BILL ANALYSIS SENATE COMMITTEE ON PUBLIC SAFETY Senator Mark Leno, Chair A 2009-2010 Regular Session B 1 8 4 AB 1847 (Furutani) 7 As Amended May 11, 2010 Hearing date: June 29, 2010 Penal Code JM:mc RESTITUTION ORDERS HISTORY Source: Los Angeles City Attorney Prior Legislation: AB 2928 (Spitzer) - Ch. 752, Stats. 2008 SB 1685 (Kopp) - Ch. 629, Stats. 1996 Support: Association for Los Angeles Deputy Sheriffs; Los Angeles County Probation Officers Union; Riverside Sheriffs' Association; Crime Victims United of California; Los Angeles County District Attorney; AFSCME, AFL-CIO Opposition:California Public Defenders Association; California Attorneys for Criminal Justice Assembly Floor Vote: Ayes 74 - Noes 1 KEY ISSUES SHOULD A PROSECUTOR, SUBJECT TO COURT APPROVAL, HAVE AUTHORITY TO USE LIEN PROCEDURES, INCLUDING REAL PROPERTY LIENS, TO ENFORCE (More) AB 1847 (Furutani) PageB RESTITUTION ORDERS? SHOULD THE DISTRICT ATTORNEY OR PROBATION OFFICE HAVE AUTHORITY TO ACT AS THE AGENCY RESPONSIBLE FOR COLLECTING RESTITUTION FROM CRIMINAL DEFENDANTS WHERE NO OTHER AGENCY IN THE COUNTY HAS THAT DUTY? PURPOSE The purposes of this bill are to 1) grant authority to a prosecutor, upon court approval, to use lien procedures, including real property liens, against a defendant to enforce restitution orders, as specified; and 2) provide that where there is no county agency responsible for collecting restitution, the district attorney or probation office may carry out those duties. Existing provisions in the California Constitution state that all persons who suffer losses as a result of criminal activity shall have the right to restitution from the perpetrators of these crimes. Restitution shall be ordered in every case unless compelling and extraordinary reasons exist to the contrary. The Legislature shall adopt provisions to implement this section during the calendar year following adoption of this section. (Ca. Const. Art. 1 28(b).) Existing law states legislative intent that a victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime. (Pen. Code 1202.4, subd. (a)(1).) Existing law directs the court to order a defendant to make restitution to the victim or victims of the defendant's crime. The court shall order full restitution for the losses caused by the defendant's crime unless the court finds and states compelling and extraordinary reasons for not doing so. (Pen. Code 1202.4, subd. (f).) Existing law provides that a criminal restitution order shall be (More) AB 1847 (Furutani) PageC enforceable as though it were a civil judgment. (Pen. Code 1202.4, subd. (i).) Existing law provides that upon entry of a restitution order the court shall enter a separate "order for income deduction" upon a determination of the defendant's ability to pay. The determination of the ability to pay may include the defendant's future earning capacity. The defendant has the burden of demonstrating his or her lack of ability to pay. (Pen. Code 1202.42, subd. (a).) Existing law specifies that the "order for income deduction" shall be stayed until the agency in the county responsible for collection of restitution determines that the defendant has failed to meet his or her obligation under the restitution order and the defendant has not provided the agency with good cause for the failure. (Pen. Code 1202.42, subd. (b)(1).) Existing law states that when the agency responsible for the collection of restitution receives information that the defendant has failed to meet his or her obligation under the restitution order, the agency shall request that the defendant provide evidence indicating that timely payments have been made or provide information establishing good cause for the failure. If the defendant fails to either provide the agency with the evidence or fails to establish good cause within five days of the request, the agency shall immediately inform the defendant of that fact, and inform the clerk of the court in order that an income deduction order will be served following a 15-day appeal period. The defendant may apply for a hearing to contest the lifting of the stay. (Pen. Code 1202.42, subd. (b)(2).) Existing law specifies that income deduction orders shall direct a payer to deduct from all income due and payable to the defendant the amount required by the court to meet the defendant's obligation. (Pen. Code 1202.42, subd. (c)(2).) Existing law specifies that the income deduction order shall be effective as long as the order for restitution upon which it is (More) AB 1847 (Furutani) PageD based is effective or until further order of the court. (Pen. Code 1202.42, subd. (d).) Existing law states when the court orders the income deduction, the court shall furnish to the defendant a statement of his or her rights, remedies, and duties in regard to the income deduction order. The statement shall state all of the following: All fees or interest that will be imposed; The total amount of income to be deducted for each pay period; That the income deduction order applies to current and subsequent payers and periods of employment; That a copy of the income deduction order will be served on the defendant's payer or payers; That enforcement of the income deduction order may only be contested on the ground of mistake of fact regarding the amount of restitution owed; That the defendant is required to notify the clerk of the court within seven days after changes in the defendant's address, payers, and the addresses of his or her payers; and That the court order will be stayed and that a hearing is available. (Pen. Code 1202.42, subd. (e).) Existing law defines "good cause" for a defendant's failure to meet an obligation or nonpayment as including the following: There has