California Proposition 9 (2008)

Criminal Justice System, Victims’ Rights, Parole, Constitutional Amendment and Statute.

Overview of Proposal

This measure amends the State Constitution and various state laws to (1) expand thelegal rights of crime victims and the payment of restitution by criminal offenders,(2) restrict the early release of inmates, and (3) change the procedures for granting andrevoking parole. These changes are discussed in more detail below.

Expansion of the Legal Rights of Crime Victims and Restitution

Background

In June 1982, California voters approved Proposition 8, known as the Victims Bill of Rights. Among other changes, the proposition amended the Constitution and variousstate laws to grant crime victims the right to be notified of, to attend, and to statetheir views at, sentencing and parole hearings. Other separately enacted laws have createdother rights for crime victims, including the opportunity for a victim to obtain a
judicial order of protection from harassment by a criminal defendant.Proposition 8 established the right of crime victims to obtain restitution from anyperson who committed the crime that caused them to suffer a loss. Restitution often involvesreplacement of stolen or damaged property or reimbursement of costs that thevictim incurred as a result of the crime. A court is required under current state law toorder full restitution unless it finds compelling and extraordinary reasons not to do so.Sometimes, however, judges do not order restitution. Proposition 8 also established aright to “safe, secure and peaceful” schools for students and staff of primary, elementary,junior high, and senior high schools.

Changes Made by This Measure

Restitution. This measure requires that, without exception, restitution be orderedfrom offenders who have been convicted, in every case in which a victim suffers a loss.The measure also requires that any funds collected by a court or law enforcement agenciesfrom a person ordered to pay restitution would go to pay that restitution first, ineffect prioritizing those payments over other fines and obligations an offender may legallyowe.

Notification and Participation of Victims in Criminal Justice Proceedings.

As notedabove, Proposition 8 established a legal right for crime victims to be notified of, to attend,and to state their views at, sentencing and parole hearings. This measure expandsthese legal rights to include all public criminal proceedings, including the release from custody of offenders after their arrest, but before trial. In addition, victims would begiven the constitutional right to participate in other aspects of the criminal justice process,such as conferring with prosecutors on the charges filed. Also, law enforcement andcriminal prosecution agencies would be required to provide victims with specified information,including details on victim’s rights.

Other Expansions of Victims’ Legal Rights.

This measure expands the legal rights of crime victims in various other ways, including the following:
* Crime victims and their families would have a state constitutional right to (1) prevent the release of their confidential information or records to criminal defendants, (2) refuse to be interviewed or provide pretrial testimony or other evidence requested in behalf of a criminal defendant, (3) protection from harm from individuals accused of committing crimes against them, (4) the return of property no longer needed as evidence in criminal proceedings, and (5) “finality” in criminal proceedings in which they are involved. Some of these rights now exist in statute.
* The Constitution would be changed to specify that the safety of a crime victim must be taken into consideration by judges in setting bail for persons arrested for crimes.
* The measure would state that the right to safe schools includes community colleges, colleges, and universities.

Restrictions on Early Release of Inmates

Background

The state operates 33 state prisons and other facilities that had a combined adult inmatepopulation of about 171,000 as of May 2008. The costs to operate the California Department of Corrections and Rehabilitation (CDCR) in 2008-09 are estimated to beapproximately $10 billion. The average annual cost to incarcerate an inmate is estimatedto be about $46,000. The state prison system is currently experiencing overcrowding becausethere are not enough permanent beds available for all inmates. As a result, gymnasiumsand other rooms in state prisons have been converted to house some inmates.Both the state Legislature and the courts have been considering various proposalsthat would reduce overcrowding, including the early release of inmates from state prison. At the time this analysis was prepared, none of these proposals had beenadopted. State prison populations are also affected by credits granted to prisoners.These credits, which can be awarded for good behavior or participation in specific programs,reduce the amount of time a prisoner must serve before release.
Collectively, the state’s 58 counties spend over $2.4 billion on county jails, whichhave a population in excess of 80,000. There are currently 20 counties where an inmatepopulation cap has been imposed by the federal courts and an additional 12 countieswith a self-imposed population cap. In counties with such population caps, inmates aresometimes released early to comply with the limit imposed by the cap. However, somesheriffs also use alternative methods of reducing jail populations, such as confining inmatesto home detention with Global Positioning System (GPS) devices.

Changes Made by This Measure

This measure amends the Constitution to require that criminal sentences imposed bythe courts be carried out in compliance with the courts’ sentencing orders and that suchsentences shall not be “substantially diminished” by early release policies to alleviateovercrowding in prison or jail facilities. The measure directs that sufficient funding beprovided by the Legislature or county boards of supervisors to house inmates for thefull terms of their sentences, except for statutorily authorized credits which reducethose sentences.

Changes Affecting the Granting and Revocation of Parole

Background

The Board of Parole Hearings conducts two different types of proceedings relatingto parole. First, before CDCR releases an individual who has been sentenced to life in prison with the possibility of parole, the inmate must go before the board for a parole consideration hearing. Second, the board has authority to return to state prison for up to a year an individual who has been released on parole but who subsequently commits a parole violation. (Such a process is referred to as parole revocation.) A federal court order requires the state to provide legal counsel to parolees, including assistance at hearingsrelated to parole revocation charges.

Changes Made by This Measure

Parole Consideration Procedures for Lifers. This measure changes the procedures to be followed by the board when it considers the release from prison of inmates with a life sentence. Specifically:

* Currently, individuals whom the board does not release following their parole consideration hearing must generally wait between one and five years for another parole consideration hearing. This measure would extend the time before the next hearing to between 3 and 15 years, as determined by the board. However, inmates would be able to periodically request that the board advance the hearing date.
* Crime victims would be eligible to receive earlier notification in advance of parole consideration hearings. They would receive 90 days advance notice, instead of the current 30 days.
* Currently, victims are able to attend and testify at parole consideration hearings with either their next of kin and up to two members of their immediate family, or two representatives. The measure would remove the limit on the number of family members who could attend and testify at the hearing, and would allow victim representatives to attend and testify at the hearing without regard to whether members of the victim’s family were present.

