BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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AB 2251 (Feuer) 1
As Introduced February 24, 2012
Hearing date: June 12, 2012
Penal Code
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COLLECTION OF RESTITUTION ORDERS FROM INMATES:
PAYMENTS TO VICTIMS
HISTORY
Source: Los Angeles County District Attorney; Crime Victims
Action Alliance
Prior Legislation: SB 432 (Runner) Ch. 49, Stats. 2009
Support: Crime Victims United of California; California District
Attorneys Association; Association for Los Angeles
Deputy Sheriffs; California Correctional Peace Officers
Association; Riverside Sheriffs' Association;
California State Sheriffs' Association
Opposition:None known
Assembly Floor Vote: Ayes 77 - Noes 0
KEY ISSUE
SHOULD A DISTRICT ATTORNEY BE AUTHORIZED TO PROVIDE THE DEPARTMENT
OF CORRECTIONS AND REHABILITATION (CDCR) WITH THE RESTITUTION ORDER
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FOR A VICTIM AND THE VICTIM'S CONTACT INFORMATION SO THAT
RESTITUTION COLLECTED FROM AN INMATE CAN BE PAID TO THE VICTIM
THROUGH THE VICTIMS OF CRIME PROGRAM?
PURPOSE
The purposes of this bill are 1) to authorize a district
attorney to provide the restitution order for a victim and the
victim's contact information to the Department of Corrections
and Rehabilitation (CDCR) so that restitution collected from an
inmate can be paid to the victim through the Victims
Compensation and Government Claims Board; 2) to condition the
providing of the victim's contact information to CDCR on a
finding by the district attorney that doing so is in the best
interests of the victim; and 3) to provide that consent of the
victim is not required in such circumstances.
Existing provisions in the California Constitution state that
all persons who suffer losses as a result of criminal activity
shall have the right to restitution from the perpetrators of
these crimes. Where a convicted defendant has been ordered to
pay direct restitution to a victim, money collected from the
defendant shall be first be applied to satisfy the restitution
order. (Ca. Const. Art. 1 § 28, subd. (b)(13).)
Existing law states legislative intent that a victim of crime
who incurs any economic loss as a result of the commission of a
crime shall receive restitution directly from any defendant
convicted of that crime. (Pen. Code § 1202.4, subd. (a)(1).)
Existing law directs the court to order a defendant to make
restitution to the victim or victims of the defendant's crime.
The court shall order full restitution for the losses caused by
the defendant's crime unless the court finds and states
compelling and extraordinary reasons for not doing so. (Pen.
Code § 1202.4, subd. (f).)
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Existing law provides that a criminal restitution order shall be
enforceable as though it were a civil judgment. (Pen. Code §
1202.4, subd. (i).)
Existing law creates the Victims of Crime Program, administered
by the California Victim Compensation and Government Claims
Board<1> (VCGCB), to reimburse victims of crime for the
pecuniary losses they suffer as a direct result of criminal
acts. Indemnification is made from the Restitution Fund, which
is continuously appropriated to the VCGC. (Gov. Code §§
13950-13968.)
Existing law provides that when a defendant is sentenced to
state prison and owes a restitution fine or a restitution order,
the California Department of Corrections and Rehabilitation
shall deduct 20 to 50% from the prisoner's wages and trust
account to satisfy these obligations. These funds shall be
transmitted to the VCGCG for direct payment to a victim, for
deposit into the Restitution Fund for payments to qualifying
victims, and to reimburse the VCGCB for payments made to
victims. (Pen. Code § 2085.5, subd. (a)-(b).)
Existing law provides that where money for victim restitution is
transferred from an inmate's trust account to the VCGCB, the
restitution shall be paid to the victim, as follows:
The money shall be paid to the victim within 60 days.
If the victim cannot be located, the money shall be held
in the Restitution Fund until the end of the next fiscal
year or until the victim has provided current address
information.
Amounts not paid by the end of the following fiscal year
shall revert to the Restitution fund.
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<1> This entity was formerly known as the State Board of
Control. (Govt. Code § 13900 amended by AB 2491 - Ch. 1016,
Stats. 2000.) Hereinafter, references to "the board" are
references to the CVCGCB.
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After the money has reverted to the Restitution Fund,
the victim may provide documentation to CDCR. Upon
verification by CDCR that restitution was collected on
behalf of the victim, the VCGCB shall transmit the
restitution to the victim. (Pen. Code § 2085.5, subd.
(k).)
This bill authorizes the district attorney of the county from
which the defendant is committed to prison to send the victim's
contact information and a copy of the restitution order to CDCR
for the sole purpose of payment of restitution collected from an
inmate on the victim's behalf if the district attorney finds it
is in the best interest of the victim to send that information.
This bill permits this information to be sent without the
victim's consent.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code section 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
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ineligible for jail and therefore subject to state prison.
Under these principles, ROCA has been applied as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress towards reducing prison
overcrowding by passing legislation which could increase the
prison population. ROCA will continue until prison overcrowding
is resolved.
