BILL ANALYSIS                                                                                                                                                                                                    Ó







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              A
                             2011-2012 Regular Session               B

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          AB 446 (Carter)                                             
          As Amended March 25, 2011 
          Hearing date:  June 7, 2011
          Welfare and Institutions Code
          AA:mc

                                   JUVENILE JUSTICE:

                                 RESTORATIVE JUSTICE  


                                       HISTORY

          Source:  Author

          Prior Legislation: AB 114 (Carter) - 2009, vetoed
                           AB 360 (Carter) - 2008, vetoed

          Support: AFSCME, AFL-CIO; Legal Services for Prisoners with 
                   Children; California Coalition for Women Prisoners; 
                   California Catholic Conference; Youth Law Center; 
                   California State Conference of the NAACP; National 
                   Alliance of Mental Illness; California State PTA; one 
                   individual 

          Opposition:California Public Defenders Association

          Assembly Floor Vote:  Ayes  50 - Noes  24


                                         KEY ISSUE
           
          SHOULD COUNTIES BE AUTHORIZED TO ADOPT A RESTORATIVE JUSTICE PROGRAM 




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                                                            AB 446 (Carter)
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          FOR JUVENILE OFFENDERS, AS SPECIFIED?


                                       PURPOSE

          The purpose of this bill is to authorize counties to adopt a 
          restorative justice program for juvenile offenders, as 
          specified.

           Under current law  , the purpose of juvenile court law "is to 
          provide for the protection and safety of the public and each 
          minor under the jurisdiction of the juvenile court and to 
          preserve and strengthen the minor's family ties whenever 
          possible, removing the minor from the custody of his or her 
          parents only when necessary for his or her welfare or for the 
          safety and protection of the public."  (Welfare and Institutions 
          Code ("WIC") § 202.)
           
          Minors 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 their best 
          interest, that holds them accountable for their behavior, and 
          that is appropriate for their circumstances.  This guidance may 
          include punishment that is consistent with the rehabilitative 
          objectives of this chapter.  (Id.)
           
           Current law  expressly defines the scope and nature of 
          "punishment" in the juvenile court:
           
          As used in this chapter, "punishment" means the imposition of 
          sanctions.  It shall not include a court order to place a child 
          in foster care as defined by Section 727.3.  Permissible 
          sanctions may include the following:
           
          (1) Payment of a fine by the minor.
          (2) Rendering of compulsory service without compensation 
          performed for the benefit of the community by the minor.
          (3) Limitations on the minor's liberty imposed as a condition of 
          probation or parole.




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                                                            AB 446 (Carter)
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          (4) Commitment of the minor to a local detention or treatment 
          facility, such as a juvenile hall, camp, or ranch.
          (5) Commitment of the minor to the Department of the Youth 
          Authority.   
           
          "Punishment," for the purposes of this chapter, does not include 
          retribution.  (Id.)
           
           Current law  provides that when a minor is adjudged a delinquent 
          ward of the court, "the court may make any and all reasonable 
          orders for the care, supervision, custody, conduct, maintenance, 
          and support of the minor,  . . . ."  (WIC § 727.)   The juvenile 
          court has broad discretion in imposing probation conditions.  
          (In re Josue S. (1999) 72 Cal.App.4th 168.)

          This bill  would enact a new statutory provision authorizing a 
          county to "adopt a restorative justice program to address the 
          needs of minors, victims, and the community," with the following 
          features:

           This bill  would provide that 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."

           This bill  would require that 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.




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          (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."

           This bill  would require that 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."

           This bill  would require that 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."

           This bill  would provide that 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."

           This bill  would provide that 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 . . . 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.





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           This bill  would provide that 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."

           This bill  would state specified uncodified legislative findings 
          relating to restorative justice principles.


                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
          
          For the last several years, severe overcrowding in California's 
          prisons has been the focus of evolving and expensive litigation. 
           As these cases have progressed, prison conditions have 
          continued to be assailed, and the scrutiny of the federal courts 
          over California's prisons has intensified.  

          On June 30, 2005, in a class action lawsuit filed four years 
          earlier, the United States District Court for the Northern 
          District of California established a Receivership to take 
          control of the delivery of medical services to all California 
          state prisoners confined by the California Department of 
          Corrections and Rehabilitation ("CDCR").  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 January 12, 2010, a 
          three-judge federal panel issued an order requiring California 
          to reduce its inmate population to 137.5 percent of design 
          capacity -- a reduction at that time of roughly 40,000 inmates 
          -- within two years.  The court stayed implementation of its 
          ruling pending the state's appeal to the U.S. Supreme Court.  

