Under existing law, a person who enters a house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, floating home, railroad car, locked or sealed cargo container, trailer coach, house car, inhabited camper, locked vehicle, aircraft, or mine, with intent to commit larceny or any felony is guilty of burglary. Under existing law, burglary of an inhabited house or the inhabited portion of any other building, a vessel designed for habitation and inhabited, a floating home, or a trailer coach, as specified, is burglary in the first degree, and all other burglary is burglary in the 2nd degree. Under existing law, burglary in the first degree is punishable by imprisonment in the state prison for 2, 4, or 6 years, and burglary in the 2nd degree is punishable as a misdemeanor by imprisonment in a county jail not exceeding one year, or as a felony by imprisonment in a county jail for 16 months, or 2 or 3 years.

This bill would, until January 1, 2024, require a person convicted of burglary in the first degree who is released from prison on parole in the County of Los Angeles to be subject to global positioning system (GPS) monitoring as a condition of parole. The bill would require the Department of Corrections and Rehabilitation to report to the Assembly and Senate Committees on Public Safety or before April 1, 2023, regarding specified information about the GPS program, including, among other items, the number and percentage of parolees in the GPS monitoring program, as of January 1, 2023, who were arrested, convicted, or had their parole revoked, for the commission of a property crime.

This bill would make legislative findings and declarations as to the necessity of a special statute for the County of Los Angeles.

By increasing the penalties for an existing 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.

Under existing law, a person who enters a house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, floating home, railroad car, locked or sealed cargo container, trailer coach, house car, inhabited camper, locked vehicle, aircraft, or mine, with intent to commit larceny or any felony is guilty of burglary. Under existing law, burglary of an inhabited house or the inhabited portion of any other building, a vessel designed for habitation and inhabited, a floating home, or a trailer coach, as specified, is burglary in the first degree, and all other burglary is burglary in the 2nd degree. Under existing law, burglary in the first degree is punishable by imprisonment in the state prison for 2, 4, or 6 years, and burglary in the 2nd degree is punishable as a misdemeanor by imprisonment in a county jail not exceeding one year, or as a felony by imprisonment in a county jail for 16 months, or 2 or 3 years.

This bill would would, until January 1, 2024, require a person convicted of burglary in the first degree who is released from prison on parole in the County of Los Angeles to be subject to global position positioning system monitoring as a condition of parole.

By increasing the penalties for an existing 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.

Under existing law, a person who enters a house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, floating home, railroad car, locked or sealed cargo container, trailer coach, house car, inhabited camper, locked vehicle, aircraft, or mine, with intent to commit larceny or any felony is guilty of burglary. Under existing law, burglary of an inhabited house or the inhabited portion of any other building, a vessel designed for habitation and inhabited, a floating home, or a trailer coach, as specified, is burglary in the first degree, and all other burglary is burglary in the 2nd degree. Under existing law, burglary in the first degree is punishable by imprisonment in the state prison for 2, 4, or 6 years, and burglary in the 2nd degree is punishable as a misdemeanor by imprisonment in a county jail not exceeding one year, or as a felony by imprisonment in a county jail for 16 months, or for 2 or 3 years.

This bill would require a person convicted of burglary in the 2nd degree who has a prior conviction for burglary to serve a minimum of 180 days in a county jail. The bill would require a person convicted of burglary who is released from prison on parole to be subject to global position system monitoring as a condition of parole.

By increasing the penalties for an existing 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 generally provides for public safety by, among other things, making specified actions a criminal offense punishable by a fine or imprisonment, providing for the enforcement of those laws by law enforcement, and establishing state prisons and county jails for the imprisonment of certain criminal offenders.

The bill would state the intent of the Legislature to enact legislation relating to public safety.

Date of Hearing: June 26, 2018

Counsel: Sandy Uribe

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

SBPCA Bill Id:SB 1266

Author:(Portantino) – As Amended Ver:June 20, 2018

SUMMARY: Establishes a pilot program requiring parolees convicted of first-degree burglary who are released to Los Angeles County to be subject to global positioning system (GPS) monitoring as a condition of parole. Specifically, this bill:

1. Requires a person convicted of first-degree burglary who is released on parole to the County of Los Angeles to be subject to GPS monitoring as a condition of parole.
   
2. Sunsets this provision on January 1, 2024.
   
3. Requires the California Department of Corrections and Rehabilitation (CDCR) to submit a report to the Assembly and Senate Public Safety Committees on or before April 1, 2023, reporting the following information:
   
   1. The number of parolees made subject to GPS monitoring under this provision, as of January 1, 2023;
      
   2. The number, and percentage, of parolees placed on GPS monitoring who were arrested, convicted of a felony or a misdemeanor, or had their parole revoked, as of January 1, 2023;
      
   3. The number, and percentage, of parolees placed on GPS monitoring who were arrested, convicted, or had their parole revoked due to the commission of a property crime, as of January 1, 2023;
      
   4. The number, and percentage, of parolees placed on GPS monitoring who, without authorization, removed the global positioning system, as of January 1, 2023; and,
      
   5. Any other information on the operation of the program, the success of the program, or any problems associated with the program which CDCR chooses to include in the report, including any implementation challenges.
      
4. States that a special law is necessary for Los Angeles County because of its unique size and diversity.

EXISTING LAW:

1. States that any person who enters a specified structure with the intent to commit theft or a felony is guilty of burglary. (Pen. Code, § 459.)
2. Divides burglary into two degrees. First-degree burglary is burglary of an inhabited dwelling. All other burglaries are second-degree burglary. (Pen. Code, § 460.)
3. Defines “inhabited” as “currently being used for dwelling purposes, whether occupied or not. A house, trailer, vessel designed for habitation, or portion of a building is currently being used for dwelling purposes if, at the time of the burglary, it was not occupied solely because a natural or other disaster caused the occupants to leave the premises.” (Pen. Code § 459.)
4. Punishes first-degree burglary by imprisonment in the state prison for two, four, or six years. (Pen. Code, § 461, subd. (a).)
5. Provides for a period of post-prison supervision immediately following a period of incarceration in state prison. (Pen. Code, § 3000 et seq.)
6. Requires the following persons released from prison prior to, or on or after July 1, 2013, be subject to parole under the supervision of CDCR:
   1. A person who committed a serious felony listed in Penal Code section 1192.7, subdivision (c);
      
