BILL ANALYSIS Ó
AB 446
Page 1
Date of Hearing: April 26, 2011
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 446 (Carter) - As Amended: March 25, 2011
SUMMARY : Authorizes a county to adopt a restorative justice
program to address the needs of minors, victims, and the
community. Specifically, this bill :
1)Recognizes the following restorative justice principles to be
incorporated into juvenile justice proceedings:
a) Community protection from delinquent conduct through a
continuum of appropriate responses that protects citizens
and victims;
b) Accountability of the minor through restoration of the
losses experienced by the victim and the community; and,
c) Competency development of the minor through the
provision of treatment, education, and skill building
needed for success in the community.
2)States that the juvenile justice system should repair
crime-related injuries to the victim, the community, and the
offender. Victims and communities should be actively involved
throughout the process to the extent consistent with the
offender's right to due process and the rights of the minor
and victim, as specified.
3)Authorizes the Chief Deputy Secretary for the Department of
Juvenile Justice and qualified restorative justice agencies to
establish, in collaboration, restorative justice centers in
designated areas in counties throughout California.
4)States that the restorative justice programs shall be
implemented through a restorative justice protocol developed
by the juvenile court in conjunction with the prosecutor, the
public defender, probation department, representatives of
victims' groups, law enforcement, community organizations and
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service providers, restorative justice groups, and clinicians
with expertise in adolescent development.
5)Requires the protocol to address the following:
a) The formation of a restorative justice council;
b) The process to be employed in any case coming before the
council;
c) The rights of minors;
d) The rights of victims involved in the case;
e) Confidentiality issues;
f) Timeliness of case processing;
g) The scope of services of, and orders that may be imposed
by, the restorative justice council;
h) The roles of the court, prosecutor, and defense counsel
in relation to the council;
i) Qualifications and the selection process for restorative
justice council members;
j) The process for evaluating compliance with the program;
and,
aa) The process for handling any failure to adhere to the
program directed by the restorative justice council.
6)States that the restorative justice program seeks to repair
the harm to the victim, the minor, and the community. The
program shall be tailored to the age, mental capacity, and
maturity of the minor, the nature of the offense, and the
resources available to the minor.
7)Allows minors to be referred to the restorative justice
program as part of the court's order for informal supervision,
the court's order for nonwardship probation, the court's
dispositional order or order for deferred entry of judgment.
8)Prohibits the use of General Fund moneys to fund the program.
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9)Maintains 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.
EXISTING LAW :
1)Provides, except as specified, any person who is under the age
of 18 years when he or she violates any law of this state or
of the United States or any ordinance of any city or county of
this state defining crime other than an ordinance
establishing a curfew based solely on age, is within the
jurisdiction of the juvenile court, which may adjudge such
person to be a ward of the court. ÝSee Welfare and
Institutions Code Section 602(a).]
2)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. 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 that minor accountable for his or her behavior, and
that is appropriate for his or her circumstances. ÝSee
Welfare and Institutions Code Section 202(b).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "I have
introduced this bill because I am deeply concerned about the
youth in our society. There needs to be a way to teach youth
about the consequences of their actions before they commit
crimes that land them in prison. I believe the programs
described in this bill will force California's youth to deal
with their victims and the consequences of their crimes,
teaching them responsibility and how to avoid future crimes.
We need to find more approaches to combating juvenile crime
and this bill does just that by promising care and
rehabilitation to minors for non-violent offenses."
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2)Background : According to the background provided by the
author, "Both the juvenile court and the juvenile justice
systems operate under a retributive justice philosophy and
under the traditional individual treatment mission. Both
approaches have failed to satisfy the basic needs of
individual crime victims, the community, and juvenile
offenders.
"The Balanced and Restorative Justice (BARJ) Model outlines an
alternative philosophy, restorative justice, and a new
mission, "the balanced approach," which requires juvenile
justice professionals to devote attention to:
a) "Enabling offenders to make amends to their victims and
community.
b) "Increasing offender competencies.
c) "Protecting the public through processes in which
individual victims, the community, and offenders are all
active participants.
"The BARJ Model responds to many issues raised by the victims'
movement, including concerns that victims have little input
into the resolution of their own cases, rarely feel heard, and
often receive no restitution or expression of remorse from the
offender.
"The balanced approach is based on an understanding of crime
as an act against the victim and the community. Practitioners
have used techniques consistent with this approach for years;
however, they have lacked a coherent philosophical framework
that supports restorative practice and provides direction to
guide all aspects of juvenile justice practice. The BARJ
Model provides an overarching vision and guidance for daily
decisions.
"People who work on the front lines of the system are faced
daily with the frustration of seeing growing numbers of young
people involved in criminal behavior, youth who leave the
system with little hope for real change, and countless victims
and community members who are left out of the process. That
frustration has inspired many to work toward changing
organizational culture, values, and programs to reflect a more
balanced and restorative approach to juvenile justice."
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3)Governor's Veto Message : AB 114 (Carter) of the 2008-09
Legislative Session, was substantially similar to this bill
and was vetoed. In his veto message, the Governor stated,
"This bill would authorize a county to adopt a restorative
justice program that would be implemented through a juvenile
court in conjunction with the district attorney's office,
public defender, restorative justice groups, and other
interested groups. California's juvenile justice system is
already rehabilitation-based, focused on attempts to reform
juveniles rather than punish. In addition, juvenile courts
may already create restorative justice programs.
Consequently, this bill is unnecessary. For these reason, I
am unable to sign this bill."
4)Arguments in Support : According to Legal Services for
Prisoners with Children , "Restorative justice programs and
policies . . . are sorely needed at this time when the
policies of the pat clearly have not worked. While we believe
restorative justice is a concept that could and should be used
for everyone, it is especially important that young people
participate in such a program that may have the capacity to
help them determine a better future for themselves and our
communities."
5)Arguments in Opposition : According to the California Public
Defender's Association , "First, restorative justice can't be
mixed with traditional delinquency law. This is true for
several reasons. Restorative justice requires the youthful
offender to make admissions, and any competent attorney would
protect his client from doing so. For example, AB 446 would
allow the court to order a youth to be sent to a restorative
justice program as party of informal probation under 654.2.
The problem is, youth under informal probation do not make an
admission, and cannot be made to offer an admission, as a
condition of receiving a grant of informal probation. Because
the case is still 'pending' against the youth, no competent
attorney would allow his client to participate in a program
that would require an admission of responsibility, if that
admission could later be used against him."
"Second, on a more macro level, the problem with restorative
justice programs being used as proposed in AB 446 is that when
restorative justice is used for purely 'shallow-end offenders'
i.e. those individuals who would not ordinarily be sent
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through the formal process, instead of deep-end offenders, the
net is widened and even more individuals are brought into the
system, unintentional as this effect may be."
6)Prior Legislation :
a) AB 114 (Carter), of the 2008-09 Legislative Session, was
substantially similar to this bill and would have revised
the objectives of the juvenile justice system to include
principles of restorative justice and authorizes
communities to adopt restorative justice programs, as
specified. AB 114 was vetoed.
b) AB 360 (Carter), of the 2007-08 Legislative Session, was
substantially similar to this bill and would have
authorized a county to adopt a restorative justice program
to address the needs of minors, victims, and the community.
AB 360 was vetoed.
REGISTERED SUPPORT / OPPOSITION :
Support
California Catholic Conference, Inc.
James W. Sweeny & Associates
Legal Services for Prisoners with Children
Opposition
California Public Defenders Association
Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744