CRIMINAL JUSTICE SYSTEM. VICTIMS’ RIGHTS. PAROLE.
Constitutional Amendment and Statute

THE QUESTION

Should the law be changed to expand the legal rights of victims, require criminal offenders to pay restitution, restrict the early release of inmates, and revise procedures for granting and revoking parole?

BACKGROUND

Victims’ Rights Laws
In June 1982 California voters approved Proposition 8, known as the “Victims’ Bill of Rights.” That measure amended the Constitution and various state laws to give crime victims the right to be notified of, to attend, and to state their views at sentencing and parole hearings. Other separately enacted laws have created other 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 any person who committed the crime that caused them to suffer a loss. Restitution often involves replacement of stolen or damaged property or reimbursement of costs that the victim incurred as the result of the crime. Under current state law a court order is required to order full restitution unless the court finds compelling and extraordinary reasons not to do so. Sometimes, however, judges do not order restitution. Proposition 8 also established a right to “safe, secure and peaceful” schools for students and staff of primary, elementary, junior high, and senior high schools.

California Prison System
California operates 33 state prisons and other facilities that had a combined adult inmate population of about 171,000 in May 2008. The annual cost to operate the state prison system in 2008-09 is estimated at $10 billion, with the average annual cost to incarcerate an inmate estimated at $46,000. Because the state prison system is overcrowded, gymnasiums and other rooms in state prisons have been converted to housing inmates.

Both the state Legislature and the courts have been considering proposals to reduce overcrowding, including early release of inmates from state prison. Currently none of these proposals has been adopted. State prison populations are affected by credits granted to prisoners for good behavior or participation in specific programs. Credits reduce the amount of time a prisoner must serve before release.

California counties collectively spend over $2.4 billion on county jails, which have a population in excess of 80,000. In 20 counties an inmate population cap has been imposed by the federal courts. An additional 12 counties have self-imposed population caps. In counties with population caps, inmates are sometimes released early to comply with the limit imposed by the cap. However, some sheriffs also use alternative methods of reducing jail populations, such as confining inmates to home detention with Global Positioning System (GPS) devices.

THE PROPOSAL

Proposition 9 would make changes in the following areas of victims’ rights

• Restitution
• Notification and participation of victims in criminal justice proceedings
• Other expansions of victims’ legal rights
• Restrictions on early release of inmates
• Granting and revocation of parole

Restitution. Proposition 9 requires that, without exception, restitution be ordered from offenders who have been convicted, in every case in which a victim suffers a loss. It also requires that any funds collected by a court or law enforcement agency from a person ordered to pay restitution would go to pay that restitution first, in effect giving these payments priority over other fines and obligations an offender may legally owe.

Notification and Participation of Victims in Criminal Justice Proceedings. In 1982 Proposition 8 established the legal right for crime victims to be notified of, to attend, and to state their views at, sentencing and parole hearings. This measure expands those 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 be given 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 and criminal prosecution agencies would be required to provide victims with specified information, including details on victims’ rights.

Other Expansions of Victims’ Legal Rights

• Crime victims and their families would have a state constitutional right to
• prevent the release of certain of their confidential information or records to criminal defendants
• refuse to be interviewed or provide pretrial testimony or other evidence requested on behalf of a criminal defendant
• protection from harm from individuals accused of committing crimes against them
• the return of property no longer needed as evidence in criminal proceedings
• “finality” in criminal proceedings in which they are involved

Some of these rights now exist in statute.

• The state 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 right to safe schools would be expanded to include community colleges, colleges, and universities.

Restrictions on Early Release of Inmates. This measure amends the California Constitution to require that criminal sentences imposed by the courts be carried out in compliance with the courts’ sentencing orders and that such sentences shall not be “substantially diminished” by early release policies to alleviate overcrowding in prison or jail facilities. It directs that sufficient funding be provided by the Legislature or county boards of supervisors to house inmates for the full terms of their sentences, except for statutorily authorized credits which reduce those sentences.

Granting and Revocation of Parole. The Board of Parole Hearings conducts two different types of procedures relating to parole. First, inmates sentenced to life in prison with the possibility of parole 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; this is called parole revocation. A federal court order requires the state to provide legal counsel to parolees, including assistance at hearings related to parole revocation charges. Proposition 9 would make changes in both of these procedures.

• Parole Consideration Procedures for Lifers

• Currently individuals whom the board does not release following their parole consideration hearing must generally wait between one and five years for another hearing. Proposition 9 would extend the time before the next hearing to between three and fifteen 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. This 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 attending parole consideration hearings would be eligible to receive a transcript of the proceedings.

• General Parole Revocation Procedures.

• Currently, a federal court order provides that 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. This measure extends the deadline for this hearing to 15 days. The same court order requires that parolees have a hearing to resolve the revocation charge within 35 days; this measure extends it to 45 days. This measure provides legal counsel for 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 the measure does not provide counsel for parolees who are not indigent, it may conflict with the federal court order, which requires that all parolees be provided legal counsel.

