BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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SB 957 (Vidak)
As Introduced February 6, 2014
Hearing date: April 29, 2014
Penal Code (Urgency)
JRD:mc
IMPRISONMENT:
STATE PRISON
HISTORY
Source: King's County District Attorney
Prior Legislation: SB 225 (Emmerson) - failed passage Senate
Public Safety, 2013
SB 1441 (Emmerson) - failed passage Senate Public
Safety, 2012
AB 109 (Committee on Budget) - Ch. 15, Stats. 2011
AB 117 (Committee on Budget) - Ch. 39, Stats. 2011
ABx1 17 (Blumenfield) - Ch. 12, Stats. 2011
AB 116 (Committee on Budget) - Ch. 136, Stats. 2011
Support: California State Sheriffs' Association (support in
concept); California District Attorneys Association;
Opposition:American Civil Liberties Union; California Attorneys
for Criminal Justice; California Public Defenders
Association
KEY ISSUE
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SHOULD THE CRIMINAL JUSTICE REALIGNMENT OF 2011 BE REVISED TO
REQUIRE THAT DEFENDANTS CONVICTED OF A CRIME AND SENTENCED TO AN
AGGREGATE TERM OF MORE THAN TEN YEARS SERVE THAT SENTENCE IN
PRISON, AS SPECIFIED?
PURPOSE
The purpose of this bill is to revise the criminal justice
realignment of 2011 by requiring that defendants convicted of a
crime or crimes, and sentenced to an aggregate term of more than
ten years shall serve that sentence in prison, as specified.
Current law generally provides that, for any person sentenced on
or after October 1, 2011, certain felonies - those which by
their statutory terms specifically so provide - are punishable
by a term of imprisonment in a county jail, as specified.
(Penal Code � 1170(h).)
Current law provides that, notwithstanding this general
provision, where a defendant meets any of the following criteria
an executed sentence for a felony punishable pursuant to this
subdivision shall be served in state prison:
Has a prior or current felony conviction for a serious
felony described in subdivision (c) of Section 1192.7;
Has a prior or current conviction for a violent felony
described in subdivision (c) of Section 667.5;
Has a prior felony conviction in another jurisdiction
for an offense that has all of the elements of a serious
felony described in subdivision (c) of Section 1192.7 or a
violent felony described in subdivision (c) of Section
667.5;
Is required to register as a sex offender, as specified;
or,
Is convicted of a crime and as part of the sentence an
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enhancement pursuant to Section 186.11 is imposed. (Penal
Code � 1170(h)(3).)
This bill would amend this provision to add where a defendant
has been convicted of a crime or crimes punishable pursuant to
this subdivision and is sentenced to an aggregate term of more
than ten years, the sentence shall be served in state prison, as
specified.
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
prosecutions. Under the resulting policy, known as "ROCA"
(which stands for "Receivership/ Overcrowding Crisis
Aggravation"), the Committee held measures that 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.
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 requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
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submitted 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 opposed the
state's motion, arguing 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 % inmate population cap by December 31,
2013.
The Three-Judge Court then ordered, on April 11, 2013, the state
of California to "immediately take all steps necessary to comply
with this Court's . . . Order . . . requiring defendants to
reduce overall prison population to 137.5% design capacity by
December 31, 2013." On September 16, 2013, the State asked the
Court to extend that deadline to December 31, 2016. In
response, the Court extended the deadline first to January 27,
2014 and then February 24, 2014, and ordered the parties to
enter into a meet-and-confer process to "explore how defendants
can comply with this Court's June 20, 2013 Order, including
means and dates by which such compliance can be expedited or
accomplished and how this Court can ensure a durable solution to
the prison crowding problem."
The parties were not able to reach an agreement during the
meet-and-confer process. As a result, the Court ordered
briefing on the State's requested extension and, on February 10,
2014, issued an order extending the deadline to reduce the
in-state adult institution population to 137.5% design capacity
to February 28, 2016. The order requires the state to meet the
following interim and final population reduction benchmarks:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and
137.5% of design bed capacity by February 28, 2016.
If a benchmark is missed the Compliance Officer (a position
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created by the February 10, 2016 order) can order the release of
inmates to bring the State into compliance with that benchmark.
In a status report to the Court dated February 18, 2014, the
state reported that as of February 12, 2014, California's 33
prisons were at 144.3 percent capacity, with 117,686 inmates.
8,768 inmates were housed in out-of-state facilities.
The ongoing prison overcrowding litigation indicates that prison
capacity and related issues concerning conditions of confinement
remain unresolved. While real gains in reducing the prison
population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore,
the Committee's consideration of ROCA bills -bills that may
impact the prison population - will be informed by the following
questions:
Whether a measure erodes realignment and impacts the
prison population;
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
The author states:
Individuals convicted of non-violent crimes have been
diverted from state prison to county jails under
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criminal justice realignment. Under current law,
there are instances where individuals have received
long sentences which must currently be served in
county jail, which were not designed for individuals
sentenced to multiple years.
