BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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SB 432 (Runner)
As Introduced February 26, 2009
Hearing date: April 28, 2009
Penal Code
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COLLECTION OF VICTIM RESTITUTION ORDERS
HISTORY
Source: California Department of Corrections and Rehabilitation
Prior Legislation: AB 1505 (LaSuer) - Ch. 555 Stats. 2007
Support: Crime Victims United; Los Angeles County District
Attorney
Opposition:None known
KEY ISSUE
WHERE A PRISON INMATE OWES DIRECT RESTITUTION TO A VICTIM, SHOULD
THE COURT AND THE COUNTY BE AUTHORIZED TO PROVIDE THE DEPARTMENT OF
CORRECTIONS AND REHABILITATION THE VICTIM'S CONTACT INFORMATION FOR
THE PURPOSE OF SATISFYING THE RESTITUTION ORDER?
PURPOSE
The purpose of this bill is to provide that where an inmate,
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pursuant to court order, owes direct restitution to a crime
victim, the court and the county would be authorized to provide
the Department of Corrections and Rehabilitation with the
victim's contact information and the restitution order.
Existing statutes require a minimum restitution fine of $200 in
all felony cases and $100 in all misdemeanor cases. Courts may
set a maximum of $10,000 for felonies and $1000 for
misdemeanors. Restitution fines shall be imposed regardless of
the defendant's present ability to pay. Restitution fines are
used to pay for the Victims of Crime Program. (Pen. Code
1202.4.)
Existing law directs the probation department to prepare a
report for the court for use in sentencing and related
decisions concerning a convicted defendant. (Pen. Code
1203, subd. (a).)
Existing law directs the probation department to recommend
to the court the amount of the restitution fine and
specified matters concerning the amount of direct
restitution. (Pen. Code 1203, subd. (a)(2)(D).)
Existing law specifies that a restitution order may also be
paid directly to the Restitution Fund to the extent that the
victim has received assistance from the Victims of Crime
Program. (Pen. Code 1202.4, subd. (f)(2).)
Existing law provides for restitution orders - enforceable as a
civil judgment - to ensure that a victim of a crime who incurs
any economic loss shall receive restitution directly from any
defendant convicted of that crime. If a restitution order is
made, the defendant has the right to a hearing before the court
to dispute the determination of the amount of the order. A
restitution order may be modified upon motion of the district
attorney, the victim or victims, or the defendant. (Pen. Code
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1202.4, subds. (f) and (i).)<1>
Existing law provides that if the amount of restitution
cannot be determined at the time of sentencing, the order
shall state that the specific amount of restitution shall be
"determined at the direction of the court" in a reasonable
manner in the discretion of the court. (Pen. Code 1202.4,
subd. (f).)
Existing law provides that a restitution order shall be prepared
by the court and identify each victim and each loss. (Pen. Code
1202.4, subd. (f)(3).)
Existing law prescribes the following duties for probation
departments when a defendant is committed to the Department of
Corrections and Rehabilitation (CDCR): The probation department
must send a report to CDCR of the circumstances the crime and
the defendant's criminal record and social history. (Pen. Code
1203c.)
Existing law provides that in any case in which a prisoner owes
a restitution fine or order the CDCR shall deduct a minimum of
20% or the balance owing on the fine amount, whichever is less,
up to a maximum of 50% from the wages and trust account deposits
of a prisoner, unless prohibited by federal law, and shall
transfer that amount to the California Victim Compensation and
Government Claims Board (CVGCB) for deposit in the Restitution
Fund, as specified. The CDCR shall deduct and retain from the
wages and trust account deposits of a prisoner, unless
prohibited by federal law, an administrative fee that totals 10%
of any amount transferred, as specified. (Pen. Code 2085.5,
subds. (a)-(c).)
Existing law provides that where a parolee owes direct
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<1> Penal Code 1202.4 (f)(2) further specifies that a
restitution order may also be paid directly to the Restitution
Fund to the extent that the victim has received assistance from
the Victims of Crime Program.
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restitution to a victim CDCR may collect the fine unless
prohibited by federal law. CDCR shall transfer that money to
CVGCB for direct payment to the victim. (Pen. Code 2085.5,
subds. (d)-(e).)
Existing law provides that CDCR may retain an administrative fee
of 10% of any fine or restitution collected from an inmate or
parolee for transfer to CVGCB. CDCR shall retain an
administrative fee of 5% of any settlement or trial award paid
to a parolee, where the settlement or award is used to satisfy a
restitution order or fine. (Pen. Code 2085.5, subds. (c ) and
(e).)
This bill provides: "whenever a person who has been ordered to
pay restitution to a victim is also sentenced to a term of
imprisonment in state prison, the court and the counties may
provide to the Department of Corrections and Rehabilitation the
victim's contact information, when available, along with the
restitution order, for the purposes of the department
distributing the restitution collected on behalf of the victim."
