Existing law, as amended by Proposition 83 of the November 7, 2006, statewide general election, requires every inmate who has been convicted of an offense that requires him or her to register as a sex offender or any attempt to commit any of those offenses and who is committed to prison and released on parole to be monitored by a global positioning system for life. Existing law requires the terms of probation or parole for all persons placed on formal probation or parole for an offense that requires registration as a sex offender to include, among other things, participation in, or completion of, a sex offender management program, as specified.

This bill would make it a felony for a person to willfully remove or disable an electronic, global positioning system, or other monitoring device, if the device was affixed as a condition of parole, postrelease community supervision, or probation as a result of a conviction of certain specified sex offenses, if the person intended to evade supervision and either does not surrender, or is not apprehended, within one week of the issuance of a warrant for absconding, punishable by imprisonment in the state prison for 16 months, or 2 or 3 years. The bill would require the terms of probation or parole of a person who has committed a violation of these provisions to include participation and completion of a sex offender management program. By creating a new crime, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law, as amended by Proposition 83 of the November 7, 2006, statewide general election, requires every inmate who has been convicted of an offense that requires him or her to register as a sex offender or any attempt to commit any of those offenses and who is committed to prison and released on parole to be monitored by a global positioning system for life. Existing law requires the terms of probation or parole for all persons placed on formal probation or parole for an offense that requires registration as a sex offender to include, among other things, participation in, or completion of, a sex offender management program, as specified.

This bill would make it a felony for a person to willfully remove or disable an electronic, global positioning system, or other monitoring device, if the device was affixed as a condition of parole, postrelease community supervision, or probation as a result of a conviction of certain specified sex offenses, if the person intended to evade supervision and either does not surrender, or is not apprehended, within one week of the issuance of a warrant for absconding, punishable by imprisonment in the state prison for 16 months, or 2 or 3 years. The bill would require the terms of probation or parole of a person who has committed a violation of these provisions to include participation and completion of a sex offender management program. By creating a new crime, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law, as amended by Proposition 83 of the November 7, 2006, statewide general election, requires every inmate who has been convicted of an offense that requires him or her to register as a sex offender or any attempt to commit any of those offenses and who is committed to prison and released on parole to be monitored by a global positioning system for life. Existing law requires the terms of probation or parole for all persons placed on formal probation or parole for an offense that requires registration as a sex offender to include, among other things, participation in, or completion of, a sex offender management program, as specified.

This bill would make it a felony for a person to willfully remove or disable an electronic, global positioning system, or other monitoring device, if the device was affixed as part of a criminal sentence or juvenile court disposition for a condition of parole, postrelease community supervision, or probation as a result of a conviction of certain specified sex offenses, if the person intended to evade supervision and either does not surrender, or is not apprehended, within one week of the issuance of a warrant for absconding, punishable by imprisonment in the state prison for 16 months, or 2 or 3 years. The bill would require the terms of probation or parole of a person who has committed a violation of these provisions to include participation and completion of a sex offender management program. By creating a new crime, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law, as amended by Proposition 83 of the November 7, 2006, statewide general election, requires every inmate who has been convicted of an offense that requires him or her to register as a sex offender or any attempt to commit any of those offenses and who is committed to prison and released on parole to be monitored by a global positioning system for life.

This bill would make it a felony for a person to willfully remove or disable an electronic, global positioning system, or other monitoring device, if the device was affixed as part of a criminal sentence or juvenile court disposition for certain specified sex offenses, punishable by imprisonment in the state prison for 16 months, or 2 or 3 years. By creating a new crime, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

 VETO  

Bill No: SB 722

Author: Bates (R), et al.

Amended: 8/31/15

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 7-0, 4/28/15

AYES: Hancock, Anderson, Leno, Liu, McGuire, Monning, Stone

SENATE APPROPRIATIONS COMMITTEE: 7-0, 5/28/15

AYES: Lara, Bates, Beall, Hill, Leyva, Mendoza, Nielsen

SENATE FLOOR: 40-0, 6/2/15

AYES: Allen, Anderson, Bates, Beall, Berryhill, Block, Cannella, De León, Fuller, Gaines, Galgiani, Glazer, Hall, Hancock, Hernandez, Hertzberg, Hill, Hueso, Huff, Jackson, Lara, Leno, Leyva, Liu, McGuire, Mendoza, Mitchell, Monning, Moorlach, Morrell, Nguyen, Nielsen, Pan, Pavley, Roth, Runner, Stone, Vidak, Wieckowski, Wolk

SENATE FLOOR: 40-0, 9/3/15

AYES: Allen, Anderson, Bates, Beall, Berryhill, Block, Cannella, De León, Fuller, Gaines, Galgiani, Glazer, Hall, Hancock, Hernandez, Hertzberg, Hill, Hueso, Huff, Jackson, Lara, Leno, Leyva, Liu, McGuire, Mendoza, Mitchell, Monning, Moorlach, Morrell, Nguyen, Nielsen, Pan, Pavley, Roth, Runner, Stone, Vidak, Wieckowski, Wolk

ASSEMBLY FLOOR: 77-1, 9/2/15 - See last page for vote

SUBJECT: Sex offenders: GPS monitoring: removal

SOURCE: Author

DIGEST: This bill makes it a felony punishable by imprisonment in the state prison, as specified, for a person to willfully remove or disable, or permit another person to remove or disable, an electronic, global positioning system (GPS), or other monitoring device, if the device was affixed as a condition of parole, postrelease community supervision (PRCS), or probation as a result of a conviction for specified sex offenses, and if specified criteria are met.

ANALYSIS:

Existing law:

1) Authorizes, generally, the use of electronic monitoring or GPS devices in the criminal justice system, as specified.

2) Provides, generally, that removing or otherwise defeating the operation of a GPS device is a violation of parole or probation, or subject to return to custody from an alternative custody program.

3) Provides that parolees who are registered sex offenders and are required to have a GPS device as a condition of parole shall be subject to parole revocation and incarcerated in a county jail for 180 days if they remove or otherwise disable the device, as specified. (Penal Code § 3010.10.)

4) Includes an enhanced sentencing structure that applies to crimes of rape, oral copulation, sodomy, and sexual penetration committed by force, duress or threats; lewd conduct with a child under the age of 14 and continuous sexual abuse of a child which, depending on the number and kinds of aggravating factors attendant to the crime, require a term of 15 or 25-years-to-life, or life without parole for specified crimes against a minor. (Pen. Code § 667.61.)

This bill:

1) Makes it a felony for a person to willfully remove or disable, or permit another person to remove or disable, an electronic, GPS, or other monitoring device affixed to his or her person, if the device was affixed as a condition of parole, PRCS, or probation as a result of a conviction of a specified sex offense, if the person intended to evade supervision and either does not surrender, or is not apprehended, within one week of the issuance of a warrant for absconding.

2) Provides that the felony is punishable by imprisonment in the state prison for 16 months, or two or three years.

3) Excludes the removal or disabling of a monitoring device by a physician, emergency medical services technician, or by any other emergency response or medical personnel when doing so is necessary during the course of medical treatment of the person subject to the device.

4) Provides that the bill’s provisions do not apply if the removal or disabling of the device is authorized or required by a court, by law enforcement, or by any other entity that is responsible for placing the device upon the person or that has the authority and responsibility to monitor the device.

5) Requires the terms of probation or parole for a person who commits a violation of the bill’s provision must include participation and completion of a sex offender management program.

Background

In October of 2014 the Office of the Inspector General (OIG) issued a report entitled, Special Review: Assessment of Electronic Monitoring of Sex Offenders on Parole and the Impact of Residency Restrictions. This review, conducted at the request of the Senate Rules Committee, included the following observations:

1) There exists little objective evidence to determine to what extent, if any, GPS tracking is a crime deterrent, although a small 2012 study funded by the National Institute of Justice of 516 high-risk sex offenders found that offenders who were not subjected to GPS monitoring had nearly three times more sex-related parole violations than those who were monitored by GPS technology. Despite the rarity of studies defending GPS as a crime deterrent, the OIG’s interviews with parole agents and local law enforcement personnel found that they value GPS technology as a tool for its ability to locate parolees, track their movements, and provide valuable information in solving crimes.

2) GPS technology adds to parole agents’ workloads in certain aspects, while affording time-savings in others. For example, agents spend approximately two hours reviewing and analyzing parolees’ tracks for a single-day period. On the other hand, GPS facilitates mandatory face-to-face contacts between parole agents and parolees by allowing the agent to locate parolees more quickly than might be the case in locating a non-GPS parolee.

3) Over 60 percent of parole agents who supervise sex-offender parolees have caseloads exceeding established departmental ratios (parolee-to-agent) when taking into consideration the mix of high-risk vs low-risk parolees per caseload. In addition, the Department of Corrections and Rehabilitation (CDCR) has a disparity of caseloads across its parole units, with 14 of the 37 parole units that supervise sex offenders reporting caseload sizes exceeding the CDCR’s established ratios for all agents assigned to those units. Simultaneously, five other parole units report caseload sizes below the department’s established ratios for all of their parole agents.

The OIG also presented data over the five years prior to the report demonstrating that “transient sex offenders have committed a majority of parole violations among parolee sex offenders over the five year period. In fact, in the most recently completed fiscal year (2013–14), over 76 percent of the sex offender parolees whom the department charged with violating their parole terms were transient. . . .¶ According to the parole administrators the OIG talked to, there are various reasons transient sex offenders violate the conditions of their parole more often than those with a residence. Among the reasons voiced were increased prevalence of mental health issues, lack of a stable support network, increased exposure to drugs and prostitution on the streets, and challenges finding employment.”

Last session, the Legislature enacted SB 57 (Lieu, Chapter 776, Statutes of 2013), which originally sought to enact a new felony for felons being supervised in the community – either on PPCS -- who willfully defeated their GPS/electronic monitoring. That bill was amended to impose the mandatory jail term now reflected in existing law.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

According to the Assembly Appropriations Committee:

1) Potential moderate ongoing cost in excess the $500,000 (GF) to CDCR for additional state prison commitments. According CDCR records, approximately 1,200 inmates, in state prison for the qualifying crimes, were release onto parole in a 12-month period. The annual contract bed rate is $29,000, if each year 10 parolees, less than one percent, were sentenced to two years for disabling their GPS, the first-year costs would be $290,000, and the ongoing cost would be $580,000.

2) Potential increase cost to CDCR, and nonreimbursable county probation costs, for additional persons required to participate in and complete a sex offender management program.

3) Potential decrease in local incarceration costs if individuals subject to parole revocation are charged with the state prison felony instead.

