Existing law requires the county agency supervising the release of a person on postrelease community supervision to petition a court to revoke, modify, or terminate postrelease community supervision if the agency determines, following application of its assessment processes, that intermediate sanctions are not appropriate.

This bill would require the county agency supervising the release of a person on postrelease community supervision to also petition a court to revoke, modify, or terminate postrelease community supervision if the person has violated the terms of their release for a 3rd time and the person has committed a new felony or misdemeanor. The bill would allow a peace officer to arrest a person without warrant who fails to appear at a hearing to revoke, modify, or terminate postrelease community supervision. By imposing additional duties on county agencies administering postrelease community supervision, 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.

(1)Existing law requires the Department of Corrections and Rehabilitation to provide specified information to local law enforcement agencies regarding an inmate released by the department to the agencys jurisdiction on parole or postrelease community supervision, including a record of the offense for which the inmate was convicted that resulted in parole or postrelease community supervision.

This bill would require the department to also provide the local law enforcement agency with copies of the record of supervision during any prior period of parole.

(2)Existing law requires the department to be the agency primarily responsible for the Law Enforcement Automated Data System and requires county agencies supervising inmates released from prison on postrelease community supervision to provide any information requested by the department to ensure the availability of accurate information regarding inmates released from state prison. Under existing law, this information may include the issuance of warrants, revocations, or the termination of postrelease community supervision.

This bill would require the county to provide the department, upon request, with all records of supervision. By imposing additional duties on county agencies administering postrelease community supervision, this bill would impose a state-mandated local program.

(3)Existing law requires the county agency supervising the release of a person on postrelease community supervision to petition a court to revoke, modify, or terminate postrelease community supervision if the agency determines, following application of its assessment processes, that intermediate sanctions are not appropriate.

This bill would require the county agency supervising the release of a person on postrelease community supervision to also petition a court to revoke, modify, or terminate postrelease community supervision if the person has violated the terms of their release for a 3rd time. time and the person has committed a new felony or misdemeanor. The bill would allow a peace officer to arrest a person without warrant who fails to appear at a hearing to revoke, modify, or terminate postrelease community supervision. By imposing additional duties on county agencies administering postrelease community supervision, this bill would impose a state-mandated local program.

(4)Existing law allows each county agency responsible for postrelease supervision to determine appropriate responses to alleged violations, which can include a one to 10 consecutive day period of one to 10 consecutive days of flash incarceration.

This bill would require the probation department to notify the court, public defender, district attorney, and sheriff of each imposition of flash incarceration. By imposing additional duties on county agencies administering postrelease community supervision, this bill would impose a state-mandated local program.

(5)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.

(1)Existing law requires the Department of Corrections and Rehabilitation to provide specified information to local law enforcement agencies regarding an inmate released by the department to the agencys jurisdiction on parole or postrelease community supervision, including a record of the offense for which the inmate was convicted that resulted in parole or postrelease community supervision.

This bill would require the department to also provide the local law enforcement agency with copies of the record of supervision during any prior period of parole.

(2)Existing law requires the department to be the agency primarily responsible for the Law Enforcement Automated Data System and requires county agencies supervising inmates released from prison on postrelease community supervision to provide any information requested by the department to ensure the availability of accurate information regarding inmates released from state prison. Under existing law, this information may include the issuance of warrants, revocations, or the termination of postrelease community supervision.

This bill would require the county to provide the department, upon request, with all records of supervision. By imposing additional duties on county agencies administering postrelease community supervision, this bill would impose a state-mandated local program.

(3)Existing law provides the procedure by which the Board of Parole Hearings considers an inmates suitability for parole and requires a panel of the board, or the board, sitting en banc, to grant parole to an inmate unless it determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration.

This bill would require the panel or board, sitting en banc, to consider the entire criminal history of the inmate, including all current or past convicted offenses, in making this determination.

(4)Existing law requires the county agency supervising the release of a person on postrelease community supervision to petition a court to revoke, modify, or terminate postrelease community supervision if the agency determines, following application of its assessment processes, that intermediate sanctions are not appropriate.

This bill would require the county agency supervising the release of a person on postrelease community supervision to also petition a court to revoke, modify, or terminate postrelease community supervision if the person has violated the terms of their release for a 3rd time. The bill would allow a peace officer to arrest a person without warrant who fails to appear at a hearing to revoke, modify, or terminate postrelease community supervision. By imposing additional duties on county agencies administering postrelease community supervision, this bill would impose a state-mandated local program.

(5)Existing law allows each county agency responsible for postrelease supervision to determine appropriate responses to alleged violations, which can include a one to 10 consecutive day period of one to 10 consecutive days of flash incarceration.

This bill would require the probation department to notify the court, public defender, district attorney, and sheriff of each imposition of flash incarceration. By imposing additional duties on county agencies administering postrelease community supervision, this bill would impose a state-mandated local program.

(6)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.

Date of Hearing: August 7, 2024

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Buffy Wicks, Chair

SBPCA Bill Id:SB 1262

Author:(Archuleta) – As Amended Ver:May 16, 2024

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

SUMMARY:

This bill requires a supervising agency to petition the court to modify, revoke, or terminate post-release community supervision (PRCS) if a person on PRCS has violated the terms of their release for a third time and has committed a new felony or misdemeanor.

FISCAL EFFECT:

1. Costs (local funds, General Fund) of an unknown but potentially significant amount to county agencies to file additional petitions seeking revocation, modification, or termination of PRCS. Although these duties are mandated by the state, they are not reimbursable but are subject to Proposition 30 (2012). Under Proposition 30, legislation enacted after September 30, 2012, that has an overall effect of increasing the costs already borne by a local agency for programs or levels of service mandated by realignment applies to local agencies only to the extent the state provides annual funding for the cost increase.
2. Cost pressures (Trial Court Trust Fund, General Fund) of an unknown but potentially significant amount to the courts to adjudicate county petitions filed as a result of this bill. Actual costs will depend on the number of petitions filed and the amount of court time needed for each petition. It generally costs approximately $1,000 to operate a courtroom for one hour. Although courts are not funded on the basis of workload, increased pressure on the Trial Court Trust Fund may create a need for increased funding for courts from the General Fund. The fiscal year 2024-25 state budget provides $37.3 million ongoing General Fund to backfill declining revenue to the Trial Court Trust Fund.
3. Costs (local funds, General Fund) to the counties to incarcerate people returned to county jail due to county petitions. Actual costs will depend on the number of petitions and the amount of time each person must remain in county jail. The average annual cost to incarcerate one person in county jail is approximately $29,000. Although county incarceration costs are generally not considered reimbursable state mandates pursuant to Proposition 30 (2012), overcrowding in county jails creates cost pressure on the General Fund because the state has historically granted new funding to counties to offset overcrowding resulting from 2011 public safety realignment.

According to the Legislative Analyst’s Office, the General Fund faces a structural deficit in the tens of billions of dollars over the next several fiscal years.

COMMENTS:

1. Purpose. This bill is sponsored by the City of Whittier. According to the author:

One of the primary responsibilities of government is to ensure people feel safe in their communities – safe in their home, at the park, or walking to school. There is no question that monitoring repeat offenders will help make our community safer for residents and law enforcement. SB 1262 will help address the crimes being committed by repeat offenders and prevent future tragedies by holding these individuals accountable for their actions when they violate the terms of PRCS.

1. Background. 2011 Public Safety Realignment shifted many public safety duties from the state to the counties, including moving some post-release supervision responsibilities from California Department of Rehabilitation and Corrections (CDCR) parole agents to county probation departments. Under this system, called PRCS, county probation departments are in charge of supervising certain people released from CDCR custody. If a person subject to PRCS violates the terms of their supervision or commits a new offense, county probation officers evaluate the circumstances and may apply intermediate sanctions, including flash incarceration, to deter further violations.

Existing law generally gives county probation departments discretion over how to handle PRCS violations. The law permits a county probation department to file a petition asking the court to modify, revoke, or terminate a person’s PRCS if the department determines that intermediate sanctions are not appropriate. This bill instead requires a county probation department to file such a petition if a person subject to PRCS has violated the terms of their supervision a third time and has committed a new misdemeanor or felony. As described in the analysis of this bill by the Assembly Committee on Public Safety, this approach departs from the intent behind 2011 Public Safety Realignment:

When Realignment was enacted, the intent was to provide maximum flexibility to county probation officers who carry the lion’s share of the supervisory workload. Presumably, any probation officer would move to revoke or modify PRCS if a person violated three times and committed a new offense, but there may be circumstances where modification or termination are not appropriate. The intent of Realignment was to grant the supervising agency the discretion to make that recommendation based on their wealth of experience and information.

1. Prior Legislation. This bill’s provisions were included, among several other provisions related to post-release supervision, in AB 1408 (Calderon), of the 2017-2018 Legislative Session. Governor Brown vetoed AB 1408, writing:

I do not agree that a three-strikes and you’re out approach is the correct solution. This measure would undermine the sound discretion of local probation authorities who, by training and sworn responsibility, are in the best position to make determinations on what type of sanctions or punishment should be imposed.

Analysis Prepared by: Annika Carlson / APPR. / (916) 319-2081

Date of Hearing: July 2, 2024

Counsel: Kimberly Horiuchi

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Kevin McCarty, Chair

SBPCA Bill Id:SB 1262

Author:(Archuleta) – As Amended Ver:May 16, 2024

SUMMARY: Requires a supervising agency to petition a court to modify, revoke, or terminate post-release community supervision (PRCS) if a person on PRCS has violated the terms of their release for a third time and has committed a new felony or misdemeanor.

EXISTING LAW:

1. Provides that the following persons released from prison prior to, or on or after July 1, 2013, be subject to parole under the supervision of the California Department of Corrections and Rehabilitation (CDCR):
2. A person who committed a serious felony, as specified.
   
