BILL ANALYSIS
SENATE RULES COMMITTEE AB 856
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THIRD READING
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Bill No: AB 856
Author: Hertzberg (D)
Amended: 9/12/97 in Senate
Vote: 27
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SENATE PUBLIC SAFETY COMMITTEE : 8-0, 7/8/97
AYES: Vasconcellos, Rainey, Burton, Kopp, McPherson,
Polanco, Schiff, Watson
SENATE APPROPRIATIONS COMMITTEE :
ASSEMBLY FLOOR : 75-0, 5/27/97 - See last page for vote
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SUBJECT : Witness Protection Program
SOURCE : Author
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DIGEST : This bill would create the Hertzberg-Leslie
Witness Protection Program under the Attorney General's
Office with specified functions and duties, as specified.
ANALYSIS : Existing law establishes a Victim-Witness
Assistance Fund through the Office of Criminal Justice
Planning to any public or private non-profit agency for the
assistance of victims and witnesses.
This bill creates the Hertzberg-Leslie Witness Protection
Program, to be administered by the Attorney General (AG).
This bill defines witness as "any person who has been
summoned, or is reasonably expected to be summoned, to
testify in a criminal matter, including grand jury
proceedings, for the people, whether or not formal
proceedings have been filed." Further, "active or passive
participation in the criminal matter does not disqualify an
individual from being a witness." A witness may also be a
family member, friend, or associate of the witness, if the
AG deems the individual to be endangered.
In administering this program, the AG would be required to
give priority to witnesses involved in matters related to
organized crime, gang activities, drug trafficking, and
cases involving a high degree of risk to the witness.
Special regard would also be given to the elderly, the
young, battered, victims of domestic violence, the infirm,
the handicapped, and victims of hate incidents.
Under this bill, witnesses entering into this program would
agree, in writing, to nine conditions which specify the
responsibilities of the protected person. This bill also
states that the AG shall not be liable for any condition in
the witness protection agreement that cannot reasonably be
met due to a witness committing a crime during
participation in the program.
Under this bill, the state, counties, and cities and their
respective officers and employees would all have immunity
from civil liability for any decision declining or revoking
protection to a witness.
The bill would require the AG to issue appropriate
guidelines and may adopt regulations to implement the
provisions of this bill.
The guidelines shall include:
1.A process whereby state and local agencies shall apply
for reimbursement of the costs of providing witness
protection services.
2.An appropriate level for the match that shall be made by
local agencies. The AG may also establish a process
through which to waive the required local match when
appropriate.
This bill, in augmentation of the 1997 Budget Act,
appropriates $662,488,000 for trial court funding, subject
to the enactment of legislation that substantially
restructures trial court funding, as specified. The bill
would also revert the appropriations made by that act for
trial court funding.
In addition, this bill appropriates $86,591,000 for
purposes including trial court funding, commercial space
development, public resources, citizenship education,
social services, public elementary and secondary education,
public postsecondary education, and workers' compensation
information.
This bill requires the AG to make an annual report to the
Legislature no later than January 1 as to the fiscal and
operational status of the program.
Under this bill, state and local agencies will be
responsible for most of the witness protection program
services. This bill allows the AG to reimburse state and
local agencies for the costs of providing witness
protection services in any criminal proceeding within the
state when credible evidence exists of a substantial danger
that a witness may suffer intimidation or retaliatory
violence. ("Credible evidence" in this bill means
"evidence leading a reasonable person to believe that
substantial reliability should be attached to the
evidence.")
Under this bill, the AG must coordinate state and local
agencies efforts to secure witness protection services and
then reimburse the agencies for the costs of the services
deemed necessary to protect a witness from bodily injury
and to otherwise assure the health, safety, and welfare of
the witness.
The AG may reimburse agencies that provide witnesses with
specific services.
Under existing law, the Restitution Fund, under the State
Board of Control, exists to help victims and derivative
victims obtain restitution for financial losses they suffer
as a direct result of criminal acts. A "victim" for
purposes of this fund is a person who has sustained "injury
or death as a direct result of a crime."
This bill would allow a witness to be considered a victim
because he or she has been or may be victimized due to the
testimony he or she will give.
This bill would require the AG to pursue all federal
sources that may be available for this program. The bill
would the AG, with the State Board of Control, to establish
procedures to maximize federal funds for these services.
To help accomplish this, the bill would require the AG to
establish a liaison with the U.S. Marshal's office in order
to facilitate the legal processes over which the federal
government has sole authority. This liaison would
coordinate all requests for federal assistance relating to
witness protection.
Funds available to the Witness Protection Program could be
used for any of the following:
1.Protecting witnesses where credible evidence exists that
may be in substantial danger of intimidation or
retaliatory violence because of their testimony.
2.Providing temporary and permanent relocation of witnesses
and providing for their transition and well-being into a
safe and secure environment.
3.Paying the costs of administering the program.
The bill would provide the administrative costs of the AG
for the purposes of administering this bill shall be
limited to 5% of all costs incurred.
The Governor's budget shall specify the estimated amount in
the Restitution Fund that is in excess of the amount needed
to pay claims pursuant to existing law, to pay
administrative costs for increasing restitution funds, and
to maintain a prudent reserve.
