BILL ANALYSIS �
AB 1849
Page 1
Date of Hearing: March 27, 2012
Consultant: Jesse Stout
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1849 (Carter) - As amended: March 21, 2012
SUMMARY : Authorizes a county to adopt a restorative justice
program to address the needs of minors, victims, and the
community. Specifically, this bill :
1)Recognizes the following restorative justice principles to be
incorporated into juvenile justice proceedings:
a) Community protection from delinquent conduct through a
continuum of appropriate responses that protects citizens
and victims;
b) Accountability of the minor through restoration of the
losses experienced by the victim and the community; and,
c) Competency development of the minor through the
provision of treatment, education, and skill building
needed for success in the community.
2)Declares legislative intent that the juvenile justice system
should repair crime-related injuries to the victim, the
community, and the offender. Victims and communities should
be actively involved throughout the process to the extent
consistent with the offender's right to due process and the
rights of the minor and victim, as specified.
3)States that mediation processes that implement restorative
justice principles have been shown to reduce recidivism rates
among juvenile offenders to less than 6 percent, as compared
to an average rate of between 15 and 20 percent without
mediation.
4)Declares legislative intent that a restorative a justice
program shall be implemented through a restorative-justice
protocol developed by a juvenile court in conjunction with the
prosecutor, the public defender, probation department,
AB 1849
Page 2
representatives of victims' groups, law enforcement, community
organizations and service providers, restorative justice
groups, and clinicians with expertise in adolescent
development.
5)Requires the restorative-justice protocol to address the
following:
a) Policies and practices for implementing a restorative
justice model;
b) Particular offenses, or criteria for determining the
offenses, to be included or excluded;
c) The rights of minors;
d) Confidentiality;
e) Timeliness;
f) The roles of the court, prosecutor, and defense counsel
in a restorative justice program;
g) The process for evaluating compliance with the program;
and
h) The process for handing failure to adhere to the
program.
6)States that a restorative justice program seeks to repair the
harm to the victim, the minor, and the community. The program
shall be tailored to the age, mental capacity, and maturity of
the minor, the nature of the offense, and the resources
available to the minor.
7)Requires minors to be referred to a restorative justice
program as part of the court's order for informal supervision,
nonwardship probation, deferred entry of judgment, or a
dispositional order under Welfare and Institutions Code
Section 727, unless the court determines that the program is
not in the best interest of the minor.
8)Provides that minors in foster care may only be referred to a
restorative justice program if it is consistent with the
minor's case plan and reunification services for the minor and
AB 1849
Page 3
the minor's family, and it does not result in loss of federal
financial participation for the minor's placement.
9)Excludes offenses involving personal possession, use, or
discharge of a firearm; registerable sex offenses; most gang
offenses; and the serious offenses listed in Welfare and
Institutions Code Section 707(b).
10)Requires that, notwithstanding a formal admission, a minor
must accept responsibility for the offense and agree to
cooperate with the restorative-justice progress in order to be
admitted to the program.
11)Requires the Administrative Office of the Courts (AOC) to
establish a pilot program to adopt restorative justice
principles, policies, and protocols in at least five counties,
to be selected based on diversity of population and size, the
presence of supportive and collaborative juvenile justice
partner agencies, the capacity of the court to manage and
mediate cases, the scope of utilization that is proposed, and
previous attempts to adopt restorative justice programs, and
conditioned on the support of a county superior court's
presiding judge.
12)Requires the AOC to make a recommendation to the Judicial
Council by July 1, 2013 which counties should be selected.
13)Requires the county courts selected by Judicial Council to
begin implementation by January 1, 2014.
14)Requires the AOC to report to the Judicial Council by July 1,
2018 on the programs' performance, including: (1) a
statistical analysis comparing recidivism rates with
participants versus nonparticipants, considering sustained
probation violations versus new sustained petitions; (2) a
cost-benefit analysis of the adoption of restorative justice
programs; (3) a statistical analysis of victims', offenders',
and others' satisfaction with the programs; (4) an analysis
comparing restitution collection and community service hours
between participants and nonparticipants; (5) the percentage
of cases mediated to completion as ordered by the court; (6)
the percentage of cases appropriately referred to a
restorative justice program.
15)Prohibits the use of General Fund moneys to fund the program.
AB 1849
Page 4
16)Provides that this bill will be in effect until January 1,
2019, and then be repealed, unless extended.
EXISTING LAW :
1)Provides, except as specified, any person who is under the age
of 18 years when he or she violates any law of this state or
of the United States or any ordinance of any city or county of
this state defining crime other than an ordinance establishing
a curfew based solely on age, is within the jurisdiction of
the juvenile court, which may adjudge such person to be a ward
of the court. �Welfare and Institutions Code Section 602(a).]