3. A person who committed a violent felony, as specified;
4. A person serving a sentence pursuant to California’s Three Strikes Law;
5. A high risk sex offender;
6. A mentally disordered offender;
7. 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 the person was sentenced to state prison; and,
8. A person subject to lifetime parole at the time of the commission of the offense that resulted in a state prison sentence. (Pen. Code, § 3000.08, subds. (a) through (i).)
9. Requires all other individuals released from prison to be placed on PRCS provided by the probation department of the county to which the person is being released. (Pen. Code, §§ 3000.08, subd. (b), & 3451, subd. (a).)
10. Requires any individual paroled from state prison before October 1, 2011 to remain under the supervision of the CDCR until jurisdiction is terminated by operation of law or until parole is discharged. (Pen. Code, § 3000.09, subd. (b).)
11. Delineates conditions of PRCS, including obeying all laws, following the directives and instructions of the supervising county agency, reporting to the supervising county agency as directed by that agency, immediately informing the supervising county agency if the person is arrested or receives a citation, obtaining the permission of the supervising county agency to travel more than 50 miles from the person’s place of residence, and participating in rehabilitation programming as recommended by the supervising county agency, among others. (Pen. Code, § 3453.)
12. Authorizes intermediate sanctions, including flash incarceration, for violating the terms of PRCS. (Pen. Code, § 3454, subd. (b).)
13. Defines “flash incarceration” as a period of detention in a city or county jail due to a violation of a person’s conditions of parole or PRCS. Specifies the length of the detention period can range between one and 10 consecutive days in a county jail. (Pen. Code, §§ 3000.08, subd. (e), and 3454, subd. (c).)
14. Provides that intermediate sanctions include, but are not limited to, the following:
    
15. Short-term “flash” incarceration in jail for a period of not more than 10 days.
16. Intensive community supervision.
17. Home detention with electronic monitoring or GPS monitoring.
18. Mandatory community service.
19. Restorative justice programs, such as mandatory victim restitution and victim-offender reconciliation.
20. Work, training, or education in a furlough program.
21. Work, in lieu of confinement, in a work release program.
22. Day reporting.
23. Mandatory residential or nonresidential substance abuse treatment programs.
24. Mandatory random drug testing.
25. Mother-infant care programs.
26. Community-based residential programs offering structure, supervision, drug treatment, alcohol treatment, literacy programming, employment counseling, psychological counseling, mental health treatment, or any combination of these and other interventions. (Pen. Code, § 3450, subd. (b)(1-8).)
27. Requires the supervising county agency to petition the court to revoke, modify, or terminate PRCS if it has determined, following application of its assessment processes, that intermediate sanctions are not appropriate. Provides that upon a finding that the person has violated the conditions of PRCS, the revocation hearing officer has authority to do all of the following:
    
28. Return the person to PRCS with modifications of conditions, if appropriate, including a period of incarceration in a county jail.
29. Revoke and terminate PRCS and order the person to confinement in a county jail.
30. Refer the person to a reentry court or other evidence-based program in the court’s discretion. (Pen. Code, § 3455, subd. (a).)
31. Specifies that if PRCS is revoked or modified and confinement is ordered, the person may be incarcerated in the county jail for a period not to exceed 180 days for each custodial sanction. (Pen. Code, § 3455, subd. (d).)

FISCAL EFFECT: Unknown.

COMMENTS:

1. Author's Statement: According to the author, "
   
2. Post-Release Community Supervision and Flash Incarceration: In 2011, AB 109, also known as the Criminal Justice Realignment Act created a new form of community supervision under which certain people exiting state prison are monitored by the probation departments of each county, instead of parole.^[1] This new form of supervision is called Post-Release Community Supervision (PRCS). As of October 1, 2011, people who are released from state prisons for crimes not including serious or violent sex offenses, or offenses requiring sex offender registration, are placed on PRCS under the supervision of county probation officers.

Individuals sentenced pursuant to Penal Code section 1170, subdivision (h)^[2] to county jail are not released on parole or PRCS upon serving their terms—unlike those who serve time in state prison. Once the sentence has been fully served, the defendant must be released without any restrictions or supervision. A form of supervision, however, may be imposed under existing law.

With the creation of PRCS, the supervising agency was authorized to employ “flash incarceration” as an “intermediate sanction” for responding to both parole and PRCS violations. (See Pen. Code, §§ 3454, subd. (c), & 3000.08, subd. (e).) The Legislative Analyst’s Office explained the context and reasoning behind “flash incarceration” as part of realignment:

“[T]he realignment legislation provided counties with some additional options for how to manage the realigned offenders. . . [T]he legislation allows county probation officers to return offenders who violate the terms of their community supervision to jail for up to ten days, which is commonly referred to as “flash incarceration.” The rationale for using flash incarceration is that short terms of incarceration when applied soon after the offense is identified can be more effective at deterring subsequent violations than the threat of longer terms following what can be lengthy criminal proceedings.”^[3]

The period of post-release community service cannot exceed three years. (Pen. Code, § 3456, subd. (a)(1).) However, a person who has been on post-release supervision for a continuous year with no violations of their conditions of post-release that result in a custodial sanction shall be discharged from supervision within 30 days. (Ibid.) A county agency supervising a person on community supervision may order flash incarceration without judicial authorization. (Pen. Code, § 3454, subd. (b).) Penal Code section 3453, subdivision (q), also provides that a person placed on such supervision must waive any right to a court hearing prior to the imposition of a period of flash incarceration. (See People v. Superior Court (Ward) (2014) 232 Cal.App.4th 345 [holding the imposition of flash incarceration is allowable as a custodial sanction and the defendant’s waiver of a hearing was valid.)

The intent of intermediate sanctions, like flash incarceration, is to balance holding individuals accountable for violating the conditions of supervision while creating shorter disruptions from work, home, or programming which often results from longer-term revocations. Because flash incarceration has been used successfully by probation officers on persons supervised under PRCS, the Legislature authorized the use of flash incarceration for individuals granted probation or placed on mandatory supervision. The statute authorizing the use of flash incarceration contains a sunset provision which has been extended several times, most recently to January 1, 2028.

This bill proposes to mandate revocation or modification where a person has violated the terms and conditions of PRCS and is charged with a misdemeanor or felony. When Realignment was enacted, the intent was to provide maximum flexibility to county probation officers who carry the lion’s share of the supervisory workload. Presumably, any probation officer would move to revoke or modify PRCS if a person violated three times and committed a new offense, but there may be circumstances where modification or termination are not appropriate. The intent of Realignment was to grant the supervising agency the discretion to make that recommendation based on their wealth of experience and information. To mandate such curtailment of authority in law arguably defeats the purpose of Realignment. Finally, pursuant to Proposition 30 (2012), any new mandate on county jails is subject to reimbursement by the state. In eliminating probation discretion in this case, more people will be sentenced to county jail or prison resulting in a slowly escalating return to the overcrowding crisis of the mid-2000s and billions of dollars in costs just as the state is heading into a Recession.

1. Impact on County Jails: In January 2010, a 9th Circuit three-judge panel issued a ruling ordering the State of California to reduce its prison population to 137.5% of design capacity because overcrowding was the primary reason CDCR was unable to provide inmates with constitutionally adequate healthcare. (Coleman/Plata v. Schwarzenegger (2010) No. Civ S-90-0520 LKK JFM P/NO. C01-1351 THE.) The United State Supreme Court upheld the decision, declaring that “without a reduction in overcrowding, there will be no efficacious remedy for the unconstitutional care of the sick and mentally ill” inmates in California’s prisons. (Brown v. Plata (2011) 131 S.Ct. 1910, 1939; 179 L.Ed.2d 969, 999.)

As explained above, Realignment was implemented in 2011 in response to prison overcrowding. In part, it shifted to county jails the responsibility for incarcerating lower-level offenders previously incarcerated in state prison. (See, supra, Pen. Code, § 1170, subd. (h).) This, however, increased the pressure on county jails to house larger populations and to make difficult decisions about how to manage their growing and more serious jail populations.

These pressures manifest differently by county based on a number of factors including jail capacity and whether the county jail system is operating under a court-mandated population cap. Such caps have been in place in some counties long before Brown v. Plata addressed state prison overcrowding. (Sarah Lawrence, Court-Ordered Population Caps in California County Jails (Dec. 2014).)

Recently, CalMatters published an article explaining that jails are facing increasing death rates even as the population may be declining in the short term. As the article explains, most of the people who died were pre-trial inmates – meaning they have not been convicted of a crime, but could not afford to post cash bail. Aside from natural causes, the two major causes of death for inmates in county jail were suicide, followed by overdoses, particularly fentanyl.

The Board of State and Community Corrections (“BSCC”) have repeatedly warned about failures in the county jails and refusal by locals to adhere to required state standards. Until recently, BSCC was not even notified about deaths inside the county-run lockups. Nor was the pandemic the driving factor: California in 2022 had the smallest share of deaths due to natural causes in the past four decades. A surge in overdoses drove the trend of increasing deaths. And almost every person who died was waiting to be tried. A previous CalMatters investigation found that three-quarters of those held in county jails had not been convicted or sentenced, with many awaiting trial more than three years.^[4]

1. Argument in Support: According to the League of California Cities: “Existing law requires county agencies supervising the release of individuals on post-release community supervision to petition the court for revocation, modification, or termination of that community supervision if the agency determines that release to no longer be appropriate.

This bill would expand upon this existing statute by providing specific guidelines for the revocation of post-release community supervision after a person’s third violation of their terms of release in addition to any new misdemeanor or felony committed. In 2017, the tragic loss of Whittier Police Officer Keith Boyer, when a parolee murdered Officer Boyer and another individual, serves as a stark reminder for the need for reform. The loss of Officer Boyer has had a dep impact on the community and highlights the need for effective management of post-release supervision.

SB 1262 (Archuleta) prioritizes accountability to prevent repeat offenders on community supervision to ensure the appropriate persons receive this type of release, all of which are a testament to the lessons learned from the tragic loss of Officer Boyer. The enhanced regulations around the revocation of community custody would ensure that only those who are actively working to successfully renter the community and are not a danger to the community are eligible to remain within that community.”

1. Argument in Opposition: According to Initiate Justice: Under current law, California Penal Code § 3455 as currently written, each supervising county agency has full authority and discretion to impose intermediate sanctions (including flash incarceration) as well as to petition the court to revoke and terminate post-release community supervision if it determines that intermediate sanctions are insufficient.

SB 1262 undermines this jurisdiction by requiring the supervising agency to impose the most severe penalty upon a third release violation, despite the fact that most probation violations are technical violations rather than new criminal offenses. These kinds of “technical violations” — for infractions as minor as missing an appointment with a supervision officer — account for over a quarter of all admissions to state and federal prisons. ^[5]Revocation almost always results in additional incarceration, and in people receiving more severe sentences than those not on probation or other forms of supervision would have received. Furthermore, studies show that Black people are disproportionately likely to have their probation revoked, and are over 4 times more likely than white people to be admitted to prison for a probation revocation.

