Bill Text: CA AB2833 | 2023-2024 | Regular Session | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Evidence: restorative justice communications.

Spectrum: Bipartisan Bill

Status: (Engrossed) 2024-05-22 - Referred to Coms. on PUB S. and JUD. [AB2833 Detail]

Download: California-2023-AB2833-Introduced.html

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CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Assembly Bill

No. 2833

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Introduced by Assembly Member McKinnor
(Coauthors: Assembly Members Alanis, Bryan, and Lackey)

February 15, 2024

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An act to add Section 1155.5 to the Evidence Code, relating to evidence, and declaring the urgency thereof, to take effect immediately.

LEGISLATIVE COUNSEL'S DIGEST

AB 2833, as introduced, McKinnor. Evidence: restorative justice communications.

Existing law provides for the inadmissibility of certain evidence as a matter of public policy.

This bill would provide that participation in and communications made during a restorative justice process are inadmissible and not subject to discovery in civil, criminal, juvenile, administrative, or other proceedings, except as specified.

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 prohibit communications made during a restorative justice process from being used in a criminal proceeding, thereby requiring a ²/₃ vote.

This bill would declare that it is to take effect immediately as an urgency statute.

Digest Key

Vote: 2/3   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

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Bill Text

The people of the State of California do enact as follows:

SECTION 1.

 The Legislature finds and declares all of the following:

(a) According to the National Association of Community and Restorative Justice, “restorative justice” refers to a broad umbrella of practices that, at their core, are centered on victims, survivors, and accountability. Restorative justice processes are community based, nonpunitive, and voluntary. Using a restorative justice approach encourages accountability, healing, and repair amongst participants. While there are a wide variety of definitions for restorative justice, these core elements are present in restorative justice processes.

(b) As practiced by organizations like the California Conference for Equality and Justice, restorative justice processes progress through a series of skillfully facilitated meetings. Each process is approached intentionally, tailored to the individuals in the process, and seeks to avoid additional harm from being caused while empowering the participants to engage in collective problem solving. Thus, facilitators take their time building trust and relationships with all participants in order to create the safest environment possible for healing and accountability to occur.

(c) The Legislature has previously acknowledged the importance of a restorative approach when harm has occurred. See, e.g., Section 17.2 of the Penal Code. These processes provide extraordinary benefits to participants. They have resulted in lowering rates of future harm, often termed “recidivism,” and high rates of victim or survivor satisfaction.

(d) According to Robert Yazzie, Chief Justice Emeritus of the Navajo Nation, an integral part of restorative justice processes is for all participants to reflect, speak, and share freely. Survivors or victims can experience healing and restoration from hearing a person who caused harm share freely about what they did, the reasons for their actions, and what they are going to do to make things right. The benefits of restorative justice may be negated if participants are concerned that their statements may be used against them in a future court action.

SEC. 2.

 Section 1155.5 is added to the Evidence Code, to read:

1155.5.

 (a) For purposes of this section, the following terms have the following meanings:

(1) “Facilitator” means a person who facilitates a restorative justice process.

(2) “Participant” means a person who participates in a restorative justice process, and may include a facilitator, a person accused of or responsible for causing harm, a person who has been harmed, or any participating community members.

(3) “Restorative justice communication” means either of the following:

(A) All communications, written or oral, that are made in the course of, or in connection with, any phase of a restorative justice process, including referral, preparation, preenrollment, enrollment, postenrollment, a facilitated dialogue, and post-dialogue phases of the process.

(B) All memoranda, work products, documents, and other materials that are prepared for or submitted in the course of, or in connection with, any phase of a restorative justice process, including referral, preparation, preenrollment, enrollment, postenrollment, a facilitated dialogue, and post-dialogue phases of the process.

(4) “Restorative justice process” means a facilitated, community-based process that focuses on accountability, healing, and safety. It may or may not include a dialogue between participants. It may also include other forms of communication, both written and oral.

(b) Except as provided in this section, an individual’s participation or nonparticipation in a restorative justice process and any restorative justice communication are not admissible or subject to discovery, and disclosure shall not be compelled, in any arbitration, administrative adjudication, civil action, criminal action, juvenile action, or other proceeding regardless of completion or outcome of the process.

(c) A restorative justice communication is not made inadmissible by this section if:

(1) The participants in a facilitated dialogue under a restorative justice process all provide written consent that all or part of the communication may be disclosed, provided that such consent was knowing, intelligent, free of coercion, and voluntary. Where participants consent to a limited part of the communication, only that specific communication is subject to disclosure. Where a participant is deceased or cannot be located after reasonable efforts, their written consent is not required.

(2) A participant is otherwise required by law to disclose the substance of the communication.

(3) During the restorative justice process, a participant engages in conduct described in subdivision (d) of Section 243 or Section 422 of the Penal Code. Where a participant engages in conduct described in this paragraph, only the parts of a restorative justice communication that are limited to that conduct are subject to disclosure.

(d) Evidence that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery solely because it was discussed or used in a restorative justice process.

(e) This section applies to restorative justice communications that occurred prior to enactment of this section, where the arbitration, administrative adjudication, civil action, criminal action, juvenile action, or other proceeding at which admission is sought occurs after the effective date of this section.

SEC. 3.

 This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the California Constitution and shall go into immediate effect. The facts constituting the necessity are:

In order to ensure the consistent handling of restorative justice communications in ongoing proceedings occurring throughout the state as soon as possible, it is necessary that this act take effect immediately.