BILL ANALYSIS
AB 2264
Page 1
Date of Hearing: April 20, 2010
Counsel: Nicole J. Hanson
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2264 (De Leon) - As Amended: April 6, 2010
SUMMARY : Prohibits the garnishment of a bank account or the
earnings of a homeless youth for failure to pay fees, fines,
forfeitures, or other penalties imposed by a court due to the
violation of a state or local law related to truancy, loitering,
curfew violations, or illegal lodging. Specifically, this bill :
1)Declares the following:
a) There are approximately 1.6 million homeless youth
nationwide, according to the United States Department of
Justice.
b) Youths become homeless and disconnected from their
parents for three primary reasons:
i) They flee homes that have become dangerous;
ii) Their parents force them from their homes; or,
iii) As a matter of state policy, foster youths, who have
been abused or neglected, are forced onto the streets on
their 18th birthdays.
c) Shelters are frequently full or predominately serve
adult homeless persons. These shelters, even when they
have available space, can be dangerous for youths.
d) Despite all of this, homeless youths are routinely
ticketed for offenses that are the inevitable symptoms of
homelessness that adults have imposed upon them. These
offenses include truancy, loitering, curfew violations, and
illegal lodging.
e) The California Research Bureau has documented that if a
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homeless youth fails to show up to contest or pay a ticket,
that homeless youth's wages or bank accounts may be
garnished and his or her credit report may be damaged.
f) Garnishment of the wages and savings of a homeless youth
and the damage to his or her credit report makes it far
harder for homeless youths, attempting to pull themselves
up by their bootstraps, to rent their own apartments and
end their homelessness by their own willpower and
initiative.
g) The State should not tolerate practices that promote
homelessness among its young people. It should certainly
not do so by taking sums of money from homeless youths
trying earnestly to work and save their way out of their
homelessness in the first place.
h) Moreover, crimes are often made crimes to dissuade
individuals from engaging in unwanted behavior. But,
homeless youths are not homeless by election. Thus,
because taking money form homeless youths makes it more,
and not less, likely that they will continue to be
homeless, these practices actually encourage the commission
of offenses the laws are meant to dissuade, such as
vagrancy and loitering.
i) It is therefore in the best interest of the state to
discourage practices that make it more difficult for youths
who are homeless by the hand of adults to obtain housing on
their own, through their own hard work, against significant
odds, without exculpating them from the offenses they
commit.
2)Forbids the garnishment of a bank account or the earnings of a
homeless youth for failure to pay fees, fines, forfeitures, or
other penalties imposed by a court due to the violation of a
state or local law related to truancy, loitering, curfew
violations, or illegal lodging.
3)Provides that the garnishment shall not apply if it is shown
by a preponderance of the evidence, that the youth against
whom the garnishment is sought does not qualify as a "homeless
youth."
4)Defines "homeless youth" to be a person younger than 25 years
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of age who has violated a provision of state or local law
related to loitering, truancy, curfew, or illegal lodging and
who lacks a fixed, regular, adequate nighttime residence.
"Homeless youth" includes, but is not limited to, a person
who, due to loss of housing, lack of adequate alternative
accommodation, economic hardship, or because he or she is
awaiting placement in foster care, presently resides in any of
the following:
a) The home of a person who is not his or her parent or
legal guardian;
b) A motel, hotel, or campground;
c) An emergency transitional shelter or hospital; or,
d) A public or private place that is not designed or
ordinarily used for regular sleeping accommodation for
human beings, including, but not limited to, a park or
other public space, an abandoned building, an automobile or
other vehicle, or a bus or train station.
