October 1, 2011, AB 109 will take effect in the state of California. More commonly known as "realignment," the bill is a response to the U.S. Supreme Court's May order for California to reduce its prison population. The basic concept is to transfer the least dangerous inmates to the communities they are originally from and change sentencing and parole guidelines. The following sections highlight and discuss the major changes of realignment.
Changes to California's Felony Sentencing and Parole
Instead of state parole, released individuals will be assigned to county Postrelease Community Supervision. After being released from a county jail felony, there will be no county Postrelease Community Supervision, except for those with felony sentences that can be followed by probation.
- Felony offenses that are punishable by sentences of more than one year will be served in county jail, and some of those sentences may be followed by a period of probation.
Sentencing for Felony Offenders Without Convictions for Serious, Violent, or Registerable Sex Offenses
- Individuals with felony sentences that are non-violent, non-serious, or non-registerable sex offenses under California Penal Code § 290, will serve their sentences of terms exceeding one year in county jail.
- If a specific term is not specified by statute, jail sentences of many of these felonies may be followed by a period of probation pursuant to California Penal Code § 1170(h).
- Counties may work with the California Department of Corrections and Rehabilitation to accept those convicted of county jail felonies.
Sentences for Felony Offenders with Current Serious, Violent, or Registerable Sex Offenses or those who have such a prior felony
- California Penal Code § 1170 provides the basic disqualification for current or prior violent, serious, or registerable sex offenses under California Penal Code § 290.
- Over 60 non-violent, non-serious, and non Penal Code § 290 registerable sex offenses will remain felonies requiring the sentence to be served in state prison.
County Jail Conduct Credits to be 50%
- Two actual days in county jail will be deemed to have been four days served.
- Those convicted of violent felonies will be limited to conduct credit at 15%.
- Those convicted of murder will still be ineligible for any conduct credit.
- The county system will mimic the state prison system in that conduct credits may be lost through an administrative disciplinary system.
Counties Able to Authorize Voluntary and Involuntary Home Detention
- California Penal Code § 1203.016 will authorize counties to offer voluntary home detention programs as well as order involuntary participation in a home detention program.
- California Penal Code § 2900.5 states that days spent in home detention will count towards mandatory minimum sentences.
Countries Can Authorize Electronic Monitoring in Lieu of Bail
- California Penal Code § 1203.018 allows the county board of supervisors to permit qualified inmates held in lie of bail to be placed in an electronic monitoring program.
- California Penal Code § 2900.5 states that time served in this electronic monitoring program will count towards mandatory minimum sentences.
Postrelease Community Supervision to Replace Parole for Those Released from Prison
- The new Postrelease Community Supervision Act, to be implemented by county agencies, states that individuals who are released from prison after serving a term for particular felonies are subject to up to three years of postrelease community supervision.
- Those who do no fall under those particular felonies will be released on parole.
- For those who served their felony sentences in county jail, there will be neither parole nor Postrelease Community Supervision, but a period of probation may follow.
Parole only available to Certain Offenders
- Parole will be limited to those released from prison on and after October 1, 2011, whose sentence was for any of the following:
- violent felony
- serious felony
- third strike
- offenders with a metal disorder
- possible high risk sex offender crimes
- New Revocation Hearing Officers will decide parole revocation cases starting July 1, 2013. The county superior court will be permitted to appoint as many hearing officers as necessary to conduct these hearings or determine violations of postrelease supervision.
Parole Reentry Accountability Program Expanded
- The parole entry accountability program, already in effect as of January 25, 2010, will be expanded to include individuals on Postrelease Community Supervision.
Division of Juvenile Justice Not to Be Affected by Realignment
- The Division of Juvenile Justice will not be affected by the realignment to take place on October 1, 2011.
How do I know if realignment will affect me?
For persons sentenced on or after October 1, 2011, for county jail felonies, the sentencing changes will apply prospectively (that is, October 1, 2011 and after).
The conduct credits, where four days credit will be given for every two days served, applies prospectively for crimes committed on or after October 1, 2011. Days earned by a prisoner prior to October 1, 2011, will be calculated under prior law.
Those released from state prison on or after October 1, 2011, who do not need to be on parole, will be placed on postrelease supervision.
Scott D. Hughes is a Criminal Defense Attorney in Orange County, California practicing in State and Federal Court.