BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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SB 513 (Hancock)
As Amended April 1, 2013
Hearing date: April 30, 2013
Penal Code
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SEALING OF RECORDS IN CRIMINAL DIVERSION MATTERS
HISTORY
Source: San Francisco County District Attorney
Prior Legislation: SB 599 (Perata) - Ch. 792, Stats. 2003
Support: Yolo County District Attorney; Santa Barbara County
District Attorney; California Public Defenders
Association; Lawyers' Committee for Civil Rights of
the San Francisco Bay Area; City and County of San
Francisco
Opposition:None known
KEY ISSUES
SHOULD THE RECORDS OF A CRIMINAL ARREST OF ANY PERSON WHO
SUCCESSFULLY COMPLETES A DIVERSION PROGRAM ADMINISTERED BY THE
DISTRICT ATTORNEY BE SEALED?
SHOULD THESE RECORDS, INCLUDING FINGERPRINTS, NEVERTHELESS BE
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TRANSMITTED TO THE DEPARTMENT OF JUSTICE TO BE MAINTAINED AND
DISTRIBUTED ACCORDING TO LAW?
PURPOSE
The purposes of this bill are to 1) provide that where any
person completes a diversion program administered by the
district attorney, the records of the criminal arrest and charge
shall be sealed; 2) provide that these records, including
fingerprints, will be transmitted to the Department of Justice
to be maintained and disseminated according to law; and 3)
provide that the records shall be disclosed in connection with
any application by the person for a position as a peace officer.
Existing law includes various diversion programs under which a
person arrested for and charged with a crime is diverted from
the criminal prosecution system and placed in a program of
rehabilitation or restorative justice. Upon successful
completion of the program, any charges are filed and the arrest
is generally deemed to not have occurred, with specified
exceptions. Generally, diversion programs are created and run
at the discretion of the district attorney. Some examples of
diversion follow:
Pre-plea diversion for drug possession. (Pen. Code
1000.5.)
Misdemeanor diversion, excluding driving under the
influence, crimes requiring registration as a sex offender,
crimes involving violence, as specified. (Pen. Code ��
1001, 1001.50-1001.55.)
Bad check diversion. (Pen. Code �1001.60.)
Existing law defines misdemeanor diversion thus: "[P]retrial
diversion refers to the procedure of postponing prosecution of
an offense filed as a misdemeanor either temporarily or
permanently at any point in the judicial process from the point
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at which the accused is charged until adjudication." (Pen. Code
� 1001.1.)
This bill provides that two years after a person has
successfully completed a diversion program, he or she may
petition the court for an order sealing the records of arrest
and related court files and records:
Notice of the petition must be given the prosecutor and
the arresting agency and the prosecutor may present to the
court evidence in opposition to the petition.
Upon the granting of the order, the clerk of court shall
allow no access to the court file and records.
The court shall give the petitioning person a copy of
the order and inform the petitioner that he or she may
state that the arrest never occurred.
With specified exceptions, the arrest record shall not
be used without the person's permission to deny a person
any employment, benefit or certificate.
The order shall not be forwarded to the Department of
Justice (DOJ). The order shall not affect DOJ fingerprint
and criminal history records, or any document or record
received or maintained by DOJ.
The person shall be informed that the arrest shall be
disclosed by DOJ in a peace officer application and that
the person must disclose the arrest in response to any
direct question on an application for a position as a peace
officer.
The person shall be advised that the arrest will be
disclosed by DOJ or the court in connection with the
person's eligibility for any subsequent diversion program.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
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years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy known as "ROCA" (which
stands for "Receivership/ Overcrowding Crisis Aggravation"), the
Committee held measures which created a new felony, expanded the
scope or penalty of an existing felony, or otherwise increased
the application of a felony in a manner which could exacerbate
the prison overcrowding crisis. Under these principles, ROCA
was applied as a content-neutral, provisional measure necessary
to ensure that the Legislature did not erode progress towards
reducing prison overcrowding by passing legislation which would
increase the prison population. ROCA necessitated many hard and
difficult decisions for the Committee.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order issued by the Three-Judge Court three years
earlier to reduce the state's prison population to 137.5 percent
of design capacity. The State submitted in part that the, ". .