SB 1262 will lead to the disproportionate rearrests of Black and Brown people under community supervision and increased numbers of people in prison for technical violations of supervision conditions, reversing hard-earned progress in California towards de-carceration and racial equity in our justice system. We need to invest in smart, supportive re-entry solutions instead of repeating punitive approaches to community supervision that are proven to be costly, harmful, and ineffective.^[6]”

1. Related Legislation: SB 22 (Umberg) amends Proposition 47 by requiring a person convicted of petty theft or shoplifting, if the person has 2 or more prior convictions for specified theft-related offenses, to be punished as a misdemeanor or felony, as specified. SB 22 is pending in the Assembly Judiciary Committee.
   
2. Prior Legislation:
   1. AB 1744 (Levine), Chapter 756, Statutes of 2022, extended authorization for the use of flash incarceration for individuals on probation or mandatory supervision until January 1, 2028.
      
   2. SB 266 (Block), Chapter 706, Statutes of 2016 authorizes the use of a sanction known as "flash incarceration" for defendants granted probation or placed on mandatory supervision.
      

REGISTERED SUPPORT / OPPOSITION:

Support

California Contract Cities Association
California Police Chiefs Association
City of Downey
City of Huntington Park
City of La Mirada
City of Lakewood
City of Norwalk
City of Whittier
League of California Cities
League of California Cities, Los Angeles County Division

Oppose

ACLU California Action
California Alliance for Youth and Community Justice
California Attorneys for Criminal Justice
California Coalition for Women Prisoners
California Public Defenders Association
Californians for Safety and Justice
Californians United for A Responsible Budget
Children's Defense Fund - CA
Communities United for Restorative Youth Justice
Ella Baker Center for Human Rights
Empowering Women Impacted by Incarceration
Essie Justice Group
Felony Murder Elimination Project
Freedom 4 Youth
Friends Committee on Legislation of California
Initiate Justice
Initiate Justice Action
Lawyers' Committee for Civil Rights of The San Francisco Bay Area
Legal Services for Prisoners With Children
Milpa Collective
Rubicon Programs
Silicon Valley De-bug
Youth Leadership Institute

Oppose Unless Amended

Root & Rebound

Other

California for Safety and Justice
San Francisco Public Defender
Smart Justice California, a Project of Tides Advocacy
Uncommon Law

Analysis Prepared by: Kimberly Horiuchi / PUB. S. / (916) 319-3744

1. Parolees are supervised by the Division of Adult Parole Operations within the California Department of Corrections and Rehabilitation. (See https://www.cdcr.ca.gov/parole/, last visited on June 16, 2024.) ↑

2. Penal Code section 1170, subdivision (h) requires, in part, that any person sentenced pursuant to the Realignment Act that does not have a prior serious or violent felony on their record and is not a registered sex offender, may be sentenced to county jail on a felony, rather than state prison. Upon release, the person is supervised by county probation, not state parole. ↑

3. Legislative Analyst’s Office, The 2012–13 Budget: The 2011 Realignment of Adult Offenders—An Update (Feb. 22, 2012), pp. 8-9, available at <https://lao.ca.gov/analysis/2021/crim_justice/2011-realignment-of-adult-offenders-022212.pdf .)
   ↑

4. Duara and Kimelman, “California jails are holding thousands fewer people but far more people are dying in them,” Cal Matters (March 25, 2024).) ↑

5. Bureau of Justice Statistics. (2023.) Probation and Parole in the United States, 2021. U.S. Department of Justice. ↑

6. Jesse Jannetta, Justin Breaux, Helen Ho, and Jeremy Porter, Examining Racial and Ethnic Disparities in Probation Revocation (Washington, DC: Urban Institute, 2014) ↑

 THIRD READING  

Bill No: SB 1262

Author: Archuleta (D)

Amended: 5/16/24

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 1-1, 4/9/24

AYES: Seyarto

NOES: Skinner

NO VOTE RECORDED: Wahab, Bradford, Wiener

SENATE PUBLIC SAFETY COMMITTEE: 5-0, 4/23/24

AYES: Wahab, Seyarto, Bradford, Skinner, Wiener

SENATE APPROPRIATIONS COMMITTEE: 7-0, 5/16/24

AYES: Caballero, Jones, Ashby, Becker, Bradford, Seyarto, Wahab

SUBJECT: Crimes: supervised release

SOURCE: City of Whittier

DIGEST:

This bill requires the supervising agency to petition the court to modify, revoke, or terminate post-release community supervision (PRCS) if a person on PRCS has violated the terms of their release for a third time and has committed a new felony or misdemeanor.

ANALYSIS:

Existing law:

1. Provides that the following persons released from prison prior to, or on or after July 1, 2013, be subject to parole under the supervision of the California Department of Corrections and Rehabilitation (CDCR):
2. A person who committed a serious felony listed in Penal Code section 1192.7, subdivision (c);
3. A person who committed a violent felony listed in Penal Code section 667.5, subdivision (c);
4. A person serving a Three-Strikes sentence;
5. A high risk sex offender;
6. A mentally disordered offender;
7. 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 the person was sentenced to state prison; and,
8. A person subject to lifetime parole at the time of the commission of the offense that resulted in a state prison sentence. (Pen. Code, § 3000.08, subds. (a) and (i).)
9. Requires all other individuals released from prison to be placed on PRCS provided by the probation department of the county to which the person is being released. (Pen. Code, §§ 3000.08, subd. (b), & 3451, subd. (a).)
10. Requires all persons paroled from state prison before October 1, 2011 to remain under the supervision of the CDCR until jurisdiction is terminated by operation of law or until parole is discharged. (Pen. Code, § 3000.09, subd. (b).)
11. Delineates conditions of PRCS, including obeying all laws, following the directives and instructions of the supervising county agency, reporting to the supervising county agency as directed by that agency, immediately informing the supervising county agency if the person is arrested or receives a citation, obtaining the permission of the supervising county agency to travel more than 50 miles from the person’s place of residence, and participating in rehabilitation programming as recommended by the supervising county agency, among others. (Pen. Code, § 3453.)
12. Authorizes intermediate sanctions, including flash incarceration, for violating the terms of PRCS. (Pen. Code, § 3454, subd. (b).)
13. Defines “flash incarceration” as a period of detention in a city or county jail due to a violation of a person’s conditions of parole or PRCS. Specifies the length of the detention period can range between one and 10 consecutive days in a county jail. (Pen. Code, §§ 3000.08, subd. (e), and 3454, subd. (c).)
14. Provides that intermediate sanctions include, but are not limited to, the following:
    
15. Short-term “flash” incarceration in jail for a period of not more than 10 days.
16. Intensive community supervision.
17. Home detention with electronic monitoring or GPS monitoring.
18. Mandatory community service.
19. Restorative justice programs, such as mandatory victim restitution and victim-offender reconciliation.
20. Work, training, or education in a furlough program.
21. Work, in lieu of confinement, in a work release program.
22. Day reporting.
23. Mandatory residential or nonresidential substance abuse treatment programs.
24. Mandatory random drug testing.
25. Mother-infant care programs.
26. Community-based residential programs offering structure, supervision, drug treatment, alcohol treatment, literacy programming, employment counseling, psychological counseling, mental health treatment, or any combination of these and other interventions. (Pen. Code, § 3450, subd. (b)(8).)
27. Requires the supervising county agency to petition the court to revoke, modify, or terminate PRCS if it has determined, following application of its assessment processes, that intermediate sanctions are not appropriate. Provides that upon a finding that the person has violated the conditions of PRCS, the revocation hearing officer has authority to do all of the following:
28. Return the person to PRCS with modifications of conditions, if appropriate, including a period of incarceration in a county jail.
29. Revoke and terminate PRCS and order the person to confinement in a county jail.
30. Refer the person to a reentry court or other evidence-based program in the court’s discretion. (Pen. Code, § 3455, subd. (a).)
31. Specifies that if PRCS is revoked or modified and confinement is ordered, the person may be incarcerated in the county jail for a period not to exceed 180 days for each custodial sanction. (Pen. Code, § 3455, subd. (d).)

This bill requires the supervising agency to petition the court to modify, revoke, or terminate PRCS if a person on PRCS has violated the terms of their release for a third time and has committed a new felony or misdemeanor.

Background

Prior to Realignment in 2011, individuals released from prison were placed on parole and supervised in the community by parole agents working for CDCR’s Division of Adult Parole Operations (DAPO). If it was alleged that a parolee had violated a condition of parole, a revocation hearing before the Board of Parole Hearings (BPH) would be held. If parole was revoked, the person would be returned to state prison for violating parole.

Realignment shifted the supervision of some individuals released from prison from CDCR parole agents to county probation departments. Parole for individuals released from the state’s prisons on or after October 1, 2011 is limited to those individuals whose term was for a serious or violent felony; who were serving a Three-Strikes sentence; who are classified as high-risk sex offenders; or who are required to undergo treatment as mentally disordered offenders. All other individuals released from prison are subject to up to three years of PRCS under local supervision.

Realignment also changed where an individual is incarcerated for violating the terms of supervision. Most individuals can no longer be returned to state prison for violating a term of supervision. Rather, these individuals serve the revocation term in county jail. The only individuals who are eligible for return to prison for violating parole are life-term inmates paroled pursuant to Penal Code section 3000.1 (e.g., those convicted of murder, specific life-term sex offenses, etc.).

Additionally, Realignment changed the process for revocation hearings, which was implemented in phases. Until July 1, 2013, individuals supervised on parole by state agents continued to have revocation hearings before the BPH. After July 1, 2013, trial courts assumed responsibility for holding all revocation hearings for those individuals who remain under CDCR’s jurisdiction. In contrast, since the inception of Realignment, individuals placed on PRCS appear before the trial court for revocation hearings.

Changes to the supervision of individuals released from prison included establishing a new sanction for a violation of supervised release known as flash incarceration. Flash incarceration is defined as “a period of detention in county jail due to a violation of a parolee’s conditions of parole” that “can range between one and 10 consecutive days.” (Pen. Code, §§ 3000.08, subd. (e), & 3455, subd. (c).)

