BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 2590 Hearing Date: June 28, 2016
-----------------------------------------------------------------
|Author: |Weber |
|-----------+-----------------------------------------------------|
|Version: |May 19, 2016 |
-----------------------------------------------------------------
-----------------------------------------------------------------
|Urgency: |No |Fiscal: |Yes |
-----------------------------------------------------------------
-----------------------------------------------------------------
|Consultant:|AA |
| | |
-----------------------------------------------------------------
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
AB 2590 (Weber ) Page
2 of ?
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."
AB 2590 (Weber ) Page
3 of ?
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
AB 2590 (Weber ) Page
4 of ?
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:
AB 2590 (Weber ) Page
5 of ?
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
AB 2590 (Weber ) Page
6 of ?
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
AB 2590 (Weber ) Page
7 of ?
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
AB 2590 (Weber ) Page
8 of ?
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
AB 2590 (Weber ) Page
9 of ?
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 -
AB 2590 (Weber ) Page
10 of ?