BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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AB 750 (Bass)
As Amended February 26, 2009
Hearing date: July 7, 2009
Penal Code
MK:mc
DEFERRED ENTRY OF JUDGMENT
HISTORY
Source: San Francisco District Attorney
Prior Legislation: AB 2541 (Bass) - vetoed 2008
Support: California Attorneys for Criminal Justice; California
Public Defenders
Association; Legal Services for Prisoners with Children
Opposition:None known
Assembly Floor Vote: Ayes 53 - Noes 24
KEY ISSUE
SHOULD THE LAW PERMIT A SUPERIOR COURT TO DEVELOP AND OPERATE A
DEFERRED ENTRY OF JUDGMENT REENTRY PROGRAM TARGETED AT PREVENTING
RECIDIVISM AMONG NONVIOLENT, LOW-LEVEL DRUG SALES OFFENDERS?
PURPOSE
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The purpose of this bill is to allow a superior court to develop
and operate a deferred entry of judgment reentry program
targeted at preventing recidivism among non-violent low-level
drug sales offenders.
Existing law provides for diversion from criminal prosecution
through a deferred entry of judgment 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:
The defendant has no conviction for any offense
involving controlled substances prior to the alleged
commission of the charged offense.
The offense charged did not involve a crime of violence
or threatened violence.
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.
The defendant's record does not indicate that probation
or parole has ever been revoked without thereafter being
completed.
The defendant's record does not indicate that he or she
has successfully completed or been terminated from
diversion or deferred entry of judgment pursuant to this
chapter within five years prior to the alleged commission
of the charged offense.
The defendant has no prior felony conviction within five
years prior to the alleged commission of the charged
offense. (Penal Code 1000.)
Existing law states that the prosecuting attorney shall review
his or her file to determine whether or not the defendant
qualifies for a deferred entry of judgment ("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
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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
ineligible for DEJ is a post-conviction appeal. (Penal Code
1000.)
Existing law 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:
A full description of the procedures for DEJ.
A general explanation of the roles and authorities of
the probation department, the prosecuting attorney, the
program, and the court in the process.
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.
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
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pled, enter judgment, and schedule a sentencing hearing as
otherwise provided in this code.
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. (Penal Code 1000.1(a).)
Existing law 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 court may summarily grant deferred entry of
judgment 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 1000.1(b).)
Existing law 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
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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 1000.1(c).)
Existing law 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 1000.1(d).)
This bill provides that a superior court may develop and operate
a deferred entry of judgment reentry program targeted at
preventing recidivism among non-violent low-level drug sales
offenders. The prosecuting attorney together with the presiding
judge and a representative of the criminal defense bar may agree
to establish a "Back on Track" deferred entry program as
specified in this bill. The agreement shall specify which
low-level drug sales offenses are eligible for the program and a
process for selecting participants.
This bill specifies that the "Back on Track" deferred entry
program shall have the following characteristics:
A dedicated calendar.
Leadership by a superior court judicial officer who is
assigned by the presiding judge.
Clearly defined criteria for successful progress and
completion of the program.
Legal incentives for defendants to successfully complete
the program, including dismissal or reduction of criminal
charges upon successful completion of the program.
Close supervision to hold participants accountable to
program compliance, including the use of graduated
sanctions and frequent ongoing appearances before the court
regarding the participants' program progress and compliance
with all program terms and conditions. The court may also
use available legal mechanisms including return to custody
if necessary, for failure to comply with the supervised
plan.
Appropriate transitional programming for participants,
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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:
o Vocational training, readiness, and placement.
o Educational training, including assistance
with acquiring a G.E.D. or high school diploma and
assistance with admission to college.
o Substance abuse treatment.
o Assistance with obtaining identification cards
and driver's licenses.
o Parenting skills training and assistance in
becoming compliant with child support obligations.
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
eligible former offenders and to take advantage of existing
programs and incentives for hiring program participants.
This bill provides that the prosecuting attorney shall determine
whether a defendant is eligible for participation in the
deferred entry of judgment reentry program.
This bill provides that if the prosecuting attorney determines
that the defendant may be eligible for the program, he or she
shall advise the defendant and his or her attorney in writing of
the determination. The notice shall include the following:
A full description of the procedures for deferred entry
of judgment.
A general explanation of the role and authority of the
prosecuting attorney, the program and the court in the
process.
A clear statement, that in lieu of trial, the court may
grant deferred entry of judgment 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.
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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.
An explanation of criminal record retention and
disposition resulting from participation in the deferred
entry of judgment program and the defendant's rights
relative to answering questions about his or her arrest and
deferred entry of judgment following successful completion
of the program.
This bill 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 hearing for deferred
entry of judgment at the arraignment.
This bill provides that if the prosecuting attorney determines
that the 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.
This bill provides that the sole remedy of a defendant who is
found ineligible for deferred entry of judgment is a post
conviction appeal.
This bill provides that 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.
This bill provides that upon 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
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has failed to comply with the program and should be terminated
from the program.
This bill provides that a defendant's plea of guilty pursuant to
the deferred entry program shall not constitute a conviction for
any purpose unless a judgment of guilty is entered.
This bill provides that counties that opt to create a deferred
entry of judgment program shall not seek reimbursement for costs
associated with the implementation, development, or operation of
the program.