With the creation of PRCS, the supervising agency was authorized to employ “flash incarceration” as an “intermediate sanction” for responding to both parole and PRCS violations. (See Pen. Code, §§ 3454, subd. (c), & 3000.08 (e).) The Legislative Analyst’s Office explained the context and reasoning behind “flash incarceration” as part of realignment: “[T]he realignment legislation provided counties with some additional options for how to manage the realigned offenders. . . . [T]he legislation allows county probation officers to return offenders who violate the terms of their community supervision to jail for up to ten days, which is commonly referred to as “flash incarceration.” The rationale for using flash incarceration is that short terms of incarceration when applied soon after the offense is identified can be more effective at deterring subsequent violations than the threat of longer terms following what can be lengthy criminal proceedings.” (Legislative Analyst’s Office, The 2012–13 Budget: The 2011 Realignment of Adult Offenders—An Update (Feb. 22, 2012), pp. 8-9, available at <https://lao.ca.gov/analysis/2021/crim_justice/2011-realignment-of-adult-offenders-022212.pdf .)

The intent of intermediate sanctions, like flash incarceration, is to balance holding offenders accountable for violating the conditions of supervision while creating shorter disruptions from work, home, or programming which often results from longer-term revocations. Because flash incarceration has been used successfully by probation officers on persons supervised under PRCS, the Chief Probation Officers sponsored SB 266 (Block, Chapter 706, Statutes of 2016), extended the use of flash incarceration to individuals granted probation or placed on mandatory supervision. The statute authorizing the use of flash incarceration contains a sunset provision which has been extended several times, most recently to January 1, 2028.

This bill limits the use of flash incarceration, and all intermediate sanctions, on individuals on PRCS. Specifically, the bill prohibits the use of any intermediate sanction if the person on PRCS has violated the terms of release for a third time and the person has committed a felony or misdemeanor. In that instance, the supervising agency must file a petition to revoke, modify, or terminate PRCS.

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

According to the Senate Appropriations Committee:

• Potential non-reimbursable annual costs in the hundreds of thousands of dollars to low millions of dollars to counties (local funds, General Fund) for increased incarceration.
• Unknown, potentially significant workload cost pressures (General Fund, Trial Court Trust Fund) to the courts.

SUPPORT: (Verified 5/16/24)

City of Whittier (source)

California Contract Cities Association

California Police Chiefs Association

City of Downey

City of Huntington Park

City of La Mirada

City of Lakewood

City of Montebello

City of Santa Fe Springs

League of California Cities

League of California Cities, Los Angeles County Division

OPPOSITION: (Verified 5/16/24)

ACLU California Action

California Alliance for Youth and Community Justice

California Attorneys for Criminal Justice

California Coalition for Women Prisoners

Californians for Safety and Justice

Californians United for A Responsible Budget

Children’s Defense Fund – CA

Communities United for Restorative Youth Justice

Ella Baker Center for Human Rights

Empowering Women Impacted by Incarceration

Essie Justice Group

Felony Murder Elimination Project

Freedom 4 Youth

Initiate Justice

Initiate Justice Action

Lawyers’ Committee for Civil Rights of the San Francisco Bay Area

Legal Services for Prisoners With Children

MILPA Collective

Rubicon Programs

Silicon Valley De-Bug

Youth Leadership Institute

5 individuals

ARGUMENT IN SUPPORT: The League of California Cities writes:

SB 1262 requires the county supervising the release of individuals under community supervision to petition the court to revoke, modify, or terminate any person’s post release community supervision after their third violation.

… SB 1262 (Archuleta) prioritizes accountability to prevent repeat offenders on community supervision…

ARGUMENT IN OPPOSITION: The California Coalition for Women Prisoners writes:

…[T]he post-release community supervision provision is [] unnecessary and undermines public safety. Under California Penal Code 3455 as currently written, each supervising county agency has full authority and discretion to impose intermediate sanctions (including flash incarceration) as well as to petition the court to revoke or terminate post-release community supervision if it determines that intermediate sanctions are insufficient. SB 1262 undermines this jurisdiction by requiring the supervising agency to impose the most severe penalty upon a third release violation….

Revocation almost always results in additional incarceration … We need to invest in smart, supportive re-entry solutions instead of repeating punitive approaches to community supervision that are proven to be costly, harmful, and ineffective.

Prepared by: Stephanie Jordan / PUB. S. /

5/18/24 12:28:48

**** END ****

SENATE COMMITTEE ON

Senator Anna Caballero, Chair

2023 - 2024 Regular Session

SB 1262 (Archuleta) - Crimes: supervised release

Bill Summary:

SB 1262 would limit the number of intermediate sanctions that a probation department may impose against a person on post-release community supervision (PRCS).

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

The following information is revised to reflect amendments

adopted by the committee on May 16, 2024

Fiscal Impact:

• 
  
• Potential non-reimbursable annual costs in the hundreds of thousands of dollars to low millions of dollars to counties (local funds, General Fund) for increased incarceration.
• Unknown, potentially significant workload cost pressures (General Fund, Trial Court Trust Fund) to the courts.

Committee Amendments:

Narrow the scope of the bill by deleting specified provisions, including:

• Provisions requiring CDCR to provide the local law enforcement agency located where an inmate is release with copies of the record of supervision during any prior period of parole.
  
• Provisions requiring the probation department to notify the court, public defender, district attorney, and sheriff of each imposition of flash incarceration; and,
  
• Provisions allowing a peace officer to arrest a person without warrant if they fail to appear at a hearing to revoke, modify, or terminate PRCS.

-- END --

SENATE COMMITTEE ON

Senator Anna Caballero, Chair

2023 - 2024 Regular Session

SB 1262 (Archuleta) - Crimes: supervised release

Bill Summary:

SB 1262 would limit the number of intermediate sanctions that a probation department may impose against a person on post-release community supervision (PRCS).

Fiscal Impact:

• CDCR indicates significant costs (General Fund) likely millions of dollars annually for adequate staffing. Additionally, CDCR anticipates one-time costs in the hundreds of thousands to implement necessary technology solutions. CDCR notes that, while the existing information required to be provided by CDCR to local law enforcement upon a persons release is generated through automated systems, this bill would require the record of supervision to be reviewed prior to release to ensure CDCR is appropriately redacting any protected information. Records of supervision can be lengthy and potentially compounded by multiple prior parole periods. To appropriately review and redact would likely drive significant workload for the department.
• Unknown, potentially significant costs (local funds) to probation departments to notify specified entities that a person on PRCS has been placed on flash incarceration.
• Unknown costs (local funds) to county agencies supervising a person on PRCS to petition a court to revoke, modify, or terminate PRCS if the person has violated the terms of his or her release for a third time and has committed a new crime.
• Potential non-reimbursable annual costs in the hundreds of thousands of dollars to low millions of dollars to counties (local funds, General Fund) for increased incarceration of individuals whose PRCS would be revoked by the court that otherwise would not have been revoked absent this bill and for individuals who can be arrested without a warrant for violations of their supervision conditions. The average annual cost to incarcerate a defendant in county jail is approximately $29,000. If only 10 defendants statewide are sentenced annually to an average of six months in county jail when their supervision is revoked, the total cost to counties would be $145,000. California county jails are increasingly overcrowded – particularly since the enactment of the Realignment Act in 2011. Although not considered reimbursable state mandates pursuant to Proposition 30 (2012), overcrowding in county jails creates cost pressure on the General Fund because the state has historically granted new funding to counties to offset overcrowding since 2011.
• Unknown, potentially significant workload cost pressures (General Fund, Trial Court Trust Fund) to the courts to adjudicate PRCS revocation hearings that otherwise would not have been filed upon the third violation of the terms of a supervisee’s release. While the superior courts are not funded on a workload basis, an increase in workload could result in delayed court services and pressure to fund additional staff and resources. The Governor’s 2024-25 state budget proposes $83.1 million ongoing General Fund to continue to backfill the Trial Court Trust Fund for expected revenue declines.

Background:

Prior to the implementation of the 2011 Realignment Legislation (Realignment), individuals released from prison were placed on parole and supervised in the community by CDCR parole agents. 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, among other things, shifted the supervision of certain released prison inmates from CDCR parole agents to local supervision. Starting October 1, 2011, parole (under CDCR supervision) was limited to those individuals whose present term was for a serious or violent felony; who were serving a Three-Strikes sentence; classified as high-risk sex offenders; required to undergo treatment as mentally disordered offenders; or who, while on certain paroles, commit new offenses. All other inmates released from prison are subject to up to three years of PRCS under local supervision.

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.

Additionally, Realignment changed the process for revocation hearings. The revocation hearings are handled by the trial courts, not BPH.

Changes to the supervision of individuals released from prison included establishing a new sanction for a violation of supervised release known as flash incarceration. Flash incarceration is defined as “a period of detention in county jail due to a violation of a parolee’s conditions of parole” that “can range between one and 10 consecutive days.” With the creation of PRCS, the supervising agency was authorized to employ “flash incarceration” as an “intermediate sanction” for responding to both parole and PRCS violations. The Legislative Analyst’s Office explained the context and reasoning behind “flash incarceration” as part of realignment: “[T]he realignment legislation provided counties with some additional options for how to manage the realigned offenders. . . . [T]he legislation allows county probation officers to return offenders who violate the terms of their community supervision to jail for up to ten days, which is commonly referred to as “flash incarceration.” The rationale for using flash incarceration is that short terms of incarceration when applied soon after the offense is identified can be more effective at deterring subsequent violations than the threat of longer terms following what can be lengthy criminal proceedings.” (Legislative Analyst’s Office, The 2012–13 Budget: The 2011 Realignment of Adult Offenders—An Update (Feb. 22, 2012), pp. 8-9, available at <https://lao.ca.gov/analysis/2021/crim_justice/2011-realignment-of-adult-offenders-022212.pdf>.)

The intent of intermediate sanctions, like flash incarceration, is to balance holding offenders accountable for violating the conditions of supervision while creating shorter disruptions from work, home, or programming which often results from longer-term revocations. Because flash incarceration has been used successfully by probation officers on persons supervised under PRCS, the Chief Probation Officers sponsored SB 266 (Block), Chapter 706, Statutes of 2016, to extend the use of flash incarceration to individuals granted probation or placed on mandatory supervision. The statute authorizing the use of flash incarceration contains a sunset provision which has been extended several times, most recently to January 1, 2028.

Proposed Law:

This bill would do all of the following:

• Require CDCR to provide the local law enforcement agency located where an inmate is release with copies of the record of supervision during any prior period of parole.
  
• Require the probation department to notify the court, public defender, district attorney, and sheriff of each imposition of flash incarceration.
  
