February 4, 2008
Pursuant to
Elections Code Section 9005, we have reviewed the proposed initiative
cited as the “Victims’ Bill of Rights Act of 2008: Marsy’s Law,” Amdt.
#1-NS (A.G. File No. 07‑0100).
This measure amends the State Constitution and various statutes relating
to (1) the legal rights of crime victims and restitution, (2)
restrictions on the early release of inmates, and (3) the granting and
revocation of parole. These provisions 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.” This initiative amended the Constitution and various
statutes to, among other changes, grant crime victims the right to be
notified in advance, attend, and state their views at sentencing and
parole hearings. Other separately enacted statutes have created other
rights for crime victims, including the opportunity for judicial orders
to protect a victim 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 involves, for example, replacement of stolen or damaged
property, or reimbursement of costs that the victim incurred as a result
of the crime. A court is required under current state law to order full
restitution unless it finds compelling and extraordinary reasons not to
do so. Under certain court procedures, a restitution order can be
enforced by a victim in the same manner as a civil judgment.
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.
Provisions Relating to Restitution.
This measure requires that restitution be ordered from offenders who
have been convicted, in every case in which a victim suffers a loss,
without exception. The measure also requires that any funds
collected by a court or law enforcement agencies, from a person ordered
to pay restitution would go to pay that restitution first, in effect
prioritizing those payments over other fines and obligations an offender
may legally owe.
Notification and Participation of Victims
in Criminal Justice Proceedings. As noted above, Proposition 8
established a legal right for crime victims to be notified of, attend,
and state their views in sentencing and parole hearings. This measure
would expand these legal rights to include various types of criminal
proceedings, including the release from custody of an offender after
their arrest. Also, law enforcement and criminal prosecution agencies
would be required to provide victims with a ”Marsy’s Rights” card
detailing the victim’s rights and resources or a ”Victims Survival and
Resource Guide” containing similar information.
Other Expansions of Victims’ Legal Rights.
This measure expands the legal rights of crime victims in various other
ways, including the following:
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Crime
victims and their families would now have a state constitutional
right to prevent the release of certain confidential information or
records to criminal defendants, to protection from harm from
individuals accused of committing crimes against them, to the return
of property no longer needed as evidence in criminal proceedings,
and to finality in criminal proceedings in which they are involved.
Some of the constitutional legal rights for victims added by this
measure now exist in statute.
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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 offenders arrested for crimes.
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The measure would state that the right to safe
schools includes community colleges, colleges, and universities.
Restrictions on Early Release of Inmates
This measure would amend the Constitution to
specify that criminal sentences imposed by the courts shall be carried
out in compliance with the courts’ sentencing orders and shall not be
substantially diminished by early release policies to alleviate
overcrowding in prison or jail facilities. The measure directs that
sufficient funding be provided to house inmates for the full terms of
their sentences, except for statutorily authorized credits which reduce
those sentences.
Changes Affecting the Granting and Revocation of Parole
Background. Before the California
Department of Corrections and Rehabilitation releases an individual
sentenced to life in prison with the possibility of parole the inmate
must go before the Board of Parole Hearings.
The board also has authority to
return to state prison for up to a year individuals who have been
released on parole but who commit parole violations. In keeping with a
federal court settlement, the state provides legal counsel to parolees
facing revocation charges.
Modified Procedures for Consideration of
Parole. This initiative changes the procedures to be followed by
the board when it considers the release of inmates with a life sentence
from prison. Specifically:
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Inmates who were denied parole would generally
have a longer time to wait, in some cases up to 15 years, before
they would again have a parole consideration hearing.
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Crime victims would receive earlier
notification in advance when inmates come before the board for
parole consideration.
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In addition
to having expanded opportunities to testify at such hearings,
victims would also be able to bring additional family members and
other representatives to testify at parole board hearings.
