Date of Hearing: April 3, 2019

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

ABPCA Bill Id:AB 277

Author:(McCarty) – As Introduced Ver:January 28, 2019

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

SUMMARY:

This bill creates a program through which parolees, except those subject to sex offender registration requirements, are able to earn “reintegration credits” to reduce the term of parole.

Specifically, this bill:

1. Allows a parolee (except a sex offender), serving a determinate period of parole, to earn reintegration credits to reduce the length of parole and allows a parolee (except a sex offender), subject to lifetime parole, to earn reintegration credits to advance the date of their discharge review.
   
2. Awards up to 12 months of reintegration credits for the completion of an academic program, as specified.
   
3. Awards three to six months of reintegration credits for other activities, such as the completion of career or technical education, completion of cognitive behavioral treatment program, or completion of a substance abuse treatment program.
   
4. Allows a parolee who successfully earns reintegration credits to have their radius of restricted travel increased at each annual review, as specified, except as prohibited by law and subject to the approval of the parole officer.
   
5. Requires the Department of Corrections and Rehabilitation (CDCR) and the Board of Parole Hearings (BPH) to adopt any regulations necessary to carry out these provisions.

FISCAL EFFECT:

1. One-time GF costs of approximately $761,000 for CDCR to establish a new parole credits program including costs to develop and implement software programming necessary to track and maintain earned credits and to account for the impact of rewarded credits on parole terms.
2. Annual GF costs in the low millions of dollars, for increased workload and at least four additional staff for CDCR to collect and process information on credit earnings.

COMMENTS:

1. Purpose. According to the author:

AB 277 will incentivize individuals on parole to reach their full potential by rewarding good behavior, educational attainments and community service. These types of milestone credits are essential in helping to reduce recidivism and encourages people on parole to be active participants in their efforts to reintegrate into society.

1. Background. The Realignment Act of 2011 changed parole for inmates serving sentences in state prison. Parole under the jurisdiction of CDCR for inmates released from prison on or after October 1, 2011, is limited to those inmates whose prison terms were for serious or violent felonies; were serving Three-Strike sentences; are classified as high-risk sex offenders or mentally disordered offenders; or who, while on certain grants of parole, commit new offenses. All other inmates released from state prison are subject to up to three years of Post Release Community Supervision (PRCS) under local supervision.

Under existing law, any inmate released from state prison following a conviction for a serious or violent felony may be discharged early from parole if the person has been on parole continuously for up to two years without violating parole. There were a total of 27,491 discharges from parole between January 2016 and January 2018. For this same period, 8,922 parolees discharged early. This bill authorizes additional time reductions for inmates on parole following incarceration for the most serious offenses.

Proposition 57, enacted by the voters in 2016, granted broad authority to CDCR to enact regulations offering or limiting credits for inmates in custody or on parole. The California Supreme Court has left open the question of whether California Constitution Article I, section 32, as amended by Proposition 57, eliminated the authority of the Legislature to adjust inmate credits without CDCR action. CDCR also estimates that implementation of this bill may be delayed given that it may take more than nine months to develop a reintegration credit database.

1. Support. According to the Anti-Recidivism Coalition:

AB 277 ensures that people on parole are encouraged to proactively engage in their communities and successfully reenter back into society. By incentivizing people on parole to continue their rehabilitation through education, self-help programs, volunteering, and staying disciplinary-free, we are promoting public safety through their success. This bill sends a message that says we want individuals on parole to succeed and we want to recognize their achievements.

1. Opposition. According to the Alliance for Constitutional Sex Offense Laws:

While we support the creation of reintegration credits for parolees, we oppose this bill’s exclusion of all persons required to register pursuant to Section 290 from that potential benefit.…The fact is that registrants have an extremely low rate of re-offense and are unlikely to commit a new sex offense in any location. Specifically, the actual rate of re-offense for a registrant on parole is less than one percent, according to the California Department of Corrections and Rehabilitation’s Outcome Evaluation Report issued in August 2016 (see p. 31.) In addition, the current language of the bill is too broad because the bill’s exclusion could be interpreted to include parolees whose current conviction is not based on a sex offense, but who was convicted of a sex offense decades ago. Under this interpretation, the law could be found to violate the Equal Protection clause of the federal and state constitutions because it would have disparate impact upon state parolees.