EXISTING LAW :
1)Mandates notwithstanding any other provision of law, any
county or court that implements or has implemented a
comprehensive program to identify and collect delinquent fees,
fines, forfeitures, penalties, and assessments, including, but
not limited to, public defender fees, with or without a
warrant having been issued against the alleged violator, if
the base fees, fines, forfeitures, penalties, and assessments
are delinquent, may deduct and deposit in the county treasury
or in the trial court operations fund the cost of operating
that program, excluding capital expenditures, from any
revenues collected thereby prior to making any distribution of
revenues to other governmental entities required by any other
provision of law. Any county or court may establish a minimum
base fee, fine, forfeiture, penalty, or assessment amount for
inclusion in the program. This section applies to costs
incurred by a court or a county on or after June 30, 1997, and
prior to the implementation of a time payments agreement, and
shall supersede any prior law to the contrary. This section
does not apply to a defendant who is paying fees, fines,
forfeitures, penalties, or assessments through time payments,
unless he or she is delinquent in making payments according to
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the agreed-upon payment schedule. For purposes of this
section, a comprehensive collection program is a separate and
distinct revenue collection activity and shall include at
least 10 of the following components:
a) Monthly bill or account statements to all debtors;
b) Telephone contact with delinquent debtors to apprise
them of their failure to meet payment obligations;
c) Issuance of warning letters to advise delinquent debtors
of an outstanding obligation;
d) Requests for credit reports to assist in locating
delinquent debtors;
e) Access to Employment Development Department employment
and wage information;
f) The generation of monthly delinquent reports;
g) Participation in the Franchise Tax Board's Interagency
Intercept Collections Program;
h) The use of Department of Motor Vehicle information to
locate delinquent debtors;
i) The use of wage and bank account garnishments;
j) The imposition of liens on real property and proceeds
from the sale of real property held by a title company;
aa) The filing of a claim or the filing of objections to the
inclusion of outstanding fines and forfeitures in
bankruptcy proceedings;
bb) Coordination with the probation department to locate
debtors who may be on formal or informal probation;
cc) The initiation of driver's license suspension actions
where appropriate;
dd) The capability to accept credit card payments;
ee) Participation in the Franchise Tax Board's Court-Ordered
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Debt Collections Program;
ff) Contracting with one or more private debt collectors;
or,
gg) The use of local, regional, state, or national skip
tracing or locator resources or services to locate
delinquent debtors. [Penal Code Section 1463.007.]
2)Allows peace officers to transport any person, as quickly as
is feasible, to the nearest homeless shelter, or any runaway
youth or youth in crisis to the nearest runaway shelter, if
the officer inquires whether the person desires the
transportation, and the person does not object to the
transportation. (Penal Code Section 647a.)
3)States that when the public defender or an assigned counsel
represents a person who is a minor in a criminal proceeding,
at the expense of a county, the court may order the parent or
guardian of such minor to reimburse the county for all or any
part of such expense, if it determines that the parent or
guardian has the ability to pay such expense. (Penal Code
Section 987.4.)
4)Provides that in order to assist the court in determining
whether a defendant is able to employ counsel in any case, the
court may require a defendant to file a financial statement or
other financial information under penalty of perjury with the
court or, in its discretion, order a defendant to appear
before a county officer designated by the court to make an
inquiry into the ability of the defendant to employ his or her
own counsel. If a county officer is designated, the county
officer shall provide to the court a written recommendation
and the reason or reasons in support of the recommendation.
The determination by the court shall be made on the record.
Except as provided under existing law, the financial statement
or other financial information obtained from the defendant
shall be confidential and privileged and shall not be
admissible in evidence in any criminal proceeding except the
prosecution of an alleged offense of perjury based upon false
material contained in the financial statement. The financial
statement shall be made available to the prosecution only for
purposes of investigation of an alleged offense of perjury
based upon false material contained in the financial statement
at the conclusion of the proceedings for which the financial
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statement was required to be submitted. The financial
statement and other financial information obtained from the
defendant shall not be confidential and privileged in a
proceeding. [Penal Code Section 987(c).]
5)Allows in any case when a person appears before a traffic
referee or judge of the superior court for adjudication of a
violation of the vehicle code, the court, upon request of the
defendant, shall consider the defendant's ability to pay.
Consideration of a defendant's ability to pay may include his
or her future earning capacity. A defendant shall bear the
burden of demonstrating lack of his or her ability to pay.
