BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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SB 1197 (Pavley)
As Amended: April 10, 2014
Hearing date: April 22, 2014
Penal Code
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RESTITUTION AND RESTITUTION FINES:
POST RELEASE AND MANDATORY SUPERVISION
HISTORY
Source: Los Angeles County District Attorney
Prior Legislation: SB 432 (Runner) Ch. 49. Stats. 2009
Support: California Law Enforcement Association of Records
Supervisors, Inc.; California Police Chiefs
Association; Chief Probation Officers of California
Opposition:Taxpayers for Improving Public Safety
KEY ISSUE
SHOULD COUNTIES BE AUTHORIZED TO COLLECT RESTITUTION ORDERS AND
RESTITUTION FINES FROM ANY PERSON ON POST RELEASE COMMUNITY
SUPERVISION OR MANDATORY SUPERVISION FOLLOWING RELEASE FROM PRISON
OR A FELONY JAIL TERM?
PURPOSE
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The purpose of this bill is to authorize counties to collect
restitution orders and restitution fines from persons on post
release community supervision after a prison term and on
mandatory supervision after the custody portion of a split
felony jail term.
Existing provisions in the California Constitution state that
all crime victims have the right to seek and secure restitution
from the perpetrators of these crimes. Restitution must be
ordered in every case without exception. Where a defendant has
been ordered to pay restitution, all money, or property
collected from the defendant must be first applied to satisfy
restitution orders. (Cal. Const. Art. 1 § 28, subd.
(b)(13)(A)-(C).)
Existing law provides for restitution orders - enforceable as a
civil judgment - to ensure that a victim of a crime who incurs
any economic loss shall receive restitution directly from any
defendant convicted of that crime. If a restitution order is
made, the defendant has the right to a hearing before the court
to dispute the determination of the amount of the order. A
restitution order may be modified upon motion of the district
attorney, the victim or victims, or the defendant. (Pen. Code §
1202.4, subds. (f) and (i).)<1>
Existing law provides that if the amount of restitution
cannot be determined at the time of sentencing, the order
shall state that the specific amount of restitution shall be
"determined at the direction of the court" in a reasonable
manner in the discretion of the court. (Pen. Code § 1202.4,
subd. (f).)
Existing law provides that a restitution order shall be prepared
by the court and identify each victim and each loss. (Pen. Code
§ 1202.4, subd. (f)(3).)
Existing law provides that a criminal restitution order shall be
enforceable as though it were a civil judgment. (Pen. Code §
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<1> Penal Code § 1202.4 (f)(2) further specifies that a
restitution order may also be paid directly to the Restitution
Fund to the extent that the victim has received assistance from
the Victims of Crime Program.
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1202.4, subd. (i).)
Existing law provides in every case where a person is convicted
of a crime, the court shall impose a separate and additional
restitution fine unless the court finds compelling and
extraordinary reasons for not doing so and states those reasons
on the record. The restitution fine for a misdemeanor shall be
no less than $150 and no more than $1,000. The restitution fine
for a felony shall be no less than $300 and no more than
$10,000. Where a defendant is committed to prison, the court
may set the restitution fine as the product of the number of
years of imprisonment and $300. Restitution fines are not
subject to penalty assessments. (Pen. Code § 1202.4, subd.
(b).)
Existing law requires the court to assess an additional
probation-revocation restitution fine or parole-revocation
restitution in the same amount as that imposed for the
restitution fine. This additional fine is stayed unless
probation or parole is revoked. (Pen. Code §§ 1202.44 and
12022.45.)
Existing law provides that a prison inmate who is a high-risk
sex offender, sentenced under the Three Strikes law (as second
or third strike) or imprisoned for a serious or violent crime
must serve a period of parole upon release. A person sentenced
to prison for any other offense is subject to post release
community supervision. A defendant sentenced for jail felony
with a split term (Pen. Code §1170, subd. (h)(5)) must serve a
portion of the sentence under mandatory supervision in the
community. (Pen. Code §§ 1170, subd. (h); 3000.08, 3450-3456.)
