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SB-678 Restorative Justice Pilot Program. (2019-2020)

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Date Published: 04/29/2019 02:00 PM
SB678:v97#DOCUMENT

Amended  IN  Senate  April 29, 2019
Amended  IN  Senate  April 11, 2019

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Senate Bill
No. 678


Introduced by Senator Glazer
(Coauthor: Assembly Member Eggman)

February 22, 2019


An act to add and repeal Chapter 2.96 (commencing with Section 1001.100) of Title 6 of Part 2 of the Penal Code, relating to restorative justice.


LEGISLATIVE COUNSEL'S DIGEST


SB 678, as amended, Glazer. Restorative Justice Pilot Program.
Existing law authorizes a court to grant pretrial diversion to a defendant in specified cases, including when the defendant is suffering from a mental disorder, specified controlled substances crimes, and when the defendant was, or currently is, a member of the United States military.
This bill, until January 1, 2025, would require the Board of State and Community Corrections to establish the Restorative Justice Pilot Program and, upon appropriation of money for this purpose by the Legislature, would require the board to make 5-year grants to up to 3 counties to establish and operate restorative justice diversion programs. As part of the program, commencing January 1, 2021, the bill would require a court to defer an eligible defendant’s sentence for up to 36 months while the defendant undergoes specified counseling. The bill would require, after counseling and other preparation of the parties, the responsible party to encounter, in a facilitated setting, the victims, or surrogates chosen to stand in for the victims, and directly address the harms the responsible person has caused. The bill would require the victim to be given the opportunity to assist in the shaping of the amends with which the responsible party is required to comply and would require the responsible party, the victim, and representatives of community stakeholders to jointly agree on a restorative justice plan that will bring amends to the victim and the community and help the responsible party make changes that will prevent the commission of additional crimes.
This bill would require the board to establish requirements for all counties participating in the program to collect consistent data and to report that data to the board or a qualified research organization designated by the board. The bill would require the board to designate a qualified independent research organization to analyze the data collected and issue a report on the findings, as specified.
Existing law provides that, except as otherwise provided by statute, all relevant evidence is admissible. The California Constitution provides for the Right to Truth-In-Evidence, which requires a 2/3 vote of the Legislature to exclude any relevant evidence from any criminal proceeding, as specified.
This bill would make specified statements, and information derived from those statements, made as a part of the program inadmissible in any action or proceeding.
Vote: 2/3   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 the following:
(a) California law declares that the purposes of criminal sentencing are punishment, rehabilitation, and restorative justice.
(b) Restorative justice programs allow victims to receive justice through direct, mediated encounters with those who have harmed them, unlike existing forms of criminal punishment that are often impersonal and do not meet the needs and wishes of victims of crime.
(c) Restorative justice programs empower the victim and the community, rather than the state, to decide what actions by the responsible party would bring justice. This empowerment can be a crucial element in healing the harm suffered by the victim.
(d) Conventional systems of criminal justice can result in collateral consequences that are harmful to the individual convicted, their loved ones, and the community, including the interruption of family ties, loss of a job, greater difficulty in obtaining employment, and the possibility of adverse immigration consequences.
(e) There are currently no opportunities for victims of crime and defendants in California to participate in restorative justice programs prior to trial.
(f) While decisions to prosecute defendants and sentence an individual to state prison or county jail are made in each county, the cost of incarceration is borne by the state. The cost to the State of California to incarcerate an individual in a state prison for one year is currently approximately $86,000.
(g) It is in the interest of the state to support innovative, collaborative programs at the county level to address the needs of victims to heal, to provide services to those who have harmed another so as to address the root causes of crime, and to reduce the costs of incarceration.
(h) It is the intent of the Legislature to provide one-time funding for a Restorative Justice Pilot Program involving responsible parties, victims, and stakeholders at the county level and a research program to determine the effectiveness of restorative justice in bringing satisfaction to victims and reducing crime.

SEC. 2.