          On May 23, 2011, the United States Supreme Court upheld the 
          decision of the three-judge panel in its entirety, giving 
          California two years from the date of its ruling to reduce its 
          prison population to 137.5 percent of design capacity, subject 
          to the right of the state to seek modifications in appropriate 
          circumstances.  




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          In response to the unresolved prison capacity crisis, in early 
          2007 the Senate Committee on Public Safety began holding 
          legislative proposals which could further exacerbate prison 
          overcrowding through new or expanded felony prosecutions.     

           This bill  does not appear to aggravate the prison overcrowding 
          crisis described above.


                                      COMMENTS

          1.  Stated Need for This Bill

           The author's office has provided a fact sheet which states in 
          part:

               AB 446 would give counties the option to adopt a 
               restorative justice program for juveniles.  

               Restorative justice programs will be tailored to the 
               needs of the minor in question, and will take into 
               account the juvenile's age, mental capacity, 
               developmental maturity, nature of the offense and the 
               resources available to accomplish the goals of the 
               program.


















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          2. Background: Restorative Justice
           
          This bill reflects features of a restorative justice model that 
          has been developed nationally over the last several decades.  As 
          explained in the following 1996 fact sheet from the federal 
          Office of Juvenile Justice and Delinquency Prevention:

               The venerable concept of restorative justice holds 
               that when a crime is committed the offender incurs an 
               obligation to restore the victim - and by extension 
               the community - to the state of well-being that 
               existed before the offense.  The principle of balance 
               in connection with restorative justice derives from 
               the balanced approach concept, which suggests that the 
               juvenile justice system should give equal weight to 
               (1) ensuring community safety, (2) holding offenders 
               accountable to victims, and (3) providing competency 
               development for offenders in the system so they can 
               pursue legitimate endeavors after release.<1>

          Many jurisdictions in California have implemented restorative 
          justice models.<2>

          3.  Support
           
          One of several supporters of this bill, the Youth Law Center 
          states in part:

               The bill will provide juvenile courts with additional 
               ways to address juvenile delinquency using the 
               principles of restorative justice.  It provides 
               flexibility for county juvenile systems to develop 
               restorative justice councils, and provides 
               ----------------------
          <1>   See http://www.ncjrs.gov/pdffiles/91415.pdf, viewed online 
          on June 3, 2008.
          <2>   See Balanced and Reformative Justice: An Information 
          Manual for California (Judicial Council of California, 
          Administrative Office of the Courts, Center for Families, 
          Children and the Courts) (2006).



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               opportunities for community involvement in delinquency 
               intervention. . . .   (J)uvenile courts are searching 
               for ways to make the juvenile court process more 
               directly responsive to the need to encourage young 
               people to accept responsibility for their actions, but 
               in a constructive and supportive way.  At the same 
               time, members of the community, including victims of 
               juvenile crime, are searching for better ways to help 
               young people to understand the impact of their actions 
               on others and directing young people onto alternative 
               paths.    AB 446 provides a welcome option to assist 
               juvenile courts, and to further the efforts of the 
               many people and organizations working to increase the 
               viability of restorative justice principles in 
               California. . . .




          4.  Opposition
           
          The California Public Defenders Association states in 
          opposition:

               Although CPDA supports the concept and goals of 
               restorative justice, and believes there is a place for 
               such programs in addressing youthful delinquency, 
               there are serious problems that occur when restorative 
               justice ideals are grafted onto existing juvenile 
               delinquency law procedures. . . .    (R)estorative 
               justice can't be mixed with traditional delinquency 
               law. .. .   (W)hen restorative justice is used for 
               purely "shallow-end offenders" . . . instead of 
               deep-end offenders, the net is widened and even more 
               individuals are brought into the system, unintentional 
               as this effect may be.   There are several successful 
               restorative justice programs in international 
               communities. . . .  Success in these programs, 
               however, has come from replacing one system with 
               another, and not from simply blending the two.












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          5.  Previous Bills Vetoed

           The author has carried similar bills in the past, both of which 
          were vetoed.  The veto message for last year's bill, which 
          passed this Committee (3-2) stated in part:

               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.

                
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