BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
9
3
3
SB 933 (Anderson)
As Amended April 21, 2014
Hearing date: April 29, 2014
Penal Code
AL/AA:mc
PROBATION: GRADUATED SANCTIONS
HISTORY
Source: Author
Prior Legislation: None
Support: Unknown
Opposition:None known
KEY ISSUE
SHOULD CHIEF PROBATION OFFICERS BE REQUIRED TO ESTABLISH AND
IMPLEMENT A SYSTEM OF GRADUATED SANCTIONS FOR PROBATION VIOLATIONS?
PURPOSE
The purpose of this bill is to mandate county chief probation
officers to establish a protocol for the imposition of graduated
sanctions for violations of probation conditions, as specified.
Current law defines "probation" as "the suspension of the
imposition or execution of a sentence and the order or
(More)
SB 933 (Anderson)
PageB
conditional and revocable release in the community under the
supervision of a probation officer." (Penal Code � 1203(a).)
Current law generally authorizes courts to grant probation to
persons convicted of crimes, except as specified. (Penal Code
� 1203 et seq.)
Current law provides for the offices of adult probation
officer, assistant adult probation officer, and deputy adult
probation officer. (Penal Code �� 1203.5; 1203.6; Code of
Civil Procedure � 131.3 et seq.) "Except where a separate
office of adult probation officer has been created by local
charter, probation officers, assistant probation officers, and
deputy probation officers appointed under the Juvenile Court
Law are ex officio adult probation officers, assistant adult
probation officers, and deputy adult probation officers." (3
Witkin Cal. Crim. Law Punishment � 503 (some citations
omitted); Penal Code � 1203.5.)
Current law requires probationers to be placed under the
supervision of the county probation officer who may determine
the type and level of supervision in following with the
court-ordered conditions of probation. (Penal Code �
1202.5(a).)
Current law requires probation officers to report to the court
any violations to the conditions of probation by individuals
under their supervision. (Penal Code � 1203.12.)
Current law authorizes the court to modify the conditions of
probation for probation violators, including the reimprisonment
of the probation violator in county jail. (Penal Code �
1203.1(j).)
Current law establishes a parole violation decisionmaking
instrument as a standardized tool used by the Secretary of the
Department of Corrections and Rehabilitation (CDCR) to determine
(More)
SB 933 (Anderson)
PageC
the "most appropriate" sanctions given relevant case factors for
parolees who violate the conditions of their parole. (Penal
Code � 3015(b).)
This bill requires county chief probation officers to establish
a protocol for the imposition of graduated sanctions for
probation violations with a "menu of prescriptive sanctions for
common suspension violations," including, but not limited to 1)
failure to report; 2) failure to pay fines, fees, or victim
restitution; 3) failure to participate in a required program,
service, or training; 4) failure to complete community service;
5) violation of a protective order or a stay-away order; and 6)
failure to refrain from the use of alcohol or controlled
substances.
This bill requires the probation department to take into
consideration, at a minimum, the following factors when imposing
graduated sanctions: 1) the severity of the current violation;
2) the probationer's criminal record; 3) the probationer's
assessed risk level; and 4) the imposition of sanctions imposed
for any previous violations.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
(More)
SB 933 (Anderson)
PageD
prosecutions. Under the resulting policy known as "ROCA" (which
stands for "Receivership/ Overcrowding Crisis Aggravation"), the
Committee held measures which created a new felony, expanded the
scope or penalty of an existing felony, or otherwise increased
the application of a felony in a manner which could exacerbate
the prison overcrowding crisis. Under these principles, ROCA
was applied as a content-neutral, provisional measure necessary
to ensure that the Legislature did not erode progress towards
reducing prison overcrowding by passing legislation which would
increase the prison population. ROCA necessitated many hard and
difficult decisions for the Committee.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order to reduce the state's prison population to
137.5 percent of design capacity. The State submitted in part
that the, ". . . population in the State's 33 prisons has been
reduced by over 24,000 inmates since October 2011 when public
safety realignment went into effect, by more than 36,000 inmates
compared to the 2008 population . . . , and by nearly 42,000
inmates since 2006 . . . ." Plaintiffs, who oppose the state's
motion, argue in part that, "California prisons, which currently
average 150% of capacity, and reach as high as 185% of capacity
at one prison, continue to deliver health care that is
constitutionally deficient."