   2. A person who committed a violent felony listed in Penal Code section 667.5, subdivision (c);
      
   3. A person serving a Three-Strikes sentence;
      
   4. A high risk sex offender;
      
   5. A mentally disordered offender;
      
   6. A person required to register as a sex offender and subject to a parole term exceeding three years at the time of the commission of the offense for which he or she is being released; and,
      
   7. A person subject to lifetime parole at the time of the commission of the offense for which he or she is being released. (Pen. Code, § 3000.08, subds. (a) & (i).)
7. Establishes parole-term lengths depending on the committing offense and the date the offense is committed. (Pen. Code, §§ 3000, subd. (b)(6), 3000.1.)
8. Requires an inmate released on parole to be released to the county of last legal residence prior to incarceration, unless retuning that person to another county would be in the best interests of the public. (Pen. Code, § 3003, subds. (a) & (b).)
9. States that the Board of Parole Hearings (BPH), the court, or the supervising parole authority may require as a condition of release or reinstatement on parole, or as an intermediate sanction, that the parolee agree to the use of electronic monitoring or supervising devices for the purpose of helping to verify compliance with all other parole conditions. (Pen. Code, § 3004, subd. (a).)
10. Requires all parolees convicted of registerable sex offenses to be subject to GPS monitoring for life. (Pen. Code, § 3004, subd. (b).)
11. Requires all parolees placed on electronic monitoring to pay for the costs associated with the monitoring. The costs may be waived based on a finding of inability to pay. (Pen. Code, § 3004, subd. (c).)
12. Allows the California Department of Corrections and Rehabilitation (CDCR) to use continuous electronic monitoring to monitor the whereabouts of persons on parole. (Pen. Code, § 3010, subd. (a).)
13. States that “continuous electronic monitoring” may include the use of worldwide radio navigation system technology, known as GPS.

FISCAL EFFECT: Unknown.

COMMENTS:

1. Author's Statement: According to the author, “Anyone who has experienced a residential burglary knows how unsettling it is to have their home invaded, and the long lasting feeling of insecurity it leaves behind. Criminals who show dangerous and repetitive behavior, specifically, burglary should not get released right back into our community. Additionally, upon release law enforcement should monitor the offender’s activity upon release.”
   
2. Background Information on GPS: GPS uses triangulation of satellites orbiting the earth, similar to cellular phones. Offenders wear ankle bracelets and carry with them packs containing mobile receivers. When offenders are sleeping or sitting, packs can be placed near them. A monitoring station receives data from all offenders using the system and tracks them. Tracking may be active or passive. Active GPS transmits its location at near real-time intervals and can include immediate alert notifications. Passive GPS transmits its location at set intervals and alert notifications are usually received the next day. [See <http://www.cdcr.
   ca.gov/Parole/Sex_Offender_Facts/GPS.html> (accessed on April 10, 2012).] If the offender tampers with the equipment, moves more than about 150 feet from the receiver, deviates from a schedule, or ventures into forbidden territory, overseers are automatically paged. Not only does GPS follow offenders, GPS can also be programmed with “exclusion zones” where offenders are not allowed.
   
3. Due Process Concerns: The Due Process Clause of the Fourteenth Amendment to the Constitution prohibits infringement on fundamental liberty interests unless they are narrowly tailored to serve a compelling state interest. Because parolees are on conditional release from state prison and remain under the supervision of CDCR, they have less liberty interest and enjoy fewer constitutional rights than do ordinary citizens. (See e.g. Morrissey v. Brewer (1972) 408 U.S. 471, 482.) However, parolees retain basic constitutional protections against arbitrary and oppressive official action. (In re Stevens (2004) 119 Cal.App.4th 1228, 1234.)
   
   With these principles in mind, in the case of In re Taylor (2015) 60 Cal.4th 1019, the California Supreme Court held that blanket application of residency restrictions to all paroled sex offenders in San Diego County “bears no rational relationship to advancing the state's legitimate goal of protecting children from sexual predators, and has infringed the affected parolees' basic constitutional right to be free of official action that is unreasonable, arbitrary, and oppressive.” (Id. at p. 1038.) The court held that CDCR could apply residency restrictions as a condition of parole “as long as they are based on, and supported by, the particularized circumstances of each parolee.” (Id. at p. 1042.)
   
   This bill imposes the same type of blanket restriction that was found to be unconstitutional in Taylor. It should be noted that under existing law CDCR has the discretion to decide which persons shall be supervised using electronic monitoring. (Pen. Code, §§3004, 3010, & 3010.5) Currently, CDCR uses GPS monitoring for high risk sex offenders, high risk gang offenders, those on medical parole, and for special circumstances related to high control offenders. (See Title 15, California Code of Regulations (CCR) §3561(b)(1)-(b)(5).) Therefore, in the appropriate case, CDCR can already impose this condition without running afoul of due process concerns.
   
4. Equal Protection Issues: This bill singles out persons paroled to Los Angeles County for first-degree burglary and requires them to be subject to GPS monitoring as a condition of parole. An equal protection argument might be made by such a parolee in that persons paroled for first-degree burglary throughout the rest of the state are not automatically subject to this same parole condition.
   
   The concept of equal protection recognizes that persons who are similarly situated with respect to a law's legitimate purposes must be treated equally. Accordingly, the first prerequisite to a claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner. This initial inquiry is not whether persons are similarly situated for all purposes, but whether they are similarly situated for purposes of the law challenged. (People v. Brown (2012) 54 Cal.4th 314.)
   
   The courts have used a three-tier system in order to determine whether a statute violates the equal protection clause: strict scrutiny, intermediate scrutiny, and minimal scrutiny. Where legislation does not burden a suspect class or a constitutionally protected right, then the legislative act faces minimal scrutiny. Equal protection of the law is denied only where there is no “rational relationship between the disparity of treatment and some legitimate governmental purpose.” (Johnson v. Department of Justice (2015) 60 Cal.4th 871, 881.) Under the minimal level of equal protection analysis, great deference is given to legislative determinations. (Id. at p. 887.) “A state may provide for differences as long as the result does not amount to invidious discrimination. Equal protection … require[s] that a distinction made have some relevance to the purpose for which the classification is made.” (People v. Cruz (2012) 207 Cal.App.4th 664, 675, citations omitted.)
   
   Residential burglars released on parole to Los Angeles County are similarly situated to residential burglars released on parole throughout the rest of the state. The question becomes whether there is a rational basis to automatically subject persons paroled to Los Angeles for first-degree burglary to GPS monitoring when other parolees convicted of first-degree burglary are not automatically so required. This bill states that a special statute is necessary for Los Angeles County “because of the unique size and diversity” of the county. But arguably such a generalized statement is not a sufficient basis to treat these parolees differently.
   