been a substantial change in the defendant's economic circumstances, such as involuntary unemployment, involuntary cost-of-living increases, or costs incurred as the result of medical circumstances or a natural disaster. The defendant reasonably believes there has been an administrative error with regard to his or her obligation for payment. Any other similar and justifiable reasons. This bill provides for the following procedures for imposition of an income deduction order against a defendant: Upon receiving notice that the defendant has failed to comply (More) AB 1847 (Furutani) PageE with the payment of restitution, the clerk of the court or officer of the agency responsible for collection of restitution shall serve an income deduction order and notice to payer on the defendant's payer unless the defendant has applied for a hearing to contest the enforcement of the income deduction order. Service of the order shall be made in compliance and in the manner prescribed for service upon parties in a civil action. The defendant may apply for a hearing to contest the enforcement of the income deduction order on the ground of mistake of fact regarding the amount of the restitution owed or on the ground that the defendant has established good cause for nonpayment. The timely request for a hearing (within 15 days of notice) shall stay the service of an income deduction order on all payers of the defendant until a hearing is held and a determination is made as to whether the enforcement of the income deduction order is proper. (Pen. Code 1202.42, subd. (f).) This bill provides that a court may, upon the request of the prosecuting attorney, order that the prosecuting attorney be given authority to use lien procedures against a defendant, including, but not limited to, a writ of attachment of property. This bill authorizes a prosecuting attorney or a county probation office, if there is no agency in the county responsible for the collection of restitution, to carry out the functions and duties of such an agency specified for collection of restitution. RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION The severe prison overcrowding problem California has experienced for the last several years has not been solved. In December of 2006 plaintiffs in two federal lawsuits against the Department of Corrections and Rehabilitation sought a court-ordered limit on the prison population pursuant to the federal Prison Litigation Reform Act. On January 12, 2010, a (More) AB 1847 (Furutani) PageF federal three-judge panel issued an order requiring the state to reduce its inmate population to 137.5 percent of design capacity -- a reduction of roughly 40,000 inmates -- within two years. In a prior, related 184-page Opinion and Order dated August 4, 2009, that court stated in part: "California's correctional system is in a tailspin," the state's independent oversight agency has reported. . . . (Jan. 2007 Little Hoover Commission Report, "Solving California's Corrections Crisis: Time Is Running Out"). Tough-on-crime politics have increased the population of California's prisons dramatically while making necessary reforms impossible. . . . As a result, the state's prisons have become places "of extreme peril to the safety of persons" they house . . . (Governor Schwarzenegger's Oct. 4, 2006 Prison Overcrowding State of Emergency Declaration), while contributing little to the safety of California's residents . . . California "spends more on corrections than most countries in the world," but the state "reaps fewer public safety benefits." . . . . Although California's existing prison system serves neither the public nor the inmates well, the state has for years been unable or unwilling to implement the reforms necessary to reverse its continuing deterioration. (Some citations omitted.) . . . The massive 750% increase in the California prison population since the mid-1970s is the result of political decisions made over three decades, including the shift to inflexible determinate sentencing and the passage of harsh mandatory minimum and three-strikes laws, as well as the state's counterproductive parole system. Unfortunately, as California's prison population has grown, California's political decision-makers have failed to provide the resources and facilities required to meet the additional need for space and for other necessities of prison (More) AB 1847 (Furutani) PageG existence. Likewise, although state-appointed experts have repeatedly provided numerous methods by which the state could safely reduce its prison population, their recommendations have been ignored, underfunded, or postponed indefinitely. The convergence of tough-on-crime policies and an unwillingness to expend the necessary funds to support the population growth has brought California's prisons to the breaking point. The state of emergency declared by Governor Schwarzenegger almost three years ago continues to this day, California's prisons remain severely overcrowded, and inmates in the California prison system continue to languish without constitutionally adequate medical and mental health care.