AB 446 (Carter)
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SENATE COMMITTEE ON PUBLIC SAFETY
SenatorLoniHancock, ChairA
2011-2012 Regular SessionB
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Bill No:AB 446 (Author:Carter)
As AmendedAmended:March 25, 2011
Hearing date: June 7, 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 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.
(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.
(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.
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.
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.
(More)
AB 446 (Carter)
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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 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.
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 (3-2) stated in part:
This bill would authorize a county to adopt a restorative justiceprogram that would be implemented through a juvenile court inconjunction 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 onattempts 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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[1] See 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).