• Require the county agency supervising a person on PRCS to petition a court to revoke, modify, or terminate PRCS if the person has violated the terms of his or her release for a third time and has committed a new crime.
  
• Allow a peace officer to arrest a person without warrant if they fail to appear at a hearing to revoke, modify, or terminate PRCS.

Related Legislation:

AB 1408 (Calderon, 2017) was substantially similar to this bill. AB 1408 was vetoed.

SB 266 (Block, Chapter 706, Statutes of 2016) authorized the use of "flash incarceration" to defendants granted probation or placed on mandatory supervision.

AB 109 (Committee on Budget, Chapter 15, Statutes of 2011) enacted Criminal Justice Realignment which, among other things, made changes to parole supervision, including shifting the supervision of some released prison inmates from CDCR parole agents to local probation departments, and changing the revocation proceedings.

-- END --

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Aisha Wahab, Chair

2023 - 2024 Regular

Bill No: SB 1262 Hearing Date: April 23, 2024

Subject: Crimes: supervised release

HISTORY

Source: City of Whittier

Prior Legislation: AB 1744 (Levine), Ch. 756, Stats. 2022

Proposition 20, rejected by the voters on November 3, 2020

AB 597 (Levine), Ch. 44, Stats. 2019

AB 1408 (Calderon), vetoed 2017

SB 266 (Block), Ch. 706, Stats. 2016

SB 1023 (Comm. on Budget & Fiscal Rev.), Ch. 43, Stats. 2012

AB 109 (Comm. on Budget), Ch. 15, Stats. 2011

Support: California Contract Cities Association; California Police Chiefs Association; City of Downey; City of Huntington Park; City of La Mirada; City of Lakewood; City of Montebello; City of Santa Fe Springs; League of California Cities; League of California Cities, Los Angeles County Division

Opposition: ACLU California Action; California Alliance for Youth and Community Justice; California Attorneys for Criminal Justice; California Coalition for Women Prisoners; California Public Defenders Association; Californians for Safety and Justice; Californians United for A Responsible Budget; Children’s Defense Fund – CA; Communities United for Restorative Youth Justice; Ella Baker Center for Human Rights; Empowering Women Impacted by Incarceration; Essie Justice Group; Felony Murder Elimination Project; Freedom 4 Youth; Friends Committee on Legislation of California; Initiate Justice; Initiate Justice Action; Lawyers’ Committee for Civil Rights of the San Francisco Bay Area; Legal Services for Prisoners With Children; MILPA Collective; Root & Rebound; Rubicon Programs; San Francisco Public Defender; Silicon Valley De-Bug; Smart Justice California; UnCommon Law; Youth Leadership Institute; 5 individuals

PURPOSE

The purpose of this bill is to: (1) limit the number of intermediate sanctions which the probation department may impose against a person on post-release community supervision (PRCS); (2) require probation offices to notify the court and specified government agencies when it employs flash incarceration; (3) require the Department of Corrections and Rehabilitation (CDCR) to share information with local law enforcement agencies regarding a

person’s prior parole record; and (4) codify the Board of Parole Hearing’s (BPH) existing practice of considering a person’s entire criminal history when making a parole suitability determination.

Existing law requires the parole board to grant parole unless it determines that the gravity of the current offense or offenses, or the timing and gravity of current or past offense or offenses, is such that consideration of the public safety requires a lengthier period of incarceration for the individual. (Pen. Code, § 3041, subd. (b).)

Existing law provides that the following persons released from prison prior to, or on or after July 1, 2013, be subject to parole under the supervision of the CDCR:

• A person who committed a serious felony listed in Penal Code section 1192.7, subdivision (c);
• A person who committed a violent felony listed in Penal Code section 667.5, subdivision (c);
• A person serving a Three-Strikes sentence;
• A high risk sex offender;
• A mentally disordered offender;
• 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 the person was sentenced to state prison; and,
• A person subject to lifetime parole at the time of the commission of the offense that resulted in a state prison sentence. (Pen. Code, § 3000.08, subds. (a) and (i).)

Existing law requires all other individuals released from prison to be placed on post-release community supervision (PRCS) provided by the probation department of the county to which the person is being released. (Pen. Code, §§ 3000.08, subd. (b), & 3451, subd. (a).)

Existing law requires all persons paroled from state prison before October 1, 2011 to remain under the supervision of the CDCR until jurisdiction is terminated by operation of law or until parole is discharged. (Pen. Code, § 3000.09, subd. (b).)

Existing law delineates conditions of PRCS, including obeying all laws, following the directives and instructions of the supervising county agency, reporting to the supervising county agency as directed by that agency, immediately informing the supervising county agency if the person is arrested or receives a citation, obtaining the permission of the supervising county agency to travel more than 50 miles from the person’s place of residence, and participating in rehabilitation programming as recommended by the supervising county agency, among others. (Pen. Code, § 3453.)

Existing law authorizes intermediate sanctions, including flash incarceration, to be imposed on individuals released from prison and subject to parole. (Pen. Code, § 3000.08, subd. (d).)

Existing law authorizes intermediate sanctions, including flash incarceration, for violating the terms of PRCS. (Pen. Code, § 3454, subd. (b).)

Existing law defines “flash incarceration” as a period of detention in a city or county jail due to a violation of a person’s conditions of parole or PRCS. Specifies the length of the detention period can range between one and 10 consecutive days in a county jail. (Pen. Code, §§ 3000.08, subd. (e), and 3454, subd. (c).)

Existing law provides that intermediate sanctions include, but are not limited to, the following:

• Short-term “flash” incarceration in jail for a period of not more than 10 days.
• Intensive community supervision.
• Home detention with electronic monitoring or GPS monitoring.
• Mandatory community service.
• Restorative justice programs, such as mandatory victim restitution and victim-offender reconciliation.
• Work, training, or education in a furlough program.
• Work, in lieu of confinement, in a work release program.
• Day reporting.
• Mandatory residential or nonresidential substance abuse treatment programs.
• Mandatory random drug testing.
• Mother-infant care programs.
• Community-based residential programs offering structure, supervision, drug treatment, alcohol treatment, literacy programming, employment counseling, psychological counseling, mental health treatment, or any combination of these and other interventions.

(Pen. Code, § 3450, subd. (b)(8).)

Existing law requires the supervising parole agency to petition the court if it has determined, following application of its assessment processes, that intermediate sanctions up to and including flash incarceration are not appropriate. Provides that the supervising parole agency may petition either the court in the county in which the parolee is being supervised or the court in the county in which the alleged violation of supervision occurred, to revoke parole. Provides that upon a finding that the person has violated the conditions of parole, the court has authority to do any of the following:

• Return the person to parole supervision with modifications of conditions, if appropriate, including a period of incarceration in a county jail.
• Revoke parole and order the person to confinement in a county jail.
• Refer the person to a reentry court or other evidence-based program in the court’s discretion.

(Pen. Code, § 3000.08, subd. (f).)

Existing law requires the supervising county agency to petition the court to revoke, modify, or terminate PRCS if it has determined, following application of its assessment processes, that intermediate sanctions are not appropriate. Provides that upon a finding that the person has violated the conditions of PRCS, the revocation hearing officer has authority to do all of the following:

• Return the person to PRCS with modifications of conditions, if appropriate, including a period of incarceration in a county jail.
• Revoke and terminate PRCS and order the person to confinement in a county jail.
• Refer the person to a reentry court or other evidence-based program in the court’s discretion.

(Pen. Code, § 3455, subd. (a).)

Existing law specifies that if parole is revoked or modified and confinement is ordered, the person may be incarcerated in the county jail for a period not to exceed 180 days. (Pen. Code, § 3000.08, subd. (g).)

Existing law specifies that if PRCS is revoked or modified and confinement is ordered, the person may be incarcerated in the county jail for a period not to exceed 180 days for each custodial sanction. (Pen. Code, § 3455, subd. (d).)

Existing law requires CDCR to provide local law enforcement agencies with specified information about a person released on parole or PRCS. (Pen. Code, § 3003, subd. (e)(1).)

This bill specifies that the parole board must consider an individual’s entire criminal history, including all current and past convictions, in determining whether to grant parole.

This bill requires CDCR to provide a local law enforcement agency with copies of a person’s record of supervision during any period of parole.

This bill requires the supervising agency to petition the court to modify, revoke, or terminate PRCS if a person on PRCS has violated the terms of their release for a third time.

This bill permits a peace officer, including a probation officer, to arrest a person on PRCS if the person has failed to appear at a hearing to revoke, modify, or terminate PRCS.

This bill requires the probation department to notify the court, public defender, district attorney, and sheriff of each imposition of flash incarceration.

COMMENTS

1. Need For This Bill

According to the author:

One of the primary responsibilities of government is to ensure people feel safe in their communities – safe in their home, at the park, or walking to school. There is no question that monitoring repeat offenders will help make our community safer for residents and law enforcement. SB 1262 will help address the crimes being committed by repeat offenders and prevent future tragedies by holding these individuals accountable for their actions when they violate the terms of PRCS.

1. Changes to Parole Due to Realignment

Prior to Realignment in 2011, individuals released from prison were placed on parole and supervised in the community by parole agents working for CDCR’s Division of Adult Parole Operations (DAPO). If it was alleged that a parolee had violated a condition of parole, a revocation hearing before the Board of Parole Hearings (BPH) would be held. If parole was revoked, the person would be returned to state prison for violating parole.

Realignment shifted the supervision of some individuals released from prison from CDCR parole agents to county probation departments. Parole for individuals released from the state’s prisons on or after October 1, 2011 is limited to those individuals whose term was for a serious or violent felony; who were serving a Three-Strikes sentence; who are classified as high-risk sex offenders; or who are required to undergo treatment as mentally disordered offenders. All other individuals released from prison are subject to up to three years of PRCS under local supervision.

Realignment also changed where an individual is incarcerated for violating the terms of supervision. Most individuals can no longer be returned to state prison for violating a term of supervision. Rather, these individuals serve the revocation term in county jail. The only individuals who are eligible for return to prison for violating parole are life-term inmates paroled pursuant to Penal Code section 3000.1 (e.g., those convicted of murder, specific life-term sex offenses, etc.).

Additionally, Realignment changed the process for revocation hearings, which was implemented in phases. Until July 1, 2013, individuals supervised on parole by state agents continued to have revocation hearings before the BPH. After July 1, 2013, trial courts assumed responsibility for holding all revocation hearings for those individuals who remain under CDCR’s jurisdiction. In contrast, since the inception of Realignment, individuals placed on PRCS appear before the trial court for revocation hearings.