FISCAL EFFECT

Fiscal Impacts of Early Release Restrictions
This measure requires that criminal sentences be carried out without being substantially reduced by early releases in order to address overcrowding. This provision could have a significant fiscal impact on both the state and counties depending upon the circumstances related to early release and how this provision is interpreted by the courts.

State Prison. The state does not now generally release inmates early from prison. Thus, under current law, the measure would probably have no fiscal impact on the state prison system. It could have a significant fiscal effect in the future because it could prevent the possibility of substantial state savings on prison operations through an early release program. Loss could be hundreds of millions of dollars each year.

County Jails. Early release of jail inmates now occurs in a number of counties, primarily in response to inmate population limits imposed on county jail facilities by federal courts. It is not clear how enacting a state constitutional measure would affect jail operations and related expenditures in these counties. The population cap could be addressed by expanding the use of GPS home monitoring or decreasing the use of pretrial detention of suspects, rather than releasing inmates early. In counties not subject to federal court-ordered population caps, the measure’s restrictions on early release of inmates could affect jail operations and related costs, depending upon the circumstances related to early release and how this provision was interpreted by the courts. Thus, the overall cost of this provision for counties in unknown.

Potential Net State Savings from Change in Parole Board Procedures

• Reduction in the number of parole hearings received by inmates serving life terms could result in savings of millions of dollars annually
• Changes to parole revocation procedures, such as limiting counsel provided by the state, could save in the low tens of millions of dollars annually. However, federal court-orders could eliminate these savings.
• Holding offenders in state prison longer would increase costs.

Restitution Funding
Currently, fines and penalties collected from criminal offenders go to counties’ general funds, the state Fish and Game Preservation Fund for support of a variety of wildlife conservation programs, the Traumatic Brain Injury Fund to help adults recover from brain injuries, and the Restitution Fund for support of crime victim programs. Because this initiative requires that all monies collected from a defendant first be applied to pay restitution orders directly to the victim, it is possible that the payments of fine and penalty revenues to these funds, including the Restitution Fund, could decline. However, because victims would receive more funds directly, reliance on the Restitution Fund could diminish. This initiative might generate some savings for state and local agencies to the extent that increases in payments of restitution to crime victims cause them to need less assistance from other state and local government programs, such as health and social service programs.

Legal Rights of Criminal Victims
Lengthier court and parole consideration proceedings and additional notification of victims by state and local agencies about these proceedings means that state and local agencies could incur additional administrative costs. The net fiscal impact of these changes in restitution funding and legal rights of criminal victims on the state and local agencies is unknown.

WHAT A YES OR NO VOTE MEANS

A YES vote means that the legal rights of victims will be expanded, criminal offenders will be required to pay restitution, early release of inmates will be restricted, and changes will be made in the procedures for granting and revoking parole.

A NO vote means that the rights of crime victims will remain as they are now in the state Constitution and in state law.

SUPPORTERS SAY

• The state Constitution guarantees rights for criminals. Proposition 9 levels the playing field by guaranteeing crime victims’ rights to justice and due process and putting those rights in the state Constitution.
• It protects crime victims from further harm from criminals by requiring that the safety of victims and their families be considered by judges making bail decisions, mandatory notification of victims when offenders are released, and forbidding disclosure of victims’ confidential information to defendants.
• This measure toughens the law by requires criminals to serve their full sentences and paying restitution to their victims, and prevents politicians from releasing dangerous inmates to relieve prison overcrowding.
• Proposition 9 protects taxpayers by limiting time-wasting, unnecessary parole hearings for dangerous criminals who have virtually no chance of release.

OPPONENTS SAY

• Proposition 9 is misleading, duplicative and unnecessary. Many of the provisions in the measure are already the law, such as the right for victims to be heard throughout the legal process.
• It makes unneeded changes to California’s already strict parole system. The annual parole rate of those convicted of second degree murder or manslaughter has been less than 1 percent of those eligible for the past 20 years.
• The provision relating to early release of prisoners will cost the taxpayers hundreds of millions of dollars and would probably violate federal court orders to reduce prison crowding.
• The state Constitution is the wrong place for a detailed listing of victims’ rights; while a general statement is appropriate for the Constitution, the details should be in state statutes.

SUPPORT AND OPPOSITION

Ballot arguments in support are signed by Marcella M. Leach, Justice for Homicide Victims; LaWanda Hawkins, Justice for Murdered Children; and Dan Levey, National Organization of Parents of Murdered Children

Ballot arguments in opposition are signed by Sheila A. Bedi, Justice Policy Institute; and Allan Breed, Former Director, California Department of Corrections

FOR MORE INFORMATION

General Information:

California Secretary of State:
http://www.voterguide.sos.ca.gov/

Legislative Analyst’s Office:
http://www.lao.ca.gov/ballot/2008/9_11_2008.pdf

Ballotpedia.org:
http://ballotpedia.org/wiki/index.php/California_Proposition_9_%282008%29

Supporters:

http://www.friendsofmarsyslaw.org/get-involved.htm

Opponents:

The No on Propositions 6 & 9: Communities for Safe Neighborhoods and Fiscal Responsibility committee has filed with the California Secretary of State as an opposition group. The only apparent website for this group focuses on Proposition 6 only.