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
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. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
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than the following:
167 percent of design capacity by December 27, 2011
(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
COMMENTS
1. Need for This Bill
According to the author:
The California Department of Corrections and
Rehabilitation (hereinafter CDCR) collects monies from
inmate accounts to pay victims of crime on direct
restitution orders and also to repay disbursements
from the Victims Compensation Fund back to the Victims
Compensation Government Claims Board. Penal Code
section 1203c(d)(1) states that, "If the victim
consents, the probation officer of the county from
which the person is committed may send to the
Department of Corrections and Rehabilitation the
victim's contact information and a copy of the
restitution order for the purpose of distributing the
restitution collected on behalf of the victim." The
statute is silent as to the ability of prosecutors to
provide this information to the CDCR.
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There is currently a substantial backlog of cases
where CDCR has collected restitution from an inmate
that goes back a number of years. The list of cases
where restitution has actually been collected numbers
at about 3,200. There are also cases where the CDCR
has not yet collected from an inmate account, but they
are aware that there is a restitution order and will
begin to collect from the inmate when money is in the
account. These cases number well over 20,000. In all
of these cases, no victim contact information has been
provided to the CDCR. The CDCR has a court order
mandating the payment of restitution but no way to pay
because they do not have victim contact information.
2. Clear Constitutional and Statutory Requirement That a
Defendant Pay Direct Restitution
to the Victim
The California Constitution unequivocally provides that a
criminal defendant shall pay restitution to his or her victim.
(Cal. Const. Art. 1 § 28, subd. (b).) Penal Code Section 1202.4
implements the dictates of the Constitution in this regard,
specifically providing that a restitution order shall cover all
economic losses suffered by a victim. (Pen. Code § 1202.4,
subd. (f).) Restitution provides a measure of a remedy for
victims and rehabilitation for defendants, rather than
punishment alone, in the criminal law. (People v. Crow (1993) 6
Cal.4th 952, 958.)
As noted in the Purpose section above, the law directs CDCR to
deduct between 20% and 50% of an inmate's prison wages and
prison trust account to satisfy restitution orders. This has
proven to be an effective and efficient way to collect
restitution orders owed by prison inmates. Collection, however,
does the victim little good if CDCR cannot forward the
restitution to the victim because the department does not have
contact information for the victim.
3. Relatively Complicated Process in Existing Law Where CDCR Does
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Not Have Victim Contact Information; Reform of This Process
Could Help VCGCB become More Efficient for All Victims
Under existing law, CDCR collects restitution owed by an inmate
to a crime victim. CDCR must deduct between 20% and 50% of an
inmate's wages and trust account for this purpose. CDCR then
transfers the money to the VCGCB for payment to the victim.
However, if the victim cannot be found, the money is held until
the end of the following fiscal year or until the victim
provides his or her current address. At the end of this period
the money reverts to the Restitution Fund. After the money has
been deposited in the Fund, the victim can still document to
CDCR that he or she is entitled to the restitution. CDCR then
provides the victim's contact information to VCGCB, which then
pays the restitution.
This process appears to be very complicated, bureaucratic and
expensive. These complications would largely be obviated if
CDCR had correct address information for victims whom are owed
restitution by inmates.
Many of the victims eligible for compensation from VCGCB will
never be able to collect direct restitution from the perpetrator
of the crimes against them. Arguably, time spent by staff at
VCGCB handling direct restitution payments for victim who cannot
be found would be better spent reviewing and processing claims
for victims who cannot collect direct restitution. VCGCB has
been criticized for delays in reviewing and paying claims to
victims who are eligible for compensation from Restitution Fund.
VCGCB has also been criticized for spending too much money on
administration. This bill may help make the entire VCGCB
process more efficient, for victims who are receiving direct
restitution from inmates and victims who must rely on the VCGCB
claim process for compensation for losses suffered in crimes.
4. Victim Need not Consent That his or her Information Shall be
Provided to CDCR
In 2009, this Committee heard and approved SB 432 (Runner),
which directed the probation department to provide victim
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information to CDCR for the purpose of collecting restitution
for the victim from inmates. Concerns were expressed at that
time about the confidentiality of the victim information,
particularly where the information is provided to CDCR. The
bill was amended to require that the victim consent to providing
his or her information to CDCR for restitution purposes.
This bill specifically provides that consent from the victim is
not required before contact information is provided to CDCR.
The bill authorizes the district attorney to provide a victim's
information to CDCR when that is in the best interests of the
victim.
However, there may be cases where the victim would not want his
or her contact information to be provided to CDCR, regardless of
whether or not the information would remain secure. Further, as
restitution orders are collectible as though they were civil
judgments, some victims might prefer to collect the restitution
themselves. To address these concerns, perhaps the bill could
be amended to allow provide that the district attorney shall not
provide the victim's contact information to CDCR where the
victim affirmatively objects. As such cases would likely be
uncommon, it is suggested that the district attorney would not
need to obtain consent or inform the victim of the right to
object.
SHOULD A VICTIM HAVE A RIGHT TO OBJECT TO HIS OR HER INFORMATION
BEING PROVIDED TO CDCR FOR THE PURPOSE OF COLLECTING RESTITUTION
FROM THE DEFENDANT?
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