BILL ANALYSIS Ó
AB 2590
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Date of Hearing: April 19, 2016
Counsel: David Billingsley
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
AB
2590 (Weber) - As Amended April 12, 2016
SUMMARY: Finds and declares that the purpose of sentencing is
public safety achieved through accountability, rehabilitation,
and restorative justice. Specifically, this bill:
1)Finds and declares that the purpose of sentencing is public
safety achieved through accountability, rehabilitation and
restorative justice.
2)Finds that programs should be available for inmates, including
but not limited to, educational programs that are designed to
prepare all offenders for successful reentry into the
community.
3)Encourages the development of policies and programs designed
to educate and rehabilitate all offenders.
4)Encourages the Department of Corrections and Rehabilitation to
allow all inmates the opportunity to enroll in programs that
promote successful return to the community.
5)Replaces the word "punishment" with the word "sentence" in the
statute that the bill amends.
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6)Deletes the sunset language of the statute that would have
made the statute in-operative on January 1, 2017, and
indefinitely extends the authority granting the court
discretion in determining the sentence.
EXISTING LAW:
1)Finds and declares that the purpose of imprisonment for crime
is punishment. (Pen. Code 1170, subd. (a)(1).)
2)Finds and declares that this purpose is best served by terms
proportionate to the seriousness of the offense with provision
for uniformity in the sentences of offenders committing the
same offense under similar circumstances. (Pen. Code 1170,
subd. (a)(1).)
3)Finds and declares that the elimination of disparity and the
provision of uniformity of sentences can best be achieved by
determinate sentences fixed by statute in proportion to the
seriousness of the offense as determined by the Legislature to
be imposed by the court with specified discretion. (Pen. Code
1170, subd. (a)(1).)
4)Specifies that in any case in which the punishment prescribed
by statute for a person convicted of a public offense is a
term of imprisonment in the state prison or a county jail term
under Realignment, the court shall sentence the defendant to
one of the terms of imprisonment specified unless the
convicted person is given any other disposition provided by
law, including a fine, jail, probation, or the suspension of
imposition or execution of sentence. (Pen. Code 1170, subd.
(a)(3).)
5)States that when a judgment of imprisonment is to be imposed
and the statute specifies three possible terms, the choice of
the appropriate term shall rest within the sound discretion of
the court. (Pen. Code 1170, subd. (b).)
6)Species that in determining the appropriate term, the court
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may consider the record in the case, the probation officer's
report, other reports, including reports received, as
specified, and statements in aggravation or mitigation
submitted by the prosecution, the defendant, or the victim, or
the family of the victim if the victim is deceased, and any
further evidence introduced at the sentencing hearing. (Pen.
Code 1170, subd. (b).)
7)States that the court shall select the term which, in the
court's discretion, best serves the interests of justice.
(Pen. Code 1170, subd. (b).)
8)Provides that the statute authorizing discretion of courts to
sentence to different terms remain in effect only until
January 1, 2017, and as of that date is repealed, unless a
later enacted statute, that is enacted before that date,
deletes or extends that date. (Pen. Code, § 1170, subdivision
(i).)
9)Finds and declares that the provision of probation services is
an essential element in the administration of criminal
justice. The safety of the public, which shall be a primary
goal through the enforcement of court-ordered conditions of
probation; the nature of the offense; the interests of
justice, including punishment, reintegration of the offender
into the community, and enforcement of conditions of
probation; the loss to the victim; and the needs of the
defendant shall be the primary considerations in the granting
of probation. (Pen. Code, § 1202.7.)
10)Specifies that "probation" means "the suspension of the
imposition or execution of a sentence and the order of
conditional and revocable release in the community under the
supervision of a probation officer." (Pen. Code, § 1203(a).)
11)Specifies that "conditional sentence" means "the suspension
of the imposition or execution of a sentence and the order of
revocable release in the community subject to conditions
established by the court without the supervision of a
probation officer." (Pen. Code, § 1203(a).)
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12)Provides that the court, in granting probation, may suspend
the imposing or the execution of the sentence and may direct
that the suspension may continue for a period of time not
exceeding the maximum possible term of the sentence, except as
specified, and upon those terms and conditions as it shall
determine. (Pen. Code, § 1203.1.)