5. Practical Concerns: This bill raises a number of practical concerns. First, the need to require parolees convicted of residential burglary to be subject to electronic monitoring is unclear. Under the general conditions of parole, all parolees are required to ask their parole agent for permission to travel more than 50 miles from their residence and must have their parole agent’s approval before they travel. Parolees must also ask for and get a travel pass from their parole agent before they leave the county for more than two days or before they can leave the state. However, in contrast with sex offender parolees who have some restrictions in the places they can go (i.e. stay away from parks and schools), persons on parole for residential burglary do not have limitations on where they can travel throughout the county. Thus, the GPS requirement for this population does not serve the purpose of enforcing prohibitions against entering or traveling to specific locations.

This bill might also have an unintended consequence of adversely affecting public safety. Because this bill does not come with funding for additional parole agents to be assigned to Los Angeles County, any advantage of GPS monitoring for residential burglars come at the expense of diverting agents from supervising more serious offenders, such as sex offenders, and from direct in-person supervision of high risk parolees in general. As it stands, parole agents are strained to monitor the high-risk offenders currently required to wear GPS devices. (See e.g. Special Review: Assessment of Electronic Monitoring of Sex Offenders on Parole and the Impact of Residency Restrictions, State of California Office of the Inspector General (Oct. 2014).)

In addition, the proposed GPS requirement might adversely affect rehabilitative efforts. Having a parolee wear a GPS device will affect his or her ability to reintegrate into society. Specifically, while ex-convicts already face challenges in obtaining employment, a prospective employer is arguably even less likely to hire an individual with a GPS monitor.

Finally, this blanket requirement will inevitably result in more parole violations. For example, as to parolees that are homeless, they can be found to be in violation of the GPS condition if they do not have consistent access to places to charge the devices. And with the proliferation of the devices comes increased reports of their malfunction. In 2013, the Los Angeles County Probation Department conducted an audit on the monitoring devices and found that the devices failed because they would not hold a charge or failed to report locations. Sometimes they also went unmonitored. (See One in Four GPS Devices on Criminals in L.A. County Were Faulty, Los Angeles Times, Dec. 27 2013, http://articles.latimes.com/2013/dec/27/local/la-me-ff-gps-audit-20131228.) Inadvertent failed devices can be interpreted by a parole agent as a violation of the condition.

1. Argument in Support: According to California Police Chiefs Association, “The U.S. Department of Justice’s National Institute of Justice, under the direction of former President Barack Obama, commissioned a large study of Florida offenders placed on electronic monitoring (EM) and found that monitoring significantly reduced the likelihood of failure under community supervision. Florida was chosen for the study because of a long history and use of EM, and because the number of serious felony offenders was great enough to conduct a comprehensive study. The study lasted six years and included over 5,000 felons under EM, and over 260,000 without EM. Ultimately, the study found EM reduced offenders’ risk of failure by 31 percent. As California continues to look for alternative means of punishment and rehabilitation, EM should be part of that conversation.
   
   “SB 1266 would target EM for offenders paroled after a conviction for first-degree burglary, which we feel is appropriate considering the recent increases we have seen in property crime. For example, the LA Times reported a 24% increase in property crime in Los Angeles from 2014 to 2017. Many of the individuals being convicted of these crimes are being released early due to prison overcrowding, meaning there is a need for alternative measures that increase accountability and reduce the likelihood of recidivism. While EM is not a perfect of wholistic solution, it should be promoted as a tool we can use to strike a balance between lowering incarceration rates, protecting victims, and increasing offender accountability.”
   
2. Argument in Opposition: According to the American Civil Liberties Union of California, “SB 1266 improperly removes judicial and parole agency discretion in requiring a person convicted of first burglary to submit to GPS monitoring upon release from prison on parole. Today, a court, the Board of Parole Hearings, or a supervising parole agency may already require, as a condition of release on parole or reinstatement on parole, or as an intermediate sanction in lieu of return to custody, that an inmate or parolee convicted of burglary submit to GPS monitoring. (Penal Code, §3004 (a).) Under current law, the decision as to whether a person must submit to GPS monitoring is based on the facts and circumstances surrounding the case and the individual being released.
   
   “Given that GPS monitoring imposes a significant restriction on one’s liberty and privacy, it is critical that it be used only when necessary to justify these intrusions. A blanket requirement that all people who are convicted of burglary submit to GPS monitoring absent a showing that such monitoring is necessary raises constitutional concerns. Moreover, there has been no demonstrated need to strip away GPS decision-making authority from the courts, the Board of Parole Hearings, or parole agencies.
   
   “Mandatory GPS monitoring will also expand the disparities that already plague our criminal justice system. Given that people of color are policed, arrested, convicted, and sentenced to prison at greater rates than white people, communities of color will be subject to monitoring and restricted liberty under the bill at greater rates as well.”
   
3. Prior Legislation:
   
   1. SB 57 (Lieu), Chapter 776, Statutes of 2013, requires imposition of a mandatory 180 day period of incarceration if a parolee who is required to register as a sex offender removes his or her GPS device.
      
   2. AB 2016 (Gorell), of the 2011-2012 Legislative Session, would have made it a felony for any person required to wear an electronic-monitoring device to remove or disable that device. The hearing on AB 2016 in this committee was cancelled at the request of the author.
      
   3. AB 179 (Gorell), of the 2011-2012 Legislative Session, would have made it a felony for any person required to wear an electronic-monitoring device to remove or disable that device. The hearing on AB 179 in this committee was cancelled at the request of the author.
      
   4. SB 566 (Hollingsworth), of the 2009- 2010 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.
      
   5. 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

Association for Los Angeles Deputy Sheriffs
California District Attorneys Association
California Police Chiefs Association
Los Angeles County Sheriff’s Department
Los Angeles Police Protective League
Upland Chamber of Commerce

Opposition

American Civil Liberties Union of California
California Attorneys for Criminal Justice
California Public Defenders Association

Analysis Prepared by: Sandy Uribe / PUB. S. / (916) 319-3744

Date of Hearing: June 19, 2018

Counsel: Sandy Uribe

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

SBPCA Bill Id:SB 1266

Author:(Portantino) – As Amended Ver:May 25, 2018

SUMMARY: Requires parolees convicted of first-degree burglary who are released to Los Angeles County to be subject to global positioning system (GPS) monitoring as a condition of parole. Specifically, this bill:

1. Requires a person convicted of first-degree burglary who is released on parole to the County of Los Angeles to be subject to GPS monitoring as a condition of parole.
   