1. Related Legislation. AB 1182 (Carrillo) requires discharge from parole for specified parolees after six months unless such a parolee has violated any of their parole conditions within that six-month period. AB 1182 is pending hearing in this Committee.
2. Prior Legislation. AB 1940 (McCarty), of the 2017-2018 Legislative Session, was identical to this bill. AB 1940 failed passage on the Assembly Floor.

Analysis Prepared by: Kimberly Horiuchi / APPR. / (916) 319-2081

Date of Hearing: March 12, 2019

Counsel: Sandy Uribe

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:AB 277

Author:(McCarty) – As Introduced Ver:January 28, 2019

SUMMARY:

Creates a program through which parolees, except those subject to sex offender registration requirements, are able to earn “reintegration credits” to reduce the term of parole. Specifically, this bill:

1. Entitles parolees serving a determinate period of parole, except those required to register as sex offenders, to earn reintegration credits to reduce the length of parole.
   
2. Allows a parolee subject to lifetime parole to earn reintegration credits to advance the date of his or her discharge review.
   
3. Awards reintegration credits for the completion of an accredited academic program or course, as follows:
   
   1. Twelve months of credit for a general equivalency high school diploma;
      
   2. Twelve months of credit for an associate’s degree;
      
   3. Twelve months of credit for a bachelor’s degree; and,
      
   4. Six weeks of credit for the completion of any quarter, trimester, or semester-long course taken towards an academic degree for which a passing grade was received and for which credit was not awarded for the completion of a degree.
      
4. Defines “accredited” as meaning “that the program or course is accredited by an accrediting agency recognized by the United States Department of Education or the State of California.”
   
5. Specifies that reintegration credits may be awarded for academic achievements commenced during the individual’s term of incarceration but completed while on parole.
   
6. Awards reintegration credits for other specified activities as follows:
   
   1. Six months of credit for the completion of a certified career or technical education or training program or certificate, as specified;
      
   2. Two months of credit for the completion of a cognitive behavioral treatment program;
      
   3. Three months of credit for the completion of a substance abuse treatment program or residential treatment program that is not court-ordered; and,
      
   4. Ten days of credit per month for the completion of a minimum of 12 voluntary service hours per month.
      
7. Defines ''voluntary service'' for purposes of these provisions as ''any time spent volunteering for a nonprofit or government agency, including time spent visiting prisons, jails, or juvenile detention facilities. Any volunteer activity shall be approved by a parole agent and documented by a site supervisor in a manner prescribed by the department.''
   
8. Provides that reintegration credits earned during the 12-month period before each annual review shall be awarded at the annual review. The Department of Corrections and Rehabilitation (CDCR) shall then reduce the parole period by the amount of reintegration credits awarded.
   
9. Gives the parole officer discretion to deny credits that have been earned, but not yet awarded at an annual review hearing, but only if the parolee has had a new arrest or parole violation during that 12-month period.
   
10. Prohibits the revocation of reintegration credits which have been awarded at the annual review hearing.
    
11. Limits the awarding of reintegration credits to no more than 12 months of credit during a 12-month period.
    
12. Requires reintegration credits to be awarded retroactively, as specified.
    
13. Allows a parolee who successfully earns any amount of reintegration credits to have his or her radius of restricted travel increased at each annual review, as specified, except as prohibited by law and subject to the approval of the parole officer.
    
14. Requires CDCR and the Board of Parole Hearings (BPH) to adopt any regulations necessary to carry out these provisions.

EXISTING LAW:

1. Provides for a period of post-prison supervision immediately following a period of incarceration in state prison. (Pen. Code, § 3000 et seq.)
   
2. 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 (Pen. Code, § 3000.08, subds. (a) and (c).):
   
   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.
      
3. Requires all other offenders released from prison to be placed on post-release community supervision (PRCS) under the supervision of a county agency, such as a probation department. (Pen. Code, § 3000.08, subd. (b).)
   