Randall Murray Allison was arrested in 2011 during a
traffic stop on Interstate 5 in Kings County. A
California Highway Patrol K-9 smelled narcotics in his
vehicle and when officers searched it, they found two
hidden compartments built into the floor. Inside was
107 packages of cocaine, worth an estimated $2.3
million.
Paperwork found in the vehicle showed Allison had
loaded up in southern California and planned to take
the drugs north of British Columbia. He finally
pleaded guilty on Nov. 13 to possession of cocaine for
sale and for having possession of more than 80
kilograms of cocaine.
Under state law, the possession charge carries a
penalty of two, three or four years. But the
enhancement for the amount adds an additional 25
years. Prosecutors argued Allison should serve the
entire sentence. As he was considered a non-serious
offender under realignment, Allison is required to
serve his sentence at the Kings County Jail.
The judge citing limited space at the county jail as a
reason to stay Allison's sentence reduced his sentence
from 28 years to 5 years. With time served, that
equals about 30 months in custody.
In March 2011, the legislature passed and the governor
signed AB 109 (Budget). AB 109 created a criminal
justice realignment system where the state would
alleviate prison overcrowding by diverting individuals
convicted of certain crimes to county jails.
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2. Effective of Legislation
This bill would change provisions in the 2011 criminal justice
realignment concerning which felonies must be served in prison.
Specifically, this bill would widen the category of executed
felony sentences that must be served in state prison - not
county jail - by providing that sentences of an aggregate of
more than ten years must be served in state prison. Under
current law, there is no term-based threshold for which felonies
must be served in prison or jail.
3. Felony Sentencing Under the Criminal Justice Realignment of
2011
The "2011 Realignment Legislation Addressing Public Safety"
("criminal justice realignment") fundamentally altered how
convicted felons are handled under California law.<1> Under
California law operative until October 1, 2011, a felony was a
crime punishable by death or imprisonment in state prison.
(Penal Code � 17.) Effective October 1, 2011, criminal justice
realignment redefined the term "felony" to include crimes
punishable by imprisonment in a county jail, as specified,
depending upon the criminal history of the offender. (Id.)
As explained in a January 2012, article describing felony
sentencing after realignment:
With respect to felony sentencing, it appears the
intent of the realignment legislation is merely to
change the place where sentences for certain crimes
are to be served. The legislation has not changed the
basic rules regarding probation eligibility. Courts
retain the discretion to place people on probation,
unless otherwise specifically prohibited, under the
----------------------
<1> AB 109 (Committee on Budget) (Ch. 15, Stats. 2011) is the
principal measure establishing the 2011 public safety
realignment. As noted at the beginning of this analysis,
several subsequent measures revised AB 109 and enacted
additional provisions relating to certain aspects of
realignment.
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law that existed prior to the realignment legislation.
There is no intent to change the basic rules
regarding the structure of a felony sentence contained
in sections 1170 and 1170.1. Furthermore, there is no
change in the length of term or sentencing triad for
any
crime. Realignment comes into play when the court
determines the defendant should not be granted
probation, either at the initial sentencing or as a
result of a probation violation.
(Felony Sentencing after Realignment, J. Richard Couzens
and Tricia A. Bigelow, January 2012.
http://www.courts.ca.gov/partners/documents/felony_sentencin
g.pdf.)
The confinement changes under criminal justice realignment apply
to persons sentenced on or after October 1, 2011-these changes
are not retroactive. (Penal Code � 1170.)
Criminal justice realignment provides that numerous felonies are
punishable by a term of imprisonment in county jail - not prison
- unless the crime of conviction or a defendant's criminal
history makes the defendant ineligible for serving their felony
sentence in jail. (Id.) This change, contained in subdivision
(h) of Penal Code section 1170, applies only to criminal
statutes which have been expressly amended to provide for a
felony jail term where otherwise allowable. (Id.)
Certain felons are statutorily ineligible to serve any executed
felony sentence in county jail, specifically if the defendant:
Has a prior or current felony conviction for:
o a serious felony described in subdivision (c) of
Section 1192.7, or
o a violent felony described in subdivision (c) of
Section 667.5;
Has a prior felony conviction in another jurisdiction
for an offense that has all the elements of a serious or
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violent felony in California, as specified;
Is required to register as a sex offender; or
Is convicted of a crime and as part of the sentence
receives an aggravated theft enhancement, as specified.
(Id.)
This bill would alter how felony sentencing is handled under
realignment by providing that felony sentences of an aggregate
term of more than 10 years must be served in state prison.
4. Prison Population Considerations
As discussed above, for the last several years, severe
overcrowding in California's prisons has been the focus of
federal litigation. On February 10, 2014, the Court issued an
order extending the deadline to reduce the in-state adult
institution population to 137.5% design capacity to February 28,
2016. The order requires the state to meet the following
interim and final population reduction benchmarks:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and
137.5% of design bed capacity by February 28, 2016.