Express findings by the court as to the factors bearing on the
amount of the fine shall not be required. The reasonable cost
of these services and of probation shall not exceed the amount
determined to be the actual average cost thereof. The court
shall order the defendant to appear before a county officer
designated by the court to make an inquiry into the ability of
the defendant to pay all or a portion of those costs or the
court or traffic referee may make this determination at a
hearing. At that hearing, the defendant shall be entitled to
have, but shall not be limited to, the opportunity to be heard
in person, to present witnesses and other documentary
evidence, to confront and cross-examine adverse witnesses, to
disclosure of the evidence against him or her, and to a
written statement of the findings of the court or the county
officer. If the court determines that the defendant has the
ability to pay all or part of the costs, the court shall set
the amount to be reimbursed and order the defendant to pay
that sum to the county in the manner in which the court
believes reasonable and compatible with the defendant's
financial ability; or, with the consent of a defendant who is
placed on probation, the court shall order the probation
officer to set the amount of payment, which shall not exceed
the maximum amount set by the court, and the manner in which
the payment shall be made to the county. In making a
determination of whether a defendant has the ability to pay,
the court shall take into account the amount of any fine
imposed upon the defendant and any amount the defendant has
been ordered to pay in restitution. The court may hold
additional hearings during the probationary period. If
practicable, the court or the probation officer shall order
payments to be made on a monthly basis. Execution may be
issued on the order in the same manner as a judgment in a
civil action. The order to pay all or part of the costs shall
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not be enforced by contempt. A payment schedule for
reimbursement of the costs of presentence investigation based
on income shall be developed by the probation department of
each county and approved by the presiding judge of the
superior court. [Vehicle Code Section 42003(c).]
6)Provides any person under the age of 18 years who persistently
or habitually refuses to obey the reasonable and proper orders
or directions of his or her parents, guardian, or custodian,
or who is beyond the control of that person, or who is under
the age of 18 years when he or she violated any ordinance of
any city or county of California establishing a curfew based
solely on age is within the jurisdiction of the juvenile court
which may adjudge the minor to be a ward of the court.
[Welfare and Institutions Code Section 601(a).]
7)Makes it the policy of California and the purpose of this
section to facilitate and support the development and
operation of housing for homeless youth. The provision of
housing for homeless youth is hereby authorized and shall not
be considered unlawful age discrimination. [Government Code
Section 11139.3(a) and (b).]
8)Defines "homeless youth" as either of the following:
a) A person who is at least 18 years of age, but not older
than 24 years of age, and meets one of the following
conditions:
i) Is homeless or at risk of becoming homeless;
ii) Is no longer eligible for foster care on the basis
of age; or,
iii) Has run away from home.
b) A person who is less than 18 years of age who is
emancipated and who is homeless or at risk of becoming
homeless. [Government Code Section 11139.3(e)(2).]
9)Defines "at risk of becoming homeless" to mean facing eviction
or termination of one's current housing situation.
[Government Code Section 11139.3(e)(1).]
10)Defines a "homeless person" as any person who lacks a fixed,
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regular, and adequate nighttime residence or has a primary
nighttime residence in a shelter, a temporary living
institution, or a public or private place not designated for
regular sleeping accommodations for humans. (Health and
Safety Code Section 50582.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Homeless youth
are not homeless by choice. Approximately half are former
foster youth who have been emancipated into the streets; the
rest are forced from their homes by abuse or are kicked out.
"Homeless youth are often ticketed for 'quality of life'
offenses such as loitering, truancy, illegal lodging, and
curfew violations. When they cannot pay the fines, sometimes
their wages and/or bank accounts are garnished, making it
harder for the nearly half of homeless youth who have jobs and
are working to try to end their homelessness. And, by making
it harder for homeless youth to obtain homes by their own hard
work, garnishment actually promotes the behaviors (loitering,
illegal lodging, etc.) the tickets are intended to dissuade.
"AB 2264 seeks to provide some much-needed relief for former
foster youth and other youth who have been forced into
homelessness and are trying to work their way out of sleeping
on the streets. Homeless youth would still be required to pay
the original fines for these 'quality of life' offenses, but
orders to garnish bank accounts or earnings would be
prohibited for homeless youth under 25 years old."
2)Background : According to information provided by the author,
"AB 2264 seeks to provide some relief for homeless youth who
have been found in violation of 'quality of life' offenses by
curbing practices that hinder their ability to secure housing
and financial stability on their own accord."
3)The Criminalization of Homelessness : According to the 2006
National Coalition for the Homeless report, over the past 25
years the trend has been toward increasing use of the criminal
justice system - as opposed to social service agencies, mental
health, etc. - to respond to homelessness. [National
Coalition for the Homeless and National Law Center on
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Homelessness and Poverty, A Dream Denied: The Criminalization
of Homelessness in U.S. Cities, Washington, DC: National
Coalition and National Law Center (Jan. 2006) p. 8.] This
includes the passage of measures that "target homeless persons
by making it illegal to perform life-sustaining activities in
public." (Ibid.) These measures prohibit activities such as
sleeping/camping, eating, sitting, and begging in public
spaces, usually including criminal penalties for violation of
these laws. (Ibid.)