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
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incarceration.<2>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
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<2> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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Although the evidence may be less than perfectly
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
period of two or three years.<3>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
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<3> Three Judge Court Tentative Ruling, 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 (Feb. 9, 2009).
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COMMENTS
1. Need for This Bill
The author states:
SB 432 would add to Penal Code 1202.4 (a)(2)(C)
authorizing all 58 counties to release enough victim
information to allow the CDCR, Office of Victims and
Survivor Rights and Services (OVSS) to disperse the
restitution that has been collected on behalf of the
victims direct order of restitution. The Victims
Compensation and Government Claims Board (VCGCB)
currently has $6.5 million in trust in undistributed
direct order collections.
VCGCB is the state agency responsible for
administering the Victims Restitution Fund. The
restitution fund is for victims of violent crimes who
suffer out-of-pocket losses and who may be eligible
to apply for financial reimbursement. The fund
reimburses eligible victims for lost wages or
support, medical or psychological counseling
expenses, and other related costs.
As of July 2008, CDCR has approximately 250,000
inmates and parolees with obligations for restitution
over $100. There are approximately 33,000 current
inmates and parolees who owe direct orders. The sum
of the balance due for these offenders is
approximately $1.1 billion. There are approximately
100,000 unknown victims with direct orders of
restitution that CDCR is unable to locate.
Prior to 2007, any undisbursed collected restitution
funds were almost nonexistent. OVSS was able to
distribute about 97% of all direct order collections
immediately upon collection because when an offender
was ordered to pay a victim under a direct order of
restitution, the law further required the victim to
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file a claim with the state before CDCR was empowered
to collect on the victim's behalf.
However, many victims were unclear on how to file a
claim or did not know that they were required to file
a claim in order to receive restitution funds.
Victims also assumed that once the order was written
by the court, awarding restitution to them, that the
money would be automatically mailed to them.
The requirement to file a claim became very unpopular
with both judges and victims. As a result, CDCR
sponsored AB 1505, which authorized (effective
January 1, 2007) CDCR to collect on all direct orders
without the victim claim filing requirement. This
caused direct order collections to jump immediately
from $40,000 monthly to $400,000.
However, as collections rose, the percentage which
could be distributed (where victim information was
known) dropped from 97 percent to 22 percent. CDCR
is accumulating $3.5 million annually that cannot be
disbursed due to the lack of victim contact
information.
As of October 2008, there was $6.5 million in
undisbursed direct order collections from CDCR being
held in trust at the VCGCB.
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2. The Probation Department Must Send Report to CDCR about the
Inmate and the Crime of Imprisonment; Probation Department
Determines Victim Restitution Issues
Statutory and Procedural Background
California law directs a court to determine a victim's losses
from a crime and to order the perpetrator to pay restitution.
Typically, the court directs the probation office to determine
the amount of restitution. The amount of restitution often may
not have been determined by the date the defendant is sentenced.
That amount will be determined at a later time and ordered by
the court. The defendant may challenge the amount of
restitution determined by the probation officer. Upon such
challenge, the court shall hold a hearing on the issue.
Further, under existing law, when a defendant is committed to
CDCR, the probation department must send a report to CDCR of the
circumstances of the crime and the defendant's criminal record
and social history. (Pen. Code 1203c.)
Suggested Amendment: The Probation Department is the Likely
Proper Entity to Send Victim Contact Information to CDCR
Concerning Restitution Orders
As currently drafted, the bill states that the court and county
may provide information to CDCR about the victim's address and
contact information for the purpose of collecting restitution
from an inmate for payment to the victim. Concerns have been
raised about whether the court should be given this task. For
example, a criminal case file is essentially a public document.
Directing the court to provide victim information could
compromise the victim's privacy and security.
The probation department may be in the best position to provide
CDCR with victim information. The probation department
interviews the victim for purposes of describing the crime and
for determining the amount of restitution the defendant should
be ordered to pay. The probation department could include a
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copy of the restitution order by the court and contact
information for the victim when the report concerning the crime
is submitted to CDCR. If the restitution information is not
available at the time the report is submitted to CDCR, the
information and the order could be submitted when those become
available.
Concerns about the confidentiality of the victim's information
have been expressed to the Committee. If probation provides
victim information to CDCR, the information would be kept
confidential. It should be noted in this regard that probation
reports are confidential, except under specified circumstances
(Pen. Code 1203.05.), and probation officers are experienced
in handling confidential material. As a further precaution,
perhaps the information should not be sent to CDCR if the victim
objects.
SHOULD THIS BILL BE AMENDED TO PROVIDE THAT THE PROBATION
DEPARTMENT SHALL PROVIDE CDCR WITH THE CONTACT INFORMATION OF THE
VICTIM FOR THE PURPOSE OF COLLECTING A RESTITUTION ORDER FROM AN
INMATE AND PAYING THE VICTIM?
SHOULD THE VICTIM'S CONTACT INFORMATION BE KEPT CONFIDENTIAL?
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