1. Flash Incarceration

Changes to the supervision of individuals released from prison included establishing a new sanction for a violation of supervised release known as flash incarceration. Flash incarceration is defined as “a period of detention in county jail due to a violation of a parolee’s conditions of parole” that “can range between one and 10 consecutive days.” (Pen. Code, §§ 3000.08, subd. (e), & 3455, subd. (c).)

With the creation of PRCS, the supervising agency was authorized to employ “flash incarceration” as an “intermediate sanction” for responding to both parole and PRCS violations. (See Pen. Code, §§ 3454, subd. (c), & 3000.08 (e).) The Legislative Analyst’s Office explained the context and reasoning behind “flash incarceration” as part of realignment: “[T]he realignment legislation provided counties with some additional options for how to manage the realigned offenders. . . . [T]he legislation allows county probation officers to return offenders who violate the terms of their community supervision to jail for up to ten days, which is commonly referred to as “flash incarceration.” The rationale for using flash incarceration is that short terms of incarceration when applied soon after the offense is identified can be more effective at deterring subsequent violations than the threat of longer terms following what can be lengthy criminal proceedings.” (Legislative Analyst’s Office, The 2012–13 Budget: The 2011 Realignment of Adult Offenders—An Update (Feb. 22, 2012), pp. 8-9, available at <https://lao.ca.gov/analysis/2021/crim_justice/2011-realignment-of-adult-offenders-022212.pdf>.)

The intent of intermediate sanctions, like flash incarceration, is to balance holding offenders accountable for violating the conditions of supervision while creating shorter disruptions from work, home, or programming which often results from longer-term revocations. Because flash incarceration has been used successfully by probation officers on persons supervised under PRCS, the Chief Probation Officers sponsored SB 266 (Block), Chapter 706, Statutes of 2016, to extend the use of flash incarceration to individuals granted probation or placed on mandatory supervision. The statute authorizing the use of flash incarceration contains a sunset provision which has been extended several times, most recently to January 1, 2028.

This bill limits the use of flash incarceration, and all intermediate sanctions, on individuals on PRCS. Specifically, the bill prohibits the use of any intermediate sanction if the person on PRCS has violated the terms of release for a third time. In that instance, the supervising agency must file a petition to revoke, modify, or terminate PRCS.

1. Parole Suitability

Incarcerated individuals who are indeterminately sentenced must be granted parole by BPH in order to be released from prison. The Penal Code provides that the parole board “shall grant parole to an inmate unless it determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual.” (Pen. Code, § 3041, subd. (b).) The fundamental consideration when making a determination about an individual’s suitability for parole is whether the individual currently poses an unreasonable risk of danger to society if released from prison. (In re Shaputis (2008) 44 Cal.4th 1241.) The decision whether to grant parole is an inherently subjective determination. (In re Rosenkrantz (2002) 29 Cal.4th 616, 655.)

In deciding whether to grant parole, BPH must consider all relevant and reliable information available. (Cal. Code Regs., tit. 15, § 2281, subd. (b).) Factors the BPH must consider include the nature of the commitment offense, including the circumstances of the person’s social history; past and present mental state; past criminal history, including involvement in other criminal misconduct which is reliably documented; the base and other commitment offenses, including behavior before, during and after the crime; past and present attitude toward the crime; any conditions of treatment or control, including the use of special conditions under which the individual may safely be released to the community; and any other information which bears on the individual’s suitability for release. (Cal. Code Regs., tit. 15, §§ 2281, subd. (b).) The regulations further state that “[c]ircumstances which taken alone may not firmly establish unsuitability for parole may contribute to a pattern which results in a finding of unsuitability.” (Ibid.)

Although the parole board is required to consider the circumstances of the offense, the California Supreme Court has held that the parole board may not rely solely on the commitment offense when deciding to grant parole unless the circumstances of the offense “continue to be predictive of current dangerousness.” (In re Lawrence (2008) 44 Cal.4th 1181, 1221.) The parole board is prohibited from requiring an admission of guilt to any crime for which an incarcerated person was committed to CDCR when considering whether to grant an inmate parole. (Pen. Code, § 5011, subd. (b).) However, “an implausible denial of guilt may support a finding of current dangerousness, without in any sense requiring the inmate to admit guilt as a condition of parole….it is not the failure to admit guilt that reflects a lack of insight, but the fact that the denial is factually unsupported or otherwise lacking in credibility.” (In re Shaputis (2011) 53 Cal.4th 192, 216.) Although the term “insight” is not explicitly included in the regulations, the regulations “direct the Board to consider the inmate’s ‘past and present attitude toward the crime’ and ‘the presence of remorse,’ expressly including indications that the inmate ‘understands the nature and magnitude of the offense’.… fit[ting] comfortably within the descriptive category of ‘insight.’” (Id. at 218 (citations omitted).)

Additional guidance for making parole suitability determinations is provided in the regulations which list circumstances tending to show suitability and those tending to show unsuitability. (Cal. Code of Regs., tit. 15, § 2281, subds. (c), (d).) The circumstances which tend to show suitability and unsuitability for parole are set forth as general guidelines, and the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the panel. (Cal. Code of Regs., tit. 15, § 2281, subds. (c) & (d).)

This bill requires BPH to consider an individual’s entire criminal history, not just the most recent commitment offense, in determining whether the individual is suitable for parole. As noted above, BPH is already required to consider this information per regulations for individuals who were indeterminately sentenced. Proposition 57 regulations, which pertain to the non-violent parole process, also require BPH to consider an incarcerated individual’s criminal history.

1. AB 1408 (Calderon)

This bill is substantially similar to AB 1408 (Calderon) which was vetoed by Governor Brown in 2017. In his veto, Governor Brown wrote:

This bill—among other requirements placed on both the local and state correctional systems—would limit local probation departments’ ability to use intermediate sanctions for individuals under post release community supervision.

This bill was introduced as a response to the senseless and horrifying murder of a Whittier police officer, an event that shocked and saddened our entire state. Unfortunately—as history has taught us repeatedly—legislative responses to specific individual crimes often do not produce the intended results, and more often than not are found to be counterproductive once they are implemented.

I believe this is such a bill, and while I appreciate the author’s sincere attempt to respond to a truly terrible crime, I do not agree that a three-strikes and you’re out approach is the correct solution. This measure would undermine the sound discretion of local probation authorities who, by training and sworn responsibility, are in the best position to make determinations on what type of sanctions or punishment should be imposed.

The provisions of AB 1408 were incorporated into Proposition 20 which was rejected by the voters in the November 2020 election.

1. Amendment

Root & Rebound opposes this bill unless it is amended. In its position letter, the organization states: “[T]he bill will needlessly incarcerate people on PRCS for conduct that is neither criminal nor harmful. Technical violations of supervision are violations that do not amount to a new crime. These violations are frequently for conduct as a minor as having a low battery on one’s GPS monitor, arriving 15 minutes late to a meeting with a probation officer, or arriving home after curfew…[C]lients commonly face incarceration for technical violations of supervision, and even short flash incarcerations are incredibly harmful and destabilizing.” In order to address these concerns, Root & Rebound has suggested the following amendments:

Penal Code section 3455.

(a) If the supervising county agency has determined, following application of its assessment processes, that intermediate sanctions as authorized in subdivision (b) of Section 3454 are not appropriate, the  or if the supervised person has violated the terms of their release for a third time and has committed a new criminal offense, the  supervising county agency shall petition the court pursuant to Section 1203.2 to revoke, modify, or terminate postrelease community supervision. At any point during the process initiated pursuant to this section, a person may waive, in writing, his or her  their  right to counsel, admit the violation of his or her  their  postrelease community supervision, waive a court hearing, and accept the proposed modification of his or her  their  postrelease community supervision. The petition shall include a written report that contains additional information regarding the petition, including the relevant terms and conditions of postrelease community supervision, the circumstances of the alleged underlying violation, the history and background of the violator, and any recommendations. The Judicial Council shall adopt forms and rules of court to establish uniform statewide procedures to implement this subdivision, including the minimum contents of supervision agency reports.

1. Argument in Support

The League of California Cities writes:

[T]his bill would ensure law enforcement agencies have the necessary comprehensive information regarding those on parole and post-release community supervision in their counties. The California Department of Corrections and Rehabilitation would be mandated to provide locals with copies of an inmate’s records of supervision during any period of parole.

Further, this bill would require the Board of Parole Hearings to consider, during its deliberation about whether to grant an individual parole or supervised community custody, the entire criminal history of the individual. This is a critical provision due to the fact that existing policy only considers the offender’s most recent commitment offense. SB 1262 requires the county supervising the release of individuals under community supervision to petition the court to revoke, modify, or terminate any person’s post release community supervision after their third violation.

… SB 1262 (Archuleta) prioritizes accountability to prevent repeat offenders on community supervision and needed oversight information to ensure the appropriate persons receive this type of release…

1. Argument in Opposition

According to the California Public Defenders Association:

SB 1262 is superfluous. To the extent it requires the Board of Parole Hearings to consider an inmate’s entire criminal history, that is already how parole consideration is done. The requirement that supervising authorities must seek revocation, modification or termination of Post Release Community Supervision (PRCS) upon a third violation undercuts the ability of local authorities, who can do this already without this new law.

As far as parole suitability goes … California Code of Regulations, Title 15, Section 2281, [] explicitly includes “past criminal history” as a factor that the Board shall consider. Penal Code §3041(b)(1), requires the Board to consider past criminality. Thus, this statute which states that an en banc Board “shall consider the entire criminal history of the inmate” adds nothing.

The amendment to Penal Code section 3455 is really just another version of “three strikes and you are out,” except in the context of PRCS. Unlike the three strikes sentencing law, however, the change here doesn’t really add anything except a reporting requirement that fails to consider the nature of PRCS and PRCS violations.

People who are on PRCS (and not parole) are there because their crimes are non-serious, non-violent, and non-sexual. Should there be serous PRCS violations, the supervising authority can petition the court to revoke supervision. On the other hand, many violations are non-substantive, such as being late to a supervision meeting or having a GPS battery die. The supervising agency is perfectly capable of deciding when a person should be reported to a court for a violation hearing.

