BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
1
4
8
SB 1489 (Harman) 9
As Introduced February 24, 2012
Hearing date: April 24, 2012
Government Code
MK:dl
COURTS:
DESTRUCTION OF COURT RECORDS
HISTORY
Source: Author
Prior Legislation: SCA 27 (Harman) - Failed Senate Public Safety
2010
SB 1025 (Harman) - Failed Senate Public Safety 2010
SB 636 (Harman) - Failed Senate Public Safety,
2008
SB 1558 (Morrow) - Not heard Senate
Public Safety, 2006
SB 378 (Morrow) - Failed
Senate Public Safety, 2005
SB 513 (Lockyer) - Ch. 869,
Stats. 1997
SB 1088 (Lockyer) - From
Conference 1997, content
placed in SB 513 - (Lockyer)
on 9-10-97
SB 911 (Calderon) - Held in
(More)
SB 1489 (Harman)
Page 2
Senate Approps., 1997
AB 1471 (Pacheco) - Held in
Assembly Approps., 1997
SB 1533 (Calderon) - Failed in
Senate Criminal Procedure 1996
AB 195 (Morrow) - Ch. 1086,
Stats. 1996
AB 2008 (K. Murray) - Vetoed
1996
AB 1508 (Bowler) - Held in
Assembly Public Safety, 1993
AB 2196 (Bentley) - Failed in Assembly Public
Safety, 1991
Support: Unknown
Opposition:American Civil Liberties Union; California Attorneys
for Criminal Justice
KEY ISSUE
SHOULD RECORDS FROM A DEATH PENALTY CASE NO LONGER BE RETAINED
PERMANENTLY BUT INSTEAD SHOULD THE LAW PROVIDE THAT THEY BE
DESTROYED ONE YEAR AFTER THE EXECUTION OR DEATH OF THE DEFENDANT?
PURPOSE
The purpose of this bill is to require the destruction of
records from a death penalty case one year after the execution
or death of the defendant.
Existing law provides that a court record shall consist of the
following:
All filed papers and documents in the case folder, but
(More)
SB 1489 (Harman)
Page 3
if no case folder is created by the court, all filed papers
and documents that would have been in the case folder if
one had been created.
Administrative records filed in an action or proceeding,
depositions, paper exhibits, transcripts, including
preliminary hearing transcripts, and recordings of
electronically recorded proceedings filed, .lodged or
maintained in connection with the case, unless disposed of
earlier in case pursuant to law.
Other specifically listed records. (Government Code §
68151(a).)
Existing law "retain permanently" means that the court records
shall be maintained permanently according to the standards or
guidelines established by the Judicial Council. (Government
Code § 68151(d).)
Existing law provides that the trial court may destroy court
records after notice of destruction, and if there is not request
and order for transfer of the records, except the comprehensive
historical and sample superior records preserved for research
under the California Rules of Court, when the times specified
have expired. (Government Code § 68152)
Existing law provides that adoption records shall be retained
permanently. (Government Code § 68152(a).)
Existing law provides that change of name records shall be
retained permanently. (Government Code § 68152(b).)
Existing law provides that generally, the court records for a
felony shall be kept for 75 years. (Government Code § 68152
(e)(2).)
Existing law provides that the court records for a capital
felony case shall be retained permanently. (Government Code §
68152 (e)(1).)
Existing law provides that the court records for a habeas corpus
(More)
SB 1489 (Harman)
Page 4
shall be kept for the same period as the records for the
underlying case. (Government Code § 68152 (f).)
Existing law provides that court reporter notes shall be
retained 10 years after the notes have been taken in criminal
and juvenile proceedings and five years after the notes have
been taken in other proceedings, except notes reporting
proceedings in capital felony cases including notes reporting
the preliminary hearing, which shall be retained permanently,
unless the Supreme Court on request of the court clerk
authorizes the destruction. (Government Code § 68152 (j)(7).)
This bill provides that the records in a capital felony shall be
retained for one year after the execution or death of the
defendant while awaiting execution.
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
ineligible for jail and therefore subject to state prison.