SUPPORT: (Verified 10/27/15)

California District Attorneys Association

California State Sheriffs’ Association

Crime Victims United of California

Office of the San Diego District Attorney

Orange County Board of Supervisors

Orange County District Attorney’s Office

Orange County Sheriff’s Department

Peace Officers Research Association of California

OPPOSITION: (Verified 10/27/15)

American Civil Liberties Union

California Attorneys for Criminal Justice

California Public Defenders Association

Legal Services for Prisoners with Children

ARGUMENTS IN SUPPORT: The author states in part:

SB 722 is needed in order to send the message to convicted sex offenders that cutting off or altering their ankle bracelet is a serious offense and will not be taken lightly. The two men mentioned earlier are known to have re-offended on two different occasions. When they first cut off their devices and fled to Nevada, they should have been prosecuted with more than just a short few months in county jail as this was a deliberate attempt to run from law enforcement. Additionally, the offenses listed in SB 722 deliberately spell out the most serious, egregious sex crimes. These offenses are rape, spousal rape, sexual penetration, lewd or lascivious acts and children, sodomy, oral copulation, and continuous sexual abuse of a child. SB 722 is needed today more than ever to ensure that justice is being served to those that defy law enforcement.

ARGUMENTS IN OPPOSITION: California Attorneys for Criminal Justice, which opposes this bill, submits in part:

In the last two legislative sessions, our laws have been changed to provide certain oversight on tracked sex offenders. However, there has been insufficient time to evaluation whether the implementation of this new law has proven to be effective at deterring persons from disabling or removing their GPS devices. Notwithstanding these laws, sending a person back to prison for a minor offense does not address the root SB 722 Page 6 issues of persons being ill-prepared to reenter their communities upon release, The enormous cost of incarceration and parole revocations for even minor offenders continue to contribute to budget constraints and fuel public cries for fiscal reform.

GOVERNOR'S VETO MESSAGE:

I am returning the following nine bills without my signature:

Assembly Bill 144

Assembly Bill 849

Senate Bill 168

Senate Bill 170

Senate Bill 271

Senate Bill 333

Senate Bill 347

Senate Bill 716

Senate Bill 722

Each of these bills creates a new crime - usually by finding a novel way to characterize and criminalize conduct that is already proscribed. This multiplication and particularization of criminal behavior creates increasing complexity without commensurate benefit.

Over the last several decades, California's criminal code has grown to more than 5,000 separate provisions, covering almost every conceivable form of human misbehavior. During the same period, our jail and prison populations have exploded.

Before we keep going down this road, I think we should pause and reflect on how our system of criminal justice could be made more human, more just and more cost-effective.

ASSEMBLY FLOOR: 77-1, 9/2/15

AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Perea, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Atkins

NOES: Quirk

NO VOTE RECORDED: Eggman, Patterson

Prepared by: Alison Anderson / PUB. S. /

11/4/15 13:34:15

**** END ****

SENATE THIRD READING

STR Bill Id:SB 722

Author:(Bates)

As Amended Ver:August 31, 2015

Majority vote

SENATE VOTE: 40-0

SUMMARY: Creates a new state prison felony for any person who willfully disables an electronic, global positioning system (GPS) if the device was affixed as a condition of parole, postrelease community supervision (PRCS), or probation as a result of a conviction for a specified sex offense. Specifically, this bill:

1. Requires that the person must have intended to evade supervision and either does not surrender, or is not apprehended, within one week of the issuance of a warrant for absconding.

2. Makes the violation of this provision a felony, punishable by imprisonment in the state prison for 16 months, or two or three years.

3. Exempts the removal or disabling of a monitoring device by a physician, emergency medical services technician, or by any other emergency response or medical personnel when doing so is necessary during the course of medical treatment of the person subject to the device.

4. Requires the terms of probation or parole of a person who has committed a violation of these provisions to include participation and completion of a sex offender management program.

EXISTING LAW:

1. Authorizes the California Department of Corrections and Rehabilitation (CDCR) to utilize continuous electronic monitoring, including GPS, to electronically monitor the whereabouts of persons on parole as specified.

2. Provides that every inmate who has been convicted for any felony violation of a registerable sex offense or any attempt to commit any of those offenses and who was 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.

3. 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 those sex offenses, and who is committed to prison and released on parole shall be monitored by GPS for life.

4. Provides that whenever a parole officer supervising an individual has reasonable cause to believe that the individual is not complying with the rules or conditions set forth for the use of continuous electronic monitoring as a supervision tool, the officer supervising the individual may, without a warrant of arrest, take the individual into custody for a violation of parole.

5. Authorizes the court, upon revocation of parole, to do any of the following:

   1. Reinstate parole with modification of conditions, if appropriate, including a period of incarceration;

   2. Revoke parole and order the parolee to serve time in the county jail; or,

   3. Refer the parolee to a reentry program or other evidence-based program.

6. Limits confinement in the county jail for up to 180 days of incarceration per revocation.

7. Provides that parolees who are registered sex offenders and are required to have a GPS device as a condition of parole shall be subject to parole revocation and incarcerated in a county jail for 180 days if they remove or otherwise disable the device, as specified.

8. Requires persons placed on parole or formal probation for an offense that requires the person to register as a sex offender to complete a sex offender management program.

FISCAL EFFECT: According to the Assembly Appropriations Committee:

1. Potential moderate ongoing cost in excess the $500,000 (General Fund) to the California Department of Corrections and Rehabilitation (CDCR) for additional state prison commitments. According CDCR records, approximately 1,200 inmates, in state prison for the qualifying crimes, were release onto parole in a 12-month period; they estimate approximately 200 parolees would be impacted. The annual contract bed rate is $29,000, if each year 200 parolees were sentenced to two years for disabling their GPS, the first-year costs would be $5.8 million, and the ongoing cost would be $11.6 million.

2. Potential increase cost to CDCR, and nonreimbursable county probation costs, for additional persons required to participate and complete a sex offender management program.

3. Potential decrease in local incarceration costs if individuals subject to parole revocation are charged with the state prison felony instead.

COMMENTS: According to the author, "SB 722 focuses upon high risk predatory sex offenders by limiting its application to the offenses deemed most egregious by the legislature when it approved the 'One Strike Rape' law. These offenses are: rape, spousal rape, foreign object rape, lewd or lascivious acts against children, sodomy, oral copulation, and continuous sexual abuse of a child. The premise behind 'One Strike Rape' is that one victim is enough.

"The circumstances of some sex offenses are so aggravated that the state imposes a life sentence to avoid the potential of another victim. When a rapist or child molester cuts off his GPS device and evades the law the state has been put on notice that others are at great risk. SB 722 is needed because in the cases of Gordon and Cano the state simply waited for another victim."

Analysis Prepared by: Stella Choe / PUB. S. / (916) 319-3744 FN: 0001687

 UNFINISHED BUSINESS  

Bill No: SB 722

Author: Bates (R), et al.

Amended: 8/31/15

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 7-0, 4/28/15

AYES: Hancock, Anderson, Leno, Liu, McGuire, Monning, Stone

SENATE APPROPRIATIONS COMMITTEE: 7-0, 5/28/15

AYES: Lara, Bates, Beall, Hill, Leyva, Mendoza, Nielsen

SENATE FLOOR: 40-0, 6/2/15

AYES: Allen, Anderson, Bates, Beall, Berryhill, Block, Cannella, De León, Fuller, Gaines, Galgiani, Glazer, Hall, Hancock, Hernandez, Hertzberg, Hill, Hueso, Huff, Jackson, Lara, Leno, Leyva, Liu, McGuire, Mendoza, Mitchell, Monning, Moorlach, Morrell, Nguyen, Nielsen, Pan, Pavley, Roth, Runner, Stone, Vidak, Wieckowski, Wolk

ASSEMBLY FLOOR: 77-1, 9/2/15 - See last page for vote

SUBJECT: Sex offenders: GPS monitoring: removal

SOURCE: Author

DIGEST: This bill makes it a felony punishable by imprisonment in the state prison, as specified, for a person to willfully remove or disable, or permit another person to remove or disable, an electronic, global positioning system (GPS), or other monitoring device, if the device was affixed as a condition of parole, postrelease community supervision (PRCS), or probation as a result of a conviction for specified sex offenses, and if specified criteria are met.

Assembly Amendments delete a provision providing for a rebuttable presumption that a person intended to evade supervision in the context of the provisions of this bill.

ANALYSIS:

Existing law:

1. Authorizes, generally, the use of electronic monitoring or GPS devices in the criminal justice system, as specified.

2. Provides, generally, that removing or otherwise defeating the operation of a GPS device is a violation of parole or probation, or subject to return to custody from an alternative custody program.

3. Provides that parolees who are registered sex offenders and are required to have a GPS device as a condition of parole shall be subject to parole revocation and incarcerated in a county jail for 180 days if they remove or otherwise disable the device, as specified. (Penal Code § 3010.10.)

4. Includes an enhanced sentencing structure that applies to crimes of rape, oral copulation, sodomy, and sexual penetration committed by force, duress or threats; lewd conduct with a child under the age of 14 and continuous sexual abuse of a child which, depending on the number and kinds of aggravating factors attendant to the crime, require a term of 15 or 25-years-to-life, or life without parole for specified crimes against a minor. (Pen. Code § 667.61.)

This bill:

1. Makes it a felony for a person to willfully remove or disable, or permit another person to remove or disable, an electronic, GPS, or other monitoring device affixed to his or her person, if the device was affixed as a condition of parole, PRCS, or probation as a result of a conviction of a specified sex offense, if the person intended to evade supervision and either does not surrender, or is not apprehended, within one week of the issuance of a warrant for absconding.

2. Provides that the felony is punishable by imprisonment in the state prison for 16 months, or two or three years.

3. Excludes the removal or disabling of a monitoring device by a physician, emergency medical services technician, or by any other emergency response or medical personnel when doing so is necessary during the course of medical treatment of the person subject to the device.

4. Provides that the bill’s provisions do not apply if the removal or disabling of the device is authorized or required by a court, by law enforcement, or by any other entity that is responsible for placing the device upon the person or that has the authority and responsibility to monitor the device.

5. Requires the terms of probation or parole for a person who commits a violation of the bill’s provision must include participation and completion of a sex offender management program.

Background

In October of 2014 the Office of the Inspector General (OIG) issued a report entitled, Special Review: Assessment of Electronic Monitoring of Sex Offenders on Parole and the Impact of Residency Restrictions. This review, conducted at the request of the Senate Rules Committee, included the following observations:

1. There exists little objective evidence to determine to what extent, if any, GPS tracking is a crime deterrent, although a small 2012 study funded by the National Institute of Justice of 516 high-risk sex offenders found that offenders who were not subjected to GPS monitoring had nearly three times more sex-related parole violations than those who were monitored by GPS technology. Despite the rarity of studies defending GPS as a crime deterrent, the OIG’s interviews with parole agents and local law enforcement personnel found that they value GPS technology as a tool for its ability to locate parolees, track their movements, and provide valuable information in solving crimes.