4. States that, notwithstanding any other law, a person released from prison prior to October 1, 2011, is subject to parole under CDCR supervision. (Pen. Code, § 3000.09.)
   
5. Establishes parole-term lengths depending on the committing offense and the date the offense is committed. (Pen. Code, §§ 3000, subd. (b)(6), 3000.1.)
   
6. Entitles a parolee to an annual review hearing until the statutory maximum period of parole expires. (Pen. Code, § 3001, subd. (d.)
   
7. Provides for the opportunity for early discharge from parole for all parolees after a certain period of continuously-successful parole. For example, a parolee serving up to a three-year parole period must be discharged from parole within 30 days after a consecutive six-month period of violation-free parole unless the BPH decides to retain the person. (Pen. Code, § 3001.)
   
8. Triggers suspension of the period of parole if a parolee absconds. (Pen. Code, §§ 3000, subd. (b)(6) & 3064.)
   
9. Provides that an inmate who has committed specified crimes and is released on parole shall not be returned to a location within 35 miles of the residence of a victim or witness if the victim or witness makes such a request and the BPH finds that the placement is necessary to protect the victim or witness. (Pen. Code, § 3003, subds. (f) & (h).)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, “AB 277 will incentivize individuals on parole to reach their full potential by rewarding good behavior, educational attainments and community service. These types of milestone credits are essential in helping to reduce recidivism and encourages people on parole to be active participants in their efforts to reintegrate into society.”
   
2. Constitutional Authority to Award Credits Given to CDCR in Proposition 57: Proposition 57, the “The Public Safety and Rehabilitation Act of 2016” of the November 2016 election changed the rules governing parole and the granting of custody credits to inmates in state prison. Prop. 57 authorized CDCR to award credits earned for good behavior and approved rehabilitative or educational achievements. Before Prop. 57, the matter of conduct credits earned in prison was governed by statute. (See e.g., Pen. Code, §§ 2933 and 2933.1.)
   
   Specifically, Prop. 57 added section 32 to article I of the California Constitution which states, in pertinent part:

“32. (a) The following provisions are hereby added to enhance public safety, improve rehabilitation, and avoid the release of prisoners by federal court order, notwithstanding anything in this article or any other provision of law….

(2) Credit Earning: The Department of Corrections and Rehabilitation shall have authority to award credits earned for good behavior and approved rehabilitative or educational achievements.

(b) The Department of Corrections and Rehabilitation shall adopt regulations in furtherance of these provisions, and the Secretary of the Department of Corrections and Rehabilitation shall certify that these regulations protect and enhance public safety.” (Cal. Const., art. I, § 32, emphasis added)

As pertains to this bill, this language raises the question of whether the Legislature still has the authority to enact statutory credit schemes. “It is at least arguable that CDCR is given total control over credits because the Act specifies that CDCR ‘shall have the authority to award credits’ ‘notwithstanding any other law.’” (See Proposition 57: The Public Safety and Rehabilitation Act of 2016, by Couzens & Bigelow, May 2017, p. 13. < http://www.courts.ca.gov/documents/prop57-Parole-and-Credits-Memo.pdf >.)

In People v. Brown (2016) 63 Cal.4th 335, the Supreme Court considered the scope of Elections Code section 9002, which permits amendments to an initiative if they are “reasonably germane” to the measure’s theme, purpose, or subject. In opining the proposed amendments to Prop. 57 which would grant CDCR the power to award credits violated this section, Justice Chin’s dissenting opinion discussed the implications:

“The constitutional amendment would also give the Department of Corrections and Rehabilitation (department) constitutional authority to award behavior and other credits. The Legislature has already enacted detailed mandatory provisions for the department to award conduct and participation credits. (See Pen. Code, § 2931 et seq.) But the amended measure's proposed constitutional language is permissive. Presumably, authority to award credits includes authority not to award credits or to award lower credits than the statutes currently require. Because the Constitution prevails over mere statutes, it appears the proposed constitutional amendment would displace the current statutory provisions for credits and shift authority over such credits from the legislative to the executive branch of government.”

