BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 446|
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THIRD READING
Bill No: AB 446
Author: Carter (D)
Amended: 3/25/11 in Assembly
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 3-2, 6/28/11 (FAIL)
AYES: Calderon, Liu, Price
NOES: Anderson, Harman
NO VOTE RECORDED: Hancock, Steinberg
SENATE PUBLIC SAFETY COMMITTEE : 4-3, 7/5/11
AYES: Calderon, Liu, Price, Steinberg
NOES: Hancock, Anderson, Harman
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
ASSEMBLY FLOOR : 50-24, 5/16/11 - See last page for vote
SUBJECT : Juvenile justice: restorative justice
SOURCE : Author
DIGEST : This bill authorizes counties to adopt a
restorative justice program for juvenile offenders, as
specified.
ANALYSIS : 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
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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) Section 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.
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
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Section 727.) The juvenile court has broad discretion in
imposing probation conditions. ( In re Josue S. (1999) 72
Cal.App.4th 168)
This bill enacts 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 provides 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 requires 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.
(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 requires 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 requires that the "program requirements shall be
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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 provides 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 provides 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."
This bill provides 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 states specified uncodified legislative findings
relating to restorative justice principles.
Prior Legislation
AB 114 (Carter, 2010) passed the Senate (26-10) on August
24, 2010, but was vetoed by Governor Schwarzenegger. In
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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."
AB 360 (Carter, 2008) passed the Senate (23-8) but was
vetoed by Governor Schwarzenegger.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
SUPPORT : (Verified 8/15/11)
American Federation of State, County and Municipal
Employees, AFL-CIO
California Catholic Conference
California Coalition for Women Prisoners
California State Conference of the NAACP
California State PTA
Legal Services for Prisoners with Children
National Alliance of Mental Illness
Youth Law Center
OPPOSITION : (Verified 8/15/11)
California Public Defenders Association
ARGUMENTS IN 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 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
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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. ?"
ARGUMENTS IN OPPOSITION : The California Public Defenders
Association states, "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."
ASSEMBLY FLOOR : 50-24, 5/16/11
AYES: Alejo, Allen, Ammiano, Atkins, Beall, Block,
Blumenfield, Bonilla, Bradford, Brownley, Buchanan,
Butler, Charles Calderon, Campos, Carter, Cedillo,
Chesbro, Davis, Dickinson, Eng, Feuer, Fong, Fuentes,
Furutani, Galgiani, Gatto, Gordon, Hall, Hayashi, Hill,
Huber, Hueso, Huffman, Lara, Bonnie Lowenthal, Ma,
Mendoza, Mitchell, Monning, Pan, Perea, V. Manuel Pérez,
Portantino, Skinner, Solorio, Swanson, Wieckowski,
Williams, Yamada, John A. Pérez
NOES: Achadjian, Bill Berryhill, Conway, Cook, Donnelly,
Fletcher, Beth Gaines, Garrick, Grove, Hagman, Halderman,
Harkey, Jones, Knight, Logue, Mansoor, Miller, Morrell,
Nestande, Nielsen, Olsen, Smyth, Valadao, Wagner
NO VOTE RECORDED: Gorell, Roger Hernández, Jeffries,
Norby, Silva, Torres
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RJG:mw 8/15/11 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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