In an order dated January 29, 2013, the federal court granted
the state a six-month extension to achieve the 137.5 % prisoner
population cap by December 31st of this year.
The ongoing litigation indicates that prison capacity and
related issues concerning conditions of confinement remain
unsettled. However, in light of the real gains in reducing the
prison population that have been made, although even greater
reductions are required by the court, the Committee will review
each ROCA bill with more flexible consideration. The following
questions will inform this consideration:
whether a measure erodes realignment;
(More)
SB 933 (Anderson)
PageE
whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
whether a bill corrects a constitutional infirmity or
legislative drafting error;
whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and
whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1.Need for This Bill
According to the author:
According to testimony given at the January 30 Senate
Committee on Public Safety Informational Hearing on
Corrections and Rehabilitation by Chuck DeVore, Vice
President for Policy at Texas Public Policy Foundation,
Texas has saved taxpayers $119 million dollars by
utilizing a system of graduated sanctions for probation
which focused on quick and swift sanctions that are short
of sending individuals back to prison.
California is positioned to take similarly proactive steps
to reduce recidivism. However, there are some county
probation departments that do not have such a system in
place, thereby placing more of a burden on the rest of the
correctional system. This bill would provide that county
probation departments develop their own matrix for
graduated sanctions. The bill also sets a few basic
minimum while allowing individual counties vast autonomy
to develop their own system that works best for them.
Graduated probation sanctions seek to identify and enforce
the various levels of violations committed by individuals
(More)
SB 933 (Anderson)
PageF
on parole and match them with graduated and appropriate
sanctions as an alternative to returning parolees to
prison. According to a report on Probation and Parole
Violations by the National Conference of State
Legislatures, graduated sanctions are designed to
effectively "hold offenders accountable for breaking the
rules; address the issues causing the violations; minimize
interruption to the offender's work and family life; and
minimize the cost of incarceration to the state."
A system of graduated sanctions allows probation
departments to issue swift sanctions on all levels of
violations, which has proven effective in deterring
parolees from committing greater and more serious
violations because it sends a strong message that all
violations are taken seriously. Graduated sanctions
provide parole departments with a powerful tool to help
lower recidivism rates and thereby save the state money
through reducing the number of parolees returning to
prison.
2.Background: Probation in California
In June of 2003, the Probation Services Task Force Final
Report<1> was issued by the Judicial Council and the California
State Association of Counties. The report was the product of 18
court, county and probation professionals who spent nearly three
---------------------------
<1> http://www.courts.ca.gov/documents/fullReport.pdf.
(More)
SB 933 (Anderson)
PageG
years studying a broad range of issues relating to probation in
California. The report explained:
Probation occupies a unique and central position in
the local and state justice structure. It serves as a
linchpin of the criminal and juvenile justice systems
and is the one justice system partner that regularly
collaborates with all stakeholders as an offender
moves through the system. Probation connects the many
diverse stakeholders, including law enforcement; the
courts; prosecutors; defense attorneys;
community-based organizations; mental health, drug and
alcohol, and other service providers; the community;
the victim; and the probationer.
Historically, California's probation system struggled under
severe constraints and yielded poorer outcomes when compared to
probation populations in other states. Funded through a
patchwork of grants, funds, and fees, county probations
departments lacked the stable and adequate funding base
necessary to carry out effective supervision, management, and
programming strategies. Probation officers often faced
overburdened caseloads due to a large, needy, and growing number
of probationers. In 2010, California had the third largest
probation population in the nation at an estimated 350,000
probationers with numbers only expected to increase with growing
population trends.<2> With some counties falling behind in best
practices and inadequately funded, California also had a
probation success rate 10 percent lower than other states. In
2009, the CDCR estimated that 40 percent of new admissions to
---------------------------
<2> Legislative Analyst's Office. (2009). Achieving Better
Outcomes for Adult Probation.
(More)
SB 933 (Anderson)
PageH
state prisons were revocations from probation.<3> County
probation departments were chronically overwhelmed, ineffective,
and dysfunctional.
