BILL ANALYSIS                                                                                                                                                                                                    







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

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          AB 648 (Block)                                              
          As Amended June 20, 2011
          Hearing date: June 28, 2011
          Penal Code
          MK:dl

                                       CLEMENCY  

                                       HISTORY

          Source:  The Office of the San Diego County District Attorney

          Prior Legislation: None

          Support: San Diego County Police Chiefs' and Sheriff's 
                   Association; County of San Diego;  California Narcotic 
                   Officers' Association; California Police Chiefs 
                   Association; Association of Orange County Deputy 
                   Sheriffs; Long Beach Police Officers Association; Los 
                   Angeles County Peace Officers Association; Santa Ana 
                   Police Officers Association; California Fraternal Order 
                   of Police; San Bernardino Sheriff-Coroner; Los Angeles 
                   County Sheriff's Department; Victim Assistance 
                   Coordinating Council; Crime Victims United; California 
                   District Attorneys Association

          Opposition:Legal Services for Prisoners with Children

          Assembly Floor Vote:  Ayes 68 - Noes 0



                                         KEY ISSUE




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          SHOULD A PERSON APPLYING FOR THE COMMUTATION OF SENTENCE BE 
          REQUIRED TO GIVE NOTICE TO THE DISTRICT ATTORNEY AND THE VICTIM 
          10 DAYS BEFORE THE GOVERNOR CAN GRANT THE COMMUTATION?


                                          
                                       PURPOSE

          The purpose of this bill is to require an application for 
          commutation of sentence be served on district attorney 10 days 
          before the Governor can act.  The District Attorney must then 
          give notice to the victim.

           Existing law  provides that subject to application procedures 
          provided by statute, the Governor, on conditions the Governor 
          deems proper, may grant a reprieve, pardon, and commutation, 
          after sentence except in cases of impeachment.  The Governor 
          shall report to the Legislature each reprieve, pardon, and 
          commutation granted, stating the pertinent facts and the reason 
          for granting it.  The Governor may not grant a pardon or 
          commutation to a person twice convicted of a felony except on 
          recommendation of the Supreme Court, four judges concurring.  
          (Article 5,  8(a) of the California Constitution.)

           Existing law  requires that at least 10 days before the Governor 
          acts upon any application for a pardon, written notice of the 
          intention to apply therefor, signed by the person applying,  
          shall be upon the district attorney in the county where the 
          conviction was had, and proof,  by affidavit, of the service 
          must  be presented to the Governor.  (Penal Code  4804.)

           Existing law  provides that the Board of Prison Terms (BPT) may 
          report to the Governor from time to time, the names of all 
          persons imprisoned in any state prison, who in its judgment 
          ought to have a commutation of sentence, or be pardoned or set 
          at liberty on account of good conduct, or unusual term of 
          sentence, or any other cause, including evidence of intimate 
          partner battering and its effects.  (Penal Code  4801(a).)




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           Existing law  states that in the case of a person twice convicted 
          of a felony, the application for pardon or commutation of 
          sentence shall be made directly to the Governor, who shall 
          transmit all papers and documents relied upon in support of and 
          in opposition to the application to the BPT.  (Penal Code  
          4802.)

           Existing law  provides that when an application is made to the 
          Governor for pardon or commutation of sentence, or when an 
          application is forwarded to the BPT, he or she may require the 
          judge of the court before which the conviction was had, or the 
          district attorney by whom the action was prosecuted, to furnish 
          him or it, without delay, with a summarized statement of the 
          facts proved on the trial, and of any other facts having 
          reference to the propriety of granting or refusing said 
          application,  together with his recommendations for or against 
          his granting of the same and his reason for such recommendation. 
           (Penal Code  4803.)

           This bill  requires that at least 10 days before the Governor 
          acts upon any application for a commutation of sentence,  
          written notice of the intention to apply therefor, signed by the 
          person applying,  shall be upon the district attorney in the 
          county where the conviction was had, and proof, by affidavit, of 
          the service shall be presented to the Governor.

           This bill  provides that the district attorney may submit a 
          written recommendation to the Governor for or against 
          commutation of sentence.

           This bill  requires the district attorney to notify the victim or 
          victims of the crime or crimes related to the application and 
          the victim's families who may also submit a recommendation to 
          the Governor for or against commutation of sentence.

           This bill  recasts existing provision of law that require the 
          Governor, at the beginning of each Legislative Session to report 
          to the Legislature each case of reprieve, pardon, or 




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          commutation,  stating the name of the person convicted, the 
          crime of which the person was convicted, the sentence and its 
          date, and the date of the reprieve, pardon or commutation and 
          the reason for granting the same, and makes these reports 
          available to the public.


                                          
                    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.  
            
          In response to the unresolved prison capacity crisis, in early 




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          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.  Need for This Bill  

          According to the author:

               The California Constitution grants the Governor broad 
               authority to grant reprieves, pardons, or commutations 
               subject to statutory procedures.  This long-standing 
               authority to perform acts of clemency is a 
               constitutional prerogative that provides important 
               checks and balances.  However, current statutory law 
               governing procedures does not provide for notice to 
               district attorneys or victims or an opportunity to be 
               heard during the consideration of an application for 
               commutation. 
                
                  AB 648 would remedy that omission by requiring the 
               applicant of a pardon or commutation request to notify 
               the district attorney of the county where the 
               conviction occurred 30 days before the Governor acts. 
               The district attorney would then notify the victim and 
               their family.  Both parties would have an opportunity 
               to submit a written recommendation for or against the 
               commutation request to the Governor.  Under current 
               law district attorneys are notified of a pardon 
               request by the applicant 10 days prior to a decision.  
                  

               The measure also strengthens transparency and 




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               oversight of the process by requiring the Governor to 
               submit a report to the Legislature each year in 
               writing on the pardon, reprieve and commutation 
               requests received that were granted.  AB 648 also 
               requires inclusion of the application request of those 
               granted.  The report and applications will be 
               available to the public as well. 




































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          2.  Notice of an Application for Pardon  

          This bill requires written notice of an intent to apply for a 
          pardon to be served on the county district attorney at least 10 
          days before the Governor acts upon the application for 
          commutation.  The district attorney may submit a written 
          recommendation to the Governor either for or against the 
          commutation and shall also notify the victim so that he or she 
          may submit a recommendation to the Governor.

          The San Diego County District Attorney the sponsor of this bill 
          notes:

               We want to be very clear that this legislation is not, 
               in any way, attacking the Governor's power to grant 
               pardons, reprieves or commutations. We simply want to 
               change the process required by the applicant.  
               Assembly Bill 648 will provide the District Attorney 
               of jurisdiction 10 days to respond to the Governor's 
               intended commutation.  The notice is by the person 
               applying to have his or her sentence commuted and must 
               occur whether or not the Governor intends to grant the 
               commutation sought.
          3.   Changes to the Report on Commutations and Pardons  

          This bill also makes changes to the report that must be filed 
          with the Legislature by the Governor every session on any 
          reprieve, pardon or commutation granted by the Governor.  This 
          bill clarifies that the report shall be in writing and that it 
          should include each application that was granted for each case 
          of reprieve, pardon or commutation by the Governor or his or her 
          predecessor during the preceding session.



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