BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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AB 898 (Alejo)
As Amended May 27, 2011
Hearing date: June 28, 2011
Penal Code
JM:mc
RESTITUTION FINES
HISTORY
Source: California Coalition Against Sexual Assault
Prior Legislation: SB 586 (Yee) - 2009, held in Assembly
Appropriations
Support: Crime Victims Action Alliance; Crime Victims United of
California
Opposition:California Public Defenders Association
Assembly Floor Vote: Ayes 76 - Noes 0
KEY ISSUE
SHOULD THE MINIMUM RESTITUTION FINE FOR A FELONY CONVICTION BE
RAISED FROM $200 TO $300 AND THE MINIMUM RESTITUTION FINE FOR A
MISDEMEANOR BE RAISED FROM $100 TO $150?
PURPOSE
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The purpose of this bill is to raise the minimum restitution
fine for a felony conviction from $200 to $300 and for a
misdemeanor conviction from $100 to $150.
Existing law states that a sentencing court shall order a
defendant convicted of a misdemeanor or felony to pay direct
restitution to any victim and a restitution fine. (Pen. Code �
1202.4, subd. (a)(3).)
Existing law mandates the restitution fine for felony offenses
shall not be less than $200 and not more than $10,000. (Pen.
Code � 1202.4, subd. (b)(1).)
Existing law mandates the restitution fine for misdemeanor
offenses shall not be less than $100 and not more than $1,000.
(Pen. Code � 1202.4, subd. (b)(1).)
Existing law gives the court the discretion to set the amount of
the restitution fine commensurate with the seriousness of the
offense and other factors, as specified. (Pen. Code � 1202.4,
subds. (b)(1) and (d).)
Existing law requires the trial court to impose the restitution
fine unless it finds compelling and extraordinary reasons for
not doing so, and states those reasons on the record. Inability
to pay is not a compelling reason for not imposing the fine, but
can be considered in determining the amount of the fine. (Pen.
Code � 1202.4, subd. (c).)
Existing law permits the court to set the amount of the felony
restitution fine as $200 multiplied by the number of years of
imprisonment the defendant is ordered to serve, multiplied by
the number of counts of conviction. (Pen. Code � 1202.4, subd.
(b)(2).)
Existing law provides that restitution fines shall be deposited
in the Restitution Fund is not subject to penalty assessments.
(Pen. Code � 1202.4, subd. (e)-(f).)
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Existing law requires the court to assess an additional
probation-revocation restitution fine in the same amount as that
imposed for the restitution fine. This additional fine is
effective upon the revocation of probation. (Pen. Code �
1202.44.)
Existing law requires the court to assess an additional
parole-revocation restitution fine in the same amount as that
imposed for the restitution fine. This additional fine is
suspended unless parole is revoked. (Pen. Code � 1202.45.)
Existing law provides that when a defendant is sentenced to
state prison and owes a restitution fine, the California
Department of Corrections and Rehabilitation may deduct 20 to
50% of the fine from the prisoner's wages. (Pen. Code � 2085.5,
subd. (a).)
Existing law creates the Victims of Crime Program, administered
by the California Victim Compensation and Government Claims
Board<1> (CVCGCB), to reimburse victims of crime for the
pecuniary losses they suffer as a direct result of criminal
acts. Indemnification is made from the Restitution Fund, which
is continuously appropriated to the CVCGC. Restitution fines
are deposited into the fund. (Gov. Code �� 13950-13968.)
This bill increases the restitution fine for felony offenses
from a minimum of $200 to $300.
This bill increases the restitution fine for misdemeanor
offenses from a minimum of $100 to $150.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
---------------------------
<1> This entity was formerly known as the State Board of
Control. (Govt. Code � 13900 amended by AB 2491 - Ch. 1016,
Stats. 2000.) Hereinafter, references to "the board" are
references to the CVCGCB.
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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.
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. Need for This Bill
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According to the author:
AB 898 breathes life into the California Victim
Compensation Program by updating restitution fines for
the first time in nearly two decades. Since FY
2004-05, payouts to victims or their families, which
often include medical and mental health treatment, and
funeral expenses, have been increasing faster than
revenues.
All money comes from restitution fines imposed on
convicted defendants; nothing is paid out of the
General Fund or revenues from taxes and fees. AB 898
updates minimum restitution fines based on
inflationary changes, ensuring that the VCP is a
lasting resource for crime victims.
Since January, the VCP has approved several cuts in
disbursements in an attempt to prevent insolvency.
These cuts directly affect victims' ability to access
quality health and mental services and to recover from
violent crime. This bill is needed to ensure that
crime victims have this excellent resource for years
to come.