In response to high recidivism rates among probation violators,
the Legislature passed SB 678 (Leno) in 2009 creating the
Probation Performance Incentive Funding Program. Counties that
successfully reduce the rate of probation revocation are awarded
a portion of state savings from lower prison costs. Funds
awarded through the program have to be reinvested in the
implementation of evidence-based programs and practices to
reduce recidivism. SB 678 also creates High Performance Grants
to award proactive counties that already have low probation
failure rates. A 2013 Judicial Council Report<4> assessing the
success of the SB 678 Program found highly encouraging results.
According to the report:
The SB 678 program and its performance-based funding
mechanism has created significant state savings by
lowering the number of probationers sent to state
prison over the past three years. In 2010, the first
calendar year county probation departments
implemented the SB 678 program, the average daily
population in state prison dropped by 6,008
offenders. The state's overall probation failure
rate, defined in statute as the percentage of adult
----------------------
<3> Pew Center on the States. (2012). The Impact of
California's Probation Performance Incentive Funding Program.
<4> Judicial Council of California. (2013). Report on the
California Community Corrections Performance Incentives Act of
2009.
(More)
SB 933 (Anderson)
PageI
felony probationers who are sent to state prison,
dropped from the 2006-2008 baseline rate of 7.9% to
6.1% in 2010, a 23% reduction. In both 2011 and
2012, the probation failure rate continued to
decline. In 2012, the probation failure rate was
5.3%, a 33% reduction from the baseline ?
A fundamental component of SB 678 is the
implementation of evidence-based practices (EBP) by
county probation departments. SB 678 defines
evidence-based practices as "supervision policies,
procedures, programs, and practices demonstrated by
scientific research to reduce recidivism among
individuals under probation, parole, or Postrelease
supervision." While no probation department in the
state has fully implemented evidence-based practices
in all facets of supervision, all counties have
expanded their use of EBP elements, including
actuarial risk and needs assessments, collaboration
among local justice system partners, more effective
supervision of offenders, more effective treatment
programs for offenders, and more effective management
practices.
3.What this Bill Would Do
SB 933 would require county chief probation officers to develop
and implement a system of graduated sanctions for probationers,
which take into consideration specified factors such as the
probationer's risk level and severity of the violation. The
system of graduated sanctions would be required to include
appropriate sanctions for common supervision violations, as
specified.
4.Other Systems of Graduated Sanctions: Parole Violation Decision
Making Instrument (PVDMI)
(More)
SB 933 (Anderson)
PageJ
The Parole Violation Decision Making Instrument (PVDMI) is a
structured decision matrix used by parole agents to recommend
appropriate sanctions as determined by parolee risk level and
violation severity. First piloted in 2008, the PVDMI was
developed to reduce the high number of returning parolees by
systemically changing how parole violations were handled. Upon
determining that a parole violation has occurred, a parole agent
will enter the parolee's information and committed violations
into the computer-automated PVDMI. Taking into consideration
the severity of the most serious violation, the parolee's
calculated risk-to-recidivate, and any stabilizing or
destabilizing factors indicated by the parole agent, the PVDMI
will generate a range of possible sanctions at the recommended
intensity response level. Response levels range from least
intensive (behavioral contract or verbal reprimand) to
moderately intensive (program referral, increased drug testing)
to most intensive sanctions (return to custody or RTC). PVDMI
is now standard operating practice in California (SBX3-18,
Ducheny, 2009).
In theory, by scaling the intensity of the punishment to the
severity of the violation and probationer risk level, graduated
sanctions would allow supervising officers to employ less severe
community-based sanctions for lesser violations while reserving
revocation to prison or jail for subsequent, more serious
violations. The system provides more opportunities for
rehabilitation when supervised offenders commit smaller,
technical or administrative violations while creating uniformity
in sanctions. When swiftly and consistently applied, graduated
responses can act as an effective deterrent for certain
offenders and interrupt the cycle of reoffending for others.<5>
---------------------------
---------------------------
<5> See Footnote #2.
(More)
SB 933 (Anderson)
PageK
(More)
SB 933 (Anderson)
PageL
A 2012 UC Irvine study<6> analyzing early results from PVDMI
implementation at four parole units found no significant
difference in recidivism or parole revocation rates between the
piloting and non-piloting sites. In effect, several factors
limited PVDMI implementation, including substantial deviations
from the tool's recommendations, parole agents overruling the
recommendations due to the lack of treatment options, parole
agents or the Board of Parole Hearings overriding
recommendations in favor of a higher response level, and the
resistance of parole agents to using a tool that would limit
their personal discretion. Beyond anecdotal dissatisfaction
reported by parole officers, a full examination of the design
and construction of the PVDMI was not included.