The bill states legislative intent that, in the annual
Budget Act, funds be appropriated to the AG from those
funds that are in excess of the amount specified for
purposes of the bill.
This bill appropriates $3 million from the Restitution Fund
to the AG to implement the bill's provisions.
The purpose of this bill is to create a program in the
state for witnesses to be protected and to assist state and
local agencies in this effort.
The U.S. Department of Justice states that witness
intimidation strikes "at the root of the criminal justice
system by denying crucial evidence to police investigators
and prosecutors" and undermines "the confidence of whole
communities in the government's ability to protect and
represent them."
Witness intimidation can be overt or implicit.
Gang-inspired fear, a form of implicit intimidation, can
raise fear amongst the entire community, and the threat of
retaliation by the gang can ensure that certain crimes
never get prosecuted.
An October 3, 1996 article, "Mistrial in Shooting of
Teacher Spotlights Gang Intimidation," in the Los Angeles
Times , describes a witness who saw a gang member fire shots
at a passing car. The witness later stated that he did not
see anything. The jury deadlocked on the case, and at the
time of the writing was going to be retried.
When witnesses refuse to testify, the success ratio of
investigations and prosecutions by local law enforcement
and district attorney's offices declines.
Witness Protection Agreement
Witnesses in the program would agree to the following:
1.If a witness or potential witness, to testify in and
provide information to all appropriate law enforcement
officials concerning all appropriate proceedings.
2.To refrain from committing any crime.
3.To take all necessary steps to avoid detection by others
of the facts concerning the protection provided to that
person.
4.To comply with legal obligations and civil judgments.
5.To cooperate with all reasonable requests of officers and
employees of this state who are providing protection
through the program.
6.To designate another person to act as agent for the
service of process.
7.To make a sworn statement of all outstanding legal
obligations, including obligations concerning child
custody and visitation.
8.To disclose any probation or parole responsibilities.
9.To regularly inform the appropriate program official of
his or her activities and current address if the person
is on probation or parole.
The AG may reimburse state and local agencies which provide
witnesses any of the following services:
1.Armed protection or escort by law enforcement officials
or security personnel before, during, or subsequent to,
legal proceedings.
2.Physical relocation to an alternate residence.
3.Housing expenses.
4.Appropriate documents to establish a new identity.
5.Transportation or storage of personal possessions.
6.Basic living expenses, including, but not limited to,
food, transportation, utility costs, and health care.
7.Other services as needed and approved by the AG.
FISCAL EFFECT : Appropriation: Yes Fiscal Com.: Yes
Local: No
Appropriates $3 million to the AG for purposes of the bill.
SUPPORT : (Verified 9/12/97)
California District Attorneys Association
Attorney General
Los Angeles County District Attorney's Office
City and County of San Francisco, District Attorney's
Office
Association for Los Angeles Deputy Sheriffs
City of Los Angeles
ARGUMENTS IN SUPPORT : The author's office states, "A
1994 survey of 192 prosecutors found that intimidation of
witnesses was a major problem for more than half of the
prosecutors in counties with populations of at least
250,000. Moreover, several of the prosecutors interviewed
for a November, 1996 Department of Justice report estimated
that witness intimidation occurs in relation to 75 to 100%
of the violent crimes committed in some gang-dominated
neighborhoods.
"According to the recent Los Angeles Times series, an
increasing number of gang killers (responsible for about
40% of Los Angeles County's murders) are going free. This
rise is due in part to the lack of witnesses. Incidents of
witness intimidation occur frequently enough to frighten
potential witnesses from cooperating with prosecutors.
"We can't possibly expect to solve California's most
serious criminal cases unless we afford witnesses the
necessary protection that encourage them to come forth and
expose dangerous criminals.
"AB 856 will establish a program administered by the
Attorney General to provide relocation and other protection
services to witnesses in criminal proceedings when there is
credible evidence that substantial danger of retaliatory
violence or oppression may be directed toward the witness."
ASSEMBLY FLOOR :
AYES: Ackerman, Alby, Alquist, Aroner, Ashburn, Baca,
Baldwin, Battin, Baugh, Bordonaro, Bowen, Bowler, Brewer,
Brown, Caldera, Campbell, Cardenas, Cardoza, Cunneen,
Davis, Escutia, Figueroa, Firestone, Frusetta, Goldsmith,
Granlund, Havice, Hertzberg, Honda, House, Kaloogian,
Keeley, Knox, Kuehl, Kuykendall, Leach, Lempert, Leonard,
Machado, Margett, Martinez, Mazzoni, McClintock, Migden,
Miller, Morrissey, Morrow, Napolitano, Olberg, Oller,
Ortiz, Pacheco, Papan, Perata, Poochigian, Prenter,
Pringle, Richter, Runner, Scott, Shelley, Strom-Martin,
Sweeney, Takasugi, Thompson, Thomson, Torlakson,
Villaraigosa, Vincent, Washington, Wayne, Wildman, Woods,
Wright, Bustamante
NOT VOTING: Aguiar, Ducheny, Floyd, Gallegos, Murray
RJG:cm 9/12/97 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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