2. Sunsets this provision on January 1, 2024.
   
3. States that a special law is necessary for Los Angeles County because of its unique size and diversity.

EXISTING LAW:

1. States that any person who enters a specified structure with the intent to commit theft or a felony is guilty of burglary. (Pen. Code, § 459.)
2. Divides burglary into two degrees. First-degree burglary is burglary of an inhabited dwelling. All other burglaries are second-degree burglary. (Pen. Code, § 460.)
3. Defines “inhabited” as “currently being used for dwelling purposes, whether occupied or not. A house, trailer, vessel designed for habitation, or portion of a building is currently being used for dwelling purposes if, at the time of the burglary, it was not occupied solely because a natural or other disaster caused the occupants to leave the premises.” (Pen. Code § 459.)
4. Punishes first-degree burglary by imprisonment in the state prison for two, four, or six years. (Pen. Code, § 461, subd. (a).)
5. Provides for a period of post-prison supervision immediately following a period of incarceration in state prison. (Pen. Code, § 3000 et seq.)
6. Requires the following persons released from prison prior to, or on or after July 1, 2013, be subject to parole under the supervision of CDCR:
   1. A person who committed a serious felony listed in Penal Code section 1192.7, subdivision (c);
      
   2. A person who committed a violent felony listed in Penal Code section 667.5, subdivision (c);
      
   3. A person serving a Three-Strikes sentence;
      
   4. A high risk sex offender;
      
   5. A mentally disordered offender;
      
   6. A person required to register as a sex offender and subject to a parole term exceeding three years at the time of the commission of the offense for which he or she is being released; and,
      
   7. A person subject to lifetime parole at the time of the commission of the offense for which he or she is being released. (Pen. Code, § 3000.08, subds. (a) & (i).)
7. Establishes parole-term lengths depending on the committing offense and the date the offense is committed. (Pen. Code, §§ 3000, subd. (b)(6), 3000.1.)
8. Requires an inmate released on parole to be released to the county of last legal residence prior to incarceration, unless retuning that person to another county would be in the best interests of the public. (Pen. Code, § 3003, subds. (a) & (b).)
9. States that the Board of Parole Hearings (BPH), the court, or the supervising parole authority may require as a condition of release or reinstatement on parole, or as an intermediate sanction, that the parolee agree to the use of electronic monitoring or supervising devices for the purpose of helping to verify compliance with all other parole conditions. (Pen. Code, § 3004, subd. (a).)
10. Requires all parolees convicted of registerable sex offenses to be subject to GPS monitoring for life. (Pen. Code, § 3004, subd. (b).)
11. Requires all parolees placed on electronic monitoring to pay for the costs associated with the monitoring. The costs may be waived based on a finding of inability to pay. (Pen. Code, § 3004, subd. (c).)
12. Allows the California Department of Corrections and Rehabilitation (CDCR) to use continuous electronic monitoring to monitor the whereabouts of persons on parole. (Pen. Code, § 3010, subd. (a).)
13. States that “continuous electronic monitoring” may include the use of worldwide radio navigation system technology, known as GPS.

FISCAL EFFECT: Unknown.

COMMENTS:

1. Author's Statement: According to the author, “Anyone who has experienced a residential burglary knows how unsettling it is to have their home invaded, and the long lasting feeling of insecurity it leaves behind. Criminals who show dangerous and repetitive behavior, specifically, burglary should not get released right back into our community. Additionally, upon release law enforcement should monitor the offender’s activity upon release.”
   
2. Background Information on GPS: GPS uses triangulation of satellites orbiting the earth, similar to cellular phones. Offenders wear ankle bracelets and carry with them packs containing mobile receivers. When offenders are sleeping or sitting, packs can be placed near them. A monitoring station receives data from all offenders using the system and tracks them. Tracking may be active or passive. Active GPS transmits its location at near real-time intervals and can include immediate alert notifications. Passive GPS transmits its location at set intervals and alert notifications are usually received the next day. [See <http://www.cdcr.
   ca.gov/Parole/Sex_Offender_Facts/GPS.html> (accessed on April 10, 2012).] If the offender tampers with the equipment, moves more than about 150 feet from the receiver, deviates from a schedule, or ventures into forbidden territory, overseers are automatically paged. Not only does GPS follow offenders, GPS can also be programmed with “exclusion zones” where offenders are not allowed.
   
3. Due Process Concerns: The Due Process Clause of the Fourteenth Amendment to the Constitution prohibits infringement on fundamental liberty interests unless they are narrowly tailored to serve a compelling state interest. Because parolees are on conditional release from state prison and remain under the supervision of CDCR, they have less liberty interest and enjoy fewer constitutional rights than do ordinary citizens. (See e.g. Morrissey v. Brewer (1972) 408 U.S. 471, 482.) However, parolees retain basic constitutional protections against arbitrary and oppressive official action. (In re Stevens (2004) 119 Cal.App.4th 1228, 1234.)
   
   With these principles in mind, in the case of In re Taylor (2015) 60 Cal.4th 1019, the California Supreme Court held that blanket application of residency restrictions to all paroled sex offenders in San Diego County “bears no rational relationship to advancing the state's legitimate goal of protecting children from sexual predators, and has infringed the affected parolees' basic constitutional right to be free of official action that is unreasonable, arbitrary, and oppressive.” (Id. at p. 1038.) The court held that CDCR could apply residency restrictions as a condition of parole “as long as they are based on, and supported by, the particularized circumstances of each parolee.” (Id. at p. 1042.)
   
   This bill imposes the same type of blanket restriction that was found to be unconstitutional in Taylor. It should be noted that under existing law CDCR has the discretion to decide which persons shall be supervised using electronic monitoring. (Pen. Code, §§3004, 3010, & 3010.5) Currently, CDCR uses GPS monitoring for high risk sex offenders, high risk gang offenders, those on medical parole, and for special circumstances related to high control offenders. (See Title 15, California Code of Regulations (CCR) §3561(b)(1)-(b)(5).) Therefore, in the appropriate case, CDCR can already impose this condition without running afoul of due process concerns.
   
4. Equal Protection Issues: This bill singles out persons paroled to Los Angeles County for first-degree burglary and requires them to be subject to GPS monitoring as a condition of parole. An equal protection argument might be made by such a parolee in that persons paroled for first-degree burglary throughout the rest of the state are not automatically subject to this same parole condition.
   
