BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 1054 Hearing Date: April 5, 2016
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|Author: |Pavley |
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|Version: |February 16, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|JM |
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Subject: Restitution Orders: Collection
HISTORY
Source: Los Angeles County District Attorney
Prior Legislation:SB 1210 (Lieu) - Chapter 762, Stats. of 2012
Support: California District Attorneys Association; California
Public Defenders Association; California State
Sheriffs' Association
Opposition:None known
PURPOSE
The purpose of this bill is to 1) clarify that county collection
entities may deduct an administrative fee for collecting
payments for restitution orders and restitution fines from a
jail inmate prior to the inmate's release; 2) provide that if a
county collection agency objects to the referral, collection of
direct restitution from offenders shall not be referred to the
Franchise Tax Board, subject to the preference of the victim;
and 3) consistently provide that an administrative fee retained
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by a county entity shall cover the actual costs of collection,
to a maximum of 10% of the total.
Existing provisions in the California Constitution state that
all persons who suffer losses as a result of criminal activity
shall have the right to restitution from the perpetrators of
these crimes. Restitution shall be ordered in every case unless
compelling and extraordinary reasons exist and the Legislature
shall enact statutes to implement the constitutional restitution
provisions. (Cal. Const. Art. 1 § 28 (b).)
Existing law states legislative intent that a victim of crime
who incurs any economic loss as a result of the commission of a
crime shall receive restitution directly from any defendant
convicted of that crime. (Pen. Code § 1202.4, subd. (a)(1).)
Existing law provides that where a defendant is committed to
prison and subject to parole, the court shall impose a separate
parole restitution fine in the same amount as the restitution
fine itself. This additional parole revocation restitution fine
is not subject to penalty assessments, as specified, or a
specified state surcharge, and shall be suspended unless the
person's parole is revoked. Parole revocation restitution fine
moneys are deposited in the Restitution Fund in the State
Treasury. (Pen. Code § 1202.45, subd. (a) and (c).)
Existing law provides that in every case where a person is
convicted of a crime and subject to either postrelease community
supervision (Pen. Code § 3451 - PRCS), or mandatory supervision
as a felon sentenced to a jail term pursuant to Penal Code
section 1170(h)(5), the court shall impose an additional
supervision revocation restitution fine and stay that fine until
and unless the person's supervision is revoked. Post Release
Community Supervision (PRCS) and mandatory supervision
revocation restitution fines are deposited in the Restitution
Fund in the State Treasury. (Pen. Code § 1202.45, subd.
(b)-(c).)
Existing law provides that where a person on PRCS or mandatory
supervision is incarcerated pursuant to a supervision
revocation, the person shall pay the fine previously ordered and
stayed by the court that shall be collected by the agency
designated by the board of supervisors of the county in which
the prisoner is incarcerated. (Pen. Code § 1202.45, subd. (b).)
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Existing law provides that any "portion of a [direct]
restitution order that remains unsatisfied after a defendant is
no longer on probation, parole, mandatory supervision or PRCS is
enforceable by the victim" as though the order was a civil
judgment. (Penal Code § 1214, subd. (b).)
Existing law provides for the Secretary of the California
Department of Corrections and Rehabilitation (CDCR) to make
deductions from an inmate's wages and trust account deposits and
transferred for deposit in the Restitution Fund where a prisoner
owes a restitution fine, as specified. (Penal Code § 2085.5.)
Existing law provides that the agency designated by the board of
supervisors in the county of incarceration may make deductions
from the wages and jail trust account of an inmates serving a
sentenced felony jail term pursuant to Penal Code section 1170
(h).
Existing law provides that that the agency designated by the
board of supervisors in the county of incarceration may collect
outstanding restitution orders and restitution fines from
persons on PRCS or mandatory supervision. (Pen. Code § 2085.6.)
Existing law generally provides that the entity collecting
criminal fines, restitution fines and restitution orders may
retain a 10 % administrative fee or an administrative fee that
covers the cost of collection, up to a maximum of 10%, as
specified. (Pen. Code § 2085.5-2085.6.)
Existing law provides that court-ordered restitution fines for
criminal offenses and juvenile adjudications may be referred to
the Franchise Tax Board (FTB) for collection, as specified.
(Rev, and Tax. Code § 19280.)
This bill authorizes the agency designated by the county to
collect restitution fines and orders from sentenced felony jail
inmates to retain an administrative fee to cover the actual
costs of collection, up to 10%.
This bill clarifies that the agency designated by the county to
collect restitution fines and orders from sentenced felony jail
inmates may retain the administrative fee at the time the
restitution order or fine is collected.
