BILL ANALYSIS                                                                                                                                                                                                    



                                                                    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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