Existing law provides that where a defendant's sentence includes
a period of post release community supervision (PRCS) or
mandatory supervision, the sentencing court must impose a
parole-revocation or supervision restitution fine in the same
amount as that imposed for the restitution fine. The parole or
supervision fine is suspended unless parole or supervision is
revoked. (Pen. Code § 1202.45.)
Existing law provides a restitution fine is not subject to
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penalty assessments.<2> (Pen. Code §§ 1202.45 and 1464, subd.
(a)(2)A).)
Existing law specifies that restitution fine proceeds shall be
deposited in the Restitution Fund. (Pen. Code § 1202.4, subd.
(e).)
Existing law creates the Victims of Crime Program, administered
by the California Victim Compensation and Government Claims
Board<3> (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 VCGCB. Restitution fines
are deposited into the fund. (Gov. Code §§ 13950-13968.)
Existing law provides that any part of a restitution fine that
remains unsatisfied after a defendant is no longer on PRCS or
mandatory supervision is enforceable by the VCGCB and the
victim. (Pen. Code §1214, subds. (a) and (b).)
Existing law provides that local collection programs may
continue to enforce victim restitution orders once a defendant
is no longer on probation, PRCS, or mandatory supervision.
(Pen. Code §1214, subd. (c).)
Existing law provides that the period for enforcement of
judgments found in the Code of Civil Procedure Sections 683.010
et seq. does not apply to court-ordered fines, forfeitures,
penalties, fees, or assessments. (Pen. Code §1214, subd. (d).)
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<2> Various penalty assessments are imposed on criminal fines
and effectively quadruple the fine amount stated in the statute
defining each crime. (Pen. Code §1464.)
<3> 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" ar7576e
references to the VCGCB.
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Existing law authorizes the California Department of Corrections
and Rehabilitation (CDCR) to collect restitution fines and
restitution orders from prisoners. (Pen. Code § 2085.5.)
Existing law provides that when a prisoner owes a restitution
fine, the Secretary of CDCR shall deduct 20 to 50% from the
prisoner's wages and trust-account deposits, and transfer that
amount to the VCGCB for deposit in the restitution fund. (Pen.
Code § 2085.5, subd. (a).)
Existing law requires CDCR to withhold an administrative fee
from the prisoner's earnings to be held in a special deposit
account for the purposes of reimbursing administrative and
support costs of the restitution program. (Pen. Code § 2085.5,
subd. (e).)
Existing law directs CDCR to collect the restitution order first
when a prisoner or parolee owes both a restitution fine and a
restitution order. (Pen. Code § 2085.5, subds. (g) and (h).]
Existing law provides for the enforcement of fines, including
restitution fines, and provides that any portion of a
restitution order that remains unsatisfied after a defendant is
no longer on probation or parole is enforceable by the victim as
a civil judgment. (Pen. Code §§ 1202.4, subd. (i) and 1214.)
Existing law provides that when a prisoner owes victim
restitution, the Secretary of CDCR shall deduct 20% to 50% of
the fine from the prisoner's wages and trust-account deposits,
and transfer that amount to the VCGCB for direct payment to the
victim, or payment to the restitution fund to the extent that
the victim received assistance under that program. (Pen. Code §
2085.5, subd. (b).)
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Existing law allows CDCR to collect money from parolees with an
outstanding balance on a restitution order or fine. (Pen. Code
§ 2085.5, subd. (g)-(h).)
Existing law provides that the agency designated by the board of
supervisors in the county of incarceration to deduct 20% to 50%
from the wages and trust account deposits of an inmate serving a
felony jail sentence (Pen. Code § 1170, subd. (h)) and owing a
restitution fine, and to transfer that amount to the VCGCB for
deposit in the restitution fund. (Pen. Code § 2085.5, subd.
(d).)
Existing law provides that the sentencing court shall be
provided a record of payments made to the crime victim and to
the restitution fund. (Pen. Code § 2085.5, subds (a)-(d) and
(g)-(h).)
