BILL NUMBER: AB 446 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 25, 2011
INTRODUCED BY Assembly Member Carter
FEBRUARY 15, 2011
An act to amend Section 1170.05 of the Penal Code,
relating to inmates. An act to add Section 237 to the
Welfare and Institutions Code, relating to juveniles.
LEGISLATIVE COUNSEL'S DIGEST
AB 446, as amended, Carter. Inmates: alternative custody.
Juveniles: restorative justice program.
Existing law sets forth the purpose of juvenile court law, and
provides that a minor under the jurisdiction of the juvenile court
who is in need of protective services shall receive care, treatment,
and guidance consistent with his or her best interest and the best
interest of the public. Existing law provides that a minor under the
jurisdiction of the juvenile court as a consequence of delinquent
conduct shall, in conformity with the interests of public safety and
protection, receive care, treatment, and guidance that is consistent
with his or her best interest, that holds the minor accountable for
his or her behavior, and that is appropriate for his or her
circumstances.
This bill would authorize a county to adopt a restorative justice
program to address the needs of minors, victims, and the community.
The bill would require the restorative justice program to be
implemented through a restorative justice protocol developed by the
juvenile court in conjunction with the prosecutor, public defender,
and other interested groups. The bill would prohibit the use of
General Fund moneys to fund the program. The bill would include
related findings and declarations.
Existing law authorizes the Secretary of the Department of
Corrections and Rehabilitation to offer a program under which female
inmates, pregnant inmates, or inmates who, immediately prior to
incarceration, were primary caregivers of dependent children, as
defined, who are committed to state prison may be allowed to
participate in a voluntary alternative custody program in lieu of
confinement in state prison. Existing law defines an alternative
custody program to include confinement to a residential home, a
residential drug or treatment program, or a transitional care
facility that offers appropriate services. Existing law authorizes
the department to enter into contracts with county agencies,
not-for-profit organizations, for-profit organizations, and others in
order to promote alternative custody placements.
This bill would make a technical, nonsubstantive change to those
provisions.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature hereby finds and
declares all of the following:
(a) It is the intent of the Legislature that principles of
restorative justice be incorporated into juvenile justice
proceedings, consistent with the underlying rehabilitative purpose of
the Juvenile Court Law (Chapter 2 (commencing with Section 200) of
Part 1 of Division 2 of the Welfare and Institutions Code).
Restorative justice principles recognize the following needs:
(1) Community protection from delinquent conduct through a
continuum of appropriate responses that protects citizens and
victims.
(2) Accountability of the minor through restoration of the losses
experienced by the victim and the community.
(3) Competency development of the minor through the provision of
treatment, education, and skill building needed for success in the
community.
(b) Crime results in injury to the victim, the community, and the
offender. Whenever appropriate, the juvenile justice system should
seek to repair those injuries, taking into account the age, mental
capacity, and developmental maturity of the minor, the nature of the
offense, and the resources available to the minor to accomplish the
goals of Section 237 of the Welfare and Institutions Code, enacted by
Section 2 of this act. Victims and communities should be actively
involved in helping to develop programs and services, and in ensuring
accountability through helping individual minors to understand the
impact of their actions. These activities shall be pursued in a
manner consistent with the minor's right to due process and the right
of victims and minors under Section 676.5 of the Welfare and
Institutions Code.
(c) Nothing in this act changes the fundamental intention of the
Juvenile Court Law that individualized care, treatment, and guidance
be provided to each minor coming to the attention of the juvenile
court for alleged delinquency.
SEC. 2. Section 237 is added to the
Welfare and Institutions Code , to read:
237. (a) Consistent with the rehabilitative purpose of this
chapter, a county may adopt a restorative justice program to address
the needs of minors, victims, and the community.
(b) The restorative justice program shall be implemented through a
restorative justice protocol developed by the juvenile court in
conjunction with the prosecutor, public defender, probation
department, representatives from victims' groups, law enforcement,
community organizations and service providers, restorative justice
groups, and clinicians with expertise in adolescent development. The
protocol shall address all of the following:
(1) The formation of a restorative justice council.
(2) The process to be employed in any case coming before the
council.
(3) The rights of minors.
(4) The rights of any victims involved in the case.
(5) Confidentiality issues.
(6) Timeliness for case processing.
(7) The scope of services of, and orders that may be imposed by,
the restorative justice council.
(8) The roles of the court, prosecutor, and defense counsel in
relation to the council.
(9) Qualifications and the selection process for restorative
justice council members.
(10) The process for evaluating compliance with the program.
(11) The process for handling any failure to adhere to the program
directed by the restorative justice council.
(c) The program in each case shall seek to repair the harm to the
victim, the minor, and the community caused by the behavior bringing
the minor before the juvenile court. The program requirements shall
be tailored to the age, mental capacity, and developmental maturity
of the minor, the nature of the offense, and the resources available
to the minor to accomplish the goals of this section.
