BILL ANALYSIS
AB 750
Page 1
Date of Hearing: April 14, 2008
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 750 (Bass) - As Introduced: February 26, 2009
SUMMARY : Creates a deferred entry of judgment (DEJ) program for
first-time, non-violent drug offenders. Specifically, this
bill :
1)Authorizes a superior court, with the concurrence of the
prosecuting attorney of the county, to create a DEJ reentry
program aimed at preventing recidivism among first-time,
non-violent felony drug offenders. Specifies the
characteristics of that program and the process for
eligibility for the program.
2)Permits a superior court, with the concurrence of the
prosecuting attorney of the county, may create a "Back on
Track" DEJ reentry program aimed at preventing recidivism
among first-time non-violent felony drug offenders. No
defendant convicted of a sex offense violation requiring
registration, serious felonies, or violent felonies shall be
eligible for the program established, as specified. When
creating this program, the prosecuting attorney, together with
the presiding judge and a representative of the criminal
defense bar selected by the presiding judge of the superior
court may agree to establish a Back on Track DEJ program
pursuant to the provisions of this chapter. The agreement
shall specify which low-level, non-violent felony drug
offenses under the Health and Safety Code will be eligible for
the program and a process for selecting participants. The
program shall have the following characteristics:
a) A dedicated calendar.
b) Leadership by a superior court judicial officer who is
assigned by the presiding judge.
c) Clearly defined eligibility criteria to enter the
program and clearly defined criteria for completion of the
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program.
d) Legal incentives for defendants to successfully complete
the program, including dismissal or reduction of criminal
charges upon successful completion of the program.
e) Close supervision to hold participants accountable to
program compliance, including the use of graduated
sanctions and frequent, ongoing appearances before the
court regarding participants' program progress and
compliance with all program terms and conditions. The
court may use available legal mechanisms, including return
to custody if necessary, for failure to comply with the
supervised plan.
f) Appropriate transitional programming for participants,
based on available resources from county and community
service providers and other agencies. The transitional
programming may include, but is not limited to, any of the
following:
i) Vocational training, readiness, and placement.
ii) Educational training, including assistance with
acquiring a General Education Development (GED) or high
school diploma and assistance with admission to college.
iii) Substance abuse treatment.
iv) Assistance with obtaining identification cards and
driver's licenses.
v) Parenting skills training and assistance in becoming
compliant with child support obligations.
g) The program may develop a local, public-private
partnership between law enforcement, government agencies,
private employers, and community-based organizations for
the purpose of creating meaningful employment opportunities
for participants and to take advantage of incentives for
hiring program participants.
3)States that the prosecuting attorney shall determine whether a
defendant is eligible for participation in the DEJ reentry
program.
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4)Provides if the prosecuting attorney determines that this
section may be applicable to the defendant, he or she shall
advise the defendant and his or her attorney in writing of
that determination. This notification shall include the
following:
a) A full description of the DEJ procedures.
b) A general explanation of the role and authority of the
prosecuting attorney, the program, and the court in the
process.
c) A clear statement that in lieu of trial, the court may
grant DEJ with respect to the current crime or crimes
charged if the defendant pleads guilty to each charge and
waives time for the pronouncement of judgment; and that
upon the defendant's successful completion of the program
and the motion of the prosecuting attorney, the court will
dismiss the charge or charges against the defendant and the
provisions of clearing records shall apply.
d) A clear statement that failure to comply with any
condition under the program may result in the prosecuting
attorney or the court making a motion for entry of
judgment, whereupon the court will render a finding of
guilty to the charge or charges pled, enter judgment, and
schedule a sentencing hearing as otherwise provided in this
code.
e) An explanation of criminal record retention and
disposition resulting from participation in the DEJ program
and the defendant's rights relative to answering questions
about his or her arrest and DEJ following successful
completion of the program.
5)Provides that if the prosecuting attorney determines that the
defendant is eligible for the program, the prosecuting
attorney shall state for the record the grounds upon which the
determination is based and shall make this information
available to the defendant and his or her attorney. This
procedure is intended to allow the court to set the DEJ
hearing at the arraignment.