Existing law allows the agency designated by the board of
supervisors in the county of incarceration to withhold an
administrative fee to be held in a special deposit account for
the purposes of reimbursing administrative and support costs of
the restitution program, as specified. (Pen. Code § 2085.5,
subds. (f) and (i).)
Existing law provides that the local agency designated by the
board of supervisors to collect the restitution order first when
a county-jail inmate serving a sentence under realignment owes
both a restitution fine and a restitution order. (Pen. Code §
2085.5, subd. (k).)
Existing law requires that any compensatory or punitive damages
awarded to a defendant placed on PRCS or on mandatory
supervision in connection with a civil action brought against
any federal, state, or local jail or prison be first applied to
outstanding restitution orders or fines. (Pen. Code § 2085.5,
subd. (n).)
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Existing law allows a victim who does not timely provide a
current address to the VCGCB to provide documentation to the
local agency designated by the board of supervisors which in
turn may verify that money was in fact collected by VCGCB on the
victim's behalf. Upon receipt of verified information, the VCGCB
shall transmit restitution revenues to the victim. (Pen. Code §
2085.5, subd. (o)(3)(B).)
Existing law provides where an order is made for payment of
restitution, reimbursement for legal assistance, the costs of
probation, the cost of jail or confinement, or any reimbursable
cost, the court or county financial officer - after determining
the amount of any fine and penalty assessments - shall apply the
following priorities:
If full payment is made, the court shall apportion the
money.
If installment payments are made, or money is collected
by the Franchise Tax Board collection service, disbursement
shall be made in the following order:
o Direct restitution.
o State surcharges of 20% on top of penalty
assessments added to fines.
o Fines, penalty assessments and restitution
fines - disbursed proportionately.
o Any other reimbursable costs. (Pen. Code §
1203.1d.)
Existing law provides: "Whenever a person who has been ordered
to pay restitution to a victim is also sentenced to a term of
imprisonment in state prison, the court and the counties may
provide to the CDCR the victim's contact information, when
available, along with the restitution order, for the purposes of
the department distributing the restitution collected on behalf
of the victim." (Pen. Code § 1203c.)
This bill authorizes counties to collect direct restitution
orders and restitution fines from persons released from prison
on post release community supervision (PRCS) and persons
released from a jail felony split sentence on mandatory
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supervision.
This bill provides that the determination of whether a county
will collect restitution and restitution fines from persons on
PRCS and mandatory supervision shall be made by board of
supervisors, which shall designate the agency to do the
collections.
This bill provides a discretionary process for counties to
collect restitution orders and restitution fines that is
parallel to the process or system for collection of restitution
and restitution fines from prison inmates, parolees, and persons
serving jail sentences in Penal Code Section 2085.5.
Where a person on PRCS or mandatory supervision owes direct
restitution and a restitution fine, the direct restitution
order shall be collected first.
Any portion of a restitution fine still owing at the end of
PRCS or mandatory supervision shall be collectible by the
VCGCB, as specified. A local collection program may continue
to collect the debt.
Any amount of a direct restitution order still owing at the
end of PRCS or MS shall be collectible by the victim as though
a civil judgment, as specified, and by the VCGCB.
This bill provides that payment of direct restitution and a
restitution fine shall be a condition of PRCS or mandatory
supervision.
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
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
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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 that 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.
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 requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
submitted 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 opposed the
state's motion, arguing 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 % inmate population cap by December 31,
2013.
The Three-Judge Court then ordered, on April 11, 2013, the state
of California to "immediately take all steps necessary to comply
with this Court's . . . Order . . . requiring defendants to
reduce overall prison population to 137.5% design capacity by
December 31, 2013." On September 16, 2013, the State asked the
Court to extend that deadline to December 31, 2016. In
response, the Court extended the deadline first to January 27,
2014 and then February 24, 2014, and ordered the parties to
enter into a meet-and-confer process to "explore how defendants
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can comply with this Court's June 20, 2013 Order, including
means and dates by which such compliance can be expedited or
accomplished and how this Court can ensure a durable solution to
the prison crowding problem."