Parole Revocation Procedures. This
measure also makes changes to the board’s parole revocation procedures
for offenders paroled from prison after the enactment of this
initiative. It places into state law longer deadlines for probable cause
hearings and hearings on the revocation charges than are now required
for parole revocation cases under a court settlement. The measure also
specifies that legal counsel will be provided to parolees facing
revocation charges on a case-by-case basis if the parolee is deemed
indigent, their case is complex, or they are incapable of defending
themselves because of a mental or educational incapacity. Under the
current court settlement, all parolees must be afforded legal counsel.
Fiscal Effects
Potential Increase in State Prison and County Jail Costs.
The proposed constitutional
amendment in this measure that requires that criminal sentences imposed
by the courts be carried out without being substantially reduced by
early releases in order to address overcrowding could have a significant
fiscal impact on both the state and counties. The effect of this
provision would depend upon the circumstances related to early release
and how this provision was interpreted by the courts.
The state does
not now generally release inmates early from prison. Thus, under current
law, the proposed constitutional amendment would probably have no fiscal
effect on the state prison system.
This measure
could have a significant fiscal effect in the future, however, in the
event that the Legislature or the voters enacted such an early release
program to address prison overcrowding problems. Under such
circumstances, this provision of the initiative could result in
significant additional state prison costs in the hundreds of millions of
dollars annually than would otherwise be the case.
Early releases
of jail inmates now occur in a number of counties, primarily in response
to population limits imposed on county jail facilities as a result of
past federal court litigation over overcrowded conditions. Given these
actions by the federal courts, it is not clear how, and to what extent,
the enactment of such a state constitutional measure would affect jail
operations and related expenditures in these counties. In other counties
not subject to federal court-ordered population caps, the restrictions
in this measure 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.
In general,
where this provision of the Constitution was invoked, counties would
probably respond by either (1) increasing the pretrial release of
offenders, thereby making more room for sentenced offenders to serve
their full terms in jail, or (2) expanding jail operations within new or
existing facilities. Such expansions of jail operations could eventually
increase county costs by the low hundreds of millions of dollars on a
statewide basis.
State Savings From Parole Board Changes.
The provisions of this measure that reduce the number of parole hearings
received by inmates serving life terms would likely result in state
savings amounting to millions of dollars annually. Additional tens of
millions of dollars annually in savings could result from the provisions
changing parole revocation procedures, such as by limiting when counsel
was provided by the state. However, some of these changes related to
parole revocations are likely to be subject to legal challenges. In
addition, both of these sets of provisions could also ultimately
increase state costs to the extent that they result in additional
offenders being held in state prison.
Other
State and Local Government Fiscal Impacts.
The changes to the restitution
process contained in this measure could potentially have other impacts
on a host of local and state programs. Currently, a number of different
state and local agencies receive funding from the fines and penalties
collected from criminal offenders. For example, counties’ general funds,
the Fish and Game Preservation Fund, the Traumatic Brain Injury Fund,
and the Restitution Fund for crime victims receive revenues
collected from offenders. Because
this initiative mandates that all monies collected from the defendant
first be applied to pay restitution orders directly to the victim, it is
possible that their payments of fine and penalty revenues to various
funds, including the Restitution Fund, could decline. This impact may be
offset to the extent that certain provisions of this initiative, such as
the requirement for additional financial disclosure of their assets,
improve the overall collection of monies owed by criminal offenders.
Finally, this
initiative may also generate some savings for state and local agencies
to the extent that the provisions of this measure (1) increases the
restitution collected by crime victims and (2) the victims collecting
restitution therefore need less help from state and local government
programs, such as social services and victim assistance programs.
The net fiscal
impact of these factors on the state and local agencies is unknown.
Summary
This measure would have the following major
fiscal effects:
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Unknown
potential increases in state prison and county jail operating costs
due to provisions restricting early release of inmates. To the
extent that any such costs were incurred, they could collectively
amount to hundreds of millions of dollars annually.
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A potential net savings in the low tens of
millions of dollars for the administration of parole reviews and
revocations if the changes related to parole revocation procedures
were not overturned by potential legal challenges.
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