13)States that the court may impose and require any or all of
the terms of imprisonment, fine, and conditions, and other
reasonable conditions, as it may determine are fitting and
proper to the end that justice may be done and for the
rehabilitation of the probationer, and that should the
probationer violate any of the terms or conditions imposed by
the court in the matter, it shall have authority to modify and
change any and all the terms and conditions and to reimprison
the probationer in the county jail, as specified. (Pen. Code,
§ 1203.1, subd. (j).)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "AB 2590
(Weber), the Restorative Justice Act, which is a modest but
important step to move California's criminal laws away from a
system that relies solely upon incarceration and punishment.
While current law assumes that punishment (i.e., prison) is
the only legitimate response to crime, AB 2590 recognizes that
alternatives to incarceration, including restorative justice
solutions, may sometimes be appropriate. Restorative justice
provides an opportunity for the offender to accept
responsibility, acknowledge the harm, make agreements to
repair the damages as much as possible and clarify future
intentions. This is similar to mediation, but has a broad
purpose, to address the needs of the victim as well as repair
the damaged relationship. Restorative justice agreements
include the development of a circle of support and
accountability to increase the likelihood that all agreements
are completed."
2)The Criminal Justice System Has Increased the Use of Custodial
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Alternatives in Recent Years: In the wake of prison
overcrowding and Criminal Justice Realignment, there has been
a focus at every level of the criminal justice system on
alternatives to custody and evidence based practices to reduce
recidivism. To that end, criminal courts are incorporating
more sentencing options that do not involve custody.
Frequently, such sentencing approaches attempt to address the
underlying issues connected to the defendant's criminal
behavior.
County alternative custody programs can now include newly
realigned offenders-non-serious, non-violent, non-sexual
(1170h) felons who previously were eligible for prison but now
serve all or part of their sentences in county jail. Counties
now have the option of placing these 1170h offenders in work
release programs, home detention, or electronic monitoring
programs at any point during their sentences. Offenders
serving local sentences have been eligible for placement in
alternative custody programs for years. (Public Policy
Institute California, April 2015.) At the State level, the
Governor's recent budgets have included money for programs to
reduce recidivism. Those programs include community reentry
programs and expanded substance abuse treatment for inmates in
state prison.
( http://www.lao.ca.gov/reports/2014/budget/three-judge-panel/th
ree-judge-panel-022814.aspx )
3)Under Existing Sentencing Law, Judges Have Discretion to
Impose Probation Conditions For Rehabilitative Purposes:
Probation is the suspension of the imposition or execution of
a sentence and the conditional release of a defendant into the
community under the direction of a probation officer.
"Probation is generally reserved for convicted criminals whose
conditional release into society poses minimal risk to public
safety and promotes rehabilitation." People v. Carbajal (1995)
10 Cal.4th 1114,1120.
The primary considerations in granting probation are: (1)
Public safety; (2) the nature of the offense; (3) the
interests of justice; (4) the victim's loss; and (5) the
defendant's needs. (Pen. Code, § 1202.7.) Courts have broad
general discretion to fashion and impose additional probation
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conditions that are particularized to the defendants. People
v. Smith (2007) 152. Cal.App.4th 1245, 1249. Courts may impose
any "reasonable" conditions necessary to secure justice and
assist the rehabilitation of the probationer. Such conditions
can include any variety of custodial alternatives, or programs
for rehabilitation, such as counseling or substance abuse
treatment.
4)Restorative Justice: This bill would find and declare that
the purpose of sentencing is public safety achieved through
accountability, rehabilitation, and restorative justice.
"Restorative justice" is a concept which gives priority to
repairing the harm done to victims and communities, and
offender accountability is defined in terms of assuming
responsibility and taking action to repair harm. Within that
general framework, programs involving restorative justice can
encompass a wide variety of approaches.
In 2013, The New York Times published an article which examined
restorative justice programs in the United States.
"Most modern justice systems focus on a crime, a lawbreaker
and a punishment. But a concept called "restorative
justice" considers harm done and strives for agreement from
all concerned - the victims, the offender and the community
- on making amends. And it allows victims, who often feel
shut out of the prosecutorial process, a way to be heard
and participate. In this country, restorative justice takes
a number of forms, but perhaps the most prominent is
restorative-justice diversion. There are not many of these
programs - a few exist on the margins of the justice system
in communities like Baltimore, Minneapolis and Oakland,
Calif. - but, according to a University of Pennsylvania
study in 2007, they have been effective at reducing
recidivism. Typically, a facilitator meets separately with
the accused and the victim, and if both are willing to meet
face to face without animosity and the offender is deemed
willing and able to complete restitution, then the case
shifts out of the adversarial legal system and into a
parallel restorative-justice process. All parties - the
offender, victim, facilitator and law enforcement - come
together in a forum sometimes called a
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restorative-community conference. Each person speaks, one
at a time and without interruption, about the crime and its
effects, and the participants come to a consensus about how
to repair the harm done."