2. GPS technology adds to parole agents’ workloads in certain aspects, while affording time-savings in others. For example, agents spend approximately two hours reviewing and analyzing parolees’ tracks for a single-day period. On the other hand, GPS facilitates mandatory face-to-face contacts between parole agents and parolees by allowing the agent to locate parolees more quickly than might be the case in locating a non-GPS parolee.

3. Over 60 percent of parole agents who supervise sex-offender parolees have caseloads exceeding established departmental ratios (parolee-to-agent) when taking into consideration the mix of high-risk vs low-risk parolees per caseload. In addition, the Department of Corrections and Rehabilitation has a disparity of caseloads across its parole units, with 14 of the 37 parole units that supervise sex offenders reporting caseload sizes exceeding the Department’s established ratios for all agents assigned to those units. Simultaneously, five other parole units report caseload sizes below the department’s established ratios for all of their parole agents.

The OIG also presented data over the five years prior to the report demonstrating that “transient sex offenders have committed a majority of parole violations among parolee sex offenders over the five year period. In fact, in the most recently completed fiscal year (2013–14), over 76 percent of the sex offender parolees whom the department charged with violating their parole terms were transient. . . . ¶ According to the parole administrators the OIG talked to, there are various reasons transient sex offenders violate the conditions of their parole more often than those with a residence. Among the reasons voiced were increased prevalence of mental health issues, lack of a stable support network, increased exposure to drugs and prostitution on the streets, and challenges finding employment.”

Last session, the Legislature enacted SB 57 (Lieu, Chapter 776, Statutes of 2013), which originally sought to enact a new felony for felons being supervised in the community – either on PPCS -- who willfully defeated their GPS/electronic monitoring. That bill was amended to impose the mandatory jail term now reflected in existing law.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

According to the Assembly Appropriations Committee:

1. Potential moderate ongoing cost in excess the $500,000 (GF) to CDCR for additional state prison commitments. According CDCR records, approximately 1,200 inmates, in state prison for the qualifying crimes, were release onto parole in a 12-month period. The annual contract bed rate is $29,000, if each year 10 parolees, less than one percent, were sentenced to two years for disabling their GPS, the first-year costs would be $290,000, and the ongoing cost would be $580,000.

2. Potential increase cost to CDCR, and nonreimbursable county probation costs, for additional persons required to participate and complete a sex offender management program.

3. Potential decrease in local incarceration costs if individuals subject to parole revocation are charged with the state prison felony instead.

SUPPORT: (Verified 9/2/15)

California District Attorneys Association

California State Sheriffs’ Association

Crime Victims United of California

Office of the San Diego District Attorney

Orange County Board of Supervisors

Orange County District Attorney’s Office

Orange County Sheriff’s Department

Peace Officers Research Association of California

OPPOSITION: (Verified 9/2/15)

American Civil Liberties Union

California Attorneys for Criminal Justice

California Public Defenders Association

Legal Services for Prisoners with Children

ARGUMENTS IN SUPPORT: The author states in part:

SB 722 is needed in order to send the message to convicted sex offenders that cutting off or altering their ankle bracelet is a serious offense and will not be taken lightly. The two men mentioned earlier are known to have re-offended on two different occasions. When they first cut off their devices and fled to Nevada, they should have been prosecuted with more than just a short few months in county jail as this was a deliberate attempt to run from law enforcement.

Additionally, the offenses listed in SB 722 deliberately spell out the most serious, egregious sex crimes. These offenses are rape, spousal rape, sexual penetration, lewd or lascivious acts and children, sodomy, oral copulation, and continuous sexual abuse of a child. SB 722 is needed today more than ever to ensure that justice is being served to those that defy law enforcement.

ARGUMENTS IN OPPOSITION: California Attorneys for Criminal Justice, which opposes this bill, submits in part:

In the last two legislative sessions, our laws have been changed to provide certain oversight on tracked sex offenders. However, there has been insufficient time to evaluation whether the implementation of this new law has proven to be effective at deterring persons from disabling or removing their GPS devices. Notwithstanding these laws, sending a person back to prison for a minor offense does not address the root issues of persons being ill-prepared to reenter their communities upon release, The enormous cost of incarceration and parole revocations for even minor offenders continue to contribute to budget constraints and fuel public cries for fiscal reform.

ASSEMBLY FLOOR: 77-1, 9/2/15

AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Perea, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Atkins

NOES: Quirk

NO VOTE RECORDED: Eggman, Patterson

Prepared by: Alison Anderson / PUB. S. /

9/2/15 15:57:42

**** END ****

Date of Hearing: August 19, 2015

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Jimmy Gomez, Chair

SBPCA Bill Id:SB 722

Author:(Bates) – As Amended Ver:May 5, 2015

Urgency: No State Mandated Local Program: Yes Reimbursable: No

SUMMARY:

This bill creates a new state prison felony, punishable by 16 months, two, or three years, for any person who willfully disables an electronic, global positioning system (GPS) if the device was affixed as a condition of parole, postrelease community supervision (PRCS), or probation as a result of a conviction for a specified sex offense. The bill also requires the terms of probation or parole of a person who has committed a violation of these provisions to include participation and completion of a sex offender management program.

FISCAL EFFECT:

1. Potential moderate ongoing cost in excess the $500,000 (GF) to the California Department of Corrections and Rehabilitation (CDCR) for additional state prison commitments. According CDCR records, approximately 1,200 inmates, in state prison for the qualifying crimes, were release onto parole in a 12-month period. The annual contract bed rate is $29,000, if each year ten parolees, less than one percent, were sentenced to two years for disabling their GPS, the first-year costs would be $290,000, and the ongoing cost would be $580,000.

2. Potential increase cost to CDCR, and nonreimbursable county probation costs, for additional persons required to participate and complete a sex offender management program.

3. Potential decrease in local incarceration costs if individuals subject to parole revocation are charged with the state prison felony instead.

COMMENTS:

1. Purpose. According to the author, "SB 722 focuses upon high risk predatory sex offenders by limiting its application to the offenses deemed most egregious by the legislature when it approved the 'One Strike Rape' law. These offenses are: rape, spousal rape, foreign object rape, lewd or lascivious acts against children, sodomy, oral copulation, and continuous sexual abuse of a child. The premise behind 'One Strike Rape' is that one victim is enough."

"The circumstances of some sex offenses are so aggravated that the state imposes a life sentence to avoid the potential of another victim. When a rapist or child molester cuts off his GPS device and evades the law the state has been put on notice that others are at great risk."

2. Background. Current law authorizes CDCR to utilize continuous electronic monitoring, including GPS, to electronically monitor the whereabouts of persons on parole as specified. Proposition 83 of 2006 provides that every inmate who has been convicted for any felony violation of a registerable sex offense, or any attempt to commit one of those sex offenses, and who is committed to prison and released on parole shall be monitored by GPS for life.

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.

Additionally, realignment 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 their revocation term in county jail. The only offenders who may be returned to state prison if parole is revoked are those with life terms.

3. Argument in Support: According to the Orange County Sheriff's Department, "The management of sex offenders continues to be a complex challenge for the law enforcement community. Once a sex offender serves his time in custody, a GPS device is the best tool available to ensure that these types of offenders are complying with state law. Due to the fact that these devices are so integral to the management of this population, offenders must know that there will be serious consequences for device tampering. Creating this added level of deterrence is a necessary addition to the penal code."
   
   

4. Argument in Opposition: According to the California Attorneys for Criminal Justice (CACJ), "Current law allows for parole revocation and incarceration in county jail for 180 days for the disabling or removing of a GPS device. This law, as a result of SB 57 (2013), went into effect on January 1, 2014. In addition, AB 2121 (2014) requires a person who is required to register as a sex offender as a condition of parole to report to his or her parole officer within one working day following the release from custody for the purpose of affixing the GPS device. The law also allows a certain amount of discretion in deciding whether certain individuals should be incarcerated for such violations."

5. Prior Legislation:

1. AB 2121 (Gray), Chapter 603, Statutes of 2014, requires sex offender parolees to report to their parole officers within one working day following release from prison, or as instructed by a parole officer, to be fitted with a GPS tracking device.
   
   

2. SB 57 (Lieu), Chapter 776, Statutes of 2013, created a new parole violation for a sex offender to remove or disable an electronic GPS or other monitoring device affixed as a condition of parole and required the person to be incarcerated in county jail for 180 days.
   
   

Analysis Prepared by: Pedro R. Reyes / APPR. / (916) 319-2081

Date of Hearing: July 14, 2015

Counsel: Stella Choe

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Bill Quirk, Chair

SBPCA Bill Id:SB 722

Author:(Bates) – As Amended Ver:May 5, 2015

SUMMARY: Creates a new state prison felony for any person who willfully disables an electronic, global positioning system (GPS) if the device was affixed as a condition of parole, postrelease community supervision (PRCS), or probation as a result of a conviction for a specified sex offense. Specifically, this bill:

1. Requires that the person must have intended to evade supervision and either does not surrender, or is not apprehended, within one week of the issuance of a warrant for absconding.
   
   

2. States that there shall be a rebuttable presumption that the person intended to evade supervision.
   
   

3. Makes the violation of this provision a felony, punishable by imprisonment in the state prison for 16 months, or two or three years.
   
   

4. Exempts the removal or disabling of a monitoring device by a physician, emergency medical services technician, or by any other emergency response or medical personnel when doing so is necessary during the course of medical treatment of the person subject to the device.
   
   

5. Requires the terms of probation or parole of a person who has committed a violation of these provisions to include participation and completion of a sex offender management program.

EXISTING LAW:

1. Authorizes the California Department of Corrections and Rehabilitation (CDCR) to utilize continuous electronic monitoring, including GPS, to electronically monitor the whereabouts of persons on parole as specified. (Pen. Code, § 3010.)

2. Provides that every inmate who has been convicted for any felony violation of a registerable sex offense or any attempt to commit any of those offenses and who was 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).)

3. 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 those sex offenses, and who is committed to prison and released on parole shall be monitored by GPS for life. (Pen. Code, § 3004, subd. (b).)

4. Provides that whenever a parole officer supervising an individual has reasonable cause to believe that the individual is not complying with the rules or conditions set forth for the use of continuous electronic monitoring as a supervision tool, the officer supervising the individual may, without a warrant of arrest, take the individual into custody for a violation of parole. (Pen. Code, § 3010.7.)

5. Authorizes the court, upon revocation of parole, to do any of the following:

1. Reinstate parole with modification of conditions, if appropriate, including a period of incarceration;

2. Revoke parole and order the parolee to serve time in the county jail; or,

3. Refer the parolee to a reentry program or other evidence-based program. (Pen. Code Section 3000.08, subd. (f).)

6. Limits confinement in the county jail for up to 180 days of incarceration per revocation. (Pen. Code Section 3000.08, subd. (g).)
   
