BILL ANALYSIS                                                                                                                                                                                                    



                                                                       


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          |SENATE RULES COMMITTEE            |                  AB 1799|
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                                 THIRD READING
                                        

          Bill No:  AB 1799
          Author:   Baugh (R)
          Amended:  8/7/00 in Senate
          Vote:     21

            
           SENATE PUBLIC SAFETY COMMITTEE  :  6-0, 6/13/00
          AYES:  Vasconcellos, Burton, Johnston, McPherson, Polanco,  
            Rainey

           SENATE APPROPRIATIONS COMMITTEE  :  13-0, 8/23/00
          AYES:  Johnston, Alpert, Bowen, Burton, Escutia, Johnson,  
            Karnette, Kelley, Leslie, McPherson, Mountjoy, Perata,  
            Vasconcellos

           ASSEMBLY FLOOR  :  77-0, 5/30/00 - See last page for vote
           

           SUBJECT  :    Indemnification:  erroneously convicted persons

           SOURCE  :     Author

           
           DIGEST  :    This bill increases the potential compensation  
          for wrongful incarceration after a person has been found  
          factually innocent from a maximum of $10,000 to a sum  
          equivalent to $100 per day of incarceration and to exclude  
          the amount received from the definition of gross income.

           ANALYSIS  :    Existing law provides that any person who was  
          convicted of a felony and imprisoned in the state prison  
          who is later pardoned by the Governor because the crime was  
          not committed or the person was factually innocent of the  
          crime may present a claim against the state to the State  
                                                           CONTINUED





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          Board of Control (BOC) for pecuniary injury sustained by  
          him through such erroneous conviction and imprisonment.

          Existing law provides that if the evidence shows that a  
          crime for which a claimant was convicted was either not  
          committed at all or, if committed, was not committed by the  
          claimant, BOC shall report the facts of the case and its  
          recommendations to the Legislature for the purpose of  
          indemnifying the claimant for pecuniary injury sustained as  
          the result of the erroneous conviction and incarceration.

          Existing law provides that the amount of the appropriation  
          recommended by the BOC shall not exceed in any case,  
          $10,000.

          Existing law excludes specific items from gross income tax  
          provisions.

          This bill provides that an appropriation made to a claimant  
          who has been erroneously convicted and imprisoned shall be  
          a sum equivalent to $100 per day of incarceration served  
          subsequent to the claimant's conviction.

          This bill provides that an appropriation shall not be  
          treated as gross income to the recipient under Revenue and  
          Taxation Code.

          The bill provides that gross income may not include any  
          amount received in a taxable year by a claimant pursuant to  
          Section 4904 of the Penal Code.

           Compensation in Other States  

          According to an American Bar Association Journal article:

              Only 16 jurisdictions have statutes to compensate  
              the wrongfully imprisoned and only two of those --  
              New York and West Virginia -- do not limit damages.  
               Some caps on compensation, such as California's,  
              are miserly. . . . New Hampshire's cap is only  
              $20,000.  The federal system is the stingiest of  
              all, capping payments at $5,000.

              Those with the highest limits are Maine with a  







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              $300,000 cap, and Ohio, which awards up to $25,000  
              for each year in prison plus lost wages, attorney  
              fees, fines and court costs.  (Higgins, Michael,  
              "Tough Luck for the Innocent Man" (March 1999) ABA  
              Journal, at p.47.)

          According to the article, many of the other states that do  
          place limits on the compensation provide for a yearly  
          maximum that is higher than California's total maximum of  
          $10,000.

           $100 a Day  

          On October 2, 1980, in Orange County, Kevin Lee Green was  
          wrongly convicted of the 1979 murder of his unborn daughter  
          and the rape of his former wife.  Green was cleared four  
          years ago through DNA testing, which had not yet been  
          developed at the time of his conviction.  This incident  
          gave rise to AB 110 that appropriated $620,000 from the  
          General Fund to the Department of Justice (DOJ) to  
          recompense Green for his wrongful conviction and  
          incarceration.  AB 110 used the rate of $100 per day of  
          incarceration in computing the total amount of the  
          appropriation.  This bill makes the $100 rate per day the  
          standard to be used by the BOC in making recommendations to  
          the Legislature regarding appropriations in cases of  
          persons wrongly convicted.

          According to the Assembly Appropriations March 6, 2000  
          analysis, "Discussions with the CDC, the Department of  
          Justice, the Board of Control and the California District  
          Attorneys Association indicate it is unlikely there will be  
          many applicable cases.  With advances in forensic DNA  
          procedures, however, the number of cases may increase.

          According to the author, "there are rare instances where  
          imprisoned individuals have been found factually innocent.   
          Under existing law, the restitution for wrongful  
          imprisonment is limited to $10,000.  Last year, in  
          connection with AB 110 (Baugh), Chapter 619, Statutes of  
          1999, and the Public Safety Committee recommendations, I  
          committed to make a systemic change to this procedure.   
          This bill would remove the cap and would instead set the  
          level of recompense at $100 per day.  The $100 figure is  







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          based on the amount the California Department of  
          Corrections (CDC) presently compensates those individuals  
          who are held after their scheduled release date."

           Prior Legislation  

          AB 110 (Baugh), Chapter 619, Statutes of 1999, passed the  
          Senate 31-1 (NOES:  Schiff).

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  Yes    
          Local:  No

                          Fiscal Impact (in thousands)

           Major Provisions             2000-01     2001-02       
           2002-03   Fund  

          Compensation             Indeterminable costsGeneral


           ASSEMBLY FLOOR  :
          AYES:  Aanestad, Ackerman, Alquist, Aroner, Ashburn,  
            Baldwin, Bates, Battin, Baugh, Bock, Brewer, Briggs,  
            Calderon, Campbell, Cardenas, Cardoza, Cedillo, Corbett,  
            Correa, Cox, Cunneen, Davis, Dickerson, Ducheny, Dutra,  
            Firebaugh, Florez, Frusetta, Gallegos, Granlund, Havice,  
            Honda, House, Jackson, Kaloogian, Keeley, Knox, Kuehl,  
            Leach, Lempert, Leonard, Longville, Lowenthal, Machado,  
            Maddox, Maldonado, Margett, Mazzoni, McClintock, Migden,  
            Nakano, Olberg, Oller, Robert Pacheco, Rod Pacheco,  
            Papan, Pescetti, Reyes, Romero, Runner, Scott, Shelley,  
            Steinberg, Strickland, Strom-Martin, Thomson, Torlakson,  
            Villaraigosa, Vincent, Washington, Wayne, Wesson,  
            Wiggins, Wildman, Wright, Zettel, Hertzberg
          NOT VOTING:  Floyd, Thompson, Vacancy


          RJG:sl  8/25/00   Senate Floor Analyses 

                       SUPPORT/OPPOSITION:  NONE RECEIVED

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