In addition, persons who violate PRCS are subject to intermediate sanctions, such as modification or termination of PRCS and Flash Incarceration. If intermediate sanctions are ineffective, or the supervising agency determines not to impose those sanctions, then formal revocation proceedings may begin. In fact, if the supervising agency determines that intermediate sanctions are not appropriate, then the agency must petition the court to revoke supervision.

SB 1262, then, “requires” the supervision agency to do that which it either already can do or must do. … It does take away some up-front discretion, but ultimately nothing in this bill mandates any punishment – which is up to a court. As it should be.

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SENATE COMMITTEE ON PUBLIC SAFETY

Senator Aisha Wahab, Chair

2023 - 2024 Regular

Bill No: SB 1262 Hearing Date: April 9, 2024

Subject: Crimes: supervised release

HISTORY

Source: City of Whittier

Prior Legislation: AB 1744 (Levine), Ch. 756, Stats. 2022

Proposition 20, rejected by the voters on November 3, 2020

AB 597 (Levine), Ch. 44, Stats. 2019

AB 1408 (Calderon), vetoed 2017

SB 266 (Block), Ch. 706, Stats. 2016

SB 1023 (Comm. on Budget & Fiscal Rev.), Ch. 43, Stats. 2012

AB 109 (Comm. on Budget), Ch. 15, Stats. 2011

Support: California Contract Cities Association; California Police Chiefs Association; City of Downey; City of Huntington Park; City of Lakewood; City of Montebello; City of Santa Fe Springs; League of California Cities

Opposition: ACLU California Action; California Alliance for Youth and Community Justice; California Attorneys for Criminal Justice; California Coalition for Women Prisoners; Californians for Safety and Justice; California Public Defenders Association; Californians United for A Responsible Budget; Children’s Defense Fund – CA; Communities United for Restorative Youth Justice; Ella Baker Center for Human Rights; Empowering Women Impacted by Incarceration; Essie Justice Group; Felony Murder Elimination Project; Freedom 4 Youth; Friends Committee on Legislation of California; Initiate Justice; Initiate Justice Action; Lawyers’ Committee for Civil Rights of the San Francisco Bay Area; Legal Services for Prisoners With Children; MILPA Collective; Root & Rebound; Rubicon Programs; San Francisco Public Defender; Silicon Valley De-Bug; Smart Justice California; UnCommon Law; Youth Leadership Institute; 5 individuals

PURPOSE

The purpose of this bill is to: (1) limit the number of intermediate sanctions which the probation department may impose against a person on post-release community supervision (PRCS); (2) require probation offices to notify the court and specified government agencies when it employs flash incarceration; (3) require the Department of Corrections and Rehabilitation (CDCR) to share information with local law enforcement agencies regarding a

person’s prior parole record; and (4) codify the Board of Parole Hearing’s (BPH) existing practice of considering a person’s entire criminal history when making a parole suitability determination.

Existing law requires the parole board to grant parole unless it determines that the gravity of the current offense or offenses, or the timing and gravity of current or past offense or offenses, is such that consideration of the public safety requires a lengthier period of incarceration for the individual. (Pen. Code, § 3041, subd. (b).)

Existing law provides that the following persons released from prison prior to, or on or after July 1, 2013, be subject to parole under the supervision of the CDCR:

• A person who committed a serious felony listed in Penal Code section 1192.7, subdivision (c);
• A person who committed a violent felony listed in Penal Code section 667.5, subdivision (c);
• A person serving a Three-Strikes sentence;
• A high risk sex offender;
• A mentally disordered offender;
• 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 the person was sentenced to state prison; and,
• A person subject to lifetime parole at the time of the commission of the offense that resulted in a state prison sentence. (Pen. Code, § 3000.08, subds. (a) and (i).)

Existing law requires all other individuals released from prison to be placed on post-release community supervision (PRCS) provided by the probation department of the county to which the person is being released. (Pen. Code, §§ 3000.08, subd. (b), & 3451, subd. (a).)

Existing law requires all persons paroled from state prison before October 1, 2011 to remain under the supervision of the CDCR until jurisdiction is terminated by operation of law or until parole is discharged. (Pen. Code, § 3000.09, subd. (b).)

Existing law delineates conditions of PRCS, including obeying all laws, following the directives and instructions of the supervising county agency, reporting to the supervising county agency as directed by that agency, immediately informing the supervising county agency if the person is arrested or receives a citation, obtaining the permission of the supervising county agency to travel more than 50 miles from the person’s place of residence, and participating in rehabilitation programming as recommended by the supervising county agency, among others. (Pen. Code, § 3453.)

Existing law authorizes intermediate sanctions, including flash incarceration, to be imposed on individuals released from prison and subject to parole. (Pen. Code, § 3000.08, subd. (d).)

Existing law authorizes intermediate sanctions, including flash incarceration, for violating the terms of PRCS. (Pen. Code, § 3454, subd. (b).)

Existing law defines “flash incarceration” as a period of detention in a city or county jail due to a violation of a person’s conditions of parole or PRCS. Specifies the length of the detention period can range between one and 10 consecutive days in a county jail. (Pen. Code, §§ 3000.08, subd. (e), and 3454, subd. (c).)

Existing law provides that intermediate sanctions include, but are not limited to, the following:

• Short-term “flash” incarceration in jail for a period of not more than 10 days.
• Intensive community supervision.
• Home detention with electronic monitoring or GPS monitoring.
• Mandatory community service.
• Restorative justice programs, such as mandatory victim restitution and victim-offender reconciliation.
• Work, training, or education in a furlough program.
• Work, in lieu of confinement, in a work release program.
• Day reporting.
• Mandatory residential or nonresidential substance abuse treatment programs.
• Mandatory random drug testing.
• Mother-infant care programs.
• Community-based residential programs offering structure, supervision, drug treatment, alcohol treatment, literacy programming, employment counseling, psychological counseling, mental health treatment, or any combination of these and other interventions.

(Pen. Code, § 3450, subd. (b)(8).)

Existing law requires the supervising parole agency to petition the court if it has determined, following application of its assessment processes, that intermediate sanctions up to and including flash incarceration are not appropriate. Provides that the supervising parole agency may petition either the court in the county in which the parolee is being supervised or the court in the county in which the alleged violation of supervision occurred, to revoke parole. Provides that upon a finding that the person has violated the conditions of parole, the court has authority to do any of the following:

• Return the person to parole supervision with modifications of conditions, if appropriate, including a period of incarceration in a county jail.
• Revoke parole and order the person to confinement in a county jail.
• Refer the person to a reentry court or other evidence-based program in the court’s discretion.

(Pen. Code, § 3000.08, subd. (f).)

Existing law requires the supervising county agency to petition the court to revoke, modify, or terminate PRCS if it has determined, following application of its assessment processes, that intermediate sanctions are not appropriate. Provides that upon a finding that the person has violated the conditions of PRCS, the revocation hearing officer has authority to do all of the following:

• Return the person to PRCS with modifications of conditions, if appropriate, including a period of incarceration in a county jail.
• Revoke and terminate PRCS and order the person to confinement in a county jail.
• Refer the person to a reentry court or other evidence-based program in the court’s discretion.

(Pen. Code, § 3455, subd. (a).)

Existing law specifies that if parole is revoked or modified and confinement is ordered, the person may be incarcerated in the county jail for a period not to exceed 180 days. (Pen. Code, § 3000.08, subd. (g).)

Existing law specifies that if PRCS is revoked or modified and confinement is ordered, the person may be incarcerated in the county jail for a period not to exceed 180 days for each custodial sanction. (Pen. Code, § 3455, subd. (d).)

Existing law requires CDCR to provide local law enforcement agencies with specified information about a person released on parole or PRCS. (Pen. Code, § 3003, subd. (e)(1).)

This bill specifies that the parole board must consider an individual’s entire criminal history, including all current and past convictions, in determining whether to grant parole.

This bill requires CDCR to provide a local law enforcement agency with copies of a person’s record of supervision during any period of parole.

This bill requires the supervising agency to petition the court to modify, revoke, or terminate PRCS if a person on PRCS has violated the terms of their release for a third time.

This bill permits a peace officer, including a probation officer, to arrest a person on PRCS if the person has failed to appear at a hearing to revoke, modify, or terminate PRCS.

This bill requires the probation department to notify the court, public defender, district attorney, and sheriff of each imposition of flash incarceration.

COMMENTS

1. Need For This Bill

According to the author:

One of the primary responsibilities of government is to ensure people feel safe in their communities – safe in their home, at the park, or walking to school. There is no question that monitoring repeat offenders will help make our community safer for residents and law enforcement. SB 1262 will help address the crimes being committed by repeat offenders and prevent future tragedies by holding these individuals accountable for their actions when they violate the terms of PRCS.

1. Changes to Parole Due to Realignment

Prior to Realignment in 2011, individuals released from prison were placed on parole and supervised in the community by parole agents working for CDCR’s Division of Adult Parole Operations (DAPO). If it was alleged that a parolee had violated a condition of parole, a revocation hearing before the Board of Parole Hearings (BPH) would be held. If parole was revoked, the person would be returned to state prison for violating parole.

Realignment shifted the supervision of some individuals released from prison from CDCR parole agents to county probation departments. Parole for individuals released from the state’s prisons on or after October 1, 2011 is limited to those individuals whose term was for a serious or violent felony; who were serving a Three-Strikes sentence; who are classified as high-risk sex offenders; or who are required to undergo treatment as mentally disordered offenders. All other individuals released from prison are subject to up to three years of PRCS under local supervision.

Realignment also changed where an individual is incarcerated for violating the terms of supervision. Most individuals can no longer be returned to state prison for violating a term of supervision. Rather, these individuals serve the revocation term in county jail. The only individuals who are eligible for return to prison for violating parole are life-term inmates paroled pursuant to Penal Code section 3000.1 (e.g., those convicted of murder, specific life-term sex offenses, etc.).

Additionally, Realignment changed the process for revocation hearings, which was implemented in phases. Until July 1, 2013, individuals supervised on parole by state agents continued to have revocation hearings before the BPH. After July 1, 2013, trial courts assumed responsibility for holding all revocation hearings for those individuals who remain under CDCR’s jurisdiction. In contrast, since the inception of Realignment, individuals placed on PRCS appear before the trial court for revocation hearings.

1. Flash Incarceration

Changes to the supervision of individuals released from prison included establishing a new sanction for a violation of supervised release known as flash incarceration. Flash incarceration is defined as “a period of detention in county jail due to a violation of a parolee’s conditions of parole” that “can range between one and 10 consecutive days.” (Pen. Code, §§ 3000.08, subd. (e), & 3455, subd. (c).)

