BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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AB 114 (Carter)
As Amended May 21, 2009
Hearing date: July 14, 2009
Welfare and Institutions Code VOTE ONLY
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JUVENILE JUSTICE:
RESTORATIVE JUSTICE
HISTORY
Source: Author
Prior Legislation: AB 360 (Carter) - 2008, vetoed
Support: California State PTA; California Catholic Conference of
Bishops; AFSCME, AFL- CIO;
Taxpayers for Improving Public Safety; Youth Law Center;
Fountain of Life; California State Conference of the NAACP;
Friends Committee on Legislation of
California; Juvenile Court Judges of California; one individual
Opposition:Department of Finance<1>
Assembly Floor Vote: Ayes 57 - Noes 18
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<1> In its analysis of this bill, the Department of Finance
notes that while it has no fiscal concerns with this bill, the
department opposes the bill because it does not address the
concerns raised in the Governor's veto last session of an almost
identical bill carried by the author (see Comment 3, infra.)
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KEY ISSUE
SHOULD COUNTIES BE AUTHORIZED TO ADOPT A RESTORATIVE JUSTICE PROGRAM
FOR JUVENILE OFEFNDERS, AS SPECIFIED?
PURPOSE
The purpose of this bill is to authorize counties to adopt a
restorative justice program for juvenile offenders, as
specified.
Under current law , the purpose of juvenile court law "is to
provide for the protection and safety of the public and each
minor under the jurisdiction of the juvenile court and to
preserve and strengthen the minor's family ties whenever
possible, removing the minor from the custody of his or her
parents only when necessary for his or her welfare or for the
safety and protection of the public." (Welfare and Institutions
Code ("WIC") 202.)
Minors under the jurisdiction of the juvenile
court as a consequence of delinquent conduct
shall, in conformity with the interests of public
safety and protection, receive care, treatment,
and guidance that is consistent with their best
interest, that holds them accountable for their
behavior, and that is appropriate for their
circumstances. This guidance may include
punishment that is consistent with the
rehabilitative objectives of this chapter. (Id.)
Current law expressly defines the scope and nature of
"punishment" in the juvenile court:
As used in this chapter, "punishment" means the
imposition of sanctions. It shall not include a
court order to place a child in foster care as
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defined by Section 727.3. Permissible sanctions may
include the following:
(1) Payment of a fine by the minor.
(2) Rendering of compulsory service without
compensation performed for the benefit of the
community by the minor.
(3) Limitations on the minor's liberty imposed as a
condition of probation or parole.
(4) Commitment of the minor to a local detention or
treatment facility, such as a juvenile hall, camp,
or ranch.
(5) Commitment of the minor to the Department of the
Youth Authority.
"Punishment," for the purposes of this chapter, does
not include retribution.
(Id.)
Current law provides that when a minor is adjudged a delinquent
ward of the court, "the court may make any and all reasonable
orders for the care, supervision, custody, conduct, maintenance,
and support of the minor, . . . ." (WIC 727.) The juvenile
court has broad discretion in imposing probation conditions.
(In re Josue S. (1999) 72 Cal.App.4th 168.)
This bill would enact a new statutory provision authorizing a
county to "adopt a restorative justice program to address the
needs of minors, victims, and the community," with the following
features:
This bill would provide that the "restorative justice program
shall be implemented through a restorative justice protocol
developed by the juvenile court in conjunction with the
prosecutor, public defender, probation department,
representatives from victims' groups, law enforcement, community
organizations and service providers, restorative justice groups,
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and clinicians with expertise in adolescent development."
This bill would require that the "protocol shall address all of
the following:
(1) The formation of a restorative justice council.
(2) The process to be employed in any case coming before the
council.
(3) The rights of minors.
(4) The rights of any victims involved in the case.
(5) Confidentiality issues.
(6) Timeliness for case processing.
(7) The scope of services of, and orders that may be imposed by,
the restorative justice council.
(8) The roles of the court, prosecutor, and defense counsel in
relation to the council.
(9) Qualifications and the selection process for restorative
justice council members.
(11) The process for evaluating compliance with the program.
(12) The process for handling any failure to adhere to the
program directed by the restorative justice council."
This bill would require that the "program in each case shall
seek to repair the harm to the victim, the minor, and the
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community caused by the behavior bringing the minor before the
juvenile court."
This bill would require that the "program requirements shall be
tailored to the age, mental capacity, and developmental maturity
of the minor, the nature of the offense, and the resources
available to the minor to accomplish the goals of this section."
This bill would provide that minors "may be referred to the
restorative justice program as part of the court's order for
informal supervision pursuant to Section 654.2, the court's
order for nonwardship probation under subdivision (a) of Section
725, the court's dispositional order under Section 727, or the
court's order for deferred entry of judgment under Section 790."
