What Realignment Has Done to Restitution Collection and How It Can Be Fixed

By Lydia Bodin

In October of 2011, Governor Edmund G. Brown Jr. signed Assembly Bills 109 and 117 that created Public Safety Realignment.  Prosecutors are very familiar with the effect and influence of realignment on sentencing and incarceration but are, perhaps, less familiar with the unintentional collateral consequence that made restitution collection impossible at the county level for offenders who are now both supervised and incarcerated locally.

Before the Public Safety Realignment, restitution was and continues to be collected by the California Department of Corrections and Rehabilitation (CDCR) and local probation departments. Well-defined collection and distribution systems that were and remain statutorily authorized are in place to ensure that victims could collect on court ordered restitution.  Unfortunately, following realignment, newly created classes of convicted individuals locally supervised and incarcerated were not made subject to any complementary statutory authority to collect restitution.

Many victims in this county are currently not receiving the restitution to which they are entitled because this county has not yet established a collection mechanism that has responded to the negative changes Realignment has brought to the collection of restitution.  As of January 1, 2015, the law fully supported the collection of restitution at the county level from Realignment created classes of convicted individuals.  Our county must now rise to the challenge of collecting restitution in the post-Realignment environment. Article 1, section 28 of the California Constitution gives victims the right to restitution.  In order for that right to be a reality, it is imperative that collection now begin from individuals sentenced pursuant to Penal Code section 1170(h); on mandatory supervision; and, on post-release community supervision.  It should be noted that if these individuals were in state prison as they used to be, they would be subject to restitution collection at the level of 50% from all deposits into their inmate wage and trust accounts.

The following convicted individuals may now be made subject to restitution collection at the county level:

• County prisoners sentenced pursuant to Penal Code section 1170(h)(A) who serve their time on a blended sentence or who serve their full term in county jail and who are released with no supervision currently could be subject to collection from their inmate wage and trust accounts for up to 50% of each deposit.  Unfortunately there is no agency or mechanism set up to collect in this county.  Penal Code section 2085.5 allows a county board of supervisors to appoint an agency or the Sheriff to collect from inmates in county jail.
• County prisoners sentenced pursuant to Penal Code section 1170(h)(B) who are on a so-called split sentence and released into the community under the mandatory supervision of  the Probation Department can be subject to statutory authorized collection as of January 1, 2015 pursuant to Penal Code 2085.6. Collection is based upon an ability to pay as determined by the Probation Department.
• State prisoners who are now on post release community supervision pursuant to Penal Code section 3451 are under the supervision of Probation and will can be subject to statutory authorized collection as of January 1, 2015 pursuant to the newly created Penal Code 2085.6.  Collection is based upon an ability to pay as determined by the Probation Department.

Pursuant to statute, a county board of supervisors must determine who is the collecting agency or agencies in a county.  Once that initial threshold decision is made, counties can establish collection mechanisms and can then collect and distribute restitution.  In this county, the Los Angeles County Board of Supervisors authorized a working group in November of 2014 to make recommendations to them through the Countywide Criminal Justice Coordinating Committee for the purpose of establishing a restitution collection system in this county.  The committee is chaired by the Office of the Los Angeles District Attorney.  Work has been ongoing for the last eight months to establish a multi-agency integrated system that will collect and distribute restitution in this county from convicted populations created by Public Safety Realignment. The committee is a multi-agency taskforce comprised of the Sheriff; the District Attorney; Public Defender; Probation; the Treasurer-Tax Collector, the Internal Services Division; and, the Auditor Controller.

Prosecutors are keenly aware of the toll that crime takes on victims.  Crime is not just a violation of a law – it is frequently a devastating financial event for many victims.  Recently, I got a call from a woman whose family business had been deeply harmed through the loss of $100,000.00 in embezzled money.  I had to tell her that the defendant, an individual who this woman had assisted and allowed to live in her home, was in county jail on an 1170(h) sentence and that currently there was no collection mechanism in this county.  Several months ago an elderly gentleman asked me if I could get even just a nickel because he wanted to know that the defendant was paying at least something. This same conversation with victims is currently repeated multiple times a day by personnel in the Restitution Enhancement Program.  Victims are consistently incensed and angered by the fact that they cannot get their restitution. Most sadly, their confidence in the justice system is failing.

Absent collection from supervised and incarcerated individuals, victims are left to obtain justice in civil courts by executing the restitution judgment in that arena.  Victims are ill equipped to champion their own restitution collection.  In addition, a greater burden is placed on the civil courts to execute restitution judgments.  It just makes sense to create and strengthen restitution collection in this county.

On September 15, 2015, the Board of Supervisors will vote on the foundational aspects of a collection system in this county. These foundational components include who are the collectors and at what percentage level collection will occur from inmate wage and trust accounts.  Following this initial approval by the supervisors, many more months of work are ahead to establish protocols and a working system that will include county criminal justice partners.  With the approval of the Board of Supervisors to create a viable restitution collection and distribution system, victims will be better served and will have confidence in our ability to both protect and to obtain justice for them.

Lydia Bodin is a member of the Association of Deputy District Attorneys (ADDA) and is currently serving as the Deputy In Charge of the Restitution Enhancement Program and Abolish Chronic Truancy.  The ADDA is the collective bargaining agent that represents nearly 1,000 Deputy District Attorneys who work for the County of Los Angeles.