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AB-1849 Juveniles: restorative justice.(2011-2012)

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AB1849:v98#DOCUMENT

Amended  IN  Assembly  March 21, 2012

CALIFORNIA LEGISLATURE— 2011–2012 REGULAR SESSION

Assembly Bill No. 1849


Introduced  by  Assembly Member Carter
(Coauthor(s): Assembly Member Perea)

February 22, 2012


An act to add Section 237 to, and to add and repeal Section 238 of, the Welfare and Institutions Code, relating to juveniles.


LEGISLATIVE COUNSEL'S DIGEST


AB 1849, as amended, Carter. Juveniles: restorative justice.
Existing law provides that any person under 18 years of age who commits a crime is within the jurisdiction of the juvenile court, except as specified. Further, existing law sets forth the purpose of juvenile court law and provides that a minor under the juvenile court jurisdiction as a consequence of delinquent conduct shall receive care, treatment, and guidance that holds the minor accountable for his or her behavior, is appropriate for his or her circumstances, and is consistent with his or her best interest and the best interest of the public.
This bill makes findings and declarations related to restorative justice programs. The bill would authorize the juvenile court of a county to adopt a restorative justice program to address the needs of minors, victims, and the community. The bill would require a restorative justice program adopted by a juvenile court to be implemented through a restorative justice protocol developed by the court with the prosecutor, public defender, and, when possible, representatives from other interested groups. Under this bill, certain enumerated offenses would not be eligible for inclusion within a restorative justice program. Additionally, this bill would authorize a court not to refer an eligible minor to a restorative justice program if the court determines that the program is not in the minor’s best interest. The bill would require the Administrative Office of the Courts to establish restorative justice pilot programs in 5 or more counties. Those counties would begin implementing restorative justice programs by January 1, 2014, provided that the presiding judge in a selected county supports participation in the pilot program. Under the bill, by July 1, 2013, the Administrative Office of the Courts would be required to report make a recommendation to the Judicial Council which counties have been selected by July 1, 2013, and courts should be selected for the program. After the Judicial Council selects the participating courts, the courts would begin implementing restorative justice programs by January 1, 2014. The bill would also require the Administrative Office of the Courts to report to the Judicial Council on the performance of the pilot programs by July 1, 2018.
This bill would prohibit the use of General Fund moneys to fund these pilot programs.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 The Legislature finds and declares all of the following:
(a) It is the intent of the Legislature that principles of restorative justice be incorporated into juvenile justice proceedings, consistent with the underlying rehabilitative purpose of the Juvenile Court Law (Chapter 2 (commencing with Section 200) of Part 1 of Division 2 of the Welfare and Institutions Code) and the commitment of the Victims’ Bill of Rights Act of 2008 (subdivision (b) of Section 28 of Article I of the California Constitution) to due process and restitution. Restorative justice principles recognize the following needs:
(1) Community protection from delinquent conduct through a continuum of appropriate responses that protects citizens and victims.
(2) Accountability of the minor through restoration of the losses experienced by the victim and the community.
(3) Competency development of the minor through the provision of treatment, education, and skill building needed for success in the community.
(b) Crime results in injury to the victim, the community, and the offender. Whenever appropriate, the juvenile justice system should seek to repair those injuries, taking into account 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 Section 237 of the Welfare and Institutions Code, enacted by Section 2 of this act. Victims and communities should be actively involved in helping to develop programs and services, and in ensuring accountability through helping individual minors to understand the impact of their actions. These activities shall be pursued in a manner consistent with the minor’s right to due process and the right of victims and minors under Section 676.5 of the Welfare and Institutions Code.
(c) Nothing in this act changes the fundamental intention of the Juvenile Court Law that individualized care, treatment, and guidance be provided to each minor coming to the attention of the juvenile court for alleged delinquency.
(d) Restorative justice principles, where applied, have improved public safety by changing behaviors that lead juvenile offenders to repeat criminal activity. 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.

SEC. 2.

