BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 1802 Hearing Date: June 28, 2016
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|Author: |Chávez |
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|Version: |May 27, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|JM |
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Subject: California Victim Compensation and Government Claims
Board: Membership
HISTORY
Source: Author
Prior Legislation:AB 1140 (Bonta) - Ch. 569, Stats. 2015
SB 635 (Nielsen) - Ch. 422, Stats. 2015
SB 618 (Leno) - Ch. 800 Stats. 2013
SB 60 (Wright) - Ch. 147, Stats. 2013
AB 2809 (Leno) - Ch. 587, Statutes of 2008
AB 2869 (Leno) - Ch. 582, Statutes of 2006
AB 2729 (Wesson) 2001-2002, vetoed
AB 606 (Jackson) - Chapter 584, Statutes of 1999
Support: Crime Victims United
Opposition:Northern California Innocence Project (unless
amended); California Innocence Project (unless
amended)
Assembly Floor Vote: 80 - 0
PURPOSE
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The purpose of this bill is to: 1) add the following members to
the Victims Compensation and Government Claims Board (VCGCB -
"board") - an expert in the rights of crime victims or a victims
rights advocate; a physician, psychiatrist or psychologist with
experience in the treatment of crime victims; and 2) provide
that any board member who is not a state officer shall receive
$50 in compensation, plus reasonable expenses, for each day of
attendance at board hearings, for up to eight hearings per
months.
Existing law establishes the Victims Compensation and Government
Claims Board (board), which, in pertinent part, operates the
California Victim's Compensation Program (CalVCP). (Gov. Code,
§§ 13901 & 13950 et. seq.)
Existing law states that the board consists of the Secretary of
Government Operations or his or her designee, the Controller,
and a third member to be appointed by the Governor. (Gov. Code,
§ 13901, subd. (b).)
Existing law provides that if the board's third member is not a
state officer acting ex officio, that person shall be
compensated $50 per day of actual attendance at board meetings,
not to exceed eight meetings per month. (Gov. Code, § 13902.)
Existing law authorizes the board to reimburse victims of crimes
for pecuniary loss for specified types of losses, including
medical expenses, mental-health counseling, loss of income or
loss of support, and installing or increasing residential
security. (Gov. Code, § 13957.)
Existing law requires the board to approve or deny applications,
based on recommendations by the board staff, within an average
of 90 calendar days and no later than 180 calendar days of
acceptance by the board. (Gov. Code, § 13958, subd. (a).)
Existing law requires the board to grant a hearing to an
applicant who contests a staff recommendation to deny
compensation in whole or in part. (Gov. Code, § 13959, subd.
(a).)
This bill adds an expert in the rights of crime victims or a
representative of a recognized organization that advocates for
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the rights of crime victims to the board's membership. This
person shall be appointed by, and serve at the pleasure of, the
Governor.
This bill adds a physician, psychiatrist, or psychologist with
expertise in treating or providing services to crime victims to
the board's membership. This person shall be appointed by, and
serve at the pleasure of, the Governor.
This bill compensates any board member, who is not a state
officer acting ex officio, $50 per day of actual attendance at
board meetings, not to exceed eight meetings per month, as well
as necessary traveling expenses to attend the meetings.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past several years this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
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.
In December of 2015 the administration reported that as "of
December 9, 2015, 112,510 inmates were housed in the State's 34
adult institutions, which amounts to 136.0% of design bed
capacity, and 5,264 inmates were housed in out-of-state
facilities. The current population is 1,212 inmates below the
final court-ordered population benchmark of 137.5% of design bed
capacity, and has been under that benchmark since February
2015." (Defendants' December 2015 Status Report in Response to
February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-
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Judge Court, Coleman v. Brown, Plata v. Brown (fn. omitted).)
One year ago, 115,826 inmates were housed in the State's 34
adult institutions, which amounted to 140.0% of design bed
capacity, and 8,864 inmates were housed in out-of-state
facilities. (Defendants' December 2014 Status Report in
Response to February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC,
3-Judge Court, Coleman v. Brown, Plata v. Brown (fn. omitted).)
While significant gains have been made in reducing the prison
population, the state must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1.Need for This Bill
According to the author:
The Legislative Analyst's Office (LAO), in a report
released in 2015, recommended that the composition of
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the California Victim Compensation and Government
Claims Board (CVCGCB) be restructured to more
effectively focus on victim programs and issues. The
current board does not have the expertise to
effectively or adequately consider claims by victims.
The LAO further recommended that all major victim
programs be shifted from the Office of Emergency
Services (OES) to the VCGCB because of a lack of
coordination and duplication of many victim programs
under OES. This bill would essentially give the board
the framework to carry out this recommendation.
The Governor's proposal to reorganize the VCGCB to
primarily handle victims programs is a step in the
right direction. This bill will help ensure that the
composition of the board is best suited to take the
lead as the primary administer of victims programs.
2.Purpose and History of the Victims of Crime Program (VCP)
Administered by the Victims Compensation and Government Claims
Board
The victims compensation program was created in 1965, the first
such program in the country. The Victims Compensation and
Government Claims Board (board) provides compensation for
victims of violent crime. Specifically, the board reimburses
eligible victims for many crime-related expenses. Funding for
the board comes from restitution fines and penalty assessments
paid by criminal offenders, as well as federal matching funds.
The other core function of the board is to review claims against
the state and request payment of claims by the Legislature in
annual legislation. A person must present a claim for damages
against the state to the board before filing a lawsuit.