With the creation of PRCS, the supervising agency was authorized to employ “flash incarceration” as an “intermediate sanction” for responding to both parole and PRCS violations. (See Pen. Code, §§ 3454, subd. (c), & 3000.08 (e).) The Legislative Analyst’s Office explained the context and reasoning behind “flash incarceration” as part of realignment: “[T]he realignment legislation provided counties with some additional options for how to manage the realigned offenders. . . . [T]he legislation allows county probation officers to return offenders who violate the terms of their community supervision to jail for up to ten days, which is commonly referred to as “flash incarceration.” The rationale for using flash incarceration is that short terms of incarceration when applied soon after the offense is identified can be more effective at deterring subsequent violations than the threat of longer terms following what can be lengthy criminal proceedings.” (Legislative Analyst’s Office, The 2012–13 Budget: The 2011 Realignment of Adult Offenders—An Update (Feb. 22, 2012), pp. 8-9, available at <https://lao.ca.gov/analysis/2021/crim_justice/2011-realignment-of-adult-offenders-022212.pdf>.)

The intent of intermediate sanctions, like flash incarceration, is to balance holding offenders accountable for violating the conditions of supervision while creating shorter disruptions from work, home, or programming which often results from longer-term revocations. Because flash incarceration has been used successfully by probation officers on persons supervised under PRCS, the Chief Probation Officers sponsored SB 266 (Block), Chapter 706, Statutes of 2016, to extend the use of flash incarceration to individuals granted probation or placed on mandatory supervision. The statute authorizing the use of flash incarceration contains a sunset provision which has been extended several times, most recently to January 1, 2028.

This bill limits the use of flash incarceration, and all intermediate sanctions, on individuals on PRCS. Specifically, the bill prohibits the use of any intermediate sanction if the person on PRCS has violated the terms of release for a third time. In that instance, the supervising agency must file a petition to revoke, modify, or terminate PRCS.

1. Parole Suitability

Incarcerated individuals who are indeterminately sentenced must be granted parole by BPH in order to be released from prison. The Penal Code provides that the parole board “shall grant parole to an inmate unless it determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual.” (Pen. Code, § 3041, subd. (b).) The fundamental consideration when making a determination about an individual’s suitability for parole is whether the individual currently poses an unreasonable risk of danger to society if released from prison. (In re Shaputis (2008) 44 Cal.4th 1241.) The decision whether to grant parole is an inherently subjective determination. (In re Rosenkrantz (2002) 29 Cal.4th 616, 655.)

In deciding whether to grant parole, BPH must consider all relevant and reliable information available. (Cal. Code Regs., tit. 15, § 2281, subd. (b).) Factors the BPH must consider include the nature of the commitment offense, including the circumstances of the person’s social history; past and present mental state; past criminal history, including involvement in other criminal misconduct which is reliably documented; the base and other commitment offenses, including behavior before, during and after the crime; past and present attitude toward the crime; any conditions of treatment or control, including the use of special conditions under which the individual may safely be released to the community; and any other information which bears on the individual’s suitability for release. (Cal. Code Regs., tit. 15, §§ 2281, subd. (b).) The regulations further state that “[c]ircumstances which taken alone may not firmly establish unsuitability for parole may contribute to a pattern which results in a finding of unsuitability.” (Ibid.)

Although the parole board is required to consider the circumstances of the offense, the California Supreme Court has held that the parole board may not rely solely on the commitment offense when deciding to grant parole unless the circumstances of the offense “continue to be predictive of current dangerousness.” (In re Lawrence (2008) 44 Cal.4th 1181, 1221.) The parole board is prohibited from requiring an admission of guilt to any crime for which an incarcerated person was committed to CDCR when considering whether to grant an inmate parole. (Pen. Code, § 5011, subd. (b).) However, “an implausible denial of guilt may support a finding of current dangerousness, without in any sense requiring the inmate to admit guilt as a condition of parole….it is not the failure to admit guilt that reflects a lack of insight, but the fact that the denial is factually unsupported or otherwise lacking in credibility.” (In re Shaputis (2011) 53 Cal.4th 192, 216.) Although the term “insight” is not explicitly included in the regulations, the regulations “direct the Board to consider the inmate’s ‘past and present attitude toward the crime’ and ‘the presence of remorse,’ expressly including indications that the inmate ‘understands the nature and magnitude of the offense’.… fit[ting] comfortably within the descriptive category of ‘insight.’” (Id. at 218 (citations omitted).)

Additional guidance for making parole suitability determinations is provided in the regulations which list circumstances tending to show suitability and those tending to show unsuitability. (Cal. Code of Regs., tit. 15, § 2281, subds. (c), (d).) The circumstances which tend to show suitability and unsuitability for parole are set forth as general guidelines, and the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the panel. (Cal. Code of Regs., tit. 15, § 2281, subds. (c) & (d).)

This bill requires BPH to consider an individual’s entire criminal history, not just the most recent commitment offense, in determining whether the individual is suitable for parole. As noted above, BPH is already required to consider this information per regulations for individuals who were indeterminately sentenced. Proposition 57 regulations, which pertain to the non-violent parole process, also require BPH to consider an incarcerated individual’s criminal history.

1. AB 1408 (Calderon)

This bill is substantially similar to AB 1408 (Calderon) which was vetoed by Governor Brown in 2017. In his veto, Governor Brown wrote:

This bill—among other requirements placed on both the local and state correctional systems—would limit local probation departments’ ability to use intermediate sanctions for individuals under post release community supervision.

This bill was introduced as a response to the senseless and horrifying murder of a Whittier police officer, an event that shocked and saddened our entire state. Unfortunately—as history has taught us repeatedly—legislative responses to specific individual crimes often do not produce the intended results, and more often than not are found to be counterproductive once they are implemented.

I believe this is such a bill, and while I appreciate the author’s sincere attempt to respond to a truly terrible crime, I do not agree that a three-strikes and you’re out approach is the correct solution. This measure would undermine the sound discretion of local probation authorities who, by training and sworn responsibility, are in the best position to make determinations on what type of sanctions or punishment should be imposed.

The provisions of AB 1408 were incorporated into Proposition 20 which was rejected by the voters in the November 2020 election.

1. Amendment

Root & Rebound opposes this bill unless it is amended. In its position letter, the organization states: “[T]he bill will needlessly incarcerate people on PRCS for conduct that is neither criminal nor harmful. Technical violations of supervision are violations that do not amount to a new crime. These violations are frequently for conduct as minor as having a low battery on one’s GPS monitor, arriving 15 minutes late to a meeting with a probation officer, or arriving home after curfew…[C]lients commonly face incarceration for technical violations of supervision, and even short flash incarcerations are incredibly harmful and destabilizing.” In order to address these concerns, Root & Rebound has suggested the following amendments:

Penal Code section 3455.

(a) If the supervising county agency has determined, following application of its assessment processes, that intermediate sanctions as authorized in subdivision (b) of Section 3454 are not appropriate, the  or if the supervised person has violated the terms of their release for a third time and has committed a new criminal offense, the  supervising county agency shall petition the court pursuant to Section 1203.2 to revoke, modify, or terminate postrelease community supervision. At any point during the process initiated pursuant to this section, a person may waive, in writing, his or her  their  right to counsel, admit the violation of his or her  their  postrelease community supervision, waive a court hearing, and accept the proposed modification of his or her  their  postrelease community supervision. The petition shall include a written report that contains additional information regarding the petition, including the relevant terms and conditions of postrelease community supervision, the circumstances of the alleged underlying violation, the history and background of the violator, and any recommendations. The Judicial Council shall adopt forms and rules of court to establish uniform statewide procedures to implement this subdivision, including the minimum contents of supervision agency reports.

1. Argument in Support

The League of California Cities writes:

[T]his bill would ensure law enforcement agencies have the necessary comprehensive information regarding those on parole and post-release community supervision in their counties. The California Department of Corrections and Rehabilitation would be mandated to provide locals with copies of an inmate’s records of supervision during any period of parole.

Further, this bill would require the Board of Parole Hearings to consider, during its deliberation about whether to grant an individual parole or supervised community custody, the entire criminal history of the individual. This is a critical provision due to the fact that existing policy only considers the offender’s most recent commitment offense. SB 1262 requires the county supervising the release of individuals under community supervision to petition the court to revoke, modify, or terminate any person’s post release community supervision after their third violation.

… SB 1262 (Archuleta) prioritizes accountability to prevent repeat offenders on community supervision and needed oversight information to ensure the appropriate persons receive this type of release…

1. Argument in Opposition

According to the California Public Defenders Association:

SB 1262 is superfluous. To the extent it requires the Board of Parole Hearings to consider an inmate’s entire criminal history, that is already how parole consideration is done. The requirement that supervising authorities must seek revocation, modification or termination of Post Release Community Supervision (PRCS) upon a third violation undercuts the ability of local authorities, who can do this already without this new law.

As far as parole suitability goes … California Code of Regulations, Title 15, Section 2281, [] explicitly includes “past criminal history” as a factor that the Board shall consider. Penal Code §3041(b)(1), requires the Board to consider past criminality. Thus, this statute which states that an en banc Board “shall consider the entire criminal history of the inmate” adds nothing.

The amendment to Penal Code section 3455 is really just another version of “three strikes and you are out,” except in the context of PRCS. Unlike the three strikes sentencing law, however, the change here doesn’t really add anything except a reporting requirement that fails to consider the nature of PRCS and PRCS violations.

People who are on PRCS (and not parole) are there because their crimes are non-serious, non-violent, and non-sexual. Should there be serous PRCS violations, the supervising authority can petition the court to revoke supervision. On the other hand, many violations are non-substantive, such as being late to a supervision meeting or having a GPS battery die. The supervising agency is perfectly capable of deciding when a person should be reported to a court for a violation hearing.

In addition, persons who violate PRCS are subject to intermediate sanctions, such as modification or termination of PRCS and Flash Incarceration. If intermediate sanctions are ineffective, or the supervising agency determines not to impose those sanctions, then formal revocation proceedings may begin. In fact, if the supervising agency determines that intermediate sanctions are not appropriate, then the agency must petition the court to revoke supervision.

SB 1262, then, “requires” the supervision agency to do that which it either already can do or must do. … It does take away some up-front discretion, but ultimately nothing in this bill mandates any punishment – which is up to a court. As it should be.

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