6)States that if the prosecuting attorney determines that the
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defendant is ineligible for the program, the prosecuting
attorney shall state for the record the grounds upon which the
determination is based and shall make this information
available to the defendant and his or her attorney. The sole
remedy of a defendant who is found ineligible for DEJ is a
post-conviction appeal. If the prosecuting attorney does not
deem the defendant eligible or the defendant does not consent
to participate, the proceedings shall continue as in any other
case.
7)States that upon a motion by the prosecuting attorney for an
entry of judgment, before entering a judgment of guilty, the
court may hold a hearing to determine whether the defendant
has failed to comply with the program and should be terminated
from the program.
8)Provides that a defendant's plea of guilty shall not
constitute a conviction for any purpose unless a judgment of
guilty is entered as specified.
9)States that counties that opt to create a DEJ reentry program
pursuant to this bill shall not seek state reimbursement for
costs associated with the implementation, development, or
operation of that program.
10)States that local law enforcement agencies and counties
administering the programs may seek state, federal, or private
funding for the purpose of implementing the provisions of this
chapter.
11)Makes legislative findings that any limitation on the
public's right of access to the writings of public officials
and agencies made by its provisions is necessary to provide an
incentive for program participants to complete the diversion
program and to prevent recidivism among nonviolent offenders.
EXISTING LAW :
1)Provides for diversion from criminal prosecution through a DEJ
and sentence when an open case is before any court for
specified violations of drug possession, paraphernalia
possession, being in the presence of drug use, misdemeanor
transportation of marijuana, or harvesting of marijuana for
personal use and it appears to the prosecuting attorney that
all of the following apply to the defendant (Penal Code
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Section 1000):
a) The defendant has no conviction for any offense
involving controlled substances prior to the alleged
commission of the charged offense.
b) The offense charged did not involve a crime of violence
or threatened violence.
c) There is no evidence of a violation relating to
narcotics or restricted dangerous drugs other than a
violation of the sections listed in this subdivision.
d) The defendant's record does not indicate that probation
or parole has ever been revoked without thereafter being
completed.
e) The defendant's record does not indicate that he or she
has successfully completed or been terminated from
diversion or DEJ pursuant to this chapter within five years
prior to the alleged commission of the charged offense.
f) The defendant has no prior felony conviction within five
years prior to the alleged commission of the charged
offense.
2)States that the prosecuting attorney shall review his or her
file to determine whether or not the defendant qualifies for a
DEJ program. Upon the agreement of the prosecuting attorney,
law enforcement, the public defender, and the presiding judge
of the criminal division of the superior court, or a judge
designated by the presiding judge, this procedure shall be
completed as soon as possible after the initial filing of the
charges. If the defendant is found eligible, the prosecuting
attorney shall file with the court a declaration in writing or
state for the record the grounds upon which the determination
is based, and shall make this information available to the
defendant and his or her attorney. This procedure is intended
to allow the court to set the hearing for DEJ at the
arraignment. If the defendant is found ineligible for DEJ,
the prosecuting attorney shall file with the court a
declaration in writing or state for the record the grounds
upon which the determination is based, and shall make this
information available to the defendant and his or her
attorney. The sole remedy of a defendant who is found
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ineligible for DEJ is a post-conviction appeal. (Penal Code
Section 1000.)
3)Provides if the prosecuting attorney determines that DEJ may
be applicable to the defendant, he or she shall advise the
defendant and his or her attorney in writing of that
determination. This notification shall include the following
[Penal Code Section 1000.1(a)]:
a) A full description of the procedures for DEJ.
b) A general explanation of the roles and authorities of
the probation department, the prosecuting attorney, the
program, and the court in the process.
c) A clear statement that in lieu of trial, the court may
grant DEJ with respect to any crime that is charged,
provided that the defendant pleads guilty to each such
charge and waives time for the pronouncement of judgment;
and that upon the defendant's successful completion of a
program, the positive recommendation of the program
authority and the motion of the prosecuting attorney, the
court, or the probation department, but no sooner than 18
months and no later than three years from the date of the
defendant's referral to the program, the court shall
dismiss the charge or charges against the defendant.