3.Audits and Substantial Changes to Board Procedures and
Policies
In 2008, the Bureau of State Audit (BSA) issued an audit report
that was critical of many board procedures and operations. The
issues included high administrative costs, which increased when
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payments declined, inadequate investigation of alternative
funding sources for victim services, delays in processing
claims. In 2010, the BSA reported that the board had made many
improvements in response to the audit, but still recommended
significant reforms. The BSA was not alone in criticizing the
Victims Compensation Program. The program had been the subject
of a number of informational and bill hearings in the
Legislature. In 2015, the board sponsored AB 1140 (Bonta) Ch.
569, Stats. 2015 which instituted a number of the changes that
the BSA and others had urged the board to make. AB 1140 also
incorporated provisions that had been in a previous version of
Senator Hancock's SB 519.
4.Legislative Analyst's Office Recommendations
In its report on improving programs for crime victims, the LAO
recommended changing the composition of the board. The LAO
noted:
Two of the three members of the board have expertise
that is primarily applicable to the Government Claims
Program and not related to victim services-the
Government Operations Agency Secretary and the State
Controller. Accordingly, we recommend that the
Legislature change the membership of the board.
First, we recommend removing the Secretary of the
Government Operations Agency and the State Controller
from the board. Second, we recommend that additional
members be added to the board to provide expertise in
victim issues. For example, the Legislature could
consider requiring the board to include an expert in
providing trauma-informed services or a victim of
crime, as well as representatives from the other state
departments that administer victim programs (such as
the Attorney General or the Secretary of CDCR). We
also recommend that the Legislature appoint some of
the board members in addition to having the Governor's
appointees on the board. Finally, we recommend that
the appointed members serve fixed terms to increase
their independence." (Improving State Programs for
Crime Victims, supra, pp. 18-19).
http://www.lao.ca.gov/reports/2015/budget/crime-victims
/crime-victims-031815.pdf>.)
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This bill partially adopts the recommendations of the LAO by
adding to the membership of the board a victims' advocate and a
victims' services provider in the medical or mental-health
field.
5.Governor's Budget Proposal
As noted above, the board currently administers not only the
VCP, but also processes claims for money damages against the
state. The board also considers claims for wrongfully
convicted.
The Governor's Budget for 2015-16 proposes to reorganize the
board beginning in 2016-17. The proposed change would have the
board primarily administer victim programs, including some
currently handled by other agencies, such as the Office of
Emergency Services. Government claims would be moved to the
Department of General Services. The board would still retain
the responsibility for administering claims for the wrongfully
convicted. The addition of a victim's advocate and a treatment
provider to the board is consistent with the Governor's plan to
reorganize the board as the primary administrator for victims'
programs.
6.Concerns about Claims by Wrongly Convicted and Imprisoned
Persons
California law allows a factually innocent person -- an
"exonoree" -- who has been wrongfully convicted and imprisoned
to apply for compensation at a rate of $140 per day. In 2013,
the exonoree compensation law was amended by SB 618 (Leno) Ch.
800, Stats. 2013, to provide that an exonoree whose factual
innocence was determined by a court, generally in a contested
hearing with consideration of a wide range of evidence, need not
separately and additionally prove his or her innocence in an
administrative proceeding before the VCGCB. The state is
represented in these matters by the Attorney General. Prior to
enactment of SB 618, an exonoree who had prevailed in a habeas
corpus petition under a standard requiring him or her to prove
that the evidence "undermines the entire prosecution case and
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point unerringly to innocence,"<1> was required to begin anew
and file a petition where the evidence and findings from the
habeas corpus proceeding could not be considered.
Exonorees who seek compensation in a VCGCB hearing are not
entitled to counsel at state expense. These persons are highly
likely to have no resources after spending years in prison and
pursuing relief in the courts. In cases where an exonoree has
counsel, counsel was typically not compensated by the exonoree,
but worked pro-bono.
Representatives of the California Innocence Projectand the
Northern California Innocence Project-- the entities that often
represented exonorees -- have argued that the Attorney General
effectively; treated the administrative hearings as adversary
hearings. <2> The innocence projects noted that the board
almost always followed the recommendation of the Attorney
General, and that the recommendation was usually to deny
compensation.
The innocence projects have argued that the claims process
presents an inherent bias against claimants, with lingering
suspicions that the original conviction was accurate. This is
perhaps not unexpected, as vast majority of claims the board
hears are from victims who were harmed by a violent crime.
A claim by an exonerated person arises from very different
circumstances and procedures than a claim by a crime victim.
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<1> In re Hall (1981) 30 Cal.3d 408, 417, italics in original;
see also, In re Lindley (1947) 29 Cal.2d 709 and In re Hardy
(2008) 42 Cal.4th 1231.) The burden of establishing actually
innocent is much higher than a preponderance of the evidence.
(In re Lawley (2008) 42 Cal.4th 1231 1239-1240.)
<2> The California Innocence Project is housed at California
Western School of Law in San Diego; the Northern California
Innocence Project is housed at Santa Clara School of Law
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"Home Free," an article in the June 20, 2016 of the New Yorker,
describes the unique and very lengthy struggles of wrongly
imprisoned inmates in proving their innocence.<3> Arguably, a
crime victims' advocate or a professional who treats victims
would not have the expertise to review claims by exonorees. The
projects have thus argued that if the composition of the board
is changed, the board should include a member with expertise in
wrongful convictions or be directed to consult with an expert in
cases of wrongful conviction in reviewing a claim for
compensation.
-- END -
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<3>
http://www.newyorker.com/magazine/2016/06/20/derrick-hamilton-jai
lhouse-lawyer