"Changes in Community Supervision Offer the Get into Jail Free Ticket"

The title of this post is the title of this new paper available via SSRN by Paige Jann. Here is the abstract:

California traditionally had two types of community supervision, probation and parole. While probation generally consisted of a sentence given in lieu of prison with incarceration as a consequence for violating its terms, parole instead consisted of a term of supervision following an individual’s prison sentence.  However, the recent passage of The Criminal Justice Realignment Act (AB 109) drastically changed the landscape of community supervision by shifting the responsibility of supervising certain offenders from the state to the county level.  Companion legislation also amended California Penal Code section 1170(h) to include a new sentencing option called a split sentence, whereby a court can craft a sentence that combines both a period of local incarceration and mandatory supervision.  Ultimately, Realignment legislation combined the oversight of parole, probation, and split sentencing all into one unified agency: county probation departments. A lingering question now remains as to whether each of these very different programs may suffer under such a unification.

This paper examines California’s scheme of felony sentencing and community supervision prior to Realignment, as well AB 109’s various changes to these areas.  Further, this paper critically examines the idea of entrusting all community supervision to one department. These critiques suggest a resulting paradox where offenders may prefer harsher sentencing alternatives over probation because it is more difficult to graduate from the latter.  Finally, this paper concludes that oversight of community supervision may be incapable of integration, and that each program may instead require individual attention. Realignment and its accompanying legislation have drastically transformed California’s criminal justice system.  Examining the extent to which 1170(h) augments county probation departments’ responsibilities may reveal the potential struggles that lie ahead and offer guidance in further implementation of these changes.