BILL ANALYSIS �
AB 1849
Page 1
Date of Hearing: April 18, 2012
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Felipe Fuentes, Chair
AB 1849 (Carter) - As Amended: March 21, 2012
Policy Committee: Public
SafetyVote: 4-2
Urgency: No State Mandated Local Program:
No Reimbursable:
SUMMARY
This bill:
1)Authorizes counties to adopt a restorative justice program for
juvenile offenders to address the needs of minors, victims,
and the community. Specifically, this bill:
a) States the restorative justice program shall be
implemented through a restorative justice protocol
developed by the juvenile court in conjunction with the
prosecutor, defense bar, probation, victims' groups, law
enforcement, community organizations and others.
b) Requires the program seek to repair harm to the victim,
the offender, and the community.
c) Requires program requirements be tailored to the age,
mental capacity, and developmental maturity of the minor,
the nature of the offense, and the resources available to
accomplish the goals of the program.
d) Requires all eligible minors to be referred to a
restorative justice program unless the court determines it
is not in the best interest of the minor.
2)Requires the Administrative Office of the Courts (AOC) to
establish a restorative justice pilot program in five or more
counties. Specifically, this bill:
a) Requires the "support" of the presiding judge in a
county's superior court before a county may be selected for
the pilot.
b) Requires AOC to make a recommendation to the Judicial
Council regarding pilot counties, and requires
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implementation in the selected counties by Jan. 1, 2014.
c) Requires AOC report to the Judicial Council on the
pilots by July 1, 2018, as specified.
d) Specifies no GF may be expended on a restorative justice
program adopted pursuant to this section.
FISCAL EFFECT
1)Significant cost pressure, likely well in excess of $600,000
annually, to establish and operate pilot projects in five
counties. This assumes one administrator per county, and
$100,000 for a one-time AOC evaluation and report.
Though the bill states that no GF may be used for restorative
justice programs adopted pursuant to this section, it is not
clear where the courts would find funding for the pilot
program requirement, and if they did, whether that funding
would otherwise have been directed for competing needs
elsewhere.
2)No direct state or local costs regarding the permissive
authority for counties to adopt restorative justice programs,
since nothing prevents counties from doing so now. To the
extent a county opts to adopt a program, and to the extent the
proposed restorative justice objectives, which are generally
consistent with current juvenile justice system goals, result
in additional or improved programming, local juvenile justice
system costs (not state-reimbursable) could increase.
COMMENTS
1)Rationale . The balanced and restorative justice model, on
which this bill is based, assumes an understanding of crime as
an act against the victim and the community. The author
contends that while criminal justice practitioners have long
used techniques consistent with restorative justice, they lack
a coherent philosophical framework that supports restorative
practice and provides direction to guide all aspects of
juvenile justice practice.
2)There does not appear to be a need for this bill. Nothing
prevents counties and courts from pursuing restorative justice
models, and this bill (a) is permissive regarding counties'
establishing restorative justice programs, and (b) requires
the agreement of the presiding judge in a county's superior
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court before prior to pilot program participation.
3)Language protecting state funding could be tightened. It is
not clear whether the language prohibiting the use of GF
applies only to the pilots, or also to AOC evaluation and
reporting. Previous and similar bills by the author also
precluded GF on county programs other than the pilots required
in this bill.
4)Prior Legislation . Similar bills by this author- without the
pilot program - have been vetoed three times.
a) AB 446 (Carter), 2011, was similar to this bill and was
vetoed by Gov. Brown who stated: "?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."
b) AB 114 (Carter), 2010, was similar to this bill and was
vetoed by Gov. Schwarzenegger who stated: "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."
c) AB 360 (Carter), 2008, was similar to this bill and was
vetoed by Gov. Schwarzenegger, with the same veto message
used in 2010.
5)Opposition comes from judges, prosecutors and defense counsel.
a) According to the California District Attorneys
Association, "The bottom line is this bill is unnecessary.
Prosecutors and courts are free to use restorative justice
programs if they choose, and many do. Restorative justice
is still too new, and we lack sufficient evidence of its
benefits and shortcomings to justify making it a
legislatively-preferred mode of treatment in juvenile
court. Mandating that all eligible minors be referred to a
restorative justice program is unduly restrictive and does
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not serve the public safety."
b) According to California Public Defenders Association,
"CPDA does not oppose the use of balanced and restorative
concepts in the juvenile system. However, this bill has
serious problems which make it unworkable and actually
detrimental to the youth it purports to serve.
"First, it simply grafts restorative justice principles on
top of an adversarial justice system which can result in
significant unintended but harmful consequences. For
example, this bill would require the court to order all
youth on probation into these programs, requiring both a
formal admission and an "acceptance of responsibility."
However, some of the youth would not have been adjudicated,
and would still have charges pending against them. Since
these youth are on "pre-trial" informal probation, if for
some reason the youth did not complete the program, the
prosecutor would reinstate the case against the youth, and
use the admission against them."
c) According to the California Judges Association (CJA) and
the Juvenile Court Judges of California (JCJC), "AB 1849
removes much judicial discretion?.While CJA and JCJC
welcome restorative justice improvements in California's
juvenile jurisprudence, AB 1849 is not a workable solution
by which to achieve this goal."
Analysis Prepared by : Geoff Long / APPR. / (916) 319-2081