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
          JM:mc


                  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,  


               ----------------------
          <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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