If a benchmark is missed the Compliance Officer (a position
created by the February 10, 2016, order) can order the release
of inmates to bring the State into compliance with that
benchmark.
This bill would result in more felons serving their custodial
time in prison. In addition members may wish to consider
whether this bill would affect prosecutor behavior by
incentivizing longer sentences to meet and exceed a ten-year
target.
TO WHAT EXTENT WOULD THIS BILL IMPACT THE PRISON POPULATION?
TO WHAT EXTENT WOULD THIS BILL IMPACT THE FEDERAL COURT ORDER
PERTAINING TO THE PRISON POPULATION?
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TO WHAT EXTENT WOULD THIS BILL ERODE REALIGNMENT?
5. Reports of Long Jail Felony Sentences
Since the enactment of realignment in October of 2011, there
have been anecdotal and press reports of very long felony
sentences required to be served in county jail. In addition to
issues surrounding jail overcrowding, these reports accompany
emerging issues concerning the conditions of jails, and their
capacity to house and manage long term offenders.
The California State Sheriffs' Association conducted a survey
regarding numbers of long-term offenders in county jail. CSSA
summarizes data collected as of February 25, 2013, as follows:
Below is a short summary of the information collected
as of 2/25/13:
Number of county jail inmates sentenced 5-10
years = 1109
Number of county jail inmates sentenced to over
10 years = 44
Most common crimes for those sentenced to 5-10
years = vehicle theft, drug trafficking, receiving
stolen property, identity theft, commercial
burglary.
Largest number of crimes for over 10 years =
drug trafficking. However, over 10 years is not
exclusively drug trafficking. For example, Solano
County sentenced someone for multiple thefts w/
theft priors for 10.5 years and Riverside County
sentenced someone for 12 years, 8 months for
multiple counts of felony child abuse (PC 273d).
Longest sentence = 43 years (Los Angeles)
Breakdown in Los Angeles - 92% sentenced to
3-years or less. 2% sentenced to more than 5 years.
Survey data is from 52 counties.
(http://www.calsheriffs.org/images/SummaryMemoreLongTermSentences021913.pdf)
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SB 1022 (Chapter 42, Statutes of 2012), included $500 million in
lease-revenue bonds for county jails, including the following
legislative intent language:
In support of this state financing, the Legislature
finds and declares all of the following:
(a) The county adult criminal justice system needs
more housing, program, and treatment space to manage
the adult offender population under its jurisdiction.
(b) Appropriate county adult criminal justice housing,
program, and treatment space will enhance public
safety throughout the state by providing increased
access to appropriate programs or treatment.
(c) By expanding county adult criminal justice
capacity, this financing will serve a critical state
purpose by promoting public safety.
(d) This purpose represents valuable consideration in
exchange for this state action.
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This legislation also included statutory guidance for funding
consideration which reflects an understanding of the need for
local custodial space which can provide treatment,
rehabilitation and mental health services:
Funding consideration shall be given to counties that
are seeking to replace existing compacted, outdated,
or unsafe housing capacity or are seeking to renovate
existing or build new facilities that provide adequate
space for the provision of treatment and
rehabilitation services, including mental health
treatment. (Government Code � 15820.926.)
In addition to these state bonds, as part of realignment the
state shifted certain revenues to local governments. As
explained by the Legislative Analyst's Office:
. . . (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. The Governor's
budget includes an estimate of revenues projected to
go to local governments over the next few years.
These estimates are generally in line with prior
estimates. . . . (T)otal funding for the criminal
justice programs realigned is expected to increase
from $1.4 billion in 2011-12 to $2.2 billion in
2013-14.
(Legislative Analyst's Office, The 2013-14 Budget:
Governor's Criminal Justice Proposals 9Feb. 15, 2013;
http://www.lao.ca.gov/analysis/2013/crim_justice/criminal-ju
stice-proposals/criminal-justice-proposals-021513.aspx)
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This bill does not make any changes to the funding realigned
pursuant to realignment and guaranteed to local governments by
Proposition 30. Members may wish to discuss the fiscal
implications of "re-realigning" some of the felon population now
subject to incarceration at the local level back to the state
without a readjustment to the revenue shifts that were part of
realignment.
SHOULD JAIL FELONS BE LIMITED TO SENTENCING TERMS THAT ARE LESS
THAN TEN YEARS IN THE AGGREGATE?
SHOULD SOME OF THE FELONS REALIGNED UNDER AB 109 BE
"RE-REALIGNED" BACK TO THE STATE?
SHOULD REALIGNED FELONS BE "RE-REALIGNED" TO THE STATE WITHOUT
AN ADJUSTMENT TO THE FUNDING REALIGNED TO LOCAL GOVERNMENTS?
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