 Chapter 2.96 (commencing with Section 1001.100) is added to Title 6 of Part 2 of the Penal Code, to read:
CHAPTER  2.96. Restorative Justice

1001.100.
 As used in this chapter, the following definitions apply:
(a) “Amends” means a satisfaction given by a responsible party to the party injured for a wrong committed.
(b) “Board” means the Board of State and Community Corrections.
(c) “Community stakeholders” means representatives from the probation department, the district attorney’s office, the public defender’s office, an indigent defense panel, the county health and human services department or behavioral health department, counselors who are either county employees or under contract with the county for this program and who provide services to the crime victim and the responsible party, and representatives from one or more community-based organizations who provide services within the program.
(d) “Diversion” means the postponement of prosecution, either temporarily or permanently, at any point in the judicial process from the point at which the accused is charged until adjudication, to allow a responsible party to participate in a restorative justice program.
(e) “Responsible party” means a defendant who is participating in a restorative justice program.
(f) “Restorative justice program” or “program” means a program in which a responsible party, in a facilitated setting, meets with a victim, or a surrogate chosen to stand in for a victim, and directly addresses the harms the person has caused and makes amends. The victim, the responsible party, and community stakeholders work together to shape the amends with which the responsible party is required to comply.

1001.101.
 (a) On or before January 1, 2021, the board shall create a Restorative Justice Pilot Program.
(b) Upon appropriation of money for this purpose by the Legislature, the board shall design a competitive grant program and extend five-year grants to up to three counties to establish and operate restorative justice diversion programs. Grants recipients shall be determined and grants distributed on or before November 1, 2020.
(c) The board shall reserve from any appropriation for this program an amount sufficient to fund an independent evaluation of the pilot program’s effectiveness in reducing recidivism and bringing satisfaction to the victims of crime. Subject to the conditions described in this chapter, a county participating in this pilot program shall determine the best way to implement the program in its county, establish a multidisciplinary team of community stakeholders that shall establish eligibility requirements, encourage participation in the program, review particular cases, assist in shaping the consequences for the responsible party, and assess the impact of the program.

1001.102.
 (a) A county that receives a grant pursuant to this chapter shall commence the restorative justice program as of January 1, 2021. A restorative justice program created pursuant to this chapter shall operate as follows:
(1) The community stakeholders shall develop a plan for services for all responsible parties in the program, including, but not limited to, housing, employment, and education services.
(2) Upon the filing of an accusatory complaint, an eligible responsible party and the victim of the crime shall be given information regarding the restorative justice program established pursuant to this chapter and shall be offered the opportunity to participate in the program. A responsible party shall not participate without the consent of the responsible party’s attorney, the consent of the victim when there is an identified victim, and the approval of the district attorney or the designee of the district attorney.
(3) A defendant is eligible to participate if there is present capacity in the program and if the defendant demonstrates the ability to benefit from services, including, but not limited to, counseling, educational, vocational, and supervision services. A defendant shall not be denied participation in the program based on the accusation that the defendant has committed a serious or violent felony or the defendant’s past criminal record. A defendant is ineligible for the program if charged with any of the following offenses:
(A) Murder or voluntary manslaughter.
(B) A lewd or lascivious act on a child under 14 years of age.
(C) Assault with intent to commit rape, sodomy, or oral copulation, in violation of Section 220.
(D) Commission of rape or sexual penetration in concert with another person, in violation of Section 264.1.
(E) Continuous sexual abuse of a child, in violation of Section 288.5.
(F) A violation of subdivision (b) or (c) of Section 11418.
(G) A sex offense for which registration is required pursuant to Section 290 that is classified as a Tier 2 or Tier 3 offense.
(4) Upon placement in a restorative justice program, criminal proceedings against the responsible party shall be suspended for up to 36 months. A responsible party who consents to participate in the program shall, as a condition of participating, waive the right to a speedy trial or a speedy preliminary hearing.

(5)If the court determines that the release of a responsible party who is otherwise eligible to participate in the program would present an unacceptable risk to public safety, the court may impose a period of confinement in the county jail, not to exceed six months, electronic monitoring, or other conditions of release while the responsible party is participating in the program. The sheriff of each participating county shall make accommodations to allow a responsible party who is in custody to participate in the program, including allowing the responsible party to participate in rehabilitative programming, to meet with program representatives, and to receive services. After review, the court may impose additional time in custody, may order the responsible party released from custody, or may reduce the conditions of pretrial detention if the court finds that the responsible party is performing satisfactorily in the program.

