BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Gloria Romero, Chair S
2007-2008 Regular Session B
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SB 122 (Steinberg)
As Introduced January 22, 2007
Hearing date: April 24, 2007
Penal Code
MK:mc
HATE CRIMES: HOMELESSNESS
HISTORY
Source: Author
Prior Legislation: None
Support: Western Center on Law and Poverty; California Rural
Legal Assistance Foundation; California Professional
Firefighters; Los Angeles Coalition to End Hunger and
Homelessness; Jericho; California Alliance for Retired
Americans; Housing California; California Council of
Mental Health Agencies; Mental Health Association in
California; American Federation of State, County and
Municipal Employees (AFSME), AFL-CIO; NAMI California;
California Foundation for Independent Living Centers;
California School Employees Association, AFL-CIO; Gray
Panthers; Lambda Letters Project
Opposition:California Attorneys for Criminal Justice; Taxpayers
for Improving Public Safety
KEY ISSUE
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SHOULD "HOMELESS STATUS" BE INCLUDED AS ONE OF THE PROTECTED
CLASSES WITHIN THE DEFINTION OF A "HATE CRIME"?
PURPOSE
The purpose of this bill is to include "homeless status" in the
definition of "hate crime."
Existing law provides that if a person who is convicted of first
degree murder is charged and proven to have committed a hate
crime, that person shall be imprisoned in the state prison by
life without the possibility of parole. Hate crime is defined
for these purposes as defined in Penal Code Section 422.55.
Existing law provides that it is unlawful to use force or threat
of force to willfully injure, intimidate, interfere with,
oppress, or threaten any person in the free exercise or
enjoyment of a right or privilege in whole or in part because of
one or more of the actual or perceived characteristics listed in
the definition of "hate crime" in Penal Code Section 422.55.
This offense is a misdemeanor, punishable by imprisonment in the
county jail up to one year and/or a fine of up to $5,000 and up
to 400 hours of community service in 350 days. (Penal Code
422.6(a) and (c).)
Existing law provides that no person shall knowingly deface,
damage, or destroy the real or personal property of any other
person for the purpose of intimidating or interfering with the
free exercise or enjoyment of any right or privilege secured to
the other person by the Constitution or laws of the United
States in whole or in part because of one or more of the actual
or perceived characteristics listed in the definition of "hate
crime" in Penal Code Section 422.55. This offense is a
misdemeanor, punishable by imprisonment in the county jail up to
one year and/or a fine of up to $5,000 and up to 400 hours of
community service in 350 days. (Penal Code 422.6(b) and (c).)
Existing law provides that, except in a case punishable under
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Penal Code section 422.6, any hate crime which is not made
punishable by imprisonment in state prison shall be made
punishable by imprisonment in the state prison or in a county
jail not to exceed one year, by a fine not to exceed $10,000, or
both fine and imprisonment, if the crime is committed against
the person or property for the purpose of intimidating or
interfering with another person's free exercise or enjoyment of
any right secured to him or her by the Constitution or laws of
this state or by the Constitution or laws of the United States
under any of the following circumstances which shall be charged
in the accusatory pleading:
The crime against the person of another either includes
the present ability to commit a violent injury or causes
actual injury.
The crime against the property causes damage in excess
of $400.
The person charged with a crime under this section has
been convicted previously of Penal Code 422.6. (Penal Code
422.7.)
Existing law provides that a person who commits a felony or
attempts to commit a felony that is a hate crime must receive an
additional term of one, two, or three years in the state prison,
at the court's discretion. (Penal Code 422.75(a).)
Existing law provides that a person who commits a felony that is
a hate crime or attempts to commit a felony that is a hate
crime, and who voluntarily acted in concert with another person,
either personally or by aiding and abetting another person,
shall receive an additional two, three, or four years in the
state prison. (Penal Code 422.75(b).)
Existing law provides that if a person is convicted of a hate
crime the court may order as a condition of probation the
defendant to do one or more of the following:
Complete a class or program on racial or ethnic
sensitivity, or other similar training in the area of civil
rights, or a one-year counseling program intended to reduce
the tendency toward violent and antisocial behavior if that
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class, program or training is available and was developed
or authorized by the court or local agencies in cooperation
with organizations serving the affected community.
Make payments or other compensation to a community-based
program or local agency that provides services to victims
of hate violence.
Reimburse the victim for reasonable costs of counseling
and other reasonable expenses that the court finds are the
direct result of the defendant's acts. (Penal Code
422.85.)
Existing law provides that "hate crime" means a criminal act
committed, in whole or in part, because of one or more of the
following actual or perceived characteristics of the victim:
Disability.
Gender.
Nationality.
Race or ethnicity.
Religion.
Sexual orientation.
Association with a person or group with one or more of
these actual or perceived characteristics. (Penal Code
422.55.)
This bill adds "homeless status" to the above definition of
"hate crime."
This bill defines "homeless status" as an individual's lack of a
fixed regular, and adequate nighttime residence, or an
individual's use of a primary nighttime residence that is one of
the following:
A supervised shelter, either publicly or privately
operated, that is designed to provide temporary living
accommodations, including, but not limited to, welfare
hotels, congregate shelters, and transitional housing for
the mentally ill.
An institution that provides a temporary residence for
individuals intended to be institutionalized.
A public or private place not designed for, or
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ordinarily used as, a regular sleeping accommodation for
human beings.
This bill provides that the term "homeless status" does not
refer to any individual imprisoned or otherwise detained
pursuant to state or federal law.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
California currently faces an extraordinary and severe prison
and jail overcrowding crisis. California's prison capacity is
nearly exhausted as prisons today are being operated with a
significant level of overcrowding. <1> In addition,
California's jails likewise are significantly overcrowded.
Twenty California counties are operating under jail population
caps. According to the State Sheriffs' Association, "counties
are currently releasing 18,000 pre and post-sentenced inmates
every month and many counties are so overcrowded they do not
accept misdemeanor bookings in any form, . . . ." <2> In
January of this year the Legislative Analyst's office summarized
the trajectory of California's inmate population over the last
two decades:
During the past 20 years, jail and prison
populations have increased significantly. County
jail populations have increased by about 66
percent over that period, an amount that has been
limited by court-ordered population caps. The
prison population has grown even more dramatically
during that period, tripling since the
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<1> Analysis of the 2007-08 Budget Bill: Judicial and Criminal
Justice, Legislative Analyst's Office (February 21, 2007).
<2> Memorandum from CSSA President Gary Penrod to Governor,
February 14, 2007.
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mid-1980s.<3>
The level of