BILL ANALYSIS Ó AB 2590 Page 1 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. AB 2590 Page 2 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 AB 2590 Page 3 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).) AB 2590 Page 4 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 AB 2590 Page 5 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 AB 2590 Page 6 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 AB 2590 Page 7 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." AB 2590 Page 8 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 AB 2590 Page 9 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 AB 2590 Page 10