "One in every four GPS devices used to track serious
criminals released in Los Angeles County has proved to be
faulty, according to a probation department audit - allowing
violent felons to roam undetected for days or, in some cases,
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weeks. The problems included batteries that wouldn't hold a
charge and defective electronics that generated excessive
false alarms."
(.)
4)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 parole
agents of CDCR. 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,
while on certain paroles, commit new offenses. (Pen. Code, ��
3000.08, subds. (a) & (c), and 3451, subd. (b).) All other
inmates released from prison are subject to up to three years
of post release community supervision (PRCS) under local
supervision. (Pen. Code, �� 3000.08, subd. (b), and 3451,
subd. (a).)
Additionally, realignment changed the process for revocation
hearings. As of July 1, 2013, the trial courts assumed
responsibility for holding all revocation hearings for those
individuals who remain under the jurisdiction of CDCR.
Moreover, intermediate sanctions, including flash
incarceration, also became available for state parolees on
July 1, 2013. (Pen. Code, � 3000.08, subd. (d).) 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.)
Realignment also changed where an offender is incarcerated for
violating parole or PRCS. Most individuals can no longer be
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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.) There is a 180-day limit
to incarceration. (Pen. Code, �� 3056, subd. (a), and 3455,
subd. (c).) 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).
Although this bill seeks to increase the punishment for
removal of a GPS device by a sex offender parolee to a maximum
of one year, it does not amend other laws limiting the maximum
time of incarceration for parole violations to 180 days.
Therefore, it creates a conflict in the law.
5)Argument in Support : The California District Attorneys
Association states, "Senate Bill 57 (Chapter 776, Statutes of
2013) requires a mandatory 180 days in custody for registered
sex offenders on parole who remove or disable their GPS
device. In practice, with good time credits and early release
due to capacity issues, these offenders are serving much less
time. For example, in San Diego County, the average stay is 57
days. Offenders are aware of this, and are removing their GPS
devices at the risk of only having to serve a few weeks in
county jail if they are caught.
"The original intent of SB 57 was to establish a tiered penalty
structure, which would have ultimately required repeat
offenders to be sent back to prison. This is consistent with
recommendations from Stanford Law School's Criminal Justice
Center study, 'Voices From the Field: How California
Stakeholders View Public Safety Realignment', which states
that '?to create an incentives structure that encourages
compliance with the terms of supervision, certain repeated,
technical violations should warrant a prison sentence. For
example, cutting off one's electronic monitor should warrant a
prison sentence.'
"While we still believe that a return to prison would be the
most effective deterrent for this population, we recognize
that it is unfeasible in light of current capacity issues
within the California Department of Corrections and
Rehabilitation.
"AB 2121 builds on the foundation established in SB 57 by
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providing judges with the flexibility to sentence a
particularly dangerous or repeat offender to an additional six
months in jail.
"Electronic monitoring is an important tool for law enforcement
in the wake of realignment, and is often the only real way to
keep track of these offenders when they are in the community.
Unfortunately, the penalty structure for violations, as it
exists today, is toothless and mostly ineffective. AB 2121 is
an important step in the direction of establishing penalties
that deter this high-risk population from violating their
parole, and truly holding them accountable when they do."
6)Argument in Opposition : The American Civil Liberties Union
writes, "First, there is no evidence that the existing penalty
is inadequate. Given that it has only been operative for a
couple of months - any change should be delayed until there is
some evidence that six months is not long enough.
"Second, California's county jails face the same overcrowding
problems that have plagued the state system. According to the
Public Policy Institute of California,
'As of September 2012, the average daily jail
population was about 3,954 inmates over the statewide
rated jail capacity of 76,910 inmates, set by the
California Board of State and Community Corrections.
Twenty-one counties had an average daily population
greater than their rated capacity. Additionally, 18
counties were operating under court-ordered population
caps for at least one jail in their county. To
address these capacity constraints, counties released
7,050 pre-sentenced jail inmates and 5,700 sentenced
inmates in September 2012; up 410 and 2,119 inmates,
respectively, from September 2011.'
http:/www.ppic.org/main/publication_show.asp?i=1061
"Given that the existing penalty was only recently
enacted, and give the consequences of further
overcrowding our county jails, we must respectfully
oppose."
7)Current Legislation : AB 2477 (Gorell) requires any person on
parole for a conviction of a violent felony who removes or
disables GPS device, to serve a mandatory 180 day term of
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incarceration. AB 2477 is pending hearing in this Committee.
8)Prior Legislation :
a) SB 57 (Leiu), Chapter, 776, Statutes of 2013, requires a
mandatory 180 day term of incarceration for a sex offender
on parole who removes or disables a GPS device.
b) AB 63 (Patterson), of the 2013-14 Legislative Session,
created an alternative felony/misdemeanor offense for
removal of a GPS monitoring device affixed as a condition
of post-release community supervision or parole. AB 63
failed passage in this Committee.
c) AB 179 (Gorell), of the 2011-12 Legislative Session, was
substantially similar to AB 2016. AB 179 failed passage in
this Committee.
d) AB 2016 (Gorell), of the 2011-12 Legislative Session,
prohibits a person from willfully removing or disabling an
electronic, GPS or other monitoring device affixed to his
or her person or the person of another, knowing that the
device was affixed as a condition of a criminal sentence,
juvenile court disposition, parole, probation, post-release
community supervision or mandatory supervision. AB 2016
was not heard by this Committee.
e) SB 566 (Hollingsworth), of the 2009-10 Legislative
Session, would have established a penalty scheme for
persons who have been lawfully ordered to submit to a GPS
or electronic monitoring device, and willfully interfered
with the device, with penalties ranging from misdemeanors
to felonies depending upon the offense underlying the GPS
sanction. SB 566 failed passage in the Senate Public
Safety Committee.
f) SB 619 (Speier), Chapter 484, Statutes of 2005,
authorized the use of GPS technology to supervise persons
on probation and parole.
REGISTERED SUPPORT / OPPOSITION :
Support
California District Attorneys Association (Co-Sponsor)
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San Diego County District Attorney (Co-Sponsor)
California State Sheriffs' Association
Opposition
American Civil Liberties Union
California Attorneys for Criminal Justice
California Public Defenders Association
Legal Services for Prisoners with Children
Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744