In the four years between 2002 and 2006, in the 67 cities
surveyed, the report found there was a 12% increase in laws
prohibiting begging in particular places, an 18% increase in
laws prohibiting "aggressive panhandling," and a 14% increase
in laws prohibiting sitting or lying in particular public
spaces. (Ibid.) Jailing a homeless person for violating one
of these laws, the report points out, costs two to three times
as much as providing supportive housing would. (Lewin Group,
The Partnership to End Long-Term Homelessness, Costs of
Serving Homeless Individuals in Nine Cities: Chart Book (Nov.
19 2004) p. 11.)
Thus, homelessness is not only a status; it also encompasses
acts that cause individuals to publicly perform
life-sustaining activities which may be criminal. Many
subsistence and survival aspects of homeless life are
restricted or are illegal, such as sleeping outside,
trespassing, camping, and loitering. According to the
Campaign to End Homelessness, warrants issued due to inability
to pay fines can impede homeless people from obtaining a
driver's license, getting a job, and securing housing. "These
cycles of arrests create escalating legal barriers for
homeless people that all too often impede their ability to
overcome homelessness." [Bring L.A. Home Blue Ribbon Panel,
Bring L.A. Home (Feb. 5, 2004) p. 35.]
Current policy responses toward homelessness are brought about
by the "Myth of Choice"; laws are enacted upon a presumption
that the homeless have choices that they simply lack. [See
generally Allison, Confronting the Myth of Choice:
Homelessness and Jones v. City of Los Angeles (2007) 42 Harv.
C.R.-C.L. L. Rev. 253.] "In Los Angeles, the homeless of Skid
Row found 'resting in public' were fined and incarcerated,
despite the fact that there were more of them than shelter
beds, and despite the fact that fining the homeless (who
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cannot pay the fines) is an unproductive use of legal
resources. In San Francisco and New York, general assistance
funds have been slashed under the much-touted theory that
those funds would inevitably be spent on drugs and booze.
Society does not consider that the same cash could be spent on
laundry, bus fare, and toiletries, all of which are difficult
for the homeless to obtain.
"The presumption that underlies these policies is flawed; it is
no easy task to escape the cycle of criminalization and
related poverty. Homeless youth . . . refused to believe that
they would find themselves as homeless adults, living on some
town's Skid Row . . . These youth were not necessarily
destined to grow up into adults repeatedly arrested for want
of shelter. They were not necessarily so destined, and yet,
almost all of them remain homeless as adults. Escaping
homelessness, in large part, seems to be an anomaly . . . The
Myth of Choice says, 'Had these youth only applied themselves,
they would no longer be on the street.' The Myth of Choice
leads policymakers to believe that the youth . . . somehow
made the conscious decision to call the streets their home
forever." (Id. at 255-256.)
"Rather than seeking to form solutions that would lift the
homeless out of their predicaments, we began to criminalize
their predicaments in a supposed attempt to solve the problem
of homelessness. This policy presupposes that the
opportunities to escape from poverty are accessible and,
further, it assumes that if we punish poverty, folks will then
opt out of such despair. In, reality, this criminalization
leaves us all wanting. It pushes the homeless deeper into
that vicious cycle of poverty by forcing them to deal with
additional fines, jail time, and the inability to focus their
time and energies on working toward more stable lives. It
wastes public resources in police time, jail beds, and court
proceedings, resources which could be focused on more
promising responses to the problem of homelessness. And it
reinforces our inability to face our society's flaws head on,
in the faces of the people we drive by, step over, and turn
away from daily. (Id. at 258.)
This bill attempts to enable homeless youth to escape the cycle
of poverty and make escaping homelessness a reality.
4)Homeless Courts : "Homeless people often wind up with numerous
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citations for so-called 'quality of life' offenses - illegal
camping, for example, or urinating in public, advocates say.
Left unresolved, the citations snowball into warrants and
costly fines that a homeless person could never pay. One Los
Angeles attorney says he has seen such fines reach as high as
$60,000.
"'All of a sudden, they've dug themselves such a deep hole that
they don't see a way out and so they sort of give up,' said
Superior Court Judge Jerome Nadler, Santa Clara County's
Outreach Court judge. 'Being able to clear those is a godsend
to them.'
"Such unresolved legal problems can keep a homeless person from
getting a job, housing, a driver's license and, in some cases,
public benefits. 'It kind of ends up being a glass ceiling
for the ones in recovery,' said Superior Court Judge Skip
Staley, a homeless court judge in Kern County.