* Those in attendance at parole consideration hearings would be eligible to receive a transcript of the proceedings.

* General Parole Revocation Procedures. This measure changes the board’s parole revocation procedures for offenders after they have been paroled from prison. Under a federal court order in a case known as Valdivia v. Schwarzenegger, parolees are entitled to a hearing within 10 business days after being charged with violation of their parole to determine if there is probable cause to detain them until their revocation charges are resolved. The measure extends the deadline for this hearing to 15 days. The same court order also requires that parolees arrested for parole violations have a hearing to resolve the revocation charges within 35 days. This measure extends this timeline to 45 days. The measure also provides for the appointment of legal counsel to parolees facing revocation charges only if the board determines, on a case-by-case basis, that the parolee is indigent and that, because of the complexity of the matter or because of the parolee’s mental or educational incapacity, the parolee appears incapable of speaking effectively in his or her defense. Because this measure does not provide for counsel at all parole revocation hearings, and because the measure does not provide counsel for parolees who are not indigent, it may conflict with the Valdivia court order, which requires that all parolees be provided legal counsel.

Fiscal Effects

Our analysis indicates that the measure would result in: (1) state and county fiscalimpacts due to restrictions on early release, (2) potential net state savings from changesin parole board procedures, and (3) changes in restitution funding and other fiscal impacts.The fiscal estimates discussed below could change due to pending federal courtlitigation or budget actions.

tate and County Fiscal Impacts of Early Release Restrictions

As noted above, this measure requires that criminal sentences imposed by the courtsbe carried out without being substantially reduced by early releases in order to addressovercrowding. This provision could have a significant fiscal impact on both the stateand counties depending upon the circumstances related to early release and how thisprovision is interpreted by the courts.

tate Prison.

The state does not now generally release inmates early from prison.Thus, under current law, the measure would probably have no fiscal effect on the stateprison system. However, the measure could have a significant fiscal effect in the futurein the event that it prevented the Legislature or the voters from enacting a statutoryearly release program to address prison overcrowding problems. Under such circumstances, this provision of the measure could prevent early release of inmates, therebyresulting in the loss of state savings on prison operations that might otherwise amountto hundreds of millions of dollars annually.

County Jails.

As mentioned above, early releases of jail inmates now occur in anumber of counties, primarily in response to inmate population limits imposed oncounty jail facilities by federal courts. Given these actions by the federal courts, it is notclear how, and to what extent, the enactment of such a state constitutional measurewould affect jail operations and related expenditures in these counties. For example, itis possible that a county may comply with a population cap by expanding its use of GPShome monitoring or by decreasing the use of pretrial detention of suspects, rather thanby releasing inmates early. In other counties not subject to federal court-ordered populationcaps, the measure’s restrictions on early release of inmates could affect jail operationsand related costs, depending upon the circumstances related to early release andhow this provision was interpreted by the courts. Thus, the overall cost of this provisionfor counties is unknown.

Potential Net State Savings From Changes in Parole Board Procedures

The provisions of this measure that reduce the number of parole hearings receivedby inmates serving life terms would likely result in state savings amounting to millionsof dollars annually. Additional savings in the low tens of millions of dollars annuallycould result from the provisions changing parole revocation procedures, such as by limitingwhen counsel would be provided by the state. However, some of these changesmay run counter to the federal Valdivia court order related to parole revocations andtherefore could be subject to legal challenges, potentially eliminating these savings. Inaddition, both the provisions related to parole consideration and revocation could ultimatelyincrease state costs to the extent that they result in additional offenders beingheld in state prison longer than they would otherwise. Thus, the overall fiscal effectfrom these changes in parole revocation procedures is likely to be net state savings inthe low tens of millions of dollars annually unless the changes in the process werefound to conflict with federal legal requirements contained in the Valdivia court order.

Changes in Restitution Funding and Other Fiscal Impacts

Restitution Funding. The changes to the restitution process contained in this measurecould affect state and local programs. Currently, a number of different state and localagencies receive funding from the fines and penalties collected from criminal offenders.For example, revenues collected from offenders go to counties’ general funds,the state Fish and Game Preservation Fund for support of a variety of wildlife conservationprograms, the Traumatic Brain Injury Fund to help adults recover from brain injuries,and the Restitution Fund for support of crime victim programs. Because this initiativerequires that all monies collected from a defendant first be applied to pay restitutionorders directly to the victim, it is possible that the payments of fine and penaltyrevenues to various funds, including the Restitution Fund, could decline.However, any loss of Restitution Fund revenues may be offset to the extent that certainprovisions of this initiative increase the amount of restitution received directly byvictims, thereby reducing their reliance on assistance from the Restitution Fund. Similarly,this initiative may also generate some savings for state and local agencies to theextent that increases in payments of restitution to crime victims cause them to need lessassistance from other state and local government programs, such as health and socialservices programs.

Legal Rights of Criminal Victims.

Because the measure gives crime victims and theirfamilies and representatives a greater opportunity to participate in and receive notificationof criminal justice proceedings, state and local agencies could incur additional administrativecosts. Specifically, these costs could result from lengthier court and paroleconsideration proceedings and additional notification of victims by state and localagencies about these proceedings.The net fiscal impact of these changes in restitution funding and legal rights ofcriminal victims on the state and local agencies is unknown.