   

7. Provides that parolees who are registered sex offenders and are required to have a GPS device as a condition of parole shall be subject to parole revocation and incarcerated in a county jail for 180 days if they remove or otherwise disable the device, as specified. (Pen. Code, § 3010.10.)
   
   

8. Establishes an enhanced sentencing structure that applies to crimes of rape, oral copulation, sodomy, and sexual penetration committed by force, duress or threats; lewd conduct with a child under the age of 14 and continuous sexual abuse of a child which, depending on the number and kinds of aggravating factors attendant to the crime, require a term of 15- or 25-years-to-life, or life without parole for specified crimes against a minor. (Pen. Code, § 667.61.)
   
   

9. Requires persons placed on parole or formal probation for an offense that requires the person to register as a sex offender to complete a sex offender management program. (Pen. Code, §§ 1203.067, subd. (b) and 3008, subd. (d).)

FISCAL EFFECT: Unknown.

COMMENTS:

1. Author's Statement: According to the author, "SB 722 focuses upon high risk predatory sex offenders by limiting its application to the offenses deemed most egregious by the legislature when it approved the 'One Strike Rape' law. These offenses are: rape, spousal rape, foreign object rape, lewd or lascivious acts against children, sodomy, oral copulation, and continuous sexual abuse of a child. The premise behind 'One Strike Rape' is that one victim is enough.

"The circumstances of some sex offenses are so aggravated that the state imposes a life sentence to avoid the potential of another victim. When a rapist or child molester cuts off his GPS device and evades the law the state has been put on notice that others are at great risk. SB 722 is needed because in the cases of Gordon and Cano the state simply waited for another victim."

2. Due Process Concerns: The Due Process Clause of the Fourteenth Amendment denies States the power to deprive the accused of liberty unless the prosecution proves beyond a reasonable doubt every element of the charged offense. (U.S. Const., 14th Amend.; In re Winship (1970) 397 U.S. 358, 364.) Where intent of the accused is an element of the crime, its existence is a question of fact to be determined by the jury. (Morissette v. United States (1952) 342 U.S. 246, 274.) A presumption on one of the required elements of a crime, regardless of whether it is rebuttable, relieves the prosecution of the affirmative burden of persuasion by instructing the jury that it must find the presumed element unless the defendant persuades the jury not to make such a finding. (Francis v. Franklin (1985) 471 U.S. 307, 317.) Such shifting of the burden of persuasion onto the defendant is impermissible under the Due Process Clause. (Ibid., citing Patterson v. New York (1977) 432 U.S. 197, 215.)
   
   

In Francis v. Franklin, supra, defendant, an escapee from prison, had fled to a nearby home and demanded the resident's car keys. The resident slammed the door and the defendant's gun went off. The bullet traveled through the wooden door and into the resident's chest killing him. The defendant was charged with murder which requires proof of the intent to kill. At trial the jury was instructed as follows on the issue of intent: "The acts of a person of sound mind and discretion are presumed to be the product of the person's will, but the presumption may be rebutted. A person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts, but the presumption may be rebutted. . . ." (Francis v. Franklin, supra, 471 U.S. at p. 311.) Defendant was found guilty of murder. Defendant appealed and ultimately had his conviction overturned by the United States Supreme Court.

The Court held that the jury instruction contained a mandatory presumption that violated the Due Process Clause. The Court's inquiry involved ascertaining whether the challenged portion of the instruction creates a mandatory presumption or merely a permissive inference. A mandatory presumption requires the jury to come to a certain conclusion, while a permissive inference suggests a possible conclusion but does not require it. The Court found that the instruction in Francis was a mandatory presumption because it "directs the jury to presume an essential element of the offense – intent to kill – upon proof of other elements of the offense – the act of slaying another. In this way the instructions 'undermine the factfinder's responsibility at trial, based on evidence adduced by the State, to find the ultimate facts beyond a reasonable doubt.'" (Id. at p. 316, citing County Court v. Allen (1979) 442 U.S. 140, 152.) Even though the jury instructions allowed the presumption to be rebutted, the presumption was still found to be unconstitutional because it shifted the burden of persuasion on the crucial element of intent from the prosecution to the defense. (Id. at p. 325.)

This bill contains a mandatory presumption that is rebuttable. This relieves the prosecution of its burden of persuasion on an element of the offense created by this bill. Specifically, this bill requires that a person disabled or removed a GPS device with the "intent to evade supervision." The defendant's intent is an element of the offense, and unless it is proven by the prosecution beyond a reasonable doubt that the defendant intended to evade supervision, the defendant cannot be found guilty. However, this bill further provides that "there shall be a rebuttable presumption that the person intended to evade supervision." Thus, similar to Francis, supra, this bill creates a mandatory presumption that the jury must find to be true, unless the defendant persuades them otherwise. As stated in Francis, the Due Process Clause "prohibits the State from using evidentiary presumptions in a jury charge that have the effect of relieving the State of its burden of persuasion beyond a reasonable doubt of every essential element of a crime." (Francis v. Franklin, supra, 471 U.S. at p. 313.) The presumption in this bill improperly shifts the burden of persuasion from the prosecution to the defendant and therefore violates the defendant's constitutional right to due process.

3. State Prison Overcrowding Considerations: In January 2010, a three-judge panel issued a ruling ordering the State of California to reduce its prison population to 137.5% of design capacity because overcrowding was the primary reason that CDCR was unable to provide inmates with constitutionally adequate healthcare. (Coleman/Plata vs. Schwarzenegger (2010) No. Civ S-90-0520 LKK JFM P/NO. C01-1351 THE.) The United State Supreme Court upheld the decision, declaring that "without a reduction in overcrowding, there will be no efficacious remedy for the unconstitutional care of the sick and mentally ill" inmates in California’s prisons. (Brown v. Plata (2011) 131 S.Ct. 1910, 1939; 179 L.Ed.2d 969, 999.)
   
   

After continued litigation, on February 10, 2014, the federal court ordered California to reduce its in-state adult institution population to 137.5% of design capacity by February 28, 2016, as follows:

• 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.

In its most recent status report to the court (June 2015), the administration reported that as "of June 10, 2015, 111,370 inmates were housed in the State’s 34 adult institutions, which amounts to 134.7% of design bed capacity, and 7,726 inmates were housed in out-of-state facilities. The current population is 2,352 inmates below the final court-ordered population benchmark of 137.5% of design bed capacity, and has been under that benchmark since February 2015." (Defendants' June 2015 Status Report In Response To February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, Three-Judge Court, Coleman v. Brown, Plata v. Brown (fn. omitted).

The state now must stabilize these advances and demonstrate to the federal court that California has in place the "durable solution" to prison overcrowding "consistently demanded" by the court. (Opinion Re: Order Granting in Part and Denying in Part Defendants' Request For Extension of December 31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court, Coleman v. Brown, Plata v. Brown (2-10-14).)

Moreover, there are still approximately 6,262 prisoners being housed in private prisons. (See the latest CDCR monthly population report, as of June 24, 2015: <http://www.cdcr.ca.gov/Reports_Research/Offender_Information_Services_Branch/WeeklyWed/TPOP1A/TPOP1Ad150624.pdf>.)

This bill creates a new state prison felony for any person who disables or removes a GPS device affixed as a condition of parole, probation, or PRCS as a result of a conviction for specified sex offenses. According to CDCR's most recent statistics, from January 2014 through March 2015, there were a total of 2,584 warrants issued for sex offenders who absconded from parole. Of those absconders, 1,261 were apprehended after 7 days, which is the amount of time specified under this bill. Under the newly enacted Penal Code Section 3010.10 (SB 57 (Lieu), Chapter 776, Statutes of 2013), which created a new parole violation for sex offenders who disable or remove a GPS device, there were a total of 1,675 violations from January 1, 2014 through March 2015. These numbers can be used to approximate the frequency of the type of violation this bill seeks to address. This bill could potentially send hundreds, if not thousands, of people to state prison, who would otherwise serve their time in county jail.

Although the state is currently in compliance with the court-ordered population cap (not counting the prisoners housed in out-of-state or private prisons), creating new state prison felonies will reverse the progress made in reducing the state prison population. This is contrary to the court's order for a durable solution to prison overcrowding.

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) 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 the process for revocation hearings, which was implemented in phases. Until July 1, 2013, individuals supervised on parole by state agents continue to have revocation hearings before BPH. After July 1, 2013, the trial courts will assume responsibility for holding all revocation hearings for those individuals who remain under the jurisdiction of CDCR. In contrast, since the inception of realignment, individuals placed on PRCS stopped appearing before the BPH for revocation hearings. Their revocation hearings are handled by the trial court.

Additionally, realignment 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 their revocation term in county jail. (Pen. Code, §§ 3056, subd. (a) and 3458.) The only offenders who may be returned to state prison if parole is revoked are those with life terms. (Pen. Code, § 3000.1.) Generally, there is a 180-day limit to incarceration on a parole or PRCS violation. (Pen. Code, §§ 3056, subd. (a) and 3455, subd. (c).)

SB 57 (Lieu), Chapter 776, Statutes of 2013, carved out a mandatory 180-day term in county jail for sex offenders who violate parole by removing or disabling a GPS or other monitoring device. This bill creates a new felony offense for certain sex offenders who remove or disable a GPS device and states that the offense is punishable by imprisonment in the state prison for 16 months, or two or three years. Assuming that a person convicted pursuant to the provisions of this bill receives the mid-term sentence of two years, and that the person would be eligible for worktime credits (day-for-day) because the new offense is not a "violent" felony or punishable under the three strikes law, the time actually served would be one year in state prison. If the person received the lower term of 16 months, the time actually served would be 8 months. Any days that the person spent in county jail awaiting disposition on his or her case would also reduce the term. Considering that under current law, this offense would receive a mandatory 180 days in county jail, does this bill create any deterrence for someone who would be facing minimally increased time in state prison?

5. Effectiveness of GPS Devices: In October 2014, the Office of the Inspector General (OIG), at the request of the Senate Rules Committee pursuant to subdivision (b) of Penal Code section 6126, conducted a review and assessment of electronic monitoring of sex offenders on parole. According to the report:

"There exists little objective evidence to determine to what extent, if any, GPS tracking is a crime deterrent, although a small 2012 study funded by the National Institute of Justice of 516 high-risk sex offenders found that offenders who were not subjected to GPS monitoring had nearly three times more sex-related parole violations than those who were monitored by GPS technology. Despite the rarity of studies defending GPS as a crime deterrent, the OIG’s interviews with parole agents and local law enforcement personnel found that they value GPS technology as a tool for its ability to locate parolees, track their movements, and provide valuable information in solving crimes."

(Office of the Inspector General, Special Review: Assessment of Electronic Monitoring of Sex Offenders on Parole and the Impact of Residency Restrictions (Oct. 2014), available at <http://www.oig.ca.gov/media/reports/Reports/Reviews/OIG_Special_Review_Electronic_Monitoring_of_Sex_Offenders_on_Parole_and_Impact_of_Residency_Restrictions_November_2014.pdf> (as of July 7, 2015), pg. 2.)

While anecdotally, GPS is an effective monitoring tool allowing parole agents to track the movement and locate parolees more quickly than is the case when supervising non-GPS parolees, the report found that GPS technology adds to a parole agent's workload in certain aspects, including reviewing GPS tracks for each working day for all GPS-monitored offenders, logging their tracking reviews daily, and responding to after-hours alerts from the GPS monitoring center.

"Parole administrators told the OIG that a typical parole agent spends approximately two hours reviewing a parolee’s GPS tracks for a single-day period. During the course of a GPS track review, a parole agent is expected to thoroughly investigate all points of interest and alerts, using the various viewing capabilities of the department’s GPS system. These capabilities include point-by-point playback, where the parole agent views each individual GPS track collected by the GPS system; point-pattern analysis, where the agent views groups of GPS points to identify and assess the parolee’s patterns; zoom levels, which allow the parole agent to adjust the view of the GPS points; and mapping tools, which allow parole agents to superimpose the GPS tracks on a map.

"Department policy requires parole agents to document the completion of their GPS review in parole supervision records. The parole agent documents the date and time range of the tracks reviewed as well as the findings observed and any further investigation needed as a result of the review. If the parole agent discovers during the review that a parolee violated the conditions of parole––such as travelling outside of his or her residence during curfew hours––the parole agent would document the violation and take the appropriate enforcement actions.

"Parole agents assigned to GPS duties also receive and respond to alerts generated by the GPS system. The department’s GPS vendor monitors the information generated by the GPS devices and notifies the parole agent when the system identifies a condition that requires review. Less urgent alerts (such as low-battery notices) are communicated to the parole agent by email, while more urgent alerts (such as notices regarding tampering with or removing GPS devices) are sent by text message or telephone call. Department policy requires parole agents to resolve all alerts within six business days and to document in the GPS system their actions taken, in addition to making appropriate entries into the parolee’s report of supervision."

(Id. at pg. 8.)

Additionally, the report found that a majority of parole agents carried caseloads exceeding department policy limits:

"Department policy states that a GPS caseload will consist of 20 high-risk or 40 non-high-risk cases, or an equitable combination of both. Accordingly, the department included in its policy the following matrix for its managers to follow in assigning caseloads of high-risk and non-high-risk sex offenders.

"However, when comparing actual parole agent caseloads with the department’s caseload matrix, the OIG found that 145 of its 231 parole agents (63 percent) carried caseloads exceeding the matrix limits. Although the average caseload size for the 231 parole agents was just over 30 parolees per agent, when the OIG factored in the mix of high-risk and non-high-risk parolees in the caseloads, most parole agents exceeded the matrix limits."

(Id. at pg. 10.)

As illustrated by the case of Franc Cano and Steven Gordon, two registered sex offenders who were being monitored by GPS when they allegedly raped and killed four women in Orange County over the period of 5 months, high caseloads can prevent the ability of parole agents to effectively monitor the whereabouts of those being tracked.

As reported by the Los Angeles Times, "In the two months before the first victim disappeared, the agent supervising Cano and Gordon went at least three weeks with 15 to 17 high-risk parolees on his watch, along with another 21 to 25 sex offenders. State rules should have limited him to six to 10 additional parolees. The agent exceeded the allowed ratios again in October, as did three other agents assigned to supervise either Cano or Gordon between August and February. Ondre Henry, president of the Parole Agents Assn. of California, said caseloads consistently exceed 40 parolees, and almost all agents have more than 20 cases. The workload, he said, hampers the ability to oversee sex offenders and fully investigate their whereabouts tracked on GPS devices. 'In the case of Gordon and Cano … yes, you can review the tracks. It's a very useful tool. But unless you can actually do the investigative work ... it kind of defeats the purpose,' Henry said. 'When you have caseload sizes that are so big, it's hard to drill into those specific factors.'" (St. John and Esquivel, California not following recommendation on parole agent caseloads, L.A. Times (Aug. 10, 2014) <http://www.latimes.com/local/la-me-ff-serial-killer-parole-20140804-story.html>.)

6. Argument in Support: According to the Orange County Sheriff's Department, "The management of sex offenders continues to be a complex challenge for the law enforcement community. Once a sex offender serves his time in custody, a GPS device is the best tool available to ensure that these types of offenders are complying with state law. Due to the fact that these devices are so integral to the management of this population, offenders must know that there will be serious consequences for device tampering. Creating this added level of deterrence is a necessary addition to the penal code."
   
   

7. Argument in Opposition: According to the California Attorneys for Criminal Justice (CACJ), "Current law allows for parole revocation and incarceration in county jail for 180 days for the disabling or removing of a GPS device. This law, as a result of SB 57 (2013), went into effect on January 1, 2014. In addition, AB 2121 (2014) requires a person who is required to register as a sex offender as a condition of parole to report to his or her parole officer within one working day following the release from custody for the purpose of affixing the GPS device. The law also allows a certain amount of discretion in deciding whether certain individuals should be incarcerated for such violations.

"In the last two legislative sessions, our laws have been changed to provide certain oversight on tracked sex offenders. However, there has been insufficient time to evaluate whether the implementation of this new law has proven to be effective at deterring persons from disabling or removing their GPS devices. Notwithstanding these laws, sending a person back to prison for a minor offense does not address the root issues of persons being ill-prepared to reenter their communities upon release. The enormous cost of incarceration and parole revocations for even minor offenders continue to contribute to budget constraints and fuel public cries for fiscal reform.

"This legislation is premature and unnecessary considering Penal Code section 3010.10 was recently amended in the prior legislative session. There are no statistics or research proving current law is insufficient or incarceration time must be extended. For these reasons, CACJ must regretfully oppose SB 722."

8. Prior Legislation:

1. AB 2121 (Gray), Chapter 603, Statutes of 2014, requires sex offender parolees to report to their parole officers within one working day following release from prison, or as instructed by a parole officer, to be fitted with a GPS tracking device.
   
   

2. SB 57 (Lieu), Chapter 776, Statutes of 2013, created a new parole violation for a sex offender to remove or disable an electronic GPS or other monitoring device affixed as a condition of parole and required the person to be incarcerated in county jail for 180 days.
   
   

3. 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.
   
   

4. SB 722 (Nielson), of the 2013-14 Legislative Session, would have created new penalties for any person to willfully remove or disable an electronic monitoring or supervising device affixed to his or her person or the person of another, knowing that the device was affixed as part of a criminal sentence or juvenile court disposition, as a condition of parole or probation, or otherwise pursuant to law. SB 742 failed passage in Senate Public Safety.
   
   

5. AB 2016 (Gorell), of the 2011-12 Legislative Session, would have prohibited 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.
   
   

6. AB 179 (Gorell), of the 2011-12 Legislative Session, was substantially similar to AB 2016. AB 179 failed passage in this Committee.
   
   

7. 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.
   
   

8. 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 Against Slavery

California Association of Code Enforcement Officers

California College and University Police Chiefs Association

California District Attorneys Association

California Narcotic Officers Association

California State Lodge, Fraternal Order of Police

California State Sheriffs' Association

Crime Victims United of California

Long Beach County Police Officers Association

Los Angeles County Professional Peace Officers Association

Orange County Board of Supervisors

Orange County District Attorney's Office

Orange County Sheriff's Department

Sacramento County Deputy Sheriffs' Association

San Diego County Sheriff's Department

San Diego County District Attorney's Office

Opposition

American Civil Liberties Union of California

California Attorneys for Criminal Justice

California Public Defenders Association

Legal Services for Prisoners with Children

Analysis Prepared by: Stella Choe / PUB. S. / (916) 319-3744

 THIRD READING  

Bill No: SB 722

Author: Bates (R), et al.

Amended: 5/5/15

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 7-0, 4/28/15

AYES: Hancock, Anderson, Leno, Liu, McGuire, Monning, Stone

SENATE APPROPRIATIONS COMMITTEE: 7-0, 5/28/15

AYES: Lara, Bates, Beall, Hill, Leyva, Mendoza, Nielsen

SUBJECT: Sex offenders: GPS monitoring: removal

SOURCE: Author

DIGEST: This bill makes it a felony punishable by imprisonment in the state prison, as specified, for a person to willfully remove or disable, or permit another person to remove or disable, an electronic, global positioning system (GPS), or other monitoring device, if the device was affixed as a condition of parole, postrelease community supervision (PRCS), or probation as a result of a conviction for specified sex offenses, and if specified criteria are met.

ANALYSIS:

Existing law:

1. Authorizes the use of electronic monitoring or GPS devices in the criminal justice system, as specified.

2. Provides that removing or otherwise defeating the operation of a GPS device is a violation of parole or probation, or subject to return to custody from an alternative custody program.

3. Provides that parolees who are registered sex offenders and are required to have a GPS device as a condition of parole shall be subject to parole revocation and incarcerated in a county jail for 180 days if they remove or otherwise disable the device, as specified. (Penal Code § 3010.10.)

4. Includes an enhanced sentencing structure that applies to crimes of rape, oral copulation, sodomy, and sexual penetration committed by force, duress or threats; lewd conduct with a child under the age of 14 and continuous sexual abuse of a child which, depending on the number and kinds of aggravating factors attendant to the crime, require a term of 15 or 25-years-to-life, or life without parole for specified crimes against a minor. (Pen. Code § 667.61.)

This bill:

1. Makes it a felony for a person to willfully remove or disable, or permit another person to remove or disable, an electronic, GPS, or other monitoring device affixed to his or her person, if the device was affixed as a condition of parole, PRCS, or probation as a result of a conviction of a specified sex offense, if the person intended to evade supervision and either does not surrender, or is not apprehended, within one week of the issuance of a warrant for absconding.

2. Provides that the felony is punishable by imprisonment in the state prison for 16 months, or two or three years.

3. Provides there shall be a rebuttable presumption that the person intended to evade supervision.

4. Excludes the removal or disabling of a monitoring device by a physician, emergency medical services technician, or by any other emergency response or medical personnel when doing so is necessary during the course of medical treatment of the person subject to the device.

5. Provides that this bill’s provisions do not apply if the removal or disabling of the device is authorized or required by a court, by law enforcement, or by any other entity that is responsible for placing the device upon the person or that has the authority and responsibility to monitor the device.

6. Requires the terms of probation or parole for a person who commits a violation of this bill’s provision must include participation and completion of a sex offender management program.

Background

In October of 2014 the Office of the Inspector General (OIG) issued a report entitled, “Special Review: Assessment of Electronic Monitoring of Sex Offenders on Parole and the Impact of Residency Restrictions.” This review, conducted at the request of the Senate Rules Committee, included the following observations:

• There exists little objective evidence to determine to what extent, if any, GPS tracking is a crime deterrent, although a small 2012 study funded by the National Institute of Justice of 516 high-risk sex offenders found that offenders who were not subjected to GPS monitoring had nearly three times more sex-related parole violations than those who were monitored by GPS technology. Despite the rarity of studies defending GPS as a crime deterrent, the OIG’s interviews with parole agents and local law enforcement personnel found that they value GPS technology as a tool for its ability to locate parolees, track their movements, and provide valuable information in solving crimes.

• GPS technology adds to parole agents’ workloads in certain aspects, while affording time-savings in others. For example, agents spend approximately two hours reviewing and analyzing parolees’ tracks for a single-day period. On the other hand, GPS facilitates mandatory face-to-face contacts between parole agents and parolees by allowing the agent to locate parolees more quickly than might be the case in locating a non-GPS parolee.

• Over 60% of parole agents who supervise sex-offender parolees have caseloads exceeding established departmental ratios (parolee-to-agent) when taking into consideration the mix of high-risk vs low-risk parolees per caseload. In addition, the Department of Corrections and Rehabilitation (CDCR) has a disparity of caseloads across its parole units, with 14 of the 37 parole units that supervise sex offenders reporting caseload sizes exceeding CDCR’s established ratios for all agents assigned to those units. Simultaneously, five other parole units report caseload sizes below CDCR’s established ratios for all of their parole agents.

The OIG also presented data over the five years prior to the report demonstrating that “transient sex offenders have committed a majority of parole violations among parolee sex offenders over the five year period. In fact, in the most recently completed fiscal year (2013–14), over 76 percent of the sex offender parolees whom the department charged with violating their parole terms were transient. . . . ¶ According to the parole administrators the OIG talked to, there are various reasons transient sex offenders violate the conditions of their parole more often than those with a residence. Among the reasons voiced were increased prevalence of mental health issues, lack of a stable support network, increased exposure to drugs and prostitution on the streets, and challenges finding employment.”

Last session, the Legislature enacted SB 57 (Lieu, Chapter 776, Statutes of 2013), which originally sought to enact a new felony for felons being supervised in the community – either on parole or postrelease community supervision -- who willfully defeated their GPS/electronic monitoring. That bill was amended to impose the mandatory jail term now reflected in existing law.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

According to the Senate Appropriations Committee:

• Potentially significant increase in state costs (General Fund) to the extent creating the new felony offense leads to additional state prison commitments. Data from the CDCR indicates over 1,200 inmates released onto parole/PRCS under the applicable crimes within the past 12 months. While it is unknown how many cases will be impacted in any one year, to the extent even 1% (12 persons) of potentially eligible cases are impacted, costs would be in excess of $400,000 for 12 months served.

• Potential decrease in local jail costs (Local Fund) to the extent individuals who otherwise would have been subject to parole revocation and 180 days in county jail are instead charged with the prison-eligible felony.

• Potential increase in non-reimbursable county probation (Local Fund) and state parole costs (General Fund) for additional persons required to participate and complete a sex offender management program. Annual costs would be dependent on the number of persons convicted of the new prison-eligible offense.

SUPPORT: (Verified 5/28/15)

California District Attorneys Association

California State Sheriffs’ Association

Crime Victims United of California

Office of the San Diego District Attorney

Orange County Board of Supervisors

Orange County District Attorney’s Office

Orange County Sheriff’s Department

Peace Officers Research Association of California

OPPOSITION: (Verified 5/28/15)

American Civil Liberties Union

California Attorneys for Criminal Justice

California Public Defenders Association

Legal Services for Prisoners with Children

ARGUMENTS IN SUPPORT:

The author states in part:

SB 722 is needed in order to send the message to convicted sex offenders that cutting off or altering their ankle bracelet is a serious offense and will not be taken lightly. The two men mentioned earlier are known to have re-offended on two different occasions. When they first cut off their devices and fled to Nevada, they should have been prosecuted with more than just a short few months in county jail as this was a deliberate attempt to run from law enforcement.

Additionally, the offenses listed in SB 722 deliberately spell out the most serious, egregious sex crimes. These offenses are rape, spousal rape, sexual penetration, lewd or lascivious acts and children, sodomy, oral copulation, and continuous sexual abuse of a child. SB 722 is needed today more than ever to ensure that justice is being served to those that defy law enforcement.

ARGUMENTS IN OPPOSITION:

California Attorneys for Criminal Justice, which opposes this bill, submits in part:

In the last two legislative sessions, our laws have been changed to provide certain oversight on tracked sex offenders. However, there has been insufficient time to evaluation whether the implementation of this new law has proven to be effective at deterring persons from disabling or removing their GPS devices. Notwithstanding these laws, sending a person back to prison for a minor offense does not address the root issues of persons being ill-prepared to reenter their communities upon release, The enormous cost of incarceration and parole revocations for even minor offenders continue to contribute to budget constraints and fuel public cries for fiscal reform.

Prepared by: Alison Anderson / PUB. S. /

5/29/15 10:01:07

**** END ****

SENATE COMMITTEE ON APPROPRIATIONS

Senator Ricardo Lara, Chair

2015 - 2016 Regular Session

SB 722 (Bates) - Sex offenders: GPS monitoring: removal

This bill meets the criteria for referral to the Suspense File.

Bill Summary:

SB 722 would make it a felony punishable by imprisonment in the state prison, as specified, for a person to willfully remove or disable, or permit another person to remove or disable, an electronic, global positioning system (GPS), or other monitoring device, if the device was affixed as a condition of parole, postrelease community supervision (PRCS), or probation as a result of a conviction for specified sex offenses, and if specified criteria are met.

Fiscal Impact:

• Potentially significant increase in state costs (General Fund) to the extent creating the new felony offense leads to additional state prison commitments. Data from the CDCR indicates over 1,200 inmates released onto parole/PRCS under the applicable crimes within the past 12 months. While it is unknown how many cases will be impacted in any one year, to the extent even one percent (12 persons) of potentially eligible cases are impacted, costs would be in excess of $400,000 for 12 months served.

• Potential decrease in local jail costs (Local Fund) to the extent individuals who otherwise would have been subject to parole revocation and 180 days in county jail are instead charged with the prison-eligible felony.

• Potential increase in non-reimbursable county probation (Local Fund) and state parole costs (General Fund) for additional persons required to participate and complete a sex offender management program. Annual costs would be dependent on the number of persons convicted of the new prison-eligible offense.

Background:

Existing law generally authorizes the use of electronic monitoring or GPS devices in the criminal justice system, as follows:

• Alternative custody programs for female inmates in the Department of Corrections and Rehabilitation (CDCR) (Penal Code (PC) § 1170.05(e).);

• Probation for certain sex offenders who have been assessed as high risk, as specified (PC § 1202.8.);

• Probation for other offenders, as specified (PC §§ 1210.12, 1210.7 et seq.);

• Home detention programs for county inmates, as specified (PC §§ 1203.016, 1203.017.);

• County inmates being held in lieu of bail, as specified (PC § 1203.018.);

• Persons subject to an order protecting a victim or witness of violent crime from all contact, as specified (PC § 136.2.);

• Persons on parole, as specified (PC §§ 3004, 3010.);

• Persons on post release community supervision (PC §§ 3450, 3454.);

• Prisoners subject to medical parole supervision (PC § 3550.).

Existing law generally provides that removing or otherwise defeating the operation of a GPS device is a violation of parole or probation, or subject to return to custody from an alternative custody program.

Under existing law, parolees who are registered sex offenders and are required to have a GPS device as a condition of parole shall be subject to parole revocation and incarcerated in a county jail for 180 days if they remove or otherwise disable the device, as specified. (PC § 3010.10.)

Proposed Law:

This bill would make it a felony for a person to willfully remove or disable, or permit another person to remove or disable, an electronic, GPS, or other monitoring device affixed to his or her person, if the device was affixed as a condition of parole, PRCS, or probation as a result of a conviction of any specified sex offense, if the person intended to evade supervision and either does not surrender, or is not apprehended, within one week of the issuance of a warrant for absconding. This bill:

• Provides that the felony is punishable by imprisonment in the state prison for 16 months, or two or three years.

• Provides there shall be a rebuttable presumption that the person intended to evade supervision.

• Provides that the bill does not apply to the removal or disabling of a monitoring device by a physician, emergency medical services technician, or by any other emergency response or medical personnel when doing so is necessary during the course of medical treatment of the person subject to the device.

• Provides that the bill’s provisions do not apply if the removal or disabling of the device is authorized or required by a court, by law enforcement, or by any other entity that is responsible for placing the device upon the person or that has the authority and responsibility to monitor the device.

• Requires the terms of probation or parole for a person who commits a violation of the bill’s provision must include participation and completion of a sex offender management program.

Prior Legislation:

SB 57 (Lieu) Chapter 776/2013 prohibits a person who is required to register as a sex offender and who is subject to parole supervision from removing or disabling, as specified, an electronic GPS or other monitoring device affixed as a condition of parole.

Staff Comments:

The CDCR indicates that while the actual impact this bill will have on the state prison population is unknown, it is assumed that this bill would potentially result in an impact on the number of commitments to state prison as it creates a new felony punishable by a state prison term. From May 2014 through April 2015, CDCR indicates 1,261 inmates were released from state prison onto parole or PRCS with an offense listed in PC § 667.61, to whom this bill would apply.

While the CDCR does not have information readily available to determine how many of these individuals would potentially be subject to the new felony conviction, to the extent even one percent of these individuals are convicted of the felony created by this bill, the annual cost of 12 new prison admissions would be over $400,000 (General Fund) based on the current in-state contract bed cost per case of $34,000. This estimate does not include the impact of the potential population of individuals on probation who would also be subject to the bill’s provisions. It is unknown at this time how many individuals are currently on probation under the applicable offenses listed in this bill, however, to the extent additional violations and subsequent commitments to state prison occur, would further increase annual state costs.

The Three-Judge Court has ordered the State to reduce its prison population to 137.5 percent of the prison system’s design capacity by February 28, 2016. Pursuant to its February 10, 2014 order, the Court has ordered the CDCR to implement several population reduction measures, prohibited an increase in the population of inmates housed in out-of-state facilities, and indicated the Court will maintain jurisdiction over the State for as long as necessary to ensure that the State’s compliance with the 137.5 percent final benchmark is durable, and that such durability is firmly established. Any future increases to the State's prison population could challenge the ability of the State to reach and maintain such a “durable solution,” and could require the State to pursue one of several options, including contracting-out for additional bed space or releasing current inmates early onto parole.

-- END --

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Loni Hancock, Chair

2015 - 2016 Regular

Bill No: SB 722 Hearing Date: April 28, 2015

Subject: Sex Offenders: GPS Monitoring: Penalties for Removal

HISTORY

Source: Author

Prior Legislation: SB 57 (Lieu) – Chapter 776, Statutes of 2013

Support: California District Attorneys Association; Crime Victims United of California; Peace Officers Research Association of California; Orange County District Attorney’s Office; Orange County Board of Supervisors; Orange County Sheriff’s Department; California State Sheriffs’ Association

Opposition: American Civil Liberties Union; California Public Defenders Association; Legal Services for Prisoners with Children; California Attorneys for Criminal Justice; Public Interest Advocacy

PURPOSE

The purpose of this bill is to enact a new felony, punishable by imprisonment in the state prison for 16 months, or two or three years, for the willful removal or disabling of a GPS device “if the device was affixed as a result of a criminal sentence or juvenile court disposition for specified forcible sex crimes,” as specified.

Current law generally authorizes the use of electronic monitoring or global positioning system devices (“GPS”) in the criminal justice system, as specified. The following statutes authorize the use of these devices, reflecting a variety of criminal justice circumstances where they can be employed:

• Alternative custody programs for female inmates in the Department of Corrections and Rehabilitation (“CDCR”) (Penal Code § 1170.05(e));

• Probation for certain sex offenders who have been assessed as high risk, as specified (Penal Code § 1202.8);

• Probation for other offenders, as specified (Penal Code §§ 1210.12; See also 1210.7 et seq.);

• Home detention programs for county inmates, as specified (Penal Code §§ 1203.016, 1203.017);

• County inmates being held in lieu of bail, as specified (Penal Code § 1203.018);

• Persons subject to an order protecting a victim or witness of violent crime from all contact, as specified (Penal Code § 136.2);

• Persons on parole, as specified (Penal Code §§ 3004, 3010);

• Persons on post release community supervision (Penal Code §§ 3450, 3454); and

• Prisoners subject to medical parole supervision (Penal Code § 3550).

Current law generally provides that removing or otherwise defeating the operation of a GPS device is a violation of parole or probation, or subject to return to custody from an alternative custody program. (Id.)

Current law provides that parolees who are registered sex offenders and are required to have a GPS device as a condition of parole shall be subject to parole revocation and incarcerated in a county jail for 180 days if they remove or otherwise disable the device, as specified. (Penal Code § 3010.10.)

Existing law includes an enhanced sentencing structure that applies to crimes of rape, oral copulation, sodomy, and sexual penetration committed by force, duress or threats; lewd conduct with a child under the age of 14 and continuous sexual abuse of a child¹ which, depending on the number and kinds of aggravating factors attendant to the crime, require a term of 15 or 25-years-to-life, or life without parole for specified crimes against a minor. (Pen. Code § 667.61.)

This bill would enact a new felony, providing that a “person who willfully removes or disables an electronic, global positioning system, or other monitoring device affixed to his or her person or the person of another, if the device was affixed as a result of a criminal sentence or juvenile court disposition for” any of the sex crimes described above is guilty of a felony, punishable by imprisonment in the state prison for 16 months, or two or three years.”

This bill would provide that its provisions would “not apply to the removal or disabling of a monitoring device by a physician, emergency medical services technician, or by any other emergency response or medical personnel when doing so is necessary during the course of medical treatment of the person subject to the device. This section does not apply if the removal or disabling of the device is authorized or required by a court, by law enforcement, or by any other entity that is responsible for placing the device upon the person or that has the authority and responsibility to monitor the device.”

RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

For the past eight years, this Committee has scrutinized legislation referred to its jurisdiction for any potential impact on prison overcrowding. Mindful of the United States Supreme Court ruling and federal court orders relating to the state’s ability to provide a constitutional level of health care to its inmate population and the related issue of prison overcrowding, this Committee has applied its “ROCA” policy as a content-neutral, provisional measure necessary to ensure that the Legislature does not erode progress in reducing prison overcrowding.

On February 10, 2014, the federal court ordered California to reduce its in-state adult institution population to 137.5% of design capacity by February 28, 2016, as follows:

• 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.

In February of this year the administration reported that as “of February 11, 2015, 112,993 inmates were housed in the State’s 34 adult institutions, which amounts to 136.6% of design bed capacity, and 8,828 inmates were housed in out-of-state facilities. This current population is now below the court-ordered reduction to 137.5% of design bed capacity.” ( Defendants’ February 2015 Status Report In Response To February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman v. Brown, Plata v. Brown (fn. omitted).

While significant gains have been made in reducing the prison population, the state now must stabilize these advances and demonstrate to the federal court that California has in place the “durable solution” to prison overcrowding “consistently demanded” by the court. (Opinion Re: Order Granting in Part and Denying in Part Defendants’ Request For Extension of December 31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court, Coleman v. Brown, Plata v. Brown (2-10-14). The Committee’s consideration of bills that may impact the prison population therefore will be informed by the following questions:

• Whether a proposal erodes a measure which has contributed to reducing the prison population;

• Whether a proposal addresses a major area of public safety or criminal activity for which there is no other reasonable, appropriate remedy;

• Whether a proposal addresses a crime which is directly dangerous to the physical safety of others for which there is no other reasonably appropriate sanction;

• Whether a proposal corrects a constitutional problem or legislative drafting error; and

• Whether a proposal proposes penalties which are proportionate, and cannot be achieved through any other reasonably appropriate remedy.

COMMENTS

1. Stated Need for This Bill

The author states:

A recent serial-killing spree in Orange County, that left four (and possibly five) women dead, has elevated the need for tighter penalties when a GPS device is removed. Existing law does nothing to deter sex offenders from cutting off or altering their ankle bracelets and in consequence does little to prevent future crimes from happening again.

In 2012, two men on release from state prison for prior convictions of child molestation cut off their state-mandated GPS ankle bracelets and left California on a bus. By the time police caught up to the pair, the penalty they ended up receiving for removing the devices was minor and they served only a few short months’ time. One was sentenced to ten months in federal prison and the other received just eight months. Again, upon their release, they were required to wear ankle bracelets to track their whereabouts throughout Orange County.

In early 2014, four women went missing in Orange County. Within five months, all four of the women’s bodies had been found dead. Shortly after, the two men mentioned above were arrested for being linked to the murders (and later convicted). During the investigation (prior to arresting either man), one of the men was told he could remove his bracelet after having served his full term on probation. During the two week period to which he had no tracking device, the killing spree continued and a 27 year old mother was found murdered. When it was discovered 11 days later that this man was deemed homeless, a federal judge ordered he be outfitted with a new GPS device to continue monitoring his whereabouts.

After all these deaths late last year former State Senate Pro Tem Darrell Steinberg ordered the Inspector General (IG) to generate a review and report after the arrests of both men who were connected to the four killings. He wanted the review to assess whether sex offenders are adequately monitored in California.

The Orange County Register later reported that although the men were prohibited from being together, records and interviews showed they routinely violated this term of release without facing serious consequences. One news source went as far as calling them “friends for years.” Twice these individuals have cut off their tracking devices and absconded to other states, clearly indicating they were in this business together.

The IG report did allude to the need for a serious discussion about the effectiveness of GPS devices as a crime deterrent. Absent of harsh-enough penalties for removing or altering an ankle bracelet, why would a convicted sex offender not be tempted to cut off his or her device knowing that the worst case scenario they’d be given a few months behind bars and then be sent back to where they left off?

SB 722 is needed in order to send the message to convicted sex offenders that cutting off or altering their ankle bracelet is a serious offense and will not be taken lightly. The two men mentioned earlier are known to have re-offended on two different occasions. When they first cut off their devices and fled to Nevada, they should have been prosecuted with more than just a short few months in county jail as this was a deliberate attempt to run from law enforcement.

Additionally, the offenses listed in SB 722 deliberately spell out the most serious, egregious sex crimes. These offenses are rape, spousal rape, sexual penetration, lewd or lascivious acts and children, sodomy, oral copulation, and continuous sexual abuse of a child. SB 722 is needed today more than ever to ensure that justice is being served to those that defy law enforcement.

2. Summary of What This Bill Would Do and Current Law

As explained in detail above, there are several circumstances when criminal offenders can be required to wear a GPS device during a period of community supervision or conditional release. Under current law, the consequence for disabling or removing a GPS device generally is the loss of the conditional release (for example, loss of placement in alternative custody and a return to jail), or a revocation of probation or parole. For sex offender parolees who are required to have a GPS device as a condition of parole, the sanction for removing or otherwise disabling a GPS device is incarceration in a county jail for 180 days. (Penal Code §3010.10.) This sanction was enacted in 2013 pursuant to SB 57 (Lieu).

This bill would enact a new felony, punishable by imprisonment in the state prison for 16 months, or two or three years, for the willful removal or disabling of a GPS device “if the device was affixed as a result of a criminal sentence or juvenile court disposition for specified forcible sex crimes.”

3. Recent Special Review by The Inspector General

As noted by the author, in October of 2014 the Office of the Inspector General (OIG) issued a report entitled, Special Review: Assessment of Electronic Monitoring of Sex Offenders on Parole and the Impact of Residency Restrictions. This review, conducted at the request of the Senate Rules Committee pursuant to Penal Code section 6126(b), included the following observations:

• There exists little objective evidence to determine to what extent, if any, GPS tracking is a crime deterrent, although a small 2012 study funded by the National Institute of Justice of 516 high-risk sex offenders found that offenders who were not subjected to GPS monitoring had nearly three times more sex-related parole violations than those who were monitored by GPS technology. Despite the rarity of studies defending GPS as a crime deterrent, the OIG’s interviews with parole agents and local law enforcement personnel found that they value GPS technology as a tool for its ability to locate parolees, track their movements, and provide valuable information in solving crimes.

• GPS technology adds to parole agents’ workloads in certain aspects, while affording time-savings in others. For example, agents spend approximately two hours reviewing and analyzing parolees’ tracks for a single-day period. On the other hand, GPS facilitates mandatory face-to-face contacts between parole agents and parolees by allowing the agent to locate parolees more quickly than might be the case in locating a non-GPS parolee.

• Over 60 percent of parole agents who supervise sex-offender parolees have caseloads exceeding established departmental ratios (parolee-to-agent) when taking into consideration the mix of high-risk vs low-risk parolees per caseload. In addition, the department has a disparity of caseloads across its parole units, with 14 of the 37 parole units that supervise sex offenders reporting caseload sizes exceeding the department’s established ratios for all agents assigned to those units. Simultaneously, five other parole units report caseload sizes below the department’s established ratios for all of their parole agents.²

The OIG also presented data over the five years prior to the report demonstrating that “transient sex offenders have committed a majority of parole violations among parolee sex offenders over the five year period. In fact, in the most recently completed fiscal year (2013–14), over 76 percent of the sex offender parolees whom the department charged with violating their parole terms were transient. . . . ¶ According to the parole administrators the OIG talked to, there are various reasons transient sex offenders violate the conditions of their parole more often than those with a residence. Among the reasons voiced were increased prevalence of mental health issues, lack of a stable support network, increased exposure to drugs and prostitution on the streets, and challenges finding employment.”

With respect to recidivism among sex offender parolees the OIG report states:

. . . (T)he OIG’s analysis of CDCR’s records of violations by sex offender parolees, . . . reveals that a very low proportion of violations — roughly 1 percent — over the five-year period were for sex-related crimes. This runs contrary to the popular belief that sex offenders have a high rate of recidivism compared to other types of felons, an underlying premise to placing Proposition 83 (Jessica’s Law) on the California ballot. It also reflects the findings of studies released by the U.S. Department of Justice in 2003 and by CDCR in 2012.

A 2003 study of over 9,000 male sex offenders released from State prisons in 14 different states conducted by the U.S. Department of Justice provides some objective evidence as to recidivism rates of sex offenders. The study found that “Compared to non-sex offenders released from State prison, sex offenders had a lower overall re-arrest rate” for any type of crime (not just sex crimes) — 43 percent for sex offenders as compared to 68 percent for non-sex offenders. However, a more telling statistic concerns reconvictions for a sex crime; the study found that “of the 9,691 released sex offenders, 3.5 percent (339 of 9,691) were reconvicted of a sex crime within the three-year follow up period.”

A study released by CDCR’s Office of Research in October 2012 provides further context to sex offenders’ recidivism rate in California. Based on its study of inmates released three years earlier, the recidivism rate of sex offenders required to register under California Penal Code Section 290 was just over 69 percent. However, the study’s deeper analysis of the recidivist group found that nearly 87 percent were returned to prison for technical parole violations unrelated to sex crimes. Only 1.9 percent (111 offenders out of 8,490 studied) were returned to prison for new sex crimes.³

Members may wish to discuss the potential scope of this bill, and the amendments suggested in Comment 6 below. “Willful” removal or disabling “implies simply a purpose or willingness to commit the act, or make the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage.” (Penal Code § 7.) Thus, members may wish to discuss whether a felony would be an effective and proportionate penalty in every case where a GPS has been “willfully” removed or disabled for these particular offenders -- for example, an otherwise-compliant transient sex offender who may or may not have easy access to an outlet and fails to re-charge a GPS device before it goes dead, or cases where there is a reasonable explanation for a break in contact (i.e. a device got wet, the parolee was in a location where the signal was temporarily blocked, etcetera).

ARE THE EXISTING SANCTIONS FOR SEX OFFENDERS WHO DISABLE OR REMOVE A GPS DEVICE INADEQUATE?

SHOULD THE PENALTY FOR DISABLING OR REMOVING A GPS DEVICE BE BASED ON THE OFFENDER’S UNDERLYING OFFENSE, REGARDLESS OF THE OFFENDER’S INTENT OR THE CIRCUMSTANCES?

4. Recent Legislation Compared to This Bill; Likely Effect of This Bill

As explained above, this bill would apply to a limited class of persons who have been convicted of serious sex crimes, including child molestation. While the bill’s literal scope as drafted would include any of these offenders if a GPS device has been affixed as a result of a criminal sentence or juvenile court disposition, as a practical matter the bill would appear to be limited primarily to persons on parole or postrelease community supervision. Probation generally is prohibited under current law for these categories of sex offenses. (Penal Code §§ 1203.06, 1203.066.) Similarly, prison inmates with these convictions would be ineligible for the alternative custody program described above. While the jail alternative custody statutes do not expressly exclude these offenders from eligibility, it seems likely that county jail administrators would not include them in their local programs. Thus, this bill would appear to apply to parolees and persons coming out of prison on postrelease community supervision.

Last session, this Committee passed SB 57 (Lieu), which originally sought to enact a new felony for felons being supervised in the community – either on parole or postrelease community supervision -- who willfully defeat their GPS/electronic monitoring. The bill was passed by the Committee as amended to impose the mandatory jail term in current law.

Members may wish to discuss this bill compared to the Lieu bill of last session, and whether the likely effect of this bill would be very similar to the Lieu bill before it was amended in Committee.

SHOULD THE CURRENT SANCTION FOR PAROLEES WHO VIOLATE THEIR GPS REQUIREMENTS – WHICH WERE ENACTED IN 2013 -- BE INCREASED TO A FELONY?

WOULD A NEW FELONY OF 16 MONTHS, 2 OR 3 YEARS, BE MORE EFFECTIVE THAN THE NEW SANCTION ENACTED IN 2013?

5. Research on Sentences as a Deterrent to Crime

Criminal justice experts and commentators have noted that, with regard to sentencing, “a key question for policy development regards whether enhanced sanctions or an enhanced possibility of being apprehended provide any additional deterrent benefits.

Research to date generally indicates that increases in the certainty of punishment, as opposed to the severity of punishment, are more likely to produce deterrent benefits.⁴

A comprehensive report published in 2014, entitled The Growth of Incarceration in the United States, discusses the effects on crime reduction through incapacitation and deterrence, and describes general deterrence compared to specific deterrence:

A large body of research has studied the effects of incarceration and other criminal penalties on crime. Much of this research is guided by the hypothesis that incarceration reduces crime through incapacitation and deterrence. Incapacitation refers to the crimes averted by the physical isolation of convicted offenders during the period of their incarceration. Theories of deterrence distinguish between general and specific behavioral responses. General deterrence refers to the crime prevention effects of the threat of punishment, while specific deterrence concerns the aftermath of the failure of general deterrence—that is, the effect on reoffending that might result from the experience of actually being punished. Most of this research studies the relationship between criminal sanctions and crimes other than drug offenses. A related literature focuses specifically on enforcement of drug laws and the relationship between those criminal sanctions and the outcomes of drug use and drug prices.⁵

In regard to deterrence, the authors note that in “the classical theory of deterrence, crime is averted when the expected costs of punishment exceed the benefits of offending. Much of the empirical research on the deterrent power of criminal penalties has studied sentence enhancements and other shifts in penal policy. . . .

Deterrence theory is underpinned by a rationalistic view of crime. In this view, an individual considering commission of a crime weighs the benefits of offending against the costs of punishment. Much offending, however, departs from the strict decision calculus of the rationalistic model. Robinson and Darley (2004) review the limits of deterrence through harsh punishment. They report that offenders must have some knowledge of criminal penalties to be deterred from committing a crime, but in practice often do not.”⁶

Members may wish to discuss whether the “rationalistic view” of crime described above likely would apply to persons who willfully disable or remove a GPS device – that is, whether the new felony would discourage the wrongful conduct.

WOULD A NEW FELONY DETER THE SEX OFFENDERS TARGETED BY THIS BILL FROM REMOVING OR DISABLING A GPS DEVICE?

The authors of the 2014 report discussed above conclude that incapacitation of certain dangerous offenders can have “large crime prevention benefits,” but that incremental, lengthy prison sentences are ineffective for crime deterrence:

Whatever the estimated average effect of the incarceration rate on the crime rate, the available studies on imprisonment and crime have limited utility for policy. The incarceration rate is the outcome of policies affecting who goes to prison and for how long and of policies affecting parole revocation. Not all policies can be expected to be equally effective in preventing crime. Thus, it is inaccurate to speak of the crime prevention effect of incarceration in the singular. Policies that effectively target the incarceration of highly dangerous and frequent offenders can have large crime prevention benefits, whereas other policies will have a small prevention effect or, even worse, increase crime in the long run if they have the effect of increasing post-release criminality.

Evidence is limited on the crime prevention effects of most of the policies that contributed to the post-1973 increase in incarceration rates. Nevertheless, the evidence base demonstrates that lengthy prison sentences are ineffective as a crime control measure. Specifically, the incremental deterrent effect of increases in lengthy prison sentences is modest at best. Also, because recidivism rates decline markedly with age and prisoners necessarily age as they serve their prison sentence, lengthy prison sentences are an inefficient approach to preventing crime by incapacitation unless they are specifically targeted at very high-rate or extremely dangerous offenders. For these reasons, statutes mandating lengthy prison sentences cannot be justified on the basis of their effectiveness in preventing crime.⁷

WOULD MAKING THE DISABLING OR REMOVING OF A GPS DEVICE BY THE SEX OFFENDERS TARGETED BY THIS BILL A FELONY RESULT IN CRIME PREVENTION BENEFITS?

6. Amendments for Possible Consideration

Members and the author may wish to discuss tightening this bill to ensure this new felony would apply only to dangerous persons under supervision who intentionally evade supervision with the purpose of causing further harm, as distinguished from hapless supervised persons who, without this intent, nevertheless allow or cause their GPS to fail. Understanding that the current law mandating 180 days in county jail for sex offender parolees who defeat their GPS still would apply, members may wish to consider the following refined scope for this bill:

A person who willfully removes or disables, or permits another person to remove or disable, an electronic, global positioning system, or other monitoring device affixed to his or her person or the person of another, if the device was affixed as a condition of parole, postrelease community supervision or probation as a result of a conviction of any offense specified in subdivision (c) of Section 667.61, if the person intended to evade supervision and either does not surrender, or is not apprehended, within one week of the issuance of a warrant for absconding as a result of a criminal sentence or juvenile court disposition for any offense specified in subdivision (c) of Section 667.61, is guilty of a felony, punishable by imprisonment in the state prison for 16 months, or two or three years. There shall be a rebuttable presumption that the person intended to evade supervision.

Thus, the elements for the new felony would be:

• The new felony would apply to persons on parole, PRCS or probation for a serious sex offense (defined under the 1-strike rape law);

• The person willfully thwarts the GPS affixed as a condition of supervision, as specified;

• The person intended to evade supervision;

• The person did not surrender or was not apprehended within one week of the issuance of a warrant for absconding (In 2013, when this Committee considered SB 57 (Lieu), a similar bill, it was learned that parole has a “zero tolerance” approach to sex offender parolees, where agents issue warrants immediately when contact with a parolee is broken.); and

• There shall be a rebuttable presumption that the person intended to evade supervision.

In addition, members may wish to consider amending this bill to ensure that a person convicted of its new felony also would be subject to the level of supervision – commonly known as the Containment Model -- now applicable to sex offenders coming out of prison on parole. Otherwise, sex offenders convicted of this new offense would avoid supervision pursuant to the Containment Model, which could inadvertently incentivize commission of this new crime.⁸

SHOULD THESE AMENDMENTS BE MADE?

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