"Homeless courts vary. But participants typically are referred
to such courts through a shelter or treatment provider.
Often, they have made significant life changes, and are
sometimes required to do so before appearing in homeless
court. In return, the judge recognizes their treatment
program accomplishments or community service, and rewards them
with a pre-plea agreement or alternative sentencing for cases
involving infractions and certain misdemeanors.
"These are people who live in structured environments, who have
chosen to work very, very hard to rehabilitate their lives,'
said Kern County Deputy District Attorney Vikki Del
Pellegrino, a 16-year prosecutor. 'That, to me, is worth an
enormous amount.'
"As Del Pellegrino sees it, homeless court simply broadens the
court's ability to impose a just sentence. Many defendants,
she says, have already sentenced themselves to a more
stringent program than a judge would impose in a traditional
court setting.
"'By participating in homeless court, I am doing a lot more to
at least try to protect the community,' she said, 'than if a
fine was ordered and the person simply could never pay it.'"
[Flaherty, California State Bar, Courts for the Homeless Offer
Help- And Hope (Dec. 2006)
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(as of Apr. 15, 2010).]
"Currently there are 16 homeless courts in California counties:
Alameda, Contra Costa, Fresno, Humboldt, Kern, Los Angeles,
Orange, Sacramento, San Bernardino, San Diego, San Joaquin,
Santa Clara, Santa Maria, Sonoma, Ventura, and Vista. Many of
these courts provide specialized services for homeless
veterans and have been recognized for their unique
contribution. These courts combine plea bargaining with
alternative sentencing that substitutes counseling, volunteer
work, and participation in agency programs for the traditional
fines, public work service, and custody. Defendants are given
credit for having entered a shelter, done volunteer work, or
enrolled in Alcoholics Anonymous or other self-help and
education programs." [Administrative Office of the Courts
(AOC), Taking the Court to Streets, A Statewide Roundtable on
Homeless Courts (Oct. 26, 2006) p. 16.]
If more counties instituted homeless courts, perhaps fines and
fees would not be imposed upon those who will never be able to
pay.
5)Argument in Support : According to the Children's Advocacy
Institute , "Californians younger than 25 are only homeless
because of what adults do to them. They are homeless because
they are either: (i) former foster youth, uniformly abused
and neglected, who we by state policy frequently kick out to
the streets to fend for themselves on or around their 18th
birthdays; (ii) runaways who have fled home to remove
themselves from a dangerous or abusive home life; or (iii)
youth who have been forcibly evicted from their homes by their
parents.
"Sometimes, these homeless youth are ticketed for offenses that
are the consequence of their involuntary homelessness. Such
offenses include vagrancy, loitering, and the like. To
reiterate: ticketing homeless youth cannot dissuade them from
being homeless. It is like ticketing someone for being tall.
They do not choose to be homeless - living dangerously on the
streets. The danger and precariousness of their every
nighttime is far greater disincentive to engage in the
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offending conduct than a ticket.
"Even so, they are given tickets not because of their own
choices but because of the policies or conduct of adults.
This is bad enough. Worse, as documented by the California
Research Bureau, is that when these young people fail to show
up for their hearings and pay the fine - how can they? -
sometimes the tickets will be turned over to collections.
[Bernstein & Foster, California Research Bureau, Voices From
the Street (2008) (as of Apr. 15, 2010).]
"And, collections, in turn will sometimes garnish their wages or
bank accounts; things that make it far harder for homeless
youth to end their homelessness by the sweat of their own
brow.
"Indeed, according to the Bureau's study, 43% of homeless youth
surveyed were trying to earn money through employment,
temporary work, or odd jobs. The number of youth who reported
obtaining money through employment exceeded the number of
youth obtaining money through public assistance. (Id. at 47.)
"As the Research Bureau documents: 'This was true for the young
people in our study, who reported that failure to pay led to
problems including having their wages garnished[.]' (Id. at
57.)
"This, quite simply, is grotesque; a terrible reflection of our
value. It is also self-defeating. The tickets are issued to
dissuade the offense. But, where involuntarily homeless youth
are concerned, the collections strategies make it even more
likely that the offense will be repeated."
REGISTERED SUPPORT / OPPOSITION :
Support
Children's Advocacy Institute
California Public Defenders Association
Service Employees International Union
Opposition
None
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Analysis Prepared by : Nicole J. Hanson / PUB. S. / (916)
319-3744