The parties were not able to reach an agreement during the
meet-and-confer process. As a result, the Court ordered
briefing on the State's requested extension and, on February 10,
2014, issued an order extending the deadline to reduce the
in-state adult institution population to 137.5% design capacity
to February 28, 2016. The order requires the state to meet the
following interim and final population reduction benchmarks:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
If a benchmark is missed the Compliance Officer (a position
created by the February 10, 2016 order) can order the release of
inmates to bring the State into compliance with that benchmark.
In a status report to the Court dated February 18, 2014, the
state reported that as of February 12, 2014, California's 33
prisons were at 144.3 percent capacity, with 117,686 inmates.
8,768 inmates were housed in out-of-state facilities.
The ongoing prison overcrowding litigation indicates that prison
capacity and related issues concerning conditions of confinement
remain unresolved. While real gains in reducing the prison
population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore,
the Committee's consideration of ROCA bills -bills that may
impact the prison population - will be informed by the following
questions:
Whether a measure erodes realignment and impacts the
prison population;
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
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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:
SB 1197 provides for the collection and distribution
of restitution and restitution fines when a defendant
is released on post release community supervision
(PRCS) community supervision, or mandatory
supervision. Restitution is a constitutionally
protected right to ensure that the victim is repaid
for the harm that has occurred due to the commission
of a crime.
According to California's Realignment Plan of 2011,
certain inmates must be released to PRCS, community
supervision, or mandatory supervision provided by
county agencies. Currently when this occurs there are
no provisions for county officials to collect and
distribute unpaid amounts of restitution and
restitution fines. AB 1197 is needed to correct this
oversight allowing each county to designate an
"agency" for the collection sand distribution of
unpaid restitution and restitution fines. Since
restitution is a constitutional mandate the
requirement of which was inadvertently thwarted by the
Realignment of 2011, this proposal corrects the
oversight and puts in place a county option to collect
restitution and restitution orders. Without this
reform, crime victims will be forced to attempt to
collect their restitution through civil collection
provision.
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Some of the offenders who are being shifted from the
prisons to the counties, have committed various types
of non-violent felonies, among them grand theft, elder
financial abuse and other forms of consumer fraud.
Anecdotally, victims of crime are calling district
attorney offices asking for assistance in collection
from individuals committed in the county. Absent
statutory authority, the only alternative for a victim
to receive restitution is civil enforcement. Victims
are not well-equipped to enforce these restitution
judgments. In addition, they must locate the convicted
individual to enforce the judgment as a lien.
Convicted individuals are most reachable when they are
under supervision. They are more likely to pay when
they are constructively in custody than when they are
not supervised. Legislative reform is a superior
alternative.
The Victim's Compensation Government Claims Board
(VCGCB) has publicly expressed concerns about the loss
of money from uncollected fines. In order to maintain
a robust victim assistance system, which fines
support, it is necessary to enact the reforms of AB
1197. District Attorneys get grants from the VCGCB
to assist victims - those grants are threatened by the
loss of fine revenue
2. Clear Constitutional and Statutory Requirement that a
Defendant Pay Direct Restitution to the Victim and a
Restitution Fine to Fund the Victims of Crime Program
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 this requirement, 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.)
Similarly, the purpose of a restitution fine appears to assist
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all crime victims in recovering economic losses, even a victim
who has little prospect of collecting restitution from the
person who committed a crime against him or her. (Pen. Code §
1202.4, subd. (b).) Unless compelling and extraordinary
circumstances are shown, all persons convicted of crimes must
pay a restitution fine to make amends to society in a way that
helps crime victims. Inability to pay does not constitute
compelling and extraordinary circumstances excusing payment of a
restitution fine. Inability to pay only affects the calculation
of the amount of any fine greater than the minimum fine. (Pen.
Code § 1202.4, subd. (c).) Arguably, the purpose of the
restitution fine is defeated if the defendant simply serves a
term of incarceration instead paying a monetary penalty that
goes to victims.