<1> The court stayed implementation of its January 12, 2010, ruling pending the state's appeal of the decision to the U.S. Supreme Court. On Monday, June 14, 2010, the U.S. Supreme Court agreed to hear the state's appeal in this case. This bill does not appear to aggravate the prison overcrowding crisis described above. COMMENTS 1. Need for This Bill According to the author: Current law establishes a process for income deduction for collection of restitution. The court must enter an order for income deduction at the same time ---------------------- <1> Three Judge Court Opinion and Order, Coleman v. Schwarzenegger, Plata v. Schwarzenegger, in the United States District Courts for the Eastern District of California and the Northern District of California United States District Court composed of three judges pursuant to Section 2284, Title 28 United States Code (August 4, 2009). (More) AB 1847 (Furutani) PageH restitution is ordered. The order for income deduction initially is put on hold to give the defendant an opportunity to make payments on his/her own. If the defendant fails to meet the obligations of the restitution order, the hold is lifted and income deduction is initiated. The defendant's employer is instructed to automatically deduct regular payments from the defendant's paychecks in the amount established by the court to meet the restitution obligation. (Pen. Code 1202.42) Under the existing process established by Section 1202.42, a county agency determines whether the defendant has failed to meet the restitution obligations. The agency is responsible for informing the court of the intention to lift the hold on the order for income deduction. Section 1202.42 refers to "the agency in the county responsible for collection of restitution." However, in some jurisdictions, no such agency exists or it's not entirely clear what agency bears this responsibility. AB 1847 strengthens existing law by allowing prosecuting attorneys to carry out the functions of the county agency in the income deduction process. For counties with no agency designated to handle restitution, a prosecutor could determine that restitution obligations are not being met and could initiate income deduction. AB 1847 would also allow prosecutors to pursue lien procedures against a defendant to help the victim collect court ordered restitution in the event that the defendant does not have a regular paycheck subject to wage garnishment. AB 1847 would not impact cases where the defendant has no ability to pay. In those cases, the court will determine the restitution amount and make a finding that the defendant does not have the ability to pay. Assembly Bill 1847 helps to ensure that victims (More) AB 1847 (Furutani) PageI receive the restitution ordered by the court. It prevents defendants from avoiding restitution obligations because of a disconnect in the process for income deduction. 2. Income Deduction Orders for Restitution Under current law, courts may issue income deduction orders when a defendant is ordered to pay restitution. Income deduction orders may be used to give notice to the defendant's employers or payers so that the agency responsible for the collection of restitution may garnish the wages of a defendant to pay restitution. Income deduction orders include a series of procedural requirements to comply with due process. Specifically, income deduction orders are issued at the time the defendant is ordered to pay restitution; however, the income deduction order is stayed until the defendant has failed to meet his or her obligations. At the time the order is issued, the defendant is informed of his or her rights as they pertain to the potential enforcement of the income deduction order. When a defendant fails to pay restitution, the agency responsible for collection of the restitution may seek to enforce the income deduction order. Notice is provided to the defendant that the agency intends to enforce the income deduction order and garnish the wages of the defendant. The defendant then has 15 days to object to the enforcement of the order and provide "good cause" for failure to pay. The defendant is entitled to a hearing before a magistrate to determine whether the agency may garnish his or her wages. The hearing turns on whether or not the defendant can establish "good cause" for non-payment. Although the statute does not specifically assign the burden of proof or persuasion in the hearing, it appears that the defendant has the burden of establishing good cause. The statute directs the magistrate to consider whether or not there has been a substantial change in the defendant's economic circumstances since the order was (More) AB 1847 (Furutani) PageJ issued, such as involuntary unemployment, involuntary cost-of-living increases, or costs incurred as the result of medical circumstances or a natural disaster. Further, the court may determine whether the defendant reasonably believes there has been an administrative error with regard to his or her obligation for payment. The court may also look at any other similar and justifiable reasons. (Pen. Code 1202.42, subd. (g).) 3. Role of Prosecutor is to Represent the People and Seek Justice Prosecutors are public officials who have a duty to seek justice. (Berger v. United States (1935) 295 U.S. 78.) Prosecutors represent the People; they do not represent individual victims. (Haraguchi v. Superior Court (2008) 43 Cal.4th 706.) While prosecutors have duty to seek justice, they are advocates in an adversarial system. The parties to a criminal action are the prosecutor, representing the People of the State of California, and the defendant. (Dix v. Superior Court (1991) 53 Cal.3d 442, 451-452.) Courts recognize that a prosecutor may have a motivation to seek increased punishment of a defendant once the original judgment is imposed. Courts thus enforce rules and principles to prevent prosecutor's from pursuing such acts improperly. (In re Bower (1985) 38 Cal.3d 865, 874-879 - a prosecutor cannot increase charges following a defendant's successful appeal.) Arguably, this bill could give prosecutors the ability to essentially punish defendants after the court imposed judgment. It may be difficult for a prosecutor to maintain objectivity in determining whether a defendant -- the prosecutor's