(d) Minors may be referred to the restorative justice program as
part of the court's order for informal supervision pursuant to
Section 654.2, the court's order for nonwardship probation under
subdivision (a) of Section 725, the court's dispositional order under
Section 727, or the court's order for deferred entry of judgment
under Section 790.
(e) If the court orders the care, custody, and control of the
minor to be under the supervision of the probation officer for foster
care placement pursuant to subdivision (a) of Section 727, the minor
may be referred to the restorative justice program only as follows:
(1) To the extent that participation in the program is consistent
with both the minor's case plan developed pursuant to Section 706.5
and any provision of reunification services to the minor and his or
her family pursuant to Section 727.2.
(2) To the extent that participation in the program does not
result in the loss of federal financial participation for the
placement of the minor.
(f) No General Fund moneys shall be used to fund a restorative
justice program established pursuant to this section. Nothing in this
section is intended to restrict the ability of courts or counties to
develop or maintain existing programs or strategies for juvenile
offenders that incorporate restorative justice principles.
SECTION 1. Section 1170.05 of the Penal Code is
amended to read:
1170.05. (a) Notwithstanding any other law, the Secretary of the
Department of Corrections and Rehabilitation is authorized to offer a
program under which female inmates, pregnant inmates, or inmates who
were primary caregivers of dependent children immediately prior to
incarceration, as specified in subdivision (c), who are not precluded
by subdivision (d), and who have been committed to state prison may
be allowed to participate in a voluntary alternative custody program
as defined in subdivision (b) in lieu of their confinement in state
prison. In order to qualify for the program an offender need not be
confined in an institution under the jurisdiction of the Department
of Corrections and Rehabilitation. Under this program, one day of
participation in an alternative custody program shall be in lieu of
one day of incarceration in the state prison. Participants in the
program shall receive any sentence reduction credits that they would
have received had they served their sentence in the state prison, and
shall be subject to denial and loss of credit pursuant to
subdivision (a) of Section 2932. The department may enter into
contracts with county agencies, not-for-profit organizations,
for-profit organizations, and others in order to promote alternative
custody placements.
(b) As used in this section, an alternative custody program shall
include, but not be limited to, the following:
(1) Confinement to a residential home during the hours designated
by the department.
(2) Confinement to a residential drug or treatment program during
the hours designated by the department.
(3) Confinement to a transitional care facility that offers
appropriate services.
(c) Except as provided by subdivision (d), female inmates,
pregnant inmates, or inmates who were primary caregivers of dependent
children immediately prior to incarceration sentenced to state
prison for a determinate term of imprisonment pursuant to Section
1170, and only those persons, shall be eligible to participate in the
alternative custody program authorized by this section.
(d) An inmate committed to state prison who meets any of the
following criteria shall not be eligible to participate in the
alternative custody program:
(1) The person has a current or prior conviction for a violent
felony as defined in Section 667.5.
(2) The person has a current or prior conviction for a serious
felony as defined in Sections 1192.7 and 1192.8.
(3) The person has a current or prior conviction for an offense
that requires the person to register as a sex offender as provided in
Chapter 5.5 (commencing with Section 290) of Title 9 of Part 1.
(4) The person was screened by the department using a validated
risk assessment tool and determined to pose a high risk to commit a
violent offense.
(5) The person has a history, within the last 10 years, of escape
from a facility while under juvenile or adult custody, including, but
not limited to, any detention facility, camp, jail, or state prison
facility.
(e) An alternative custody program shall include the use of
electronic monitoring, global positioning system devices, or other
supervising devices for the purpose of helping to verify a
participant's compliance with the rules and regulations of the
program. The devices shall not be used to eavesdrop or record any
conversation, except a conversation between the participant and the
person supervising the participant, in which case the recording of
such a conversation is to be used solely for the purposes of voice
identification.
(f) (1) In order to implement alternative custody for the
population specified in subdivision (c), the department shall create,
and the participant shall agree to and fully participate in, an
individualized treatment and rehabilitation plan of evidence-based
programs and services that will aid in the successful reentry into
society while he or she takes part in alternative custody.
(2) The department shall collaborate with local law enforcement
and community-based programs that administer evidence-based practices
in order to prevent recidivism among individuals placed in
alternative custody and assist in reentry into society. Mandatory
case management services shall be provided to support rehabilitation,
and to track the progress and individualized treatment plan
compliance of the inmate.
(3) For purposes of this section, "evidence-based practices" means
supervision policies, procedures, programs, and practices
demonstrated by scientific research to reduce recidivism among
individuals under probation, parole, or postrelease supervision.
(g) The secretary shall prescribe reasonable rules and regulations
under which the alternative custody program shall operate. The
department shall adopt regulations necessary to effectuate this
section, including emergency regulations as provided under Section
5058.3 and adopted pursuant to the Administrative Procedure Act
(Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3
of Title 2 of the Government Code). The participant shall be informed
in writing that he or she shall comply with the rules and
regulations of the program, including, but not limited to, the
following rules:
(1) The participant shall remain within the interior premises of
his or her residence during the hours designated by the secretary or
his or her designee.