d) A clear statement that upon any failure of treatment or
condition under the program, or any circumstance specified
in Penal Code Section 1000.3, the prosecuting attorney or
the probation department or the court on its own may make a
motion to the court for entry of judgment and the court
shall render a finding of guilt to the charge or charges
pled, enter judgment, and schedule a sentencing hearing as
otherwise provided, as specified.
e) An explanation of criminal record retention and
disposition resulting from participation in the DEJ program
and the defendant's rights relative to answering questions
about his or her arrest and DEJ following successful
completion of the program.
4)States that if the defendant consents and waives his or her
right to a speedy trial or a speedy preliminary hearing, the
court may refer the case to the probation department or the
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court may summarily grant DEJ if the defendant pleads guilty
to the charge or charges and waives time for the pronouncement
of judgment. When directed by the court, the probation
department shall make an investigation and take into
consideration the defendant's age; employment and service
records; educational background; community and family ties;
prior controlled substance use; treatment history, if any;
demonstrable motivation; and other mitigating factors in
determining whether the defendant is a person who would be
benefited by education, treatment, or rehabilitation. The
probation department shall also determine which programs the
defendant would benefit from and which programs would accept
the defendant. The probation department shall report its
findings and recommendations to the court. The court shall
make the final determination regarding education, treatment,
or rehabilitation for the defendant. If the court determines
that it is appropriate, the court shall grant deferred entry
of judgment if the defendant pleads guilty to the charge or
charges and waives time for the pronouncement of judgment.
[Penal Code Section 1000.1(b).]
5)Specifies no statement, or any information procured therefrom,
made by the defendant to any probation officer or drug
treatment worker, that is made during the course of any
investigation conducted by the probation department or
treatment program and prior to the reporting of the probation
department's findings and recommendations to the court, shall
be admissible in any action or proceeding brought subsequent
to the investigation. No statement, or any information
procured therefrom, with respect to the specific offense with
which the defendant is charged, that is made to any probation
officer or drug program worker subsequent to the granting of
deferred entry of judgment, shall be admissible in any action
or proceeding, including a sentencing hearing. [Penal Code
Section 1000.1(c).]
6)States a defendant's plea of guilty pursuant to DEJ shall not
constitute a conviction for any purpose unless a judgment of
guilty is entered pursuant to unsatisfactory completion of the
DEJ program. [Penal Code Section 1000.1(d).]
FISCAL EFFECT : Unknown
COMMENTS :
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1)Author's Statement : According to the author, "Every year,
more than 120,000 offenders are released from California
prisons. Approximately 70% will re-offend within three years
of being released and return to prison having claimed yet
another victim. Many thousands more cycle in and out of
county jails, getting arrested, jailed, and released, only to
commit new crimes again at enormous cost to local criminal
justice systems. This cycle is detrimental to public safety
and a severe strain on precious public resources.
"Counties need help developing effective recidivism prevention
models as a means to protect public safety and save money.
The San Francisco District Attorney's Office's 'Back On Track'
program provides such a model. Back On Track combines strict
accountability with preparedness training to break the cycle
of crime and prevent recidivism among nonviolent first-time
drug offenders.
"Back On Track was launched in recognition that former offenders
exit jail utterly unprepared to live crime-free and without
having meaningfully addressed their underlying problems that
contributed to criminal behavior, including lack of job
readiness, lack of education, substance abuse problems, and
lack of housing, among others. The program mandates strict
court monitoring and supervision, while providing basic job
readiness skills, parenting accountability, and other training
and oversight to offenders who have sustained their first
felony drug-arrest. After pleading guilty, sentencing is
deferred while offenders are closely monitored and supervised
in making progress over 12 months toward self-sufficiency.