This bill would provide that if "the court orders the care,
custody, and control of the minor to be under the supervision of
the probation officer for foster care placement . . . the minor
may be referred to the restorative justice program only as
follows:
(1) To the extent that participation in the program is
consistent with both the minor's case plan developed pursuant to
Section 706.5 and any provision of reunification services to the
minor and his or her family pursuant to Section 727.2.
(2) To the extent that participation in the program does not
result in the loss of federal financial participation for the
placement of the minor."
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This bill would provide that no "General Fund moneys shall be
used to fund a restorative justice program established pursuant
to this section. A county that establishes a restorative
justice program shall apply to other appropriate public and
private local, state, and federal entities for funding to cover
the costs of the program. Nothing in this section is intended
to restrict the ability of courts or counties to develop or
maintain existing programs or strategies for juvenile offenders
that incorporate restorative justice principles."
This bill would state specified uncodified legislative findings
relating to restorative justice principles.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125 percent (an
average of 4 percent annually) over the past 20 years, growing
from 76,000 inmates to 171,000 inmates, far outpacing the
state's population growth rate for the age cohort with the
highest risk of incarceration.<2>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
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<2> "Between 1987 and 2007, California's population of ages 15
through 44-the age cohort with the highest risk for
incarceration-grew by an average of less than 1 percent
annually, which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many prisoners
for the existing capacity. The Governor, the
principal defendant, declared a state of emergency in
2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
Under the PLRA, any prisoner release order that we
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issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
period of two or three years.<3>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1. Stated Need for This Bill
The author states in part:
. . . Both the juvenile court and the juvenile
justice systems operate under a retributive justice
philosophy and under the traditional individual
treatment mission. Both approaches have failed to
satisfy basic needs of individual crime victims, the
community, and juvenile offenders.
. . .
The Balanced and Restorative Justice (BARJ) Model
outlines an alternative philosophy, restorative
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<3> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts For The Eastern District of California And The
Northern District Of California United States District Court
Composed Of Three Judges Pursuant To Section 2284, Title 28
United States Code (Feb. 9, 2009).
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justice, and a new mission, "the balanced approach,"
which requires juvenile justice professionals to
devote attention to:
Enabling offenders to make amends to their victims
and community.
Increasing offender competencies.
Protecting the public through processes in which
individual victims, the community, and offenders are
all active participants.
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The BARJ Model responds to many issues raised by the
victims' movement, including concerns that victims
have little input into the resolution of their own
cases, rarely feel heard, and often receive no
restitution or expression of remorse from the
offender.
The balanced approach is based on an understanding of
crime as an act against the victim and the community.
Practitioners have used techniques consistent with
this approach for years; however, they have lacked a
coherent philosophical framework that supports
restorative practice and provides direction to guide
all aspects of juvenile justice practice. The BARJ
Model provides an overarching vision and guidance for
daily decisions.
People who work on the front lines of the system are
faced daily with the frustration of seeing growing
numbers of young people involved in criminal behavior,
youth who leave the system with little hope for real
change, and countless victims and community members
who are left out of the process. That frustration has
inspired many to work toward changing organizational
culture, values, and programs to reflect a more
balanced and restorative approach to juvenile justice.
2. Background: Restorative Justice
This bill reflects features of a restorative justice model that
has been developed nationally over the last several decades. As
explained in the following 1996 fact sheet from the federal
Office of Juvenile Justice and Delinquency Prevention:
The venerable concept of restorative justice holds
that when a crime is committed the offender incurs an
obligation to restore the victim- and by extension the
community- to the state of well-being that existed
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before the offense. The principle of balance in
connection with restorative justice derives from the
balanced approach concept, which suggests that the
juvenile justice system should give equal weight to
(1) ensuring community safety, (2) holding offenders
accountable to victims, and (3) providing competency
development for offenders in the system so they can
pursue legitimate endeavors after release.<4>
Many jurisdictions in California have implemented restorative
justice models.<5>
3. Previous Bill Vetoed
The author carried a similar bill last year, AB 360, which was
vetoed by the Governor. The veto message stated:
This bill would allow counties to establish
restorative justice programs. While I am open to
prevention and treatment programs which are proven
effective, the principles stated in this bill appear
to emphasize alternatives to incarceration, without
ensuring public safety. It is also unclear whether
the restorative justice program, as proposed in this
bill, is limited to first or second-time, nonviolent
offenders.
I urge the Legislature to give further attention to
these important issues that help shape the juvenile
justice system.
For these reasons I am unable to sign this bill.
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<4> See http://www.ncjrs.gov/pdffiles/91415.pdf , viewed online
on June 3, 2008.
<5> See Balanced and Reformative Justice: An Information
Manual for California (Judicial Council of California,
Administrative Office of the Courts, Center for Families,
Children and the Courts) (2006).
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