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This bill provides that if a county agency has been designated
to collect restitution orders from sentenced felony jail
inmates, persons on PRCS or mandatory supervision and the county
agency has a collection system and objects to referral of the
order to FTB for collection, CDCR or the county shall not refer
the order to FTB. The victim entitled to the restitution may
designate the agency that will collect the restitution.
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
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
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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:
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.Need for This Bill
According to the author:
SB 1054 addresses legal ambiguities in the collection
of victim restitution fines from inmates sentenced to
county jail pursuant to Penal Code Section 1170(h) and
inmates released from state prison to Post-Release
Community Supervision (PRCS). It is unclear when a
county sheriff is authorized to collect a state
authorized administrative fee. Consequently, sheriffs
may be unable to collect administrative fees to pay
for restitution collection from sentenced 1170 (h)
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inmates. In addition, because of an anomaly in
current law, an individual on PRCS can be referred to
the state Franchise Tax Board for collection of
restitution, despite being on local supervision. This
dual state-local authority could lead to unfair
restitution collection from an individual released to
PRCS. SB 1054 would specify that counties that
supervise criminal populations can collect the
restitution and related administrative costs and thus
help victims received restitution. The bill provides
fairness in collecting restitution from criminal
offenders released to PRCS, who at the present time
may be ordered to pay the same restitution fines to
the state and the county.
In 2012, the Legislature authorized the collection of
restitution from county jail inmate accounts from
sentenced Penal Code section 1170(h) inmate. Since
that time, there has been confusion regarding the
collection of administrative fees by county sheriffs
pursuant to this statute. Because of this confusion,
some counties (Monterey, San Diego and Sacramento)
believe that the collection of the fee is not
authorized until the inmate is released. However,
inmates may empty out their account to prevent the
county sheriff from collecting an administrative fee
upon their release. The California Department of
Corrections and Rehabilitation has always interpreted
the language to allow for immediate collection of the
administrative fee, but not all counties agree. This
bill is consistent with recent legislation and
clarifies the issue for counties.
CDCR may refer a former prison inmate to the FTB for
collection of restitution. Currently an individual on
Post Release Community Supervision (PRCS) can be
referred to the FTB, despite the fact that their
supervision is local. AB 109 transferred supervision
of inmates to local control. It is inconsistent with
AB 109 for the State to continue to collect
restitution from an individual who is being supervised
at the county level. Current law could lead to unfair
double collection of restitution, hindering the
successful reentry of an individual back into the
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community.
SB 1054 will resolve these issues to clearly express
that a county sheriff can collect the 10%
administrative fee at the time restitution is
collected on behalf of the victim, and by amending the
Revenue and Tax Code to allow a county that is
collecting restitution from an individual on PRCS to
have primary authority to do so. After an individual
is released from PRCS the county would then transfer
responsibility to the FTB to collect remaining
restitution.
2.Administrative Fee Provisions and Rules for referring a
Collection order to the Franchise Tax Board for Collection
where a County Agency has a Collection System
This bill does not set new policy. It is largely a technical
bill to conform restitution collections procedures to the Public
Safety Realignment of 2011 and make collection administrative
fee procedures consistent. That realignment provided for some
felons to be supervised locally on Post Release Community
Supervision immediately following release from prison. In
sentencing an inmate to a realignment felony jail term, the
court may stay a portion of the sentence and place the person on
"mandatory supervision."
Agencies charged with collecting restitution orders and
restitution fines from sentenced felony jail inmates generally
may retain an administrative fee of 10% of the amount collected.
Agencies charged with collecting restitution orders and
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restitution fines from persons on PRCS or mandatory supervision
may retain an administrative fee that covers the cost of
collection up to 10%. This bill provides that the amount
collected as an administrative fee shall cover the actual cost
of collection and not exceed 10%. Further, the bill addresses
an apparent inconsistency in the law and clarifies that the
administrative fee may be collected at the time the order or
fine is collected, not only upon release of the inmate from
jail.
This bill also provides that if a county has designated an
agency for the collection of restitution orders and the agency
has a collection system, the following shall apply: neither
CDCR nor a county shall not refer collection of a restitution
order to FTB if the designated agency objects to referral of the
order to FTB. However, the victim may choose which agency shall
collect the order.
3.Sponsor's Proposed Technical Amendments
The sponsor - the Los Angeles County District Attorney - has
concluded that some of the confusion in the statutes concerning
collection of direct restitution orders and restitution fines
arises from the way the statutes are organized. The provisions
concerning collection from inmates in custody and convicted
defendants who have been released, with or without supervision,
are in the same code section. The sponsor has proposed that the
existing section be divided into two sections, such that the
existing collection provisions and the substantive changes
proposed by this bill will clearer and more efficiently
implemented.
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