   The concept of equal protection recognizes that persons who are similarly situated with respect to a law's legitimate purposes must be treated equally. Accordingly, the first prerequisite to a claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner. This initial inquiry is not whether persons are similarly situated for all purposes, but whether they are similarly situated for purposes of the law challenged. (People v. Brown (2012) 54 Cal.4th 314.)
   
   The courts have used a three-tier system in order to determine whether a statute violates the equal protection clause: strict scrutiny, intermediate scrutiny, and minimal scrutiny. Where legislation does not burden a suspect class or a constitutionally protected right, then the legislative act faces minimal scrutiny. Equal protection of the law is denied only where there is no “rational relationship between the disparity of treatment and some legitimate governmental purpose.” (Johnson v. Department of Justice (2015) 60 Cal.4th 871, 881.) Under the minimal level of equal protection analysis, great deference is given to legislative determinations. (Id. at p. 887.) “A state may provide for differences as long as the result does not amount to invidious discrimination. Equal protection … require[s] that a distinction made have some relevance to the purpose for which the classification is made.” (People v. Cruz (2012) 207 Cal.App.4th 664, 675, citations omitted.)
   
   Residential burglars released on parole to Los Angeles County are similarly situated to residential burglars released on parole throughout the rest of the state. The question becomes whether there is a rational basis to automatically subject persons paroled to Los Angeles for first-degree burglary to GPS monitoring when other parolees convicted of first-degree burglary are not automatically so required. This bill states that a special statute is necessary for Los Angeles County “because of the unique size and diversity” of the county. But arguably such a generalized statement is not a sufficient basis to treat these parolees differently.
   
5. Practical Concerns: This bill raises a number of practical concerns. First, the need to require parolees convicted of residential burglary to be subject to electronic monitoring is unclear. Under the general conditions of parole, all parolees are required to ask their parole agent for permission to travel more than 50 miles from their residence and must have their parole agent’s approval before they travel. Parolees must also ask for and get a travel pass from their parole agent before they leave the county for more than two days or before they can leave the state. However, in contrast with sex offender parolees who have some restrictions in the places they can go (i.e. stay away from parks and schools), persons on parole for residential burglary do not have limitations on where they can travel throughout the county. Thus, the GPS requirement for this population does not serve the purpose of enforcing prohibitions against entering or traveling to specific locations.

This bill might also have an unintended consequence of adversely affecting public safety. Because this bill does not come with funding for additional parole agents to be assigned to Los Angeles County, any advantage of GPS monitoring for residential burglars come at the expense of diverting agents from supervising more serious offenders, such as sex offenders, and from direct in-person supervision of high risk parolees in general. As it stands, parole agents are strained to monitor the high-risk offenders currently required to wear GPS devices. (See e.g. Special Review: Assessment of Electronic Monitoring of Sex Offenders on Parole and the Impact of Residency Restrictions, State of California Office of the Inspector General (Oct. 2014).)

In addition, the proposed GPS requirement might adversely affect rehabilitative efforts. Having a parolee wear a GPS device will affect his or her ability to reintegrate into society. Specifically, while ex-convicts already face challenges in obtaining employment, a prospective employer is arguably even less likely to hire an individual with a GPS monitor.

Finally, this blanket requirement will inevitably result in more parole violations. For example, as to parolees that are homeless, they can be found to be in violation of the GPS condition if they do not have consistent access to places to charge the devices. And with the proliferation of the devices comes increased reports of their malfunction. In 2013, the Los Angeles County Probation Department conducted an audit on the monitoring devices and found that the devices failed because they would not hold a charge or failed to report locations. Sometimes they also went unmonitored. (See One in Four GPS Devices on Criminals in L.A. County Were Faulty, Los Angeles Times, Dec. 27 2013, http://articles.latimes.com/2013/dec/27/local/la-me-ff-gps-audit-20131228.) Inadvertent failed devices can be interpreted by a parole agent as a violation of the condition.

1. Argument in Support: According to California Police Chiefs Association, “The U.S. Department of Justice’s National Institute of Justice, under the direction of former President Barack Obama, commissioned a large study of Florida offenders placed on electronic monitoring (EM) and found that monitoring significantly reduced the likelihood of failure under community supervision. Florida was chosen for the study because of a long history and use of EM, and because the number of serious felony offenders was great enough to conduct a comprehensive study. The study lasted six years and included over 5,000 felons under EM, and over 260,000 without EM. Ultimately, the study found EM reduced offenders’ risk of failure by 31 percent. As California continues to look for alternative means of punishment and rehabilitation, EM should be part of that conversation.
   
   “SB 1266 would target EM for offenders paroled after a conviction for first-degree burglary, which we feel is appropriate considering the recent increases we have seen in property crime. For example, the LA Times reported a 24% increase in property crime in Los Angeles from 2014 to 2017. Many of the individuals being convicted of these crimes are being released early due to prison overcrowding, meaning there is a need for alternative measures that increase accountability and reduce the likelihood of recidivism. While EM is not a perfect of wholistic solution, it should be promoted as a tool we can use to strike a balance between lowering incarceration rates, protecting victims, and increasing offender accountability.”
   
2. Argument in Opposition: According to the American Civil Liberties Union of California, “SB 1266 improperly removes judicial and parole agency discretion in requiring a person convicted of first burglary to submit to GPS monitoring upon release from prison on parole. Today, a court, the Board of Parole Hearings, or a supervising parole agency may already require, as a condition of release on parole or reinstatement on parole, or as an intermediate sanction in lieu of return to custody, that an inmate or parolee convicted of burglary submit to GPS monitoring. (Penal Code, §3004 (a).) Under current law, the decision as to whether a person must submit to GPS monitoring is based on the facts and circumstances surrounding the case and the individual being released.
   
   “Given that GPS monitoring imposes a significant restriction on one’s liberty and privacy, it is critical that it be used only when necessary to justify these intrusions. A blanket requirement that all people who are convicted of burglary submit to GPS monitoring absent a showing that such monitoring is necessary raises constitutional concerns. Moreover, there has been no demonstrated need to strip away GPS decision-making authority from the courts, the Board of Parole Hearings, or parole agencies.
   
   “Mandatory GPS monitoring will also expand the disparities that already plague our criminal justice system. Given that people of color are policed, arrested, convicted, and sentenced to prison at greater rates than white people, communities of color will be subject to monitoring and restricted liberty under the bill at greater rates as well.”
   