For the moment, I will assume that altering the balance of power between the two branches of government in this way would not be an impermissible constitutional revision. … But shifting power from one branch of government to another is not reasonably germane to the original measure, which left the separation of powers between the branches of government untouched. (Brown, supra, 63 Cal.4th at p. 359.)

Justice Chin’s dissent further stated:

“The proposed constitutional amendment gives the department “authority to award credits earned for good behavior and approved rehabilitative or educational achievements.” (Amended measure, § 3, adding art. I, proposed § 32, subd. (a)(2).) But it does not explain how this new, apparently permissive constitutional provision would interact with the detailed, mandatory provisions for credits the Legislature has enacted. As I have already discussed, the constitutional provision would seem to displace the statutory scheme. But I am not sure that is the intent. Displacing the statutory credit scheme might be one of the measure's “unintended consequences”…. (Brown, supra, 63 Cal.4th at p. 361.)

It remains an open question whether the Legislature still has the authority to enact statutes pertaining to credits. However, as noted by Justice Chin, it is possible that one of the “unintended consequences” of Prop. 57 was to shift this authority exclusively to the executive branch.

1. 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 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 the revocation term in county jail. (Pen. Code, § 3056, subd. (a) and 3458.) There is a 180-day limit to incarceration. (Pen. Code, §§ 3056, subd. (a) and 3455, subd. (c).) The only offenders who are eligible for return to prison for violating parole are life-term inmates paroled pursuant to Penal Code Section 3000.1 (e.g., murderers, specific life term sex offenses).

Additionally, realignment changed the process for revocation hearings. Beginning July 1, 2013, the trial courts assumed responsibility for holding all revocation hearings for those individuals who remain under the jurisdiction of CDCR.

The provisions of this bill would apply only to individuals released from prison and placed on parole, not on PRCS.

1. Length of Parole Term: The length of a person’s parole term depends on the committing offense, the sentence imposed, and the date the offense is committed. Most inmates who received a determinate sentence will serve a three-year period of parole, with the possibility of a one-year extension. (Pen. Code § 3000 subd. (b).)
   
   The last data provided to this committee by CDCR (January 31, 2018) regarding the breakdown in the parole population by parole period is as follows:
   

1. Discharge from Parole: Most parolees can be discharged from parole early by successfully completing a specified amount of parole time without obtaining any violations. Different time periods apply in determining the presumptive discharge date, depending on the length of parole. (See Pen. Code, § 3001.) For example, a person who was not imprisoned for a serious or violent felony, or for a registerable sex offense, and who is subject to a three-year parole period must be discharged from parole within 30 days after a consecutive six-month period of violation-free parole unless the BPH decides to retain the person. (Pen. Code, § 3001, subd. (a).)
   
   When a parolee reaches the presumptive discharge date, the parole officer will prepare a report recommending whether or not the person should remain on parole. The BPH will then review the case. Parole terminates automatically unless the BPH acts to retain the parolee after the presumptive discharge date. If the parole is retained on parole, the parolee’s case will be reviewed annually until the maximum parole date is reached. (Pen. Code, § 3001, subd. (d).) If a parolee has not been discharged early, the parolee must discharge after serving the maximum period of parole specified.
   
   CDCR has informed this committee that, in total, there were a total of 27,491 discharges during the two year period from January 2016 through January 2018. For this same period, 8,922 parolees discharged early.
   
2. Impact of this Bill: As noted above by the information provided by CDCR, most inmates will serve a three-year period of parole. Taking into consideration both the length of parole and the opportunity for early discharge from parole, many three-year parolees may not be impacted by this bill. However, the milestone credits will provide an opportunity and incentive for those individuals serving a longer period of parole to be discharged early.
   
3. Exclusion of Registered Sex Offenders from Earning Reintegration Credits: This bill provides that it “does not apply to a person who is required to register [as a sex offender] pursuant to [Penal Code] Section 290.” That exclusion might be subject to an equal protection challenge.
   
   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.)