(2) The participant shall be subject to search and seizure by a
peace officer at any time of the day or night, with or without cause.
In addition, the participant shall admit any peace officer
designated by the secretary or his or her designee into the
participant's residence at any time for purposes of verifying the
participant's compliance with the conditions of his or her detention.
Prior to participation in the alternative custody program, all
participants shall agree in writing to these terms and conditions.
(3) The secretary or his or her designee may immediately retake
the participant into custody to serve the balance of his or her
sentence if the electronic monitoring or supervising devices are
unable for any reason to properly perform their function at the
designated place of detention, if the participant fails to remain
within the place of detention as stipulated in the agreement, or if
the participant for any other reason no longer meets the established
criteria under this section.
(h) Whenever a peace officer supervising a participant has
reasonable suspicion to believe that the participant is not complying
with the rules or conditions of the program, or that the electronic
monitoring devices are unable to function properly in the designated
place of confinement, the peace officer may, under general or
specific authorization of the secretary or his or her designee, and
without a warrant of arrest, retake the participant into custody to
complete the remainder of the original sentence.
(i) Nothing in this section shall be construed to require the
secretary or his or her designee to allow an inmate to participate in
this program if it appears from the record that the inmate has not
satisfactorily complied with reasonable rules and regulations while
in custody. An inmate shall be eligible for participation in an
alternative custody program only if the secretary or his or her
designee concludes that the inmate meets the criteria for program
participation established under this section and that the inmate's
participation is consistent with any reasonable rules and regulations
prescribed by the secretary.
(1) The rules and regulations and administrative policies of the
program shall be written and shall be given or made available to the
participant upon assignment to the alternative custody program.
(2) The secretary or his or her designee shall have the sole
discretion concerning whether to permit program participation as an
alternative to custody in state prison. A risk and needs assessment
shall be completed on each inmate to assist in the determination of
eligibility for participation and the type of alternative custody.
(j) The secretary or his or her designee shall permit program
participants to seek and retain employment in the community, attend
psychological counseling sessions or educational or vocational
training classes, participate in life skills or parenting training,
utilize substance abuse treatment services, or seek medical and
dental assistance based upon the participant's individualized
treatment and release plan. Participation in other rehabilitative
services and programs may be approved by the case manager if it is
specified as a requirement of the inmate's individualized treatment
and rehabilitative case plan. Willful failure of the program
participant to return to the place of detention not later than the
expiration of any period of time during which he or she is authorized
to be away from the place of detention pursuant to this section,
unauthorized departures from the place of detention, or tampering
with or disabling, or attempting to tamper with or disable, an
electronic monitoring device shall subject the participant to a
return to custody pursuant to subdivisions (g) and (h). In addition,
participants may be subject to forfeiture of credits pursuant to the
provisions of Section 2932, or to discipline for violation of rules
established by the secretary.
(k) (1) Notwithstanding any other law, the secretary or his or her
designee shall provide the information specified in paragraph (2)
regarding participants in an alternative custody program to the law
enforcement agencies of the jurisdiction in which persons
participating in an alternative custody program reside.
(2) The information required by paragraph (1) shall consist of the
following:
(A) The participant's name, address, and date of birth.
(B) The offense committed by the participant.
(C) The period of time the participant will be subject to an
alternative custody program.
(3) The information received by a law enforcement agency pursuant
to this subdivision may be used for the purpose of monitoring the
impact of an alternative custody program on the community.
(l) It is the intent of the Legislature that the alternative
custody program established under this section maintain the highest
public confidence, credibility, and public safety. In the furtherance
of these standards, the secretary may administer an alternative
custody program pursuant to written contracts with appropriate public
agencies or entities to provide specified program services. No
public agency or entity entering into a contract may itself employ
any person who is in an alternative custody program. The department
shall determine the recidivism rate of each participant in an
alternative custody program.
(m) An inmate participating in this program must voluntarily agree
to all of the provisions of the program in writing, including that
he or she may be returned to confinement at any time with or without
cause, and shall not be charged fees or costs for the program.
(n) The state shall retain responsibility for the medical, dental,
and mental health needs of individuals participating in the
alternative custody program.
(o) The secretary shall adopt emergency regulations specifically
governing participants in this program.
(p) A person is a primary caregiver of a dependent child for
purposes of this section if all of the following criteria are met:
(1) The child is the inmate's son, daughter, stepchild, adopted
child, or foster child.
(2) The child is 17 years of age or less at the time of the inmate'
s placement into the alternative custody program.
(3) The child resided with the inmate for the majority of the year
preceding the inmate's arrest.
(4) At the time the inmate was arrested, the inmate had physical
custody of the child and was primarily responsible for the care and
upbringing of the child.
(q) If any phrase, clause, sentence, or provision of this section
or application thereof to any person or circumstance is held invalid,
such invalidity shall not affect any other phrase, clause, sentence,
or provision or application of this section, which can be given
effect without the invalid phrase, clause, sentence, or provision or
application and to this end the provisions of this section are
declared to be severable.