3. Prior Legislation:
   
   1. SB 57 (Lieu), Chapter 776, Statutes of 2013, requires imposition of a mandatory 180 day period of incarceration if a parolee who is required to register as a sex offender removes his or her GPS device.
      
   2. AB 2016 (Gorell), of the 2011-2012 Legislative Session, would have made it a felony for any person required to wear an electronic-monitoring device to remove or disable that device. The hearing on AB 2016 in this committee was cancelled at the request of the author.
      
   3. AB 179 (Gorell), of the 2011-2012 Legislative Session, would have made it a felony for any person required to wear an electronic-monitoring device to remove or disable that device. The hearing on AB 179 in this committee was cancelled at the request of the author.
      
   4. SB 566 (Hollingsworth), of the 2009- 2010 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.
      
   5. 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

Association for Los Angeles Deputy Sheriffs
California District Attorneys Association
California Police Chiefs Association
Los Angeles County Sheriff’s Department
Los Angeles Police Protective League
Upland Chamber of Commerce

Opposition

American Civil Liberties Union of California
California Public Defenders Association

Analysis Prepared by: Sandy Uribe / PUB. S. / (916) 319-3744

 THIRD READING  

Bill No: SB 1266

Author:

:

Vote:

SENATE PUBLIC SAFETY COMMITTEE: 5-1, 4/24/18

AYES: Skinner, Bradford, Jackson, Mitchell, Wiener

NOES: Anderson

NO VOTE RECORDED: Stone

SENATE APPROPRIATIONS COMMITTEE: 5-1, 5/25/18

AYES: Lara, Beall, Bradford, Hill, Wiener

NOES: Nielsen

NO VOTE RECORDED: Bates

SUBJECT:

SOURCE: Author

DIGEST:

This bill requires, until January 1, 2024, a person convicted of first degree burglary who is released on parole in the County of Los Angeles to be subject to global positioning system (GPS) monitoring as a condition of parole.

ANALYSIS:

Existing law:

1. Defines “burglary” as entering a residential or commercial building with the intent to commit a felony or a theft once inside. (Pen. Code, § 459.)
2. Divides burglary into two degrees. First degree burglary is burglary of an inhabited dwelling. All other burglaries are second degree burglary. (Pen. Code, § 460.)
3. Specifies that “inhabited” means currently being used for dwelling purposes, whether occupied or not. A house, trailer, vessel designed for habitation, or portion of a building is currently being used for dwelling purposes if, at the time of the burglary, it was not occupied solely because a natural or other disaster caused the occupants to leave the premises. (Pen. Code § 459.)
4. Provides the following punishment for burglary:
   1. First degree burglary is punishable by imprisonment in the state prison for two, four, or six years; and,
   2. Second degree burglary is punishable as a misdemeanor by imprisonment in the county jail not exceeding one year, or as a felony punishable by imprisonment in county jail for 16 months, or for 2 or 3 years. (Pen. Code, § 461.)

This bill:

1. Requires a person convicted of burglary in the first degree who is released on parole in the County of Los Angeles to be subject to GPS monitoring as a condition of parole.
2. Sunsets its provisions on January 1, 2024.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Senate Appropriations Committee, unknown, potentially-significant ongoing costs to the Department of Corrections and Rehabilitation to continuously monitor electronically parolees convicted of first-degree burglary who are released to Los Angeles County. (General Fund)

SUPPORT: (Verified 5/25/18)

California District Attorneys Association

OPPOSITION: (Verified 5/25/18)

American Civil Liberties Union of California

California Public Defenders Association

Prepared by: Stella Choe / PUB. S. /

5/29/18 9:08:28

**** END ****

SENATE COMMITTEE ON APPROPRIATIONS

Senator Ricardo Lara, Chair

2017 - 2018 Regular Session

SB 1266 (Portantino) - Burglary

*********** ANALYSIS ADDENDUM – SUSPENSE FILE ***********

The following information is revised to reflect amendments

adopted by the committee on May 25, 2018

Bill Summary:

SB 1266 would create a pilot program in Los Angeles County regarding the tracking of persons released from prison who have committed first-degree burglary.

Fiscal Impact:

Unknown, potentially-significant ongoing costs to the Department of Corrections and Rehabilitation to continuously monitor electronically parolees convicted of first-degree burglary who are released to Los Angeles County. (General Fund)

Author Amendments:

Limit the application of electronic monitoring to persons convicted of first-degree burglary and released on parole to Los Angeles County. Sunset the program on January 1, 2024.

-- END --

SENATE COMMITTEE ON APPROPRIATIONS

Senator Ricardo Lara, Chair

2017 - 2018 Regular Session

SB 1266 (Portantino) - Burglary

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

Bill Summary:

SB 1266 would require a person who has been convicted on first- or second-degree burglary and released on parole be subject to global positioning system (GPS) monitoring as a condition of parole.

Fiscal Impact:

The Department of Corrections and Rehabilitation (CDCR) anticipates costs in the millions of dollars annually to continuously monitor electronically parolees convicted of burglary. (General Fund)

Background:

A person who enters a house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, floating home, railroad car, locked or sealed cargo container, trailer coach, house car, inhabited camper, locked vehicle, aircraft, or mine, with intent to commit larceny or any felony is guilty of burglary. Burglary of an inhabited house or the inhabited portion of any other building, a vessel designed for habitation and inhabited, a floating home, or a trailer coach, as specified, is burglary in the first degree, and all other burglary is burglary in the second degree. First-degree burglary is punishable by imprisonment in the state prison for two, four, or six years, and second-degree burglary is an alternate felony/misdemeanor crime that can be punished by incarceration in the county jail for up to one year or incarceration pursuant to the 2011 Realignment Legislation in county jail or state prison for sixteen months, two years, or three years.

The Division of Adult Parole Operations (DAPO) in CDCR currently has the discretion to decide which persons should be supervised using continuous electronic monitoring.  The department’s GPS monitoring program generally monitors high-risk sex offenders and high-risk gang offenders. It also is used for special circumstance cases.  The following is the list of parolees who are required to wear GPS monitoring devices currently:

• All parolees who are required to register as a sex offender pursuant to the Sex Offender Registration Act;
• High-risk gang offenders, as specified;
• Prisoners subject to medical parole supervision; and,
• Special circumstances cases related to high-control offenders, as specified.