adversary in the underlying litigation -- has willfully failed to pay restitution. The defendant must request a hearing to contest a determination by the agency tasked with collecting restitution that he or she has willfully failed to pay restitution. It appears that in the hearing the defendant has the burden of establishing that good cause exists for non-payment. It can thus be argued that this bill allows one party in an adversarial proceeding (the (More) AB 1847 (Furutani) PageK prosecutor) to establish a presumption that the other party (the defendant) has willfully failed to comply with court orders. The basic function of the prosecutor is to bring charges against a defendant, to prove those charges and argue for the sentence the prosecutor believes is appropriate. Judgment, sentencing and punishment are core judicial functions. The court imposes the sentences, including setting the terms of probation, restitution and other matters. (People v. Tenorio (1970) 3 Cal.3d 89 - functions of court and prosecutor generally, dismissal or charges specifically.) Having prosecutors monitor and supervise a defendant's payment of restitution could violate the separation of powers between the judicial and executive branches of government. Further, the prosecutor may have strongly objected to the court's sentence and be motivated to take action against a defendant in regards to sentencing obligations. (More) 4. Argument in Support Crime Victims United of California argues in support of AB 1847: AB 1847 would provide that if there is no agency in the county responsible for the collection of restitution, the county probation office or prosecuting attorney may carry out the functions and duties of such an agency as to income deduction orders. Additionally, if the defendant fails to meet obligations under the restitution order and has not provided good cause for failure, the court would be authorized to order the prosecuting attorney to be given authority to use lien procedures to include a writ of attachment of property. Crime victims may be unfamiliar with the legal process and may not realize that they must use their own means to collect the civil judgment that is owed to them. Often times, victims will not have the resources to pursue a civil action, and the restitution order may go unpaid. Prosecutors should have the ability, when appropriate, to directly advocate for methods to ensure a victim receives the restitution ordered by the court. This should include access to tools such as wage garnishment and writs of attachment. 5. Argument in Opposition The California Public Defenders Association argues in opposition to AB 1847: AB 1847 would provide that where a defendant has failed to comply with a restitution order, the court may authorize the prosecutor to use lien procedures applicable to the defendant, including but not limited to, a writ of attachment of property. The bill also provides that if there is no agency in the county responsible for the collection of restitution, the (More) AB 1847 (Furutani) PageM prosecuting attorney may carry out the functions and duties of such an agency in regard to the income deduction orders. This would be the first time that prosecuting agencies are statutorily permitted to take such an active role in collection of restitution. The only other statutory provision concerning prosecuting agencies and restitution-collection is Penal Code 1202.4, subdivision (h), added effective 1997. (SB 1685 (Kopp) Ch. 629, Stats. 2006.) That provision does not go as far as AB 1847. This existing provision only permits the district attorney to "... request an order of examination ... to determine the defendant's financial assets for ... collecting on a restitution order." We are deeply concerned that [this bill] may [give a prosecutor] an incentive to inflate the actual figures of damage or injury. Collection agencies get paid a percentage of what is collected--the higher the restitution amount, the higher the amount paid to the collection agency. Accordingly, a clear conflict of interest arises where the prosecutor acts as both arbiter and collector. We are equally concerned regarding direct access to both represented and unrepresented defendants, particularly those still on probation, by the prosecutor. All forms requiring signature for purposes of restitution determination and collection will most likely be required to be signed under penalty of perjury. Failure to adequately understand such forms may lead defendants, without benefit of counsel, to be subjected to more serious charges than the original prosecution. Further, nothing in this measure requires defense counsel to be apprised of any communication with defendants by prosecutors, nor does it require that AB 1847 (Furutani) PageN defense counsel be advised of information requested of or collected from defendants, or of any forms to be signed by Defendants. Accordingly, these communications may occur with, and this information may be gathered from, defendants who are on active probation. Yet these contacts occur where defendants have no guarantee of consultation with or advisement by appointed counsel. We contend this is not only in violation of a defendant's 6th Amendment right to counsel, and 5th Amendment right against self incrimination, but also, that this may lead to defendants being subject to probation violations. While we appreciate that the bill requires that a defendant be informed of his right to a hearing in the event there is a mistake of fact or good cause for failure to pay, such rights are afforded the defendant after the prosecutor has been in contact with the defendant and has made determinations regarding restitution. ***************