 Section 237 is added to the Welfare and Institutions Code, to read:

237.
 (a) Consistent with the rehabilitative purpose of this chapter, the juvenile court in a county may adopt a restorative justice program to address the needs of minors, victims, and the community.
(b) For the purposes of this section, an “eligible minor” is a person under 18 years of age at the time that the offense alleged within the petition is alleged to have been committed.
(c) 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, and, when possible, representatives from victims’ groups, law enforcement, community organizations and service providers, restorative justice groups, and clinicians with expertise in adolescent development. The protocol shall address all of the following:
(1) Policies and protocols to be implemented in cases utilizing a restorative justice model.
(2) Particular offenses, or the criteria to determine those offenses, that shall be eligible or ineligible for inclusion within the restorative justice program, notwithstanding subdivision (g).
(3) The rights of minors.
(4) Confidentiality issues.
(5) Timeliness for case processing.
(6) The roles of the court, prosecutor, and defense counsel in relation to the restorative justice program.
(7) The process for evaluating compliance with the program.
(8) The process for handling any failure to adhere to the program.
(d) 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. 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.
(e) All eligible minors shall be referred to a 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 disposition order under Section 727, or the court’s order for deferred entry of judgment under Section 790, unless the court determines that the restorative justice program is not in the best interest of the minor, in which case the court shall provide for other appropriate disposition of the case.
(f) 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 pursuant to subdivision (a) of Section 727, 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.
(g) Because of their serious nature, the following offenses shall not be eligible for inclusion in the restorative justice program:
(1) Offenses that include the personal possession, use, or discharge of a firearm.
(2) Offenses described within subdivision (b) of Section 707.
(3) Offenses described within subdivision (c) of Section 290 of the Penal Code.
(4) Offenses described within Section 186.22 of the Penal Code.
(h) In order to participate in the restorative justice program, the minor must, notwithstanding a formal admission, accept responsibility for the offense and agree to cooperate with the restorative justice process.

SEC. 3.

 Section 238 is added to the Welfare and Institutions Code, to read:

238.
 (a) The Administrative Office of the Courts shall establish a pilot program to adopt restorative justice principles, policies, and protocols under Section 237, in five or more counties.
(b) The Administrative Office of the Courts shall select counties for involvement in the pilot program that are of varying sizes and collectively include diverse populations. The selection of counties shall reflect 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. A court shall not be selected for involvement unless the presiding judge in that county’s superior court supports participation in the pilot program.
(c) In working with the courts and partner agencies, the Administrative Office of the Courts shall seek to provide guidance on best practices in implementing restorative justice programs.
(d) On or before July 1, 2013, the Administrative Office of the Courts shall report make a recommendation to the Judicial Council regarding which counties have been should be selected for involvement in the pilot program. Courts After the Judicial Council determines which courts will be selected to participate in the pilot program, courts in those counties shall begin implementing restorative justice programs under Section 237, no later than January 1, 2014.
(e) On or before July 1, 2018, the Administrative Office of the Courts shall report to the Judicial Council on the performance of the restorative justice programs in the counties selected for involvement in the pilot program. The report shall, at a minimum, address all of the following:
(1) A statistical analysis of the outcomes of the pilot program, comparing recidivism rates among participants in those programs with those of nonparticipants. This analysis shall consider sustained violations of probation and new sustained petitions.
(2) A cost-benefit analysis of the adoption of restorative justice programs.
(3) A statistical analysis of satisfaction with the restorative justice programs on the part of victims, offenders, and other parties in the cases involved.
(4) A comparative analysis of restitution collection and hours of community service between offenders who participated in restorative justice programs and those who did not.
(5) The percentage of cases referred to restorative justice programs that were mediated to completion as prescribed by the court.
(6) The percentage of eligible cases that were appropriately referred to a restorative justice program.
(f) No General Fund moneys shall be used to fund a restorative justice program adopted pursuant to this section. A restorative justice program shall be adopted in a county only after the juvenile court in that county has obtained funds for these purposes.
(g) This section shall remain in effect only until January 1, 2019, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2019, deletes or extends that date.