BILL ANALYSIS Ó SENATE COMMITTEE ON APPROPRIATIONS Senator Ricardo Lara, Chair 2015 - 2016 Regular Session AB 1140 (Bonta) - California Victim Compensation and Government Claims Board ----------------------------------------------------------------- | | | | | | ----------------------------------------------------------------- |--------------------------------+--------------------------------| | | | |Version: August 18, 2015 |Policy Vote: PUB. S. 7 - 0 | | | | |--------------------------------+--------------------------------| | | | |Urgency: No |Mandate: Yes | | | | |--------------------------------+--------------------------------| | | | |Hearing Date: August 24, 2015 |Consultant: Jolie Onodera | | | | ----------------------------------------------------------------- This bill meets the criteria for referral to the Suspense File. Bill Summary: AB 1140 would revise numerous provisions of law governing the California Victim Compensation Program (CalVCP), as specified. This bill would also increase the daily compensation rate for individuals erroneously convicted and imprisoned from $100 to $140 per day, as specified. Fiscal Impact: CalVCP benefits : Significant increase in CalVCP payments potentially in excess of $800,000 (Special Fund*) annually due to expanded and revised eligibility criteria, most significantly due to the changes in eligibility criteria related to lack of cooperation with law enforcement. CalVCP administration : One-time costs to the Board for resource needs potentially in excess of $150,000 (Special Fund*) for programming changes necessary to the automated claims processing system. Ongoing increased administrative AB 1140 (Bonta) Page 1 of ? workload for claims processing of increased applications. Federal fund impact : Potential future increases in annual federal Victims of Crime Act (VOCA) grant funds of 60 percent reimbursement for state funds used to compensate victims to the extent the annual cap on VOCA fund obligations is adequately raised or removed. Additionally, VOCA grant awards are based on state expenditures from prior years, so any potential increases to the VOCA grant award would not be received until 2018-19 at the earliest. Erroneous imprisonment compensation : Potentially significant increase in erroneous conviction compensation payments in the range of $148,000 to $517,000 (General Fund) per claim paid. *Restitution Fund Background: The CalVCP, which is administered by the California Victim Compensation and Government Claims Board (Board), provides compensation for victims and derivative victims (including spouses, domestic partners, children, parents, legal guardians, siblings, grandparents, and grandchildren) who suffer physical or emotional injury, or the threat of physical injury, as a direct result of a violent crime. Crimes covered by the program include domestic violence, child abuse, sexual and physical assault, homicide, human trafficking, robbery, and vehicular manslaughter. Subject to specified eligibility criteria, CalVCP compensates eligible victims for various crime-related expenses that are not covered by other sources. Services covered include medical and dental care, mental health services, income loss, funeral expenses, home security, rehabilitation and relocation. Funding for the program is provided by the Restitution Fund, which derives its revenue from restitution fines and orders, diversion fees, and penalty assessments levied on persons convicted of crimes and traffic offenses. CalVCP also receives federal grant monies from the Victims of Crime Act (VOCA). VOCA funds come from penalties paid by offenders convicted of federal crimes. Existing law provides that any person who, having been convicted of a crime and imprisoned in the state prison, is granted a pardon by the Governor because the crime with which he or she AB 1140 (Bonta) Page 2 of ? was charged either did not occur, or if it did occur, was not committed by him or her, or who is innocent of the charges for either of the foregoing reasons, and who has served any part of the term for which imprisoned may present a claim against the State to the Board for the pecuniary injury sustained through the wrongful conviction and imprisonment. (Penal Code (PC) § 4900.) Existing law provides that if the evidence shows that the crime with which the claimant was charged was either not committed at all, or, if committed, was not committed by the claimant, and that the claimant has sustained pecuniary injury through his or her erroneous conviction and imprisonment, the Board shall report the facts of the case and its conclusions to the next Legislature, with a recommendation that an appropriation be made by the Legislature for the purpose of indemnifying the claimant for the pecuniary injury. Under existing law, the amount of the appropriation recommended shall be a sum equivalent to $100 per day of incarceration served subsequent to the claimant's conviction and that appropriation shall not be treated as gross income to the recipient under the Revenue and Taxation Code. (PC § 4904.) Proposed Law: This bill would revise numerous provisions of law governing the CalVCP, as specified. This bill would also increase the daily compensation rate for individuals erroneously convicted and imprisoned from $100 to $140 per day. Specifically, this bill: Expands the definition of a victim's "authorized representative" to include any person having written authorization by the victim or derivative victim, or any person designated by law such as a legal guardian, conservator, or social worker; but excluding any medical