BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    AB 2590       Hearing Date:    June 28, 2016    
          
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          |Author:    |Weber                                                |
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          |Version:   |May 19, 2016                                         |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|AA                                                   |
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                     Subject:  Sentencing:  Restorative Justice



          HISTORY

          Source:   PICO California; California Catholic Conference;  
                    California Industrial Areas Foundation; Friends  
                    Committee on Legislation of California







          Prior Legislation:None

          Support:  Bishop of Sacramento Jaime Soto; California Attorneys  
                    for Criminal Justice; California Civil Liberties  
                    Advocacy; California Public Defenders Association;  
                    Felony Murder Elimination Project; Legal Services for  
                    Prisoners with Children; Placer People of Faith  
                    Together; National Association of Social Workers,  
                    California Chapter; National Council of Jewish Women;  
                    A New Path; Pacific Southwest Mennonite Conference;  
                    Sacramento Area Congregation Together; Sacramento  
                    Loaves and Fishes; San Bernardino County District  
                    Advocates for Better Schools; Unitarian Universalist  







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                    Justice Ministry of California; West Coast Mennonite  
                    Central Committee; one individual

          Opposition:Association for Los Angeles Deputy Sheriffs;  
                    California Association of Code Enforcement Officers;  
                    California College and University Police Chiefs  
                    Association; California District Attorneys  
                    Association; California Narcotic Officers Association;  
                    Los Angeles County Professional Peace Officers  
                    Association; Los Angeles Police Protective League;  
                    Riverside Sheriffs Association

          Assembly Floor Vote:                 47 - 24


          PURPOSE

          The purpose of this bill is to revise existing legislative  
          declarations concerning the purpose of punishment to instead  
          state that the purpose of sentencing is public safety achieved  
          through accountability, rehabilitation, and restorative justice,  
          as specified.

          Current law reflects a reorganization and consolidation of state  
          correctional departments that was enacted in 2005 (SB 737  
          (Romero) (Chapter 10, Statutes of 2005).  One purpose of this  
          reorganization was to increase the importance of rehabilitation  
          programming within the department.  The reorganization attempted  
          to achieve this by emphasizing rehabilitation as part of the  
          department's mission, including the word "rehabilitation" in the  
          name of what previously was the Department of Corrections.   
          (Government Code § 12838.)

          Current law provides that the legislature finds and declares  
          that the purpose of imprisonment for crime is punishment and  
          that this purpose is best served by terms that are proportionate  
          to the seriousness of the offense while at the same time  
          providing for uniformity in sentences of offenders committing  
          the same offense under similar circumstances. (Penal Code §  
          1170(a)(1).)

          This bill revises this section to instead provide that the  
          purpose of "sentencing is public safety achieved through  
          accountability, rehabilitation, and restorative justice."








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          This bill further revises this provision to state, "When a  
          sentence includes incarceration, this  purpose is best served by  
          terms that are  proportionate to the seriousness of the offense  
          with provision for uniformity in the sentences of offenders  
          committing the same offense under similar circumstances."

          Current law provides that, " . . . the Legislature further 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. The Legislature encourages the  
          development of policies and programs designed to educate and  
          rehabilitate nonviolent felony offenders. In implementing this  
          section, the Department of Corrections and Rehabilitation is  
          encouraged to give priority enrollment in programs to promote  
          successful return to the community to an inmate with a short  
          remaining term of commitment and a release date that would allow  
          him or her adequate time to complete the program."  (Penal Code  
          § 1170(a)(2).)

          This bill revises this language to state that the educational  
          and rehabilitative programing described above apply to "all  
          offenders."

          This bill deletes this paragraph's reference to CDCR being  
          encouraged to "give priority enrollment in programs," and  
          instead provides that CDCR is encouraged to "allow all inmates  
          the opportunity to enroll in programs that promote successful  
          return to the community."

          This bill also deletes from this paragraph the reference to "an  
          inmate with a short remaining term of commitment and a release  
          date that would allow him or her adequate time to complete the  
          program."

          This bill further removes the word "punishment" from this  
          section, and replaces it with the word "sentence," as specified.

                    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  








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          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-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:









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              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.Stated Need for This Bill

          The author states:

               Our current criminal justice system, founded upon the  
               sole purpose of punishment, has failed.  Despite our  
               overcrowded prisons, recidivism remains at the  
               unacceptably high rate of 61%.  It is time to consider  
               effective alternatives to incarceration, specifically  
               restorative justice solutions, as well as greater  
               opportunities for rehabilitation for those already  
               incarcerated.

               It is time to consider effective alternatives to  
               incarceration, specifically restorative justice  
               solutions, as well as greater opportunities for  
               rehabilitation for those already incarcerated.

               Restorative justice refers to an alternative to  
               punitive justice.  Instead of relying solely on  
               punishment, 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  
               broader purpose, to address the needs of the victim as  
               well as repair the damaged relationship.  Restorative  








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               justice agreements include the development of a circle  
               of support and accountability to increase the  
               likelihood that all agreements are completed.

               Nationwide, at least 44 states statutorily provide  
               pretrial diversion alternatives to traditional  
               criminal justice proceedings for persons charged with  
               criminal offenses. Individuals are diverted prior to  
               conviction and successful completion of the program  
               results in a dismissal of charges.

               Restorative justice has a proven basis in research,  
               with more than a hundred evaluations from across the  
               US and around the world, including 16 randomized  
               experiments. Results indicate: 

                     Reduced recidivism in most cases

                     More than 90% reporting justice was satisfied

                     Victims report less fear and anger after the  
                 program* families are supported and strengthened

               In California, there are several examples of  
               successful restorative justice programs.  Please see  
               fact sheet for examples. (citation omitted)

          1.Background

          There has been a focus at every level of the criminal justice  
          system in California 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  








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          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/thre 
          e-judge-panel-022814.aspx)

          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 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.

          2.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  








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               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 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-forgive 
               ness-play-a-role-in-criminal-justice.html?_r=0)

          3.Support

          The California Public Defenders Association supports this  
          bill, stating in part:

               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. . . .  

               This bill would instead provide legislative findings  








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               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.

               . . . (T)his 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.

          4.Opposition

          The California District Attorneys Association opposes this  
          bill, stating in part:

               While we agree that accountability, rehabilitation,  
               and restorative justice are also important components  
               of sentencing, so too is punishment.  Alternatives to  
               incarceration are not appropriate for some offenders -  
               particularly those who have committed heinous crimes.   
               . . . We would very much appreciate an opportunity to  
               work on language that reflects the variety of purposes  
               that our criminal justice system serves, based on the  
               particular needs of the offender.

          5.Related Legislation

          Earlier this year this Committee passed the Chair's SB 1324,  
          which currently is on the Assembly floor.  That measure also  
          includes revisions to the legislative findings and declarations  
          in Penal Code section 1170.

                                      -- END -








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