2)Provides that a minor under the jurisdiction of the juvenile
court who is in need of protective services shall receive
care, treatment, and guidance consistent with his or her best
interest and the best interest of the public. A minor 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 his or her best interest,
that holds that minor accountable for his or her behavior, and
that is appropriate for his or her circumstances. �Welfare
and Institutions Code Section 202(b).]
3)States that the Legislature reaffirms its commitment to
reducing recidivism among criminal offenders, and provides
that post-release community supervision can include
restorative justice programs such as mandatory victim
restitution and victim-offender reconciliation. �Penal Code
Section 3450(b).]
4)Provides that some funding allocated to county probation
offices by the county's Community Corrections Performance
Incentive Fund shall be spent on evidence-based community
corrections practices and programs including restorative
justice programs. �Penal Code Section 1230(b)(3)(B).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "I am deeply
concerned about the youth in our society. There needs to be a
AB 1849
Page 5
way to teach youth about the consequences of their actions
before they commit crimes that land them in prison. I believe
the programs described in this bill will force California's
youth to deal with their victims and the consequences of their
crimes, teaching them responsibility and how to avoid future
crimes. We need to find more approaches to combating juvenile
crime and this bill does just that by promising care and
rehabilitation to minors for non-violent offenses."
2)Background on Restorative Justice : According to Prison
Fellowship International, "Acknowledging that crime causes
injury to people and communities, it insists that justice
repair those injuries and that the parties be permitted to
participate in that process. Restorative justice programs,
therefore, enable the victim, the offender and affected
members of the community to be directly involved in responding
to the crime. They become central to the criminal justice
process, with governmental and legal professionals serving as
facilitators of a system that aims at offender accountability,
reparation to the victim and full participation by the victim,
offender and community. The restorative process of involving
all parties--often in face-to-face meetings--is a powerful way
of addressing not only the material and physical injuries
caused by crime, but the social, psychological and relational
injuries as well.
"When a party is not able, or does not want, to participate in
such a meeting, other approaches can be taken to achieve the
restorative outcome of repairing the harm. In addressing
offender accountability these approaches can include
restitution, community service and other reparative sentences.
In addressing victim and offender reintegration they can
include material, emotional and spiritual support and
assistance.
"A definition of restorative justice that emphasizes the
importance of both restorative processes and outcomes is the
following: Restorative justice is a theory of justice that
emphasizes repairing the harm caused by criminal behavior. It
is best accomplished when the parties themselves meet
cooperatively to decide how to do this. This can lead to
transformation of people, relationships and communities.
"Restorative justice is different from contemporary criminal
justice in several ways. First, it views criminal acts more
AB 1849
Page 6
comprehensively--rather than defining crime as simply
law-breaking, it recognizes that offenders harm victims,
communities and even themselves. Second, it involves more
parties in responding to crime--rather than giving key roles
only to government and the offender, it includes victims and
communities as well. Finally, it measures success
differently--rather than measuring how much punishment is
inflicted, it measures how much harm is repaired or
prevented." �Prison Fellowship International, Restorative
Justice Briefing Paper (March 12, 2009);
.]
3)Governor's Veto Message : AB 446 (Carter) of the 2011-2012
Legislation Session was similar to this bill and was vetoed.
In his veto message, the Governor stated, "This measure would
authorize the use of restorative justice programs, but the
courts already have the authority to create such programs.
While the provisions of this bill are well-intended, they
create a clear expectation that our courts--already struggling
with painful budget cuts--will establish a new program. Given
current budgetary constraints, the decision to adopt this kind
of program is better left to the sound discretion of judges."
4)This Bill Is Likely Unnecessary : This bill seeks to encourage
counties to adopt restorative justice practices. However, it
would add a section to the Welfare and Institutions Code
stating that, "the juvenile court in a county may adopt a
restorative justice program." Counties already have the
authority to adopt restorative justice. This bill would not
expand that authority.
Restorative justice programs for juvenile offenders are
already succeeding in some California communities. For
example, according to Restorative Resources, in Sonoma County,
"Since 2002, we've facilitated restorative dialogues between
over 1000 juvenile offenders and their victims and other
affected community members." �Restorative Resources,
Restorative Justice for Juvenile Offenders;
.] "Our
experience has been that fewer than 8% of offenders reoffend."
�Id. at < http://www.restorativeresources.org/index.html>.]