or mental health provider, or its agent, who has provided services to the victim or derivative victim. Revises standards for determining whether an applicant may be found to have been "uncooperative" for purposes of verifying information necessary to process a claim. Authorizes compensation for a victim's emotional injury incurred as a direct result of the nonconsensual distribution of pictures or video of sexual conduct in AB 1140 (Bonta) Page 3 of ? which the victim appeared, if the victim is a minor. Specifies that a service organization for victims of violent crime with regard to the provision of outpatient violence peer counseling services is a nonprofit and charitable organization instead of a nongovernmental organization. Revises provisions allowing compensation for emotional injury suffered in child abduction cases to delete the requirement that the deprivation of custody lasted for 30 calendar days, and instead requires only that criminal charges be filed. Authorizes denial of a claim, in whole or in part, if the Board finds that denial is appropriate because of the nature of the applicant's involvement in the events leading to the crime, or the involvement of the person whose injury or death gave rise to the claim. Revises the specified factors to be considered for determining involvement in a crime. Prohibits a domestic violence victim from being found to be uncooperative based on his or her conduct with law enforcement at the scene of a crime. Prohibits a victim of domestic violence, sexual assault, or human trafficking from being found to be uncooperative because of a delay in reporting the crime. Prohibits the denial of an application for a claim arising from a sexual assault based solely on the failure to file a police report. Requires the Board to adopt guidelines allowing it to consider and approve applications for assistance in sexual assault cases by relying upon evidence other than a police report. Denies compensation to any person convicted of a violent felony, as specified, until that person is no longer incarcerated and discharged from parole, probation, post-release community supervision, or mandatory supervision. Denies compensation to any person who is required to register as a sex offender. Removes current provisions which prioritize the applications of victims who are not felons. Removes reimbursement limits for statutory rape counseling. Expands eligibility to recoup the costs of mental health counseling to grandparents and grandchildren. AB 1140 (Bonta) Page 4 of ? Limits reimbursement for medically-related expenses to those that were provided by a licensed medical provider. Eliminates the Board's authority to reimburse for expenses of nonmedical remedial care and treatment given in accordance with a religious method of healing recognized under state law. Eliminates verification requirements for reimbursement of increased residential-security measures. Allows reimbursement for the purchase of a vehicle for a victim who becomes permanently disabled. Specifies that, as to reimbursement of costs for a victim's relocation, the victim may be required to repay the reimbursement if the victim notifies the perpetrator of his or her new address or allows the offender on the premises. Provides that if a security deposit is required for relocation services, the Board shall be named as the recipient of the security deposit. Expands reimbursement to cover cleaning expenses when the crime scene is a vehicle. Allows the Board to request verification before it reimburses for attorney's fees. Permits an applicant who seeks a hearing on the denial of compensation to request a telephonic hearing. Provides that evidence submitted after the Board has denied a request for reconsideration shall not be considered unless the Board chooses to reconsider the decision on its own motion. Requires any Board actions to collect overpayments be commenced within seven years of the date of the overpayment, except there is no statute of limitation for the action if overpayment was a result of fraud, misrepresentation or willful non-disclosure of the applicant. Authorizes the recipient of an alleged overpayment to contest that finding. Provides that the Board need only forward restitution proceeds collected from a prisoner or parolee to a victim when the payment is $25 or more, unless the victim requests payments of a lesser amount. Increases the rate of compensation for a wrongfully convicted person from $100 to $140 per day, including any time spent in custody, including county jail. Expands the scope of a compensable injury to include non-pecuniary AB 1140 (Bonta) Page 5 of ? injuries. Related Legislation: SB 519 (Hancock) 2015 would make numerous reforms to rules governing the processing of CalVCP claims by the Board. This bill is pending hearing in the Assembly Committee on Appropriations. SB 556 (de Leon) 2015 would define "application processing time" for the approval or denial of a victim's compensation claim for CalVCP, and requires the Board to annually post on its internet website its current average time of processing applications, the number of applications approved and denied, and the number of incomplete applications received. This bill is pending on the Assembly Floor. SB 635 (Nielsen) 2015 would raise the compensation for an erroneously convicted and imprisoned person from $100 to $140 per day of incarceration served, including any time spent in custody in county jail that is considered to be part of the term of incarceration. This bill would also expand the scope of a compensable injury to