Back on Track connects participants with institutions and
individuals who train participants to secure and embrace
legitimate employment and substantial educational
opportunities. The results have been promising: Back On
Track not only reduces recidivism, it also saves money. Among
low-level, non-violent, non-gang affiliated drug offenders,
the two-year recidivism rate for Back On Track graduates is
less than 10%, significantly lower than the 54% recidivism
rate for drug offenders across the state. Back On Track costs
less than $5,000 per participant, compared to $35,000 to
$50,000 for a year in county jail. As a result, the Back On
Track program has been selected as a national model by the
National District Attorneys Association.
"AB 750 authorizes county agencies to voluntarily undertake this
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model at the local level. The Back On Track model outlined in
AB 750 encourages public private partnerships to develop the
program and utilizes existing county and community resources
to provide training to participants. The program's success at
reducing recidivism provides a path for other jurisdictions to
follow. By reducing recidivism and saving money, Back On
Track is an effective public safety program that California
should embrace.
2)Background : According to background supplied by the author,
"Local jurisdictions are increasingly interested in adopting
reentry models that prevent recidivism to improve public
safety and save dwindling public dollars; however, the
California Penal Code does not expressly permit and encourage
the establishment of local reentry and recidivism prevention
programs. By providing clear recidivism prevention guidance
to local jurisdictions, the Penal Code can assist counties
struggling to address the immeasurable costs they face when
criminals cycle in and out of prison and jail.
"When offenders leave the criminal justice system without an
adequate plan or supervision, studies show that seven out of
ten will predictably commit new crimes within three years -
preventable crimes that claim more victims and further
deteriorate our communities' quality of life. In addition to
the human costs, the fiscal cost of recidivism is enormous.
It costs an estimated $10,000 to prosecute just one felony
crime and $35,000 to $50,000 to house just one inmate in
county jail. When offenders re-offend, counties pay these
costs over and over again.
"California simply cannot afford to continue on this path.
Model programs are being developed that can lead the way. The
San Francisco District Attorney's Office, in collaboration
with the courts and community partners, established the 'Back
on Track' reentry program to reduce recidivism among first
time nonviolent drug offenders. The results are instructive:
at a fraction of the cost of repeated jail time, recidivism is
less than 10%. This is an important model for California.
"AB 750 establishes the Back on Track Program as a replicable
model for counties across the state. AB 750 outlines how
local jurisdictions can create the program and defines the
essential elements of the program. AB 750 gives counties a
path to protect public safety and save money.
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3)Statistics : According to information published by the San
Francisco District Attorney's Office, of the 49 people who
participated in Back on Track during its pilot phase, 92%
successfully completed the program and, at the time of
graduation, were employed or attending school. More than 70%
of the participants were both employed and attending school at
the same time. Since the pilot phase ended, during the first
18 months of full program operation, fewer than 10% have been
re-arrested and terminated from the program. Currently, there
are 100 participants in the program.
4)Program Design, Community Based Public/Private Partnership :
The San Francisco District Attorney has outlined the design of
the program. Back on Track has been designed to address the
multiple factors that contribute to young people cycling
repeatedly in and out of jail. The program encompasses swift
sanctions for making bad choices and clear incentives for good
ones. Once in Back on Track, young offenders can embrace a
range of opportunities through job training and placement;
union-based, pre-apprenticeships in the building trades; GED
preparation; college enrollment; and help navigating financial
aid, tutoring, money management and banking instruction, child
care, anger management and parenting support.
Back on Track connects participants with networks of
institutions and individuals who are able to help those
individuals secure and embrace legitimate employment and
substantial educational opportunities. Back on Track
partners, such as the Academy of Art College, the law firm
Morrison & Foerster, the San Francisco 49ers, 24-Hour Fitness,
City College of San Francisco, the Building Trades unions and
local businesses all believe that the right combination of
supervision and consistent reinforcement will result in these
young people making the right choices and sticking with them.
Eligibility is restricted to first-time, young adult drug
offenders arrested with small quantities of narcotics.
Defendants are not eligible if they have histories of gang
involvement, gun possession or violence. Preference is given
to offenders who are parents of young children. When an
individual is arrested for drug sales or possession-for-sale,
the District Attorney's Office reviews the case and the
defendant's criminal record to determine eligibility. The
Office then advises both the court and the defendant of the
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option to enter the Back on Track program.