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3. Condition of the Victims of Crime Fund and Payments
Condition of the Restitution Fund and Reserves
The balance and reserve of the Restitution Fund can fluctuate
widely. The reserve for fiscal year 2011-2012 was $28.5
million, rising to $70 million in 2012-2013. By the beginning
of 2013-2014 the fund had a reserve of $80 million.
The board now projects a structural deficit - defined as a
shrinking reserve - for the next two fiscal years. The fund
projects a reserve of $71.5 million for the beginning of fiscal
2014-2015, dropping to an estimated $61.7 at the beginning of
2015-2016. However, the board's prior projected reserve for
2013-14 of $55 million significantly under-projected the
reserve, as the actual reserve amount was $80 million. Board
representatives explained that payments to victims and
administrative costs were $20 million and $5 million lower than
projected respectively.
Payments to Victims in Recent Years
In fiscal years 2006-07 and 2007-08, the board paid victims
between $72 million and $79 million.<4> Victim payments for
2008-09 through 2010-2011 rose to $95 million per year. In
fiscal year 2011-2012 the amount fell to approximately $70.5
million. In fiscal year 2012-2013, the board paid victims $64
million. In 2011, the board reduced maximum payments and
payment rates for some categories of reimbursement, including
funeral expenses and mental health services.
4. Audit of the Victims of Crime Program
2008 California State Auditor Report on the Victim Compensation
Program
The Bureau of State Audit (BSA) report in 2008 included the
following highlights:
From fiscal years 2001-02 through 2004-05, program
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<4> These dollar amounts are approximated or rounded to the
nearest million.
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compensation payments decreased from $123.9 million to
$61.6 million-a 50 percent decline. Despite the
significant decline in payments, the costs to support the
program increased.
Administrative costs make up a significant portion of
the Restitution Fund disbursements-ranging from 26 percent
to 42 percent annually.
The program did not always process applications and
bills as promptly or efficiently as it could have. Board
staff took longer than 180 days to process applications in
two instances out of 49, and longer than 90 days to pay
bills for 23 of 77 paid bills.
The board did not adequately investigate alternative
sources of funding for victim reimbursement, such as
insurance and public aid.
The program's numerous problems with the transition to a
new application and bill processing system led to a
reported increase in complaints regarding delays in
processing applications and bills.
Some payments in CaRES<5> appeared to be erroneous.
Although board staff provided explanations for the
erroneous payments, the fact that they were unaware of
these items indicated an absence of controls that would
prevent erroneous payments.
The board lacks the necessary system documentation for
CaRES.
There are no benchmarks, performance measures, or formal
written procedures for workload management.
2010 Update and Progress Report
In 2010, BSA found that the program had partially corrected five
of the problems noted in the audit and corrected five others.
The BSA urged the board to continue correcting the problems
noted in the report. For example:
The board reduced administrative costs, but processing
times for claims had increased.
The board increased collections, but it had not
determined whether outreach programs had been successful
and satisfaction with the program had increased.
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<5> Claim review computer system.
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The board implemented better training program for
employees who examined claims
submitted by crime victims.
The board developed an inventory monitoring system and
set performance benchmarks. The monitoring should
improve identification and understanding of eligibility
requirements.
Board training includes an emphasis on alternative
funding sources.
The board did complete a chapter on appeals of denials
in its manual. The board did improve its use of the CaRES
computer system. However, claims were still more quickly
processed in the local agencies with which the board
contracts.
It appears that the BSA has not issued a progress report or
update on the program since 2010. It is not clear what the
board has done to address the issues raised in the BSA audit
since that time. Many, if not most, of these issues affect the
ability of the board to timely and adequately compensate
victims, including the ability to compensate elderly and
dependent adult victims of fraud. These issues will also be
addressed in the Appropriations Committee.
HAS THE VICTIM COMPENSATION PROGRAM CONTINUED TO ADDRESS ISSUES
RAISED IN THE 2008 REPORT BY THE STATE AUDITOR?
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