include non-pecuniary injuries. This bill is pending hearing in the Assembly Committee on Appropriations. Prior Legislation: AB 1629 (Bonta) Chapter 535/2014 authorizes reimbursement under the CalVCP to a crime victim or a derivative victim for outpatient violence-peer-counseling expenses incurred, as specified. Staff Comments: The Board has estimated the provisions of this measure could increase payments from the CalVCP potentially in excess of $700,000 (Restitution Fund) annually, as follows: Cooperation with Law Enforcement - Approximately 400 applications are denied based on domestic violence and 100 based on sexual assault per year due to lack of cooperation with law enforcement. If half of these applicants were made eligible by the changes in denial due to lack of cooperation with law enforcement at an average payment of $2,250 per application, the total payment increase would be approximately $550,000 per year. AB 1140 (Bonta) Page 6 of ? Online Harassment - The Board surveyed several counties on the number of times that charges had been filed or referred from law enforcement for potential charges under Penal Code § 653.2. An extrapolation based on population projects an average of 35 violations per year since 2010. Some cases that would be eligible under this section already may be eligible due to in-person harassment committed along with harassment by electronic means. In addition, cases that involve only emotional injury are generally only eligible for reimbursement of mental health counseling expenses. Any increase in payments due to the eligibility of the crime of online harassment is anticipated to be negligible and absorbable. Vehicular Crime-Scene Cleanup - Over the past three fiscal years, CalVCP has reimbursed an average of 29 crime-scene cleanup claims per year at a total cost of $26,000 per year. Any increase in payments due making vehicular crime-scenes eligible for cleanup services is anticipated to be negligible and absorbable. Denial Due to Participation in a Crime - Approximately 45 applicants per year are denied due to participation in a crime. If half of these applicants were made eligible by the change in denial due to participation at an average payment of $2,250 per application, the total payment increase would be approximately $50,000 per year. Applicants with Felon Status - Over the past three fiscal years, the Board has denied reimbursement of expenses of approximately 90 applicants per year due to their felon status. If half of these applicants were made eligible by the allowance of payments to non-violent felons at an average payment of $2,250 per application, the total payment increase would be approximately $100,000 per year. Alignment of Mental Health Counseling Limits - Specified direct victims are currently eligible for $5,000 in mental health counseling reimbursement, and the Board is unaware of a significant number of cases where the applicant has exhausted this amount. Therefore, it is estimated that granting additional specified victims the same mental health counseling limit allowed for other victims will result in any significant increase in payouts. Any potential increase in payouts due to AB 1140 (Bonta) Page 7 of ? this change is anticipated to be negligible and absorbable. Distribution of Restitution Orders to Victims - Holding distribution of payments under $25 is anticipated to ease administration of this function. Denial of Minors for Lack of Cooperation - Prohibiting denial of a minor for lack of cooperation would likely have a cost of less than $100,000. Currently, approximately 70 minors per year are denied in part due to lack of cooperation. It is likely that some of these minors would still be denied for other reasons such as a lack of evidence substantiating a crime. Erroneous Conviction Compensation By increasing the daily rate of compensation for an erroneously convicted and imprisoned person from $100 per day of incarceration served to $140 per day of incarceration served, including any time spent in custody in county jail that is considered to be part of the term of incarceration, this bill will result in increased payment amounts from the General Fund. Since 2001, there have been 17 claims approved for payment of compensation for erroneous convictions. While it is unknown how many approved claims will be impacted prospectively, based on the average claim payment of about $369,000, increasing the daily compensation rate to $140 per day would increase the average claim payment to nearly $517,000, an increase of $148,000 per claim. The impact of additionally compensating a person for time spent in custody in county jail that is considered part of the term of incarceration would also increase the cost of each claim payment. Costs would be dependent on the individual case. While the average length of stay in jail that would be applicable under the provisions of this bill is unknown, for context, every 25 days spent in custody in county jail would result in additional costs of $3,500 per claim. To the extent the time spent in jail is greater or less, costs would vary accordingly. This bill removes the existing requirement that a claimant prove the loss was pecuniary in nature. As a result, this provision could result in approval of claims that otherwise would have been denied under current law. The Board indicates one claim in AB 1140 (Bonta) Page 8 of ? 2014 was denied for lack of pecuniary loss. While the number of claimants impacted is not estimated to be significant, the potential increase in payments is estimated at $517,000 per claim. -- END --