(More)
SB 1489 (Harman)
Page 5
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
(More)
SB 1489 (Harman)
Page 6
inmate population in California's 33 prisons must be no more
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:
As a way of background, Government Code section 68150
addresses the preservation of court records after the
final disposition of the case, presumably for
addressing the historical preservation of paper
documents and exhibits in the court file. Government
Code section 68152 provides for retention periods after
the final disposition of the case with capital felony
cases requiring permanent retention. Penal Code section
1417 et seq. provides that all exhibits which have been
introduced or filed in any criminal action or
proceeding shall be retained until the final
determination of the case. After the final
determination of the case, the court is to dispose,
transfer ownership to or return the exhibits.
To this end, we believe that the two conflicting
statutory provisions can be harmonized under the narrow
provisions when the defendant has either been executed
or has passed away on Death Row while awaiting
(More)
SB 1489 (Harman)
Page 7
execution.
As we know, budgetary concerns are at the forefront of
all government operations and every cost saving
mechanism must and should be explored. It is well
understood that courts across the state are paying a
large amount of money to store physical evidence and
documentary evidence in death penalty cases. Our goal
is to provide access to justice for citizens with
minimal reduction in court services and at lower
expense.
(More)
2. Eliminating the Permanent Retention of Records in Death
Penalty Cases
Under existing law, death penalty records shall be retained by
the court permanently. This bill would provide that they shall
be destroyed a year after execution or the death of the inmate
on death row. This would mean that the records in death penalty
cases would be retained less than the 75 years that other felony
records are retained. The numbers of felony cases is much
greater than the number of death penalty cases and the number of
actual executions and deaths have been even less. The impact of
this bill would not have a large impact in the overall number of
cases that a court must retain.
The permanent retention of files in death penalty cases adds to
the transparency in these cases. In Texas, the reviews of files
post-execution have shown problems in at least one case.
Changes in the law over the years and the advancement of DNA
evidence have also given reason to potentially review cases.
Justice is not done if evidence were to surface post execution
that possible the wrong person was executed and a review of the
file might be necessary to reinvestigate in such a circumstance.
This has not occurred in California but it is not an
impossibility. The California Commission on the Fair
Administration of Justice in their final report stated:
The Commission has learned of no credible evidence that
the State of California has ever executed an innocent
person. Nonetheless, the Commission cannot conclude
with confidence that the administration of the death
penalty in California eliminates the risk that innocent
persons might be convicted and sentenced to death. All
of the factors previously identified by the Commission
as enhancing the risk of wrongful convictions are
equally present in capital and non-capital trials.
Nationally, there are 205 exonerations of defendants
convicted of murder from 1989 through 2003.
Seventy-four of them had been sentenced to death.
Fourteen of these 205 murder cases took place in
(More)
SB 1489 (Harman)
Page 9
California. Since 1979, six defendants sentenced to
death, whose convictions were reversed and remanded
were subsequently acquitted or had their murder charges
dismissed for lack of evidence. While DNA testing was
not available and these defendants were not officially
exonerated, the reversal of their convictions freed
them. A subsequent acquittal or dismissal of chargers
renders them legally not guilty, although there was not
determination of "factual innocence" pursuant to
California Penal Code Section 851.8 in these cases.
(Final Report, California Commission on the Fair
Administration of Justice, page 126.
http://www.ccfaj.org/documents/CCFAJFinalReport.pdf)
SHOULD DEATH PENALTY RECORDS BE DESTROYED A YEAR AFTER EXECUTION
OR DEATH?
SHOULD DEATH PENATLY RECORDS BE RETAINED FOR A SHORTER PERIOD OF
TIME THAN OTHER FELONY RECORDS?
3. Opposition
The ACLU opposes this bill stating:
The interest of the people of California in access to
information germane to the evolution of our
understanding of what constitutes acceptable punishment
is sufficiently large to counsel against implementation
of this bill. The destruction of court files in
capital cases serves no justifiable purpose, and would
foreclose scrutiny that might otherwise bring to light
wrongful executions and wrongful convictions,
information that Californians need in order to decide
questions relating to capital crimes and punishments.
****
The cost of retaining these files is outweighed by the
benefit of a reliable and transparent system in the
SB 1489 (Harman)
Page 10
administration of death sentences. Provisions of the
law provide for the permanent retention of other files,
including adoption records, change of name records, and
historical and sample superior court files. Gov. Code
sections 68152 (a), (b). The availability of digital
archiving technology should allay any concerns that may
underlie the introduction of this measure that
retention of these files is physically onerous.
***************