2. Changes in the Restitution Fine and Effect of Inflation on the
Value of the Fine
Prior to 1993, the minimum restitution fine for a felony
conviction was $100. The amount was raised to $200 by SB 1444
(Presley), Ch. 682, Stats. 1992. The restitution fine for a
misdemeanor, with a minimum fine of $100 and maximum of $1,000,
was set by an urgency statute in 1994 - AB 3169 (Hoge) Ch.1106,
Stats. 1994.
It has thus been 18 years since the felony restitution fine was
set at $200 and 17 years since the misdemeanor restitution fine
was set at $100. Inflation has reduced the actual value of the
minimum restitution fines. According to the Consumer Price
Index calculated by the U.S. Department of Labor, $200 in 1994
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is equivalent to $305 in 2011. An amount of $100 in 1994 is
equivalent to $152 in 2011.<2>
CONSISTENT WITH THE EFFECTS OF INFLATION, SHOULD THE MINIMUM
RESTITUTION FINES BE RAISED FROM $200 TO $300 FOR FELONIES AND
FROM $100 TO $150 FOR MISDEMEANORS?
3. Most Defendants and Prison Inmates are Indigent and Must pay
Numerous Fines and Fees
Many, if not most, criminal defendants are indigent. Thus, many
convicted defendants do not have the money to immediately pay
restitution, restitution fines, criminal fines, and other fees.
County and state agencies must collect these fines and fees.
Victims often must pursue restitution as though it were a civil
judgment.
Where defendants are committed to prison, prison officials
collect the fine from the prisoner's account according to a
statutory formula. The family members of prisoners often
deposit money in the inmates' accounts. The money can be used
to purchase items from the prison canteen.
Family groups have told Committee staff in the past that if the
proportion of money in the inmate's account to pay fines becomes
too high, family members will not deposit much money in the
accounts.
WILL INCREASED RESTITUTION FINES BE COLLECTIBLE IN AN EFFICIENT
MANNER?
4. Concerns about the Solvency of the Victims of Crime
Restitution Fund; Amount of Money Contributed to the Fund by
Restitution Fines Annually
The Assembly Appropriations Committee analysis of this bill
noted: According to the 2011-12 Governor's Budget, restitution
fines have contributed about $57 million per year to the
Restitution Fund. The Victims of Crime and Government Claims
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<2> http://www.bls.gov/data/inflation_calculator.htm
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Board (Board), which administers the fund and the $145 million
victims compensation program the fund supports, is unable to
estimate what the increased minimum fine might bring in.
The CVCGCB (board) and many others have expressed concerns that
the Restitution Fund is becoming insolvent, although such
concerns have arisen in the past. The Legislative Analyst's
Office has outlined for Committee staff the actions contemplated
by the board to address the weak condition of the fund:
The board committed to reduce its administrative costs
on an ongoing basis by $2.2 million.
The board will decreasing contracts with local entities
for the processing of claims by 5%. (The board contracts
with locals to process claims and ensure restitution orders
and fines are imposed.)
Various reimbursement rates will be reduced. Examples
include reducing the rate for mental health services
provided by interns, and making the approval process more
stringent for mental health counseling sessions beyond the
limit outlined in board regulations.
The board will use more federal funds in the current and
budget year to reduce Restitution Fund expenditures.
Appropriation for the 10% rebate program will be reduced
to reflect the actual need for rebates. (The board allows
local entities to retain 10% of the restitution fines and
orders they collect.)
According to the board, the projected fiscal condition of the
restitution fund (as of February 17, 2011) is:
Proposed Governor's Budget with Adopted Board Actions
2009-10 2010-11 2011-12 2012-13
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Beginning Balance 45.8
45.8 29.8 23.0
Prior Year Adjustments 6.0 0.0
0.0 0.0
Adjusted Beginning Balance 51.8 45.8
29.8 23.0
Revenue 117.3 113.3 112.3
111.7
Expenditures
Restitution Fund
State Operations 31.7 33.7
34.9 34.9
(Savings) (3.5)
(2.2) (2.2)
Other Expenditures 15.2 15.4
15.4 15.5
Claims (State Share -
Excludes VOCA) 58.2 65.2
53.4 55.4
Local Assistance 14.1 14.1
13.4 13.4
Ten Percent Rebate 4.2 4.2
4.2 4.2
Total Expenditures 123.4 129.3 119.1
121.2
Reserve 45.8 29.8
23.0 13.5
5. Relevant Law on Evaluating and Paring Restitution Claims;
Concerns about Inefficiencies and Delays in the Claims
Process; 2008 Audit of the Victims Compensation Program and
Board Response
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Relevant Law on Claim Evaluation and Payment
Existing law includes a detailed, extensive and complex system
for providing restitutions of violent crime. Compensation from
the program is available where direct restitution cannot be
collected from the perpetrator. If the VCGCB compensates a
victim, the program can recoup those costs from the perpetrator.