Also, Restorative Justice for Oakland Youth (RJOY) has made
AB 1849
Page 7
great strides in Alameda County. "Beginning in 2007, RJOY's
city-funded West Oakland Middle School pilot project
eliminated violence and expulsions, and reduced suspension
rates by 87%, saving the school thousands in attendance and
Title I funding." �Restorative Justice for Oakland Youth,
About Us, .]
Additionally, "Monterey County has had an 18-member Community
Restorative Justice Commission since 1999, though its role is
mainly to set policies and make recommendations to the
probation department and other agencies. And so, in a unique
community-government partnership, Restorative Justice Partners
handles putting the theory into practice. This year, with
hundreds of inmates returning earlier than scheduled to
Monterey County under state prison realignment, the nonprofit
has begun training more than two dozen volunteers to help
handle the influx." �"In Restorative Justice, Criminals and
Victims Come Together to Heal Wounds," Monterey County Herald
(March 17, 2012)
.]
5)Arguments in Support : According to Victim Offender
Reconciliation Program of the Central Valley (VORP) , "VORP has
received more than 15,000 referrals to work with juvenile
offenders and their victims. . . . The model we use has
produced undeniable facts that juvenile offenders who
participate in our program compared to those who have
committed a similar offense and do not, are almost three times
less likely to have a sustained petition for a new crime.
Also, 87% of the kids who participate in the program fully
complete all the terms their agreements."
According to Presiding Judge David A. Gottlieb , "I have made
hundreds of referrals to VORP- CJC (Community Justice
Conference) program and have seen it work. . . . Recent
recidivism studies in Fresno have shown that reoffending can
be cut from 25% to approximately 7% through the use of
restorative justice program."
6)Argument in Opposition : According to the California Public
Defenders Association , this bill "simply grafts restorative
justice principles on top of an adversarial justice system
which can result in significant unintended but harmful
consequences. . . . Second, this bill forces the court to
AB 1849
Page 8
order every minor into such a program (unless the court finds
it is not in the youth's best interest), while restorative
justice requires voluntary acceptance of responsibility. . . .
A third problem with this bill is its elimination of any
serious cases from the restorative justice programs."
7)Related Legislation :
a) AB 1729 (Ammiano), would authorize school
superintendents and principals to use alternatives to
suspension or expulsion that are age appropriate and
designed to address and correct the root causes of the
pupil's specific misbehavior, including participation in a
restorative justice program. AB 1729 has been referred to
the Committee on Education.
b) AB 446 (Carter), was substantially similar to this bill
and would have authorized a county to form a restorative
justice council to adopt a restorative justice program to
address the needs of a minor, victims, and the community.
AB 446 was vetoed.
c) AB 109 (Blumenfield), Chapter 15, Statutes of 2011,
states that the Legislature reaffirms its commitment to
reducing recidivism among criminal offenders, and provides
that post-release community supervision can include
restorative justice programs such as mandatory victim
restitution and victim-offender reconciliation.
d) AB 117 (Blumenfield), Chapter 39, Statutes of 2011,
provides that some funds allocated to county probation
offices by the county's Community Corrections Performance
Incentive Fund shall be spent on evidence-based community
corrections practices and programs including restorative
justice programs.
8)Prior Legislation :
a) AB 114 (Carter), of the 2008-09 Legislative Session, was
substantially similar to this bill and would have revised
the objectives of the juvenile justice system to include
principles of restorative justice and authorizes
communities to adopt restorative justice programs, as
specified. AB 114 was vetoed.
AB 1849
Page 9
b) AB 360 (Carter), of the 2007-08 Legislative Session, was
substantially similar to this bill and would have
authorized a county to adopt a restorative justice program
to address the needs of minors, victims, and the community.
AB 360 was vetoed.
c) AB 788 (Maldonado), of the 1999-2000 Legislation
Session, was substantially similar to this bill and would
have established a three-county pilot program to apply
restorative justice principles in dealing with non-violent
juvenile offenders. AB 788 was vetoed.
REGISTERED SUPPORT / OPPOSITION :
Support
California Academy of Child & Adolescent Psychiatry
California Catholic Conference, Inc.
California Probation, Parole and Correctional Association
Chief Joe Garza, Reedley Police Department
Judge Dale Ikeda, Fresno County Superior Court
Judge David A. Gottlieb, Presiding Judge, Fresno County Juvenile
Delinquency Court
National Association of Social Workers, California Chapter
Victim Offender Reconciliation Program of the Central Valley,
Inc.
Opposition
California Public Defenders Association
California District Attorneys Association
Oakland City Councilmember Nancy Nadel
Analysis Prepared by : Jesse Stout / PUB. S. / (916) 319-3744