( http://www.nytimes.com/2013/01/06/magazine/can-forgiveness-
play-a-role-in-criminal-justice.html?_r=0 )
5)Argument in Support: According to The California Public
Defenders Association "Existing law provides legislative
findings and declarations that the purpose of imprisonment for
crime is punishment, and that this purpose is best served by
terms proportionate to the seriousness of the offense with
provision for uniformity in the sentences of offenders
committing the same offense under similar circumstances.
Existing law further provides that, notwithstanding those
provisions, the Legislature finds and declares that programs
should be available for inmates, including, but not limited
to, educational programs, that are designed to prepare
nonviolent felony offenders for successful reentry into the
community. Existing law provides other legislative findings
and declarations relating to the development of policies and
programs.
"This bill would instead provide legislative findings and
declarations that the purpose of sentencing is public safety
achieved through restorative justice and that this purpose is
best served by taking into account the science of brain
development and maturity and the effects of violence on
individuals in disadvantaged neighborhoods, among other
specified factors. This bill would provide other legislative
findings and declarations, as specified.
"CPDA believes that this bill provides guidance into the proper
factors to be used in sentencing, and takes into account the
growing body of research that outlines factors that lead to
criminal behavior. It is also a practical bill that takes into
account the fact that the vast majority of persons who are
imprisoned will be released back into the community, and that
educational, vocational, rehabilitative, treatment, and other
programs should be made available to all inmates, in order to
fully prepare them for successful reentry into the community."
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6)Argument in Opposition: According to The California District
Attorneys Association, "California's current sentencing laws
exist to ensure that terms of imprisonment reflect the
seriousness of the offense and the offender's criminal
history, and to promote uniformity in sentencing such that
similar conduct results in similar punishment. AB 2590 turns
that notion on its head, suggesting courts should instead
consider a variety of factors that attempt to explain away
someone's criminal behavior and absolve them of full
accountability if they happen to have come from a less
fortunate background.
"AB 2590 would then, after taking these factors into account,
encourage courts to sentence these individuals to
'community-based punishment' which includes a variety of
alternatives to incarceration. Given the right judge, a
convicted defendant could avoid jail time altogether for
almost any offense. From a public safety standpoint, this is
the most troubling aspect of the bill.
"The language in AB 2590 authorizing a court to sentence a
convicted defendant to 'community-based punishment' provides
no exceptions for individuals convicted of serious or violent
felonies, sex offenses, or any other criminal acts.
Regardless of whether one believes that allowing a court to
essentially make up sentences on a case by case basis is a
good idea (we happen to think it is not), it defies any public
safety interest to extend such latitude to sentences of
individuals whose criminal conduct indicates a threat to the
community."
7)Prior Legislation:
a) SB 463 (Pavley), Chapter 508, Statutes of 2013, extended
to January 1, 2017, the provisions of law that provide that
the court shall, in its discretion, impose the term or
enhancement that best serves the interests of justice.
b) AB 1849 (Carter), Legislative Session of 2011-2012,
would have authorized the juvenile court of a county to
adopt a restorative justice program to address the needs of
minors, victims, and the community. AB 1849 was held in the
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Assembly Appropriations Committee.
c) AB 446 (Carter), Legislative Session of 2011-2012, would
have authorized a county to adopt a restorative justice
program to address the needs of minors, victims, and the
community. AB 446 was vetoed by the governor.
REGISTERED SUPPORT / OPPOSITION:
Support
PICO California (Sponsor)
Industrial Areas Foundation (Co-sponsor)
A New Path
California Attorneys for Criminal Justice
California Catholic Conference
California Industrial Areas Foundation
California Public Defenders Association
Diocese of San Bernardino
Felony Murder Elimination Project
Friends Committee on Legislation of California
Legal Services for Prisoners with Children
Mennonite Central Committee
National Association of Social Workers, California Chapter
National Council of Jewish Women
Pacific Southwest Mennonite Conference
Placer People of Faith Together
Sacramento Area Congregations Together
Sacramento Loaves and Fishes
Southeast Asia Resource Action Center
2 private individuals
Opposition
California District Attorneys
Analysis Prepared
by: David Billingsley / PUB. S. / (916) 319-3744
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