Given the reported experience of the PVDMI, Committee members
may wish to discuss whether requiring probation to use a similar
instrument would be an effective strategy for promoting
evidence-based practices at the local level.
SHOULD GRADUATED SANCTIONS FOR PROBATION BE REQUIRED UNDER STATE
LAW?
5.Realignment Effects on Probation
Under AB 109, California created two new categories for
post-conviction release to be overseen by the probation
department:
1. Postrelease Community Supervision (PRCS) provides
community supervision for certain persons sentenced to
state prison for non-violent, non-serious, or
non-sexual crimes after release.
-----------------------
<6> Turner, S. et al. (2012). Evaluation of the California
Parole Violation Decision-Making Instrument (PVDMI). Journal of
Crime and Justice.
(More)
SB 933 (Anderson)
PageM
2. Mandatory Supervision allows eligible individuals
convicted for non-violent, non-serious, non-sexual
crimes to serve a portion of their jail sentence in
the community under the supervision of a probation
officer as part of a split sentence.
County probation departments, as the lead agency responsible for
PRCS, are required to "determine and order appropriate response
to alleged violations, which can include, but shall not be
limited to, immediate, structured, and graduated sanctions up to
and including imprisonment
(More)
in a county jail" under AB 109. As a strategy to manage the
larger caseload following realignment, probation departments are
utilizing graduated sanctions and are in various stages of
developing and implementing a sanctions matrix.
In 2012, the ACLU released a report<7> reviewing all 53
available county realignment implementation plans and reported
at least sixteen counties indicating future plans to incorporate
graduated sanctions, including Butte, Kern, Madera, Mendocino,
Santa Clara, Yuba, Monterey, Riverside, Sacramento, San
Francisco, Santa Barbara, Sonoma, Ventura, Yolo, Santa Cruz, and
Napa.
According to the report:
San Francisco's plan states that graduated sanction are
a key component of effective supervision. Santa Cruz
County's plan notes that even before AB 109
implementation began the County was already employing
graduated sanctions with probationers through the
California Risk Assessment Pilot Project. Santa Cruz
will expand the use of graduated sanctions during Phase
2 of its AB 109 implementation from October 2011 to
March 2012.
Madera County provides perhaps the most detail
concerning its planned use of graduated sanctions.
Madera's probation department will employ graduated
sanctions before revoking PRCS. The implementation plan
goes into great detail about this: the probation
department has been in the process of reviewing various
graduated sanctions programs and processes, and will be
-----------------------
<7> ACLU. (2012). Public Safety Realignment: California at a
Crossroad.
(More)
SB 933 (Anderson)
PageO
collaborating with probation departments in the Central
Valley to determine the best sanctions matrix system
utilized by other agencies across the state and nation.
The department is currently reviewing systems and
sanction matrix' currently used by the Pennsylvania
Department of Corrections, the Oregon Department of
Corrections and the Napa County Probation Department.
The Madera plan specifies that its graduated sanction
strategies for violating supervision conditions will
include: imposition of up to 10 days jail (flash
incarceration); increased supervision and reporting
requirements, increased drug and alcohol testing; and
referrals to community service, self-help alcohol and
drug treatment, and inpatient programs.
In Butte County, the Probation Department will utilize
graduated sanctions prior to long-term incarceration
when a supervised individual violates his or her
conditions of probation or PRCS. Intermediate sanctions
will include community service, mandatory residential or
outpatient substance abuse treatment, electronic
monitoring, and flash incarceration.
WOULD REQUIRING GRADUATED SANCTIONS IN STATE LAW PROMOTE THE
INNOVATION, COLLABORATION, AND LOCALLY-RESPONSIVE DEVELOPMENT OF
GRADUATED SANCTIONS ALREADY OCCURING AT THE COUNTY LEVEL?
DO THE FACTORS REQUIRED FOR CONSIDERATION BY THIS BILL REFLECT
THOSE FOUND IN PREVIOUSLY VALIDATED GRADUATED SANCTIONS TOOLS?
***************
SB 933 (Anderson)
PageP