Some of the relevant statutes on paying claims are set out
below:
VCGCB is statutorily required to approve or deny applications,
based on recommendations of the VCGCB staff, within an average
of 90 calendar days and no later than 180 calendar days of
acceptance by the VCGCB or victim center. (Gov. Code �
13958.)
If the VCGCB does not meet the 90-day average standard
prescribed in this subdivision, the VCGCB shall, thereafter,
report to the Legislature, on a quarterly basis, its progress
and its current average time of processing applications.
These quarterly reports shall continue until the VCGCB meets
the 90-day average standard for two consecutive quarters.
(Gov. Code � 13958, subd. (a).)
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If the VCGCB fails to approve or deny an individual
application within 180 days of the date it is accepted,
pursuant to this subdivision, the VCGCB shall advise the
applicant and his or her representative, in writing, of the
reason for the failure to approve or deny the application.
(Gov. Code � 13958, subd. (b).)
2008 Victims Compensation Program Audit by the State Auditor
In December 2008, the California State Auditor released a report
on the Victim Compensation Program. The report noted:
Program compensation payments sustained a 50% decrease
from Fiscal Years 2001-02 through 2004-05 as a result
of the VCGCB members' attempts to maintain the fiscal
viability of the Restitution Fund. Compensation
payments have increased since Fiscal Year 2004-05, but
not to the level they reached in Fiscal Year 2001-02.
Despite the significant decline in payments, the costs
the VCGCB incurs to support the program have
increased. These costs - ranging from 26% to 42%
annually - account for a significant portion of
Restitution Fund disbursements. In addition, although
the VCGCB generally complied with state laws and
regulations for determining whether applicants are
eligible for program benefits, it did not always
process applications and bills as promptly or
efficiently as it could have. The VCGCB's procedures
for following up with outside entities to obtain
necessary information to verify applications and bills
are not sufficiently detailed and contribute to
inconsistencies in staff efforts to obtain the
information promptly.
In late June 2006, the VCGCB began transitioning to
its current application and bill processing system.
Although the VCGCB expects to gain efficiencies and
benefits from the use of the new system, it generally
has not developed benchmarks or measured results.
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Further, the VCGCB has experienced numerous problems
with the transition. Most troubling was our
identification of payments that appeared to be
erroneous. Although VCGCB staff provided
explanations, asserting that the payments were
appropriate and the data were flawed, the fact that
they were unaware of these items indicates the absence
of controls that would prevent erroneous payments from
being made. In addition, the VCGCB's current process
for managing its workload is informal: it has not
established benchmarks, performance measures, or
formal written procedures for workload management.
Finally, the VCGCB has not established a comprehensive
outreach plan to assist it in appropriately
prioritizing its efforts and focusing on those in need
of program services. �Victim Compensation and
Government Claims Board: It has begun Improving the
Victim Compensation Program, but More Remains to Be
Done. California State Auditor Report 2008-113
(December 2008).]
Victim Compensation and Government Claims Board Response to the
Audit
In a response letter to the audit report by the California State
Auditor, the VCGCB stated:
The audit finds, and we agree, the VCGCB can make
improvements in processing time for applications and
payments, developing specific verification procedures,
and maintaining documentation.
The VCGCB concurs with the recommendation to develop
written procedures and time frames for the appeals
process. A new procedure manual, as discussed below,
will include this subject.
The VCGCB's ability to process applications and pay
bills in a timely manner is dependent upon the timely
submittal of key information from verifying entities.
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To improve the VCGCB's success at obtaining such
information, the VCGCB plans to develop a new
procedure manual, which will provide specific
direction to staff for processing applications and
bills in CaRES. The manual will include specific time
frames for follow up with non-responsive verifying
entities. Through our statewide provider forums, the
VCGCB has been communicating to service providers the
importance of prompt submittal of requested
information to the board so that we can process their
payment requests in a timely manner. Similarly, we
are reaching out to law enforcement during our
numerous law enforcement outreach seminars. (Victim
Compensation and Government Claims Board: It Has
Begun Improving the Victim Compensation Program, but
More Remains to Be Done. California State Auditor
Report 2008-113 at 70, 71 (December 2008).)
DO SOME OF THE PROBLEMS WITH THE CONDITION OF THE VICTIMS OF
CRIME FUND STEM FROM INEFFICIENCIES OR EXCESSIVE ADMINISTRATIVE
COSTS IN OPERATION OF THE VICTIMS OF CRIME PROGRAM?
SINCE THE 2008 AUDIT OF THE BOARD, HAS THE BOARD BECOME MORE
EFFICIENT AND OPEN IN PROCESSING CLAIMS AND PAYING REIMBURSEMENT
TO CRIME VICTIMS?
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