When a defendant agrees to participate, he or she is released
from jail and ordered to report to a Back on Track career
advisor for orientation. Participants begin a six-week
screening phase to test their motivation and commitment.
During this period, participants must perform 120 hours of
restorative community service and must be fully engaged in
employment readiness activities. Upon successful completion
of the initial six-week phase, participants are referred to
Back on Track Court, overseen by United States District Court
Judge Thelton Henderson and Superior Court Judge John Dearman.
Participants charged with a sales offense are required to
plead guilty pursuant to a DEJ, through which sentencing is
postponed for 12 months. If a participant is charged with a
new drug case, he or she is terminated immediately from the
program and goes directly to sentencing. If the participant
successfully completes the year-long program and is not
rearrested, the District Attorney's Office asks the court to
dismiss the case, leaving the participant with a clean adult
felony record.
During the program, in collaboration with Goodwill's Back on
Track Career Advisors, each participant develops a Personal
Responsibility Plan that outlines his or her specific
educational, workforce, family and other objectives for the
12-month program. Objectives may include obtaining a high
school diploma, securing full time employment, stabilizing
housing, attending parenting classes, opening and maintaining
a bank account, enrolling in city college, abiding by child
support orders, etc. Participants are provided unparalleled
support services to ensure that they have the tools to reach
each objective outlined in their Personal Responsibility Plan.
In addition to regular contact and meetings with a career
advisor, participants must appear before a Back on Track judge
every two weeks to report on their progress. After
graduation, Goodwill provides participants an additional 12
months of job retention and placement support services. Upon
completion, graduates are invited to return as guest speakers
to share their experiences and to serve as mentors for current
participants.
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5)Argument in Support : According to the San Francisco District
Attorney , "[a]s you know, reentry and recidivism prevention
have emerged as major public safety priorities in California.
As the elected prosecutor for the City and County of San
Francisco, I have seen firsthand how our state's recidivism
rate impacts public safety. We know that over 70% of
ex-offenders returning to our communities from prison will
re-offend within three years of release. These future crimes
by repeat offenders are foreseeable and, therefore,
preventable.
"AB 750 provides a critical foundation for the replication of
best practices that are reducing recidivism in our
communities. The bill outlines a model reentry program based
on my office's successful Back on Track program, which
combines accountability with opportunity to ensure that
low-level, non-violent drug offenders live crime-free and
become self-sufficient. In Back on Track, offenders plead
guilty and commit to strict court supervision and monitoring
as they complete an intensive personal responsibility program.
They get trained for a job, go back to school, get current
with their child support, and become positive contributors to
their homes and communities. The program encompasses swift
sanctions for making bad choices and clear incentives for good
ones. As a result, less than 10% of Back on Track graduates
have re-offended compared to a 53% recidivism rate statewide
for drug offenders returning from prison and jail. Back on
Track costs us only $5,000 annually per participant, compared
to over $50,000 in our county jail. The program has been
selected as a model program by the National District
Attorney's Association. Back on Track improves public safety
and saves resources."
6)Prior Legislation :
a) AB 2541 (Bass), of the 2007-08 Legislative Session,
would have authorized three counties to develop and operate
DEJ, court-based, reentry programs targeted at preventing
recidivism among low-level, non-violent offenders until
January 1, 2012. AB 2541 was vetoed.
b) SB 391 (Ducheny), Chapter 645, Statutes of 2007,
authorized CDCR to create the Parole Violation Intermediate
Sanctions Program.
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c) AB 1049 (Solorio) would have required the California
Department of Corrections and Rehabilitation to establish
"Rebuilding Lives and Communities Reentry Programs" for
parolees between the ages of 16 and 23 with community
reintegration upon discharge from detention. AB 1049 was
vetoed.
REGISTERED SUPPORT / OPPOSITION :
Support
California Attorneys for Criminal Justice
California Public Defenders Association
Legal Services for Prisoners with Children
San Francisco District Attorney's Office
Opposition
None
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744