Proposed Law:

This bill would require a person convicted of burglary who is released from prison on parole to be subject to GPS monitoring as a condition of parole.

Staff Comments:

The department has indicated that, on December 31, 2017, there were 8,523 individuals in prison for a principal offense of first- or second-degree burglary and that there were 15,148 people in prison with a subordinate offense of first- or second-degree burglary. Depending on when these individuals are released from custody, and if they are supervised by DAPO or locally upon release, the volume of individuals that CDCR would be required to monitor by GPS potentially could increase far more than how many people the department currently monitors electronically. Although the GPS monitoring program is in place for specified parolees already, there is no specialized program to monitor offenders with a burglary commitment crime currently.  Consequently, adding another specialized caseload for DAPO to manage would create the need to hire additional (potentially hundreds depending upon the number of individuals paroled with a burglary commitment) of specially trained parole agents to ensure compliance and proficient monitoring. In addition, the cost of contracting for more GPS devices, the maintenance required for those devices, as well as the monitoring services for the GPS devices would increase substantially as well.

-- END --

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Nancy Skinner, Chair

2017 - 2018 Regular

Bill No: SB 1266 Hearing Date: April 24, 2018

Subject: Burglary

HISTORY

Source: Author

Prior Legislation: SB 1129 (Monning), Ch. 724, Stats. 2016

AB 2492 (Jones-Sawyer), Ch. 819, Stats. 2014

SB 244 (Liu), 2013, failed Assembly Public Safety

AB 640 (Huber), 2009, vetoed

AB 858 (Gilmore), 2009, failed Assembly Public Safety

Support: California District Attorneys Association

Opposition: American Civil Liberties Union of California; California Public Defenders Association

PURPOSE

The purpose of this bill is to require a person who has been convicted of second degree burglary to serve a minimum of 180 days in county jail if he or she has a prior conviction for burglary, and to require that any person convicted of burglary to be subject to global positioning system (GPS) monitoring as a condition of parole.

Existing law defines “burglary” as entering a residential or commercial building with the intent to commit a felony or a theft once inside. (Pen. Code, § 459.)

Existing law divides burglary into two degrees. First degree burglary is burglary of an inhabited dwelling. All other burglaries are second degree burglary. (Pen. Code, § 460.)

Existing law specifies that “inhabited” means currently being used for dwelling purposes, whether occupied or not. A house, trailer, vessel designed for habitation, or portion of a building is currently being used for dwelling purposes if, at the time of the burglary, it was not occupied solely because a natural or other disaster caused the occupants to leave the premises. (Pen. Code § 459.)

Existing law provides the following punishment for burglary:

• First degree burglary is punishable by imprisonment in the state prison for two, four, or six years; and,
• Second degree burglary is punishable as a misdemeanor by imprisonment in the county jail not exceeding one year, or as a felony punishable by imprisonment in county jail for 16 months, or for 2 or 3 years. (Pen. Code, § 461.)

This bill would require a person sentenced for a conviction for second degree burglary who has a prior burglary conviction to serve a minimum of 180 days in county jail.

This bill would require a person convicted of burglary and released on parole to be subject to GPS monitoring as a condition of parole.

COMMENTS

1. The Need for this Bill

According to the author of this bill:

Anyone who has experienced a residential burglary knows how unsettling it is to have their home invaded, and the long lasting feeling of insecurity it leaves behind. Criminals who show dangerous and repetitive behavior, specifically, burglary should not get released right back into our community. Additionally, upon release law enforcement should monitor the offender’s activity upon release.

In order to protect our communities from those who have committed multiple burglaries, SB 1266 will require that anyone with a prior burglary offense, who is subsequently convicted of 2nd Degree Burglary (entering an uninhabited dwelling) serve a mandatory minimum of 180 days in county jail. Additionally, the bill also requires that anyone convicted of burglary to be subject to GPS monitoring as a condition of parole.

1. Burglary Degrees

A burglary takes place when a person enters a building or other enclosure, including a vehicle, with the intent to commit larceny. (Pen. Code, § 459.) Existing law defines burglary of a residence or inhabited dwelling as first degree burglary; all other types of burglary are second degree. (Pen. Code, § 460.) First degree burglary is punishable by imprisonment in the state prison for two, four or six years; second degree burglary is punishable as either a misdemeanor with up to one year imprisonment in county jail, or as a felony with imprisonment in the county jail for 16 months, or 2 or 3 years. (Pen. Code, § 461.) Common examples of second degree burglary are theft from a commercial building and theft from a vehicle.

3. Minimum Mandatory Sentencing

Setting the penalty, or range of penalties, for a crime is an inherently legislative function. The Legislature does have the power to require a minimum term or other specific sentence. (Keeler v. Superior Court (1970) 2 Cal.3d 619, 631.)

Sentencing, however, is solely a judicial power. (People v. Tenorio (1970) 3 Cal.3d 89, 90-93; People v. Superior Court (Fellman) (1976) 59 Cal.App.3d 270, 275.) California law effectively directs judges to impose an individualized sentence that fits the crime and the defendant’s background, attitude and record. (Cal. Rules of Court, rules 4.401-4.425.) This bill limits judicial discretion and requires the same minimum penalty to be imposed in each case regardless of the facts of the case and the defendant’s record. This minimum mandatory sentence would apply to a defendant who had a prior burglary regardless of the time in between the prior offense and the new offense, or whether the prior was second degree burglary or the more serious and inherently dangerous first degree burglary.

Imposing mandatory jail time of 180 days on a person will most likely result in the loss of employment and create problems for the defendant that may lead to further criminal acts. Courts have found success in fashioning other remedies that have kept offenders employed, outside of county jails at the public expense, and freed up jail space for more dangerous offenders.

Minimum mandatory terms of imprisonment also contributes to jail overcrowding and overcrowding necessitates early releases from custody:

After reaching a high of 84,275 inmates in September 2007, the monthly average daily jail population declined steadily to 71,777 inmates in September 2011—a decrease of 15%, or 12,498 inmates. After realignment began, the jail population began to rise; as of October 2014, the month before the passage of Proposition 47, it stood at 82,005 inmates, a gain of 14%—and about 2,000 inmates over the rated capacity of 80,000 (set by the California Board of State and Community Corrections). To address these capacity constraints, counties released 14,321 pre-sentenced and sentenced inmates in October 2014—an increase of 4,102 (or 40%) from September 2011.

