Local "Flash Incarceration" Case Lands at State Supreme Court

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The California Supreme Court wants the state Attorney General's Office to respond by Thursday to a legal petition filed by local defense attorneys that challenges the constitutionality of a statewide policy called "flash incarceration."

Attorney Michael McMahon, a chief deputy with the Public Defender's Office, filed the writ last  month on behalf of Adam Vanstane with the Supreme Court asking it to review the policy which, he says, allows some parolees in the state to be put in jail for up to 10 days without any hearing and based solely on the strength of county probation officers' word.

"The parolee doesn't have the right to be heard or call witnesses or defend himself or herself,"  said McMahon said Friday.

The case landed in the state Supreme Court because the writ of mandate was rejected without a hearing by a Ventura County Superior Court and the appeals court in Ventura.

McMahon said this case could wind its way to the highest court in the land.

 "I don't say this often. This issue could go all the way to the U.S. Supreme Court," he said.

McMahon said the state's highest court could decide not to hold a hearing on this case or could order the appeals court to conduct one based on the issues raised by McMahon.

Michael Schwartz, special assistant district attorney, said his office joined the county's counsel in supporting flash incarceration on post-release community supervision or PCS, arguing that flash incarceration is lawful.

Adding, "Because those released on PCS have agreed to supervision terms, including possibility of flash incarceration, they are not entitled to a hearing or counsel before this brief period of incarceration is imposed."

The flash incarceration policy became effective on Oct. 1 as part of statewide realignment.  Realignment, which was implemented as a result of the state's budget crisis, means that nonviolent criminals who haven't committed sexual offenses are transferred to county jails to serve their sentences instead of prison, making these inmates when they get out under the supervision of the county probation department.

The parole officer doesn't need any type of court order to put a realignment parolee in jail for up to 10 days for such infractions as showing up late to a meeting or associating with relatives who may be gang members, according said McMahon.

McMahon believes that flash incarceration has been used hundreds of times in Ventura County, including one time about a month ago when a parolee was sent to jail for arguing with another restaurant patron.

The case can be viewed at: http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=0&doc_id=2009239&doc_no=S201150

The Court Reporter
Raul Hernandez has spent years writing stories about the drama that unfolds in the courtroom. Here he answers common questions, share some insights on the judicial system and passes along some of the little things that make the Ventura County courts an interesting place to be. You can contact him at rhernandez@vcstar.com.