This bill provides that local law enforcement agencies and
counties administering the program may seek state, federal or
private funding for the purpose of implementing the provisions
of this chapter.
Existing law provides that whenever a person is diverted
pursuant to a drug diversion program administered by a superior
court pursuant to Penal Code Section 100.5 or is admitted to a
deferred entry of judgment program pursuant to Section 1000, the
person successfully completes the program, and it appears to the
judge presiding at the hearing where the diverted charges are
dismissed that the interests of justice would be served by
sealing the records of the arresting agency and related court
files and records with respect to the diverted person, the judge
may order those records and files to be sealed, including any
record of arrest or detention, upon the written or oral motion
of any party in the case, or upon the court's own motion, and
with notice to all parties in the cases. (Penal Code 851.90.)
This bill adds the deferred entry of judgment program created by
this bill to the above provision.
This bill provides that counties, in consultation with superior
courts, may develop and implement court-based reentry programs,
to be operated as pilot programs in San Francisco and two other
counties until January 1, 2012.
This bill makes the following uncodified legislative findings:
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The San Francisco District Attorney's office has
developed an effective reentry program, Back On Track, that
reduces recidivism among first-time, low-level, nonviolent
felony drug offenders and costs less than traditional
corrections approaches. The three year recidivism rate for
Back on Track participants is significantly lower than the
53 percent recidivism rate for the same population in state
prison. As a result, the Back on Track program has been
selected as a national model. This act is intended to
facilitate the replication of this successful program.
Successful reentry models combine strict accountability
with effective mechanisms for offenders to become
self-sufficient and crime free.
Successful reentry models include public-private
partnerships among law enforcement, government agencies,
business and labor associations, private employers and
community-based organizations, formed to connect former
offenders with living wage employment opportunities and to
take advantage of incentives.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
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% (an average
of 4% 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
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incarceration.<1>
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
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
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<1> "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% 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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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
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.<2>
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. Need for This Bill
---------------------------
<2> 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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According to the author:
Existing law does not expressly authorize counties to
establish collaborative courts to assist offenders to
reenter society without re-offending. Specifically, the
bill provides express statutory authorization for the
San Francisco District Attorney's Office's promising
Back On Track program, in which a collaborative court
assists and supervises low-level drug offenders with
achieving specified benchmarks in education, employment,
child support and other basic skills for reducing the
risks of re-offending. Based on this legislation, other
counties could establish a similar model at their
option.
2. Deferred Entry of Judgment Reentry Program
This bill permits a superior court to develop and operate a
deferred entry of judgment reentry program targeted at
preventing recidivism among nonviolent low-level offenders. The
prosecuting attorney, together with the presiding judge and a
representative of the criminal defense bar may agree in writing
to establish a "Back on Track" program. The agreement shall
specify which low-level drug sales offenses qualify a person for
the program and set forth a process for selecting participants.
Currently, in San Francisco 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.
Further, in San Francisco, in addition to regular contact and
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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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This bill would allow counties to create Back on Track programs
similar to the one San Francisco already has.
According to supporters "Back on Track" programs could save
taxpayers money in the short-term by keeping people out of jail
or prison and in the long term by reducing recidivism. The
California Public Defenders state:
AB 750 would save precious taxpayer dollars and enhance
public safety by authorizing a superior court to develop
and operate a deferred entry of judgment (DEJ) program
for first-time, low level sales offenders. In San
Francisco, Goodwill Industries and the San Francisco
District Attorney's Office, with the participation of
the Public Defender's office, teamed up to create the
model DEJ program known as "Back on Track" for low-level
sales offenders, which has proven to prevent recidivism
and promote public safety.
A DEJ program for first-time drug sales offenders
produces cost savings by freeing up jail and prison
space for violent and more serious offenders. The
2007-2008 Legislative Analyst's Report indicates that as
of June 30, 2007, there were 173,312 inmates in the
prison population, with a projected increase from the
current level to 190,000 in the next five years. About
49 percent of inmates are incarcerated for nonviolent
offenses, mostly related to drugs. Similarly, county
jail population has increased 66% over the last 20
years.
Furthermore, Back on Track DEJ programs would enhance
public safety by combining intensive supervision,
mandatory drug testing, positive reinforcement and
incentives, and would require the participant to obtain
and maintain employment. The participant would receive
specific case management from a job development
specialist who would be able to deliver soft skills
training and also steer the participant towards
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identified employment opportunities that will help
ensure individual accountability and self-sufficiency.
One of the most viable alternatives to the over-burdened
prison and jail population is the use of alternative
sanctions, such as DEJ program courts because they
provide early assessments of substance abuse activity
and provide eligible offenders with appropriate
community-based opportunities that steer the individuals
towards productive law abiding options, while providing
taxpayers needed savings. In addition, providing case
management to the participant throughout his or her
participation in the DEJ program can help ensure
successful reintegration into society.
SHOULD THE LAW PERMIT A SUPERIOR COURT TO DEVELOP AND OPERATE A
DEFERRED ENTRY OF JUDGMENT REENTRY PROGRAM TARGETED AT
PREVENTING RECIDIVISM AMONG NON-VIOLENT, LOW-LEVEL DRUG SALES
OFFENDERS?
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