. population in the State's 33 prisons has been reduced by over
24,000 inmates since October 2011 when public safety realignment
went into effect, by more than 36,000 inmates compared to the
2008 population . . . , and by nearly 42,000 inmates since 2006
. . . ." Plaintiffs, who opposed the state's motion, argue in
part that, "California prisons, which currently average 150% of
capacity, and reach as high as 185% of capacity at one prison,
continue to deliver health care that is constitutionally
deficient." In an order dated January 29, 2013, the federal
court granted the state a six-month extension to achieve the
137.5 % prisoner population cap by December 31st of this year.
In an order dated April 11, 2013, the Three-Judge Court denied
the state's motions, and ordered the state of California to
"immediately take all steps necessary to comply with this
Court's . . . Order . . . requiring defendants to reduce overall
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prison population to 137.5% design capacity by December 31,
2013."
The ongoing litigation indicates that prison capacity and
related issues concerning conditions of confinement remain
unresolved. However, in light of the real gains in reducing the
prison population that have been made, although even greater
reductions are required by the court, the Committee will review
each ROCA bill with more flexible consideration. The following
questions will inform this consideration:
whether a measure erodes realignment;
whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
whether a bill corrects a constitutional infirmity or
legislative drafting error;
whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and
whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
Current law provides that in any case where a person
successfully completes a drug diversion program or
deferred entry of judgment program, the person can
have his or her arrest record and related court record
sealed by the court in the interest of justice.
However, existing law lacks a similar mechanism for
individuals who successfully complete a
prosecutor-administered diversion program such as
Neighborhood Courts to have their arrest record
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sealed. SB 513 addresses this disparity.
Research has shown that the presence of an arrest
record can reduce opportunities for employment.
Research has also shown that stable employment
significantly lowers recidivism and promotes public
safety. By allowing an opportunity for arrest
sealing, SB 513 removes unnecessary barriers to obtain
a job and promotes economic stability in our
communities. The sealing order does not prohibit law
enforcement from access to the record.
In San Francisco, individuals who commit certain
misdemeanor and infraction offenses may be diverted by
the District Attorney's Office to Neighborhood Courts,
an innovative alternative to prosecution. The
individual is referred prior to his or her case being
charged in criminal court. Neighborhood Court cases
are heard by volunteer community members, without
judges or attorneys. The community members apply
restorative justice principals to the hearings -
working with the individual to develop a plan for that
person to repair the harm that he or she has caused.
If the person completes the agreed upon plan, their
case is not charged in criminal court. In 2012, the
San Francisco District Attorney's Office sent over 700
cases to Neighborhood Courts, and 73% of those cases
were successfully completed without the need to bring
them into our overburdened criminal justice system.
This model program currently is being replicated in
Yolo County. Santa Barbara County also operates a
pre-charging diversion model.
2. Community Courts
This bill generally applies to the sealing of records of any
person who completes a diversion program administered by a
district attorney. The bill was introduced with the specific
purpose of authorizing a person who successfully participated in
a community or neighborhood court to petition for an order
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sealing the record of the underlying arrest. This comment
describes the development and function of community courts.
Founding of Community Courts
The Center for Court Innovation was founded as a partnership
between the New York State Unified Court System and the Fund for
the City of New York. The Center researches, develops and
reviews innovative court and justice programs.
