BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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AB 446 (Carter)
As Amended March 25, 2011 VOTE ONLY
Hearing date: July 5, 2011
Welfare and Institutions Code
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JUVENILE JUSTICE:
RESTORATIVE JUSTICE
HISTORY
Source: Author
Prior Legislation: AB 114 (Carter) - 2009, vetoed
AB 360 (Carter) - 2008, vetoed
Support: AFSCME, AFL-CIO; Legal Services for Prisoners with
Children; California Coalition for Women Prisoners;
California Catholic Conference; Youth Law Center;
California State Conference of the NAACP; National
Alliance of Mental Illness; California State PTA; one
individual
Opposition:California Public Defenders Association
Assembly Floor Vote: Ayes 50 - Noes 24
KEY ISSUE
SHOULD COUNTIES BE AUTHORIZED TO ADOPT A RESTORATIVE JUSTICE PROGRAM
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AB 446 (Carter)
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FOR JUVENILE OFFENDERS, 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 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.
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(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,
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.
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(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.
(10) The process for evaluating compliance with the program.
(11) 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
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. 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
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
As these cases have progressed, prison conditions have
continued to be assailed, and the scrutiny of the federal courts
over California's prisons has intensified.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). 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 January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances.
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In response to the unresolved prison capacity crisis, in early
2007 the Senate Committee on Public Safety began holding
legislative proposals which could further exacerbate prison
overcrowding through new or expanded felony prosecutions.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Stated Need for This Bill
The author's office has provided a fact sheet which states in
part:
AB 446 would give counties the option to adopt a
restorative justice program for juveniles.
Restorative justice programs will be tailored to the
needs of the minor in question, and will take into
account the juvenile's age, mental capacity,
developmental maturity, nature of the offense and the
resources available to accomplish the goals of the
program.
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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 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.<1>
Many jurisdictions in California have implemented restorative
justice models.<2>
3. Support
One of several supporters of this bill, the Youth Law Center
states in part:
The bill will provide juvenile courts with additional
ways to address juvenile delinquency using the
principles of restorative justice. It provides
flexibility for county juvenile systems to develop
restorative justice councils, and provides
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<1> See http://www.ncjrs.gov/pdffiles/91415.pdf, viewed online
on June 3, 2008.
<2> 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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opportunities for community involvement in delinquency
intervention. . . . (J)uvenile courts are searching
for ways to make the juvenile court process more
directly responsive to the need to encourage young
people to accept responsibility for their actions, but
in a constructive and supportive way. At the same
time, members of the community, including victims of
juvenile crime, are searching for better ways to help
young people to understand the impact of their actions
on others and directing young people onto alternative
paths. AB 446 provides a welcome option to assist
juvenile courts, and to further the efforts of the
many people and organizations working to increase the
viability of restorative justice principles in
California. . . .
4. Opposition
The California Public Defenders Association states in
opposition:
Although CPDA supports the concept and goals of
restorative justice, and believes there is a place for
such programs in addressing youthful delinquency,
there are serious problems that occur when restorative
justice ideals are grafted onto existing juvenile
delinquency law procedures. . . . (R)estorative
justice can't be mixed with traditional delinquency
law. .. . (W)hen restorative justice is used for
purely "shallow-end offenders" . . . instead of
deep-end offenders, the net is widened and even more
individuals are brought into the system, unintentional
as this effect may be. There are several successful
restorative justice programs in international
communities. . . . Success in these programs,
however, has come from replacing one system with
another, and not from simply blending the two.
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5. Previous Bills Vetoed
The author has carried similar bills in the past, both of which
were vetoed. The veto message for last year's bill, which
passed this Committee (5-2) stated in part:
This bill would authorize a county to adopt a
restorative justice program that would be implemented
through a juvenile court in conjunction with the
district attorney's office, public defender,
restorative justice groups, and other interested
groups. California's juvenile justice system is
already rehabilitation-based, focused on attempts to
reform juveniles, rather than punish. In addition,
juvenile courts may already create restorative justice
programs. Consequently, this bill is unnecessary.
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