California AB 109 Law

Until a decade ago, criminals convicted of a felony were supervised by state prison personnel and state prison parole agents. California Assembly Bill 109, better known as AB 109, changed that. Termed "realignment," this measure was passed by California to divert the responsibility for those convicted of less serious felonies to county jails and probation officers. It was prompted by a federal court order to reduce prison overcrowding.

While realignment has accomplished some of its goals, including reducing state prison populations, it remains controversial today, partly because it involves the criminal actions of some diverted felons released by county probation officers to supervised probation. The crimes included the 2017 shooting death of a California law enforcement officer.

The history of AB 109 begins in early 2011. Termed the Public Safety Realignment Act, the bill was passed by the legislature and signed by then-Governor Jerry Brown against a backdrop of severe overcrowding in the California state prison system that prevented inmates from getting reasonable medical care and social services. In fact, it followed on the heels of a federal court order to reduce California's prison overcrowding. However, the language of the bill states that it was proposed to combat recidivism, not to remedy overcrowded prison populations.

The provisions of realignment were amended in small ways by AB 116, AB 117 and AB 118. The new law applied statewide to anyone convicted of a minor felony who was to be sentenced on or after October 1, 2011.

What was the actual effect of realignment AB 109 in California? It made a difference to defendants convicted of those felonies considered to be neither serious, violent, nor sex-related, of which there were about 500. Rather than being sentenced to state prison, as the statutes required before AB 109, these convicts were to be sentenced to county jails and/or noncustodial mandatory supervision, similar to probation.

In addition, the bill changed matters for defendants who had been sentenced to state prison for one of these "realignment" crimes before AB 109 went into effect. When those convicts, who were currently serving a term in state prison, were ordered released, they would be supervised by county probation officers under a new program called Post Release Community Supervision (PRCS). Normally, their release would have been supervised by the state prison parole agents.

The realignment bill AB 109 changed the definition of a felony crime in California. For decades, the definition of felony in California depended on the possible sentence that could apply to the crime the defendant was charged with committing. Crimes that carried a maximum of a year or less imprisonment in county jail were classified as California misdemeanors' felonies were those crimes that could carry a sentence of a year or more in state prison.

After AB 109, a "minor" felony could be punished by a term in county jail rather than state prison. That meant that the very definition of the crime had changed. The existing statute defining felonies was changed to include Penal Code Section 1170(h) offenses that can be punished in county jail.

The best way to understand the effect of AB 109 is to consider an example of how a person convicted of a felony might be sentenced. Let's take the example of a charge of drug possession for sale, a nonviolent, non-serious and non-sexual crime. Possession for sale is a crime under California Health & Safety Section 11351.

For example, someone convicted of possession of heroin for sale in 2009 would have faced four years in state prison as a punishment. Someone convicted of the same crime would face, under the realignment AB 109 implementation plan, four years in county jail, a much easier sentence to serve. They may even be eligible for probation under AB 109.

Anyone convicted of a realignment crime is sentenced under California Penal Code Section 1170(h). Under that statute, the convicted person faces time in county jail or is assigned to out-of-custody mandatory supervision that looks a lot like probation. Sometimes the convict is sentences to time in county jail followed by supervision.

Under realignment AB 109, some 500 criminal statutes were changed to cut out any mention of the possibility of state prison time. Which crimes were included as realignment crimes? AB 109 changed many different crimes under the California Penal Code, California Health & Safety Code and California Vehicle Code. These statutes are referred to as “non-non-non” crimes, since they are all nonviolent, non-serious and non-sex related.

The supporters of AB 109 wanted to give those who were convicted of nondangerous felonies a break, but they had no intention of reducing the sentences of those who commit crimes that put others in danger. These convicts are considered too high-risk for rehabilitation in the community.

Which crimes are excluded? These include violent felonies and a current nonviolent offense if the offender has a prior violent conviction under Penal Code Section 667.5; serious felonies; and a current non-serious felony if the offender has a prior offense under Penal Code Section 1192.7; and sex crimes which result in the offender being required to register as a sex offender in California. In addition, specified white-collar crimes under Penal Code Section 186.11 are excluded, as well as some 60 other diverse crimes such as bribery of judges, pimping and causing bodily injury of a spouse.

Here is an example of the way prior violent or serious felonies affect a current conviction: If the offender is convicted of a nonviolent felony, they are normally eligible for county jail under realignment. However, if the offender had a prior violent felony conviction, the present nonviolent felony is not eligible for realignment sentencing. Rather, they will be sentenced to state prison.

Remember that realignment AB 109 is intended to transfer punishment of low-level felony offenders from state prison to local jail facilities or out-of-custody “mandatory supervision.” These operate at the county level so responsibility for these felons shifts to the local level, including their probation or supervision in lieu of parole.

The supervision under AB 109 is termed Post Release Community Supervision, and this is an important part of realignment. It is more like an alternative parole than probation. It involves a period of supervision during which a county agency is responsible for monitoring a felon after they are released from prison.

This is very different from felony probation that is part of the criminal sentencing and offers an alternative to state prison. Community supervision is not part of criminal sentencing. Rather, it is post-release supervision at the county level. It is never longer than three years, and offenders may be able to end supervision after a year if they have not violated any conditions of supervision.

Realignment AB 109 has been successful in many ways. It significantly reduced the state prison population and, together with Proposition 47 passed in November 2014 that lowered penalties for many property and drug offenses, resulted in California meeting the court-mandated state prison population. It did not result in an increase in violent crime, but it did increase jobs at the local level.

Although the realignment reform required much more of county jails and probation departments, since they became responsible for many more and different convicts, it did not result in a rise in county jail inmates that matched the reduction in prison inmates. All in all, as a result of AB 109, the number of incarcerated people in the state fell.

Finally, realignment has helped in the nation's goal of allowing convicts a chance at rehabilitation. A person with a felony conviction has a difficult time getting housing or employment. Since AP 109 and Proposition 47 reduced certain property and drug charges to misdemeanors, they can start a new life.

Realignment AB 109 was controversial when it passed the legislature and remains controversial today. Not everything has worked according to plan. Although the increase in county jail populations did not rise to the level of the decline in state prison inmates, it was still significant and pushed jail populations above capacity and inmate assaults on staff increased.

Though violent crime did not increase, auto burglary crimes did. And the goal of reducing recidivism among lower-level offenders was not accomplished.

This approach has not significantly reduced recidivism, however, the number of offenders returning to state prison for parole violations dropped significantly. Before AB 109 was enacted, a parolee who was caught committing any type of parole violation would usually get immediately sent back to state prison. After AB 109, a minor violation instead results in an immediate sanction of up to 10 days in jail.

Some of the current criticism of the program stems from community safety issues. These came to the headlines with the murder of several police officers in 2016 and 2017 by parolees who were being supervised by county probation agents instead of state parole agents. Several of the inmates had been found in violation of the conditions of supervision but were not returned to state prison, as they would have been but for realignment.

These incidents raised doubts about the ultimate benefits of realignment. Critics claim that had the convicts been under the more stringent jurisdiction of the California Department of Corrections and Rehabilitation, the police officers would not have been killed.