(6)

(5) During the time in which the responsible party is participating in the restorative justice program, the district attorney shall update the court at least once every six months on the status of the case.
(b) (1) Following counseling and other preparation of the parties, the responsible party shall encounter, in a facilitated setting, the victims, or surrogates chosen by the community stakeholders to stand in for the victims, and directly address the harms the responsible party has caused.
(2) The victim, or a surrogate chosen to stand in for the victim, shall be given the opportunity to address the responsible party and share the impact of the crime on the victim’s life.
(3) The victim shall be given the opportunity to assist in the shaping of the amends with which the responsible party is required to comply.
(4) The responsible party, the victim, and representatives of community stakeholders shall jointly agree on a restorative justice plan that will bring amends to the victim and the community and help the responsible party make changes that will prevent the commission of additional crimes.
(c) A responsible party shall not be required to make an admission of guilt in court as a prerequisite for participation in the program.
(d) The following shall not be admissible in any action or proceeding:
(1) A statement made by the responsible party, or information procured therefrom, in connection with the determination of eligibility for diversion.
(2) A statement made by the responsible party, or information procured therefrom, subsequent to the enrollment in the program and while participating in the program.
(3) Information contained in a report made with respect to the program.
(4) A statement or other information concerning the responsible party’s participation in the program.
(e) A restorative justice diversion program established and operated pursuant to this chapter shall only apply to cases in which there is an identifiable victim.

1001.103.
 (a) (1) If the responsible party has performed satisfactorily in the program, at the end of the period required for the program by the court, on a motion of one of the parties, the court shall dismiss the criminal charges. A court may conclude that the responsible party has performed satisfactorily if the responsible party has substantially complied with the requirements of the program and the victim is satisfied that the responsible party has made amends consistent with the terms of the restorative justice plan created pursuant to paragraph (4) of subdivision (b) of Section 1001.102.
(2) If the court dismisses the charges, the clerk of the court shall file a record with the Department of Justice indicating the disposition of the case diverted pursuant to this section. Upon successful completion of the program, if the court dismisses the charges, the arrest upon which the diversion was based shall be deemed never to have occurred, and the court shall order access to the record of the arrest restricted in accordance with Section 1001.9. The responsible party who successfully completes the program may indicate in response to any question concerning a prior criminal record that the person was not arrested or diverted for the offense.
(3) A record pertaining to an arrest resulting in successful completion of the program, or any record generated as a result of the responsible party’s application for or participation in the program, shall not, without the responsible party’s consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate.
(b) (1) If the community stakeholders conclude that the responsible party is performing unsatisfactorily in the program or that the responsible party is not benefitting from the services in the program, a motion may be made to terminate participation.
(2) A responsible party shall be entitled to a hearing before participation in the program can be terminated for cause.
(3) After notice to the responsible party, the court shall hold a hearing to determine whether trial proceedings shall resume. If the court finds that the responsible party is not benefitting from the services in the program, the court may terminate participation.

1001.104.
 (a) The Board of State and Community Corrections shall establish requirements for all counties participating in the program to collect consistent data and to report this data to the board or a qualified research organization designated by the board.
(b) The board shall designate a qualified independent research organization to analyze the data collected and issue a report on the findings.
(c) The data and report shall contain information including, but not limited to, the following:
(1) Self-reported crime victim satisfaction in the program collected at the completion of the program.
(2) Self-reported crime victim satisfaction in a traditional court proceeding for similar crimes collected upon the conviction of a defendant.
(3) Outcome-related data, including employment, housing, and education for program participants, as compared to defendants who are convicted following a plea or trial.
(4) Comparison of sentencing outcomes for program participants to defendants sentenced for comparable crimes.
(5) The impact on opportunities for community supervision monitoring.
(6) Twelve-month, 24-month, 3-year, and 5-year occurrences of crimes for program participants.
(7) Twelve-month, 24-month, 3-year, and 5-year occurrences of crimes for defendants convicted of similar crimes in the adult system within the county.
(8) Information regarding discrimination or biases regarding court determinations of whether the responsible party has substantially complied with the requirements of the restorative justice program.
(d) The report and analysis required by this section shall be submitted to the Chair of the Assembly Public Safety Committee and the Chair of the Senate Public Safety Committee no later than December 31, 2025.

1001.105.
 This chapter shall remain in effect only until January 1, 2026, and as of that date is repealed.