While current law allows for closer supervision of persons who commit sex crimes; the fact that some sex offenders have longer periods of parole than others indicates that not all sex crimes are treated similarly for purposes of post-incarceration supervision. Moreover, by recently enacting a tiered sex offender registry, the Legislature has also recognized that not all sex offenders pose the same risk of re-offense. In light of this, does blanket prohibition for all registered sex offenders to earn credits to reduce the length of parole amount to invidious discrimination and a violation of equal protection?

Even if the exclusion does not violate equal protection principles, it is unclear whether the exclusion applies to all persons ever convicted of a sex offense and subject to registration requirements, or only to those persons who are on currently on parole for a sex offense subjecting them to registration.

1. Argument in Support: According to the Anti-Recidivism Coalition, a Co-Sponsor of this bill, “AB 277 presents an opportunity to implement a parole system that will encourage rehabilitation, help drive down recidivism rates and, ultimately, improve public safety.
   
   “Other states have begun to reform community supervision. California must follow this lead in order to ensure better outcomes for individuals on parole and our communities by actively encouraging individuals on parole to meet their personal and educational goals and awarding their achievements.
   
   “Experts from around the country agree that parole requirements should be goal-oriented and not time-based….
   
   “AB 277 ensures that people on parole are encouraged to proactively engage in their communities and successfully reenter back into society. By incentivizing people on parole to continue their rehabilitation through education, self-help programs, volunteering, and staying disciplinary-free, we are promoting public safety through their success. This bill sends a message that says we want individuals on parole to succeed and we want to recognize their achievements.”
   
2. Argument in Opposition: According to the Alliance for Constitutional Sex Offense Laws, “While we support the creation of reintegration credits for parolees, we oppose this bill’s exclusion of all persons required to register pursuant to Section 290 from that potential benefit.
   
   “This bill’s exclusion of all persons required to register pursuant to Section 290 from reintegration benefits is based on fear and not facts. The fear is that persons required to register pursuant to Section 290, also known as ‘sex offenders’ or ‘registrants’ will commit a new sex offense if they are allowed to travel beyond the 50 mile boundary established in parole conditions.
   
   “The fact is that registrants have an extremely low rate of re-offense and are unlikely to commit a new sex offense in any location. Specifically, the actual rate of re-offense for a registrant on parole is less than one percent, according to the California Department of Corrections and Rehabilitation’s Outcome Evaluation Report issued in August 2016 (see p. 31.)
   
   “In addition, the current language of the bill is too broad because the bill’s exclusion could be interpreted to include parolees whose current conviction is not based on a sex offense, but who was convicted of a sex offense decades ago. Under this interpretation, the law could be found to violate the Equal Protection clause of the federal and state constitutions because it would have disparate impact upon state parolees.”
   
3. Related Legislation: AB 1182 (Carrillo) requires discharge from parole for specified parolees after six months unless the parolee has violated any of his or her parole conditions within that six month period. AB 1182 is pending referral.
   
4. Prior Legislation: AB 1940 (McCarty), of the 2017-2018 Legislative Session, was identical to this bill. AB 1940 failed passage in the Assembly.

REGISTERED SUPPORT / OPPOSITION:

Support

#cut50 (Co-Sponsor)
Anti-Recidivism Coalition (Co-Sponsor)
Legal Services for Prisoners with Children (Co-Sponsor)
National Institute for Criminal Justice Reform (Co-Sponsor)
Project Rebound, Sacramento State University (Co-Sponsor)
Underground Scholars Initiative, UC Berkeley (Co-Sponsor)
Underground Scholars Initiative, UC Riverside (Co-Sponsor)
American Civil Liberties Union of California
American Federation of State, County and Municipal Employees, AFL-CIO
California Attorneys for Criminal Justice
California Public Defenders Association
Californians for Safety and Justice
Center on Juvenile And Criminal Justice
Ella Baker Center For Human Rights
Initiate Justice
Root & Rebound
UC Davis La Raza Law Student Association

Oppose

Alliance for Constitutional Sex Offense Laws

Analysis Prepared by:

Sandy Uribe / PUB. S. / (916) 319-3744