The first project of the Center was the 1993 development of the
Midtown (Manhattan) Community Court, which was "created to
address low level offending around Times Square. The Midtown
Court combines punishment and help, sentencing offenders to
perform community service and receive social services. The
project's success in making justice more visible and meaningful
led the court's planners, with the support of New York State's
chief judge, to establish the Center for Court Innovation to
serve as an engine for justice reform in New York."<1>
Basic Principles and Structure of a Community Court
The Center for Court Innovation has described the three
organizing principles of community courts: Problem-solving
approach, collaboration, and accountability. Specifically:
Problem-Solving Orientation: This principle
indicates a focus on solving the underlying problems
of litigants, victims, or communities. The concept
often implies an interest in individual
rehabilitation; but sometimes the defining
"problems" of interest belong less to the presenting
litigant than to the victims of crime, including the
larger community.
Collaboration: This principle highlights the
role of interdisciplinary collaboration with players
both internal and external to the justice system,
including court administrators, judges, attorneys,
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<1> http://www.courtinnovation.org/who-we-are.
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supervision agencies, service providers, and
community members.
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Accountability: This principle focuses on
promoting compliance by participants/litigants,
quality services among service providers, and
accountability by the court itself to the larger
community to implement its intended model and track
its performance.
3. San Francisco Neighborhood Courts Program
The sponsor of this bill, San Francisco District Attorney
Gascon, has posted on the city and county Website a description
of the community or neighborhood courts concept as implemented
in San Francisco:
[The program has] four main goals:
Efficient case resolution. NCT participants can
have their case heard within a couple of weeks and
fully complete the process before they would have even
appeared at their criminal court arraignment.
Community-driven solutions. The community that is
affected by the crime gets to direct the plan for
repairing that harm.
Reduced burden on criminal courts. NCT has the
potential to significantly save both time and money
for criminal courts and the agencies that work in
them.
Reduced recidivism. By keeping low-level offenders
out of the traditional system - and keeping
convictions off their record, NCT removes an obstacle
to meaningful participation in the community. As
individuals gain a true understanding of the impacts
of their actions, they may be less likely to reoffend.
...Adjudicators are members of San Francisco's diverse
neighborhoods ? They have been trained in restorative
justice and problem solving. They are NOT [legal
professionals]. ? [A]djudicators hear from the
offender and the victim (in cases where there is a
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victim), and discuss the impact of the crime on the
community. To resolve the case, adjudicators issue
"directives," like community service or restitution,
to repair the harm caused by the incident. Our
community-based partners, San Francisco Pretrial
Diversion and Community Boards, provide ongoing
training and support to our adjudicators?,
All Neighborhood Court hearings are confidential -
they are not a Criminal Court proceeding, and
incidents that are successfully resolved through
Neighborhood Court do not proceed in Criminal Court.
4. Concerns About Discovery or Disclosure of Records of Diversion
Program Participants
In recent years, the Legislature has considered issues involving
public discovery and disclosure of records of persons who have
successfully completed programs. SB 599 (Perata), Chapter 792,
Statutes of 2003, authorized a court to order the sealing of the
records of any person who successfully completed a drug
diversion or deferred entry of judgment program. The sponsor of
SB 599 - the Alameda County District Attorney - noted that
private investigators had been searching court files to
determine if a person had been charged with a crime that was
later dismissed through a diversion program. These record
searches were then used to deny employment and other services or
benefits.
A core principle in a diversion program is that a successful
participant can avoid collateral consequences of a criminal
conviction or charge, including legal and practical bars to
employment. Disclosure of diversion records, except for
official purposes, appears to substantially reduce the benefits
and reasons for a person to participate in a diversion program.
Requiring the sealing of diversion program records arguably
advances or realizes the intent of these programs.
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SHOULD THE RECORDS OF PERSONS WHO SUCCESSFULLY COMPLETE
DIVERSION PROGRAMS BE SEALED IN ORDER TO SECURE THE PROMISES,
BENEFITS AND PURPOSES OF SUCH PROGRAMS?
5. Sentencing Issues
This bill, by increasing the benefits that flow from diversion
programs could increase participation in such programs. Any
person diverted from the criminal prosecution system is a person
who does not need to be incarcerated in jail or prison.
DO DIVERSION PROGRAMS HELP REDUCE THE NUMBER OF INCARCERATED
PERSONS IN CALIFORNIA?
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