(Public Policy Institute of California (PPIC), California’s County Jails – Just the Facts (Nov. 2017) < http://www.ppic.org/publication/californias-county-jails/> [as of Apr. 12, 2018].) The passage of Proposition 47 reduced the overall jail population but county jails still face capacity constraints. (Id.) Creating new mandatory minimum sentences would reverse the progress made in jail overcrowding by Proposition 47, and is contrary to a recent policy efforts to remove minimum mandatory sentences in existing law. (See SB 1129 (Monning), Ch. 724, Stats. 2016; AB 2492 (Jones-Sawyer), Ch. 819, Stats. 2014.)

1. GPS Monitoring as a Parole Condition

This bill requires all offenders who have been convicted of burglary and released on parole to be subject to GPS monitoring as a condition of parole. Parolees who are ordered to wear a GPS monitor may be required to pay the cost of GPS monitoring and if they fail to keep the GPS device charged that could lead to a parole violation which can result in imprisonment in county jail for up to 180 days. (Pen Code, § 3000.08, subd. (g).)

In 2014, the Office of the Inspector General (OIG) issued a report assessing GPS monitoring of sex offenders on parole. Among the various issues the report address was whether there are any tangible indicators of GPS function and effectiveness to deter or prevent crime. (Special Review: Assessment of Electronic Monitoring of Sex Offenders on Parole and the Impact of Residency Restrictions, State of California Office of the Inspector General (Oct. 2014).) The report found that while there are some advantages to electronic monitors such as the ability to locate parolees to conduct unannounced inspections, access historical location and movement data to either identify or eliminate a parolee as a suspect in criminal activity, and the ability to monitor and enforce special conditions of parole such as prohibitions against entering specific locations, these advantages come at the expense of creating tasks that divert agents from direct in-person supervision of parolees. Agents are required to review GPS tracks for each working day for all GPS-monitored offenders, log their tracking reviews daily, and respond to after-hours alerts from the GPS monitoring center. (Id. at p. 7.)

The additional workload and burden on both the parole officer and parolee may not be justified considering the reported incidents of the unreliability of GPS monitoring devices which can lead to false alerts and inaccurate location data:

Unfortunately, with the proliferation of electronic devices comes increased reports of their failing. In 2011, California officials conducted tests on the monitoring devices worn by 4,000 high-risk sex offenders and gang members, and according to the LA Times, found that “batteries died early, cases, cracked, tampering alerts failed, and reported locations were off by as much as three miles”. Parolees were able to thwart the devices by covering them in tinfoil or going indoors. Parole officers were inundated with as many as a thousand alerts per day, and meaningless alerts led officers to worry that they were missing actual instances of fleeing parolees.

Trouble with monitoring devices is not limited to California. An audit in Tennessee found that 80 percent of alerts from offender monitoring devices were not checked by officers. Similar issues came to light in Colorado and New York when officers missed or ignored repeated alerts of device failure and then several parolees committed violent crimes. Officers in Florida were so overwhelmed with alerts that they stopped all real-time notifications, save those relating to device removal, and as a result, did not notice when one parolee broke his curfew 53 times in one month before killing three people.

The costs of electronic monitoring pose a financial hurdle for those monitored as well. According to NPR, 49 states either allow or require the cost of monitoring to be passed along to the wearers. Fees range, but typically wearers are charged $10 to $15 per day to be monitored. Some courts have a sliding scale based on the user’s ability to pay, but in other jurisdictions, those who aren’t able to pay the fees are sent to jail. Such was the case for one man who spent 12 months in jail for stealing a beer from a convenience store because he couldn’t pay for his court-ordered monitoring device.

(Karsten and West, Decades later, electronic monitoring of offenders still prone to failure, Brookings Institution (Sept. 21, 2017) https://www.brookings.edu/blog/techtank/2017/09/21/decades-later-electronic-monitoring-of-offenders-is-still-prone-to-failure/> [as of Apr. 14, 2018].)

Additionally, applying this condition across the board to all parolees convicted of burglary would likely lead to legal challenges. A condition of parole is invalid if it: (1) has no relation to the commitment offense; (2) bars conduct that is not in itself criminal; and (3) requires or forbids conduct that is not reasonably related to future criminality. (People v. Lent (1975) 15 Cal.3d 481.) Requiring GPS monitoring on every parolee convicted of burglary may not have enough of a connection to the crime or be reasonably related to future criminality to be valid.

1. Argument in Support

California District Attorneys Association (CDAA) writes in support:

On behalf of CDAA, we are pleased to support your Senate Bill 1266, which would require a person convicted of burglary in the second degree, who has a prior conviction for burglary, to serve a minimum of 180 days in county jail. The bill would also require a person convicted of burglary, who is released from prison on parole, to be subject to global position system monitoring as a condition of parole.

1. Argument in Opposition

According to the American Civil Liberties Union of California:

SB 1266, like other mandatory minimum sentence laws before it, shifts sentencing discretion from the judge to the prosecutor, where bias and prosecutorial discretion often remain unchecked. The prosecutor decides what charges to bring, and, in turn, what the sentencing range will be. If the prosecutor thinks someone should not go to jail, then he or she will offer a plea bargain and change the charge to something that allows a non-jail sentence. But under laws like SB 1266, if the judge thinks someone should not go to jail – for example, someone with severe mental illness, or someone with a substance use disorder – there is nothing the judge can do about it.

In addition to removing judicial discretion in sentencing, SB 1266 also removes judicial and parole agency discretion in requiring a person convicted of burglary to submit to GPS monitoring upon release from prison on parole. Today, a court, the Board of Parole Hearings, or a supervising parole agency may already require, as a condition of release on parole or reinstatement on parole, or as an intermediate sanction in lieu of return to custody, that an inmate or parolee convicted of burglary submit to GPS monitoring. (Penal Code, §3004 (a).) Under current law, the decision as to whether a person must submit to GPS monitoring is based on the facts and circumstances surrounding the individual being released. Given that GPS monitoring imposes a significant restriction on one’s liberty and privacy, it is critical that it be used only sparingly, and only when necessary to justify these intrusions. A blanket requirement that all people who are convicted of burglary submit to GPS monitoring absent a showing that such monitoring is necessary raises constitutional concerns. Moreover, there has been no demonstrated need to strip away GPS decision-making authority from the courts, the Board of Parole Hearings, or parole agencies. Like the mandatory minimum sentence provision, the GPS requirement will serve only to widen the disparities that plague our criminal justice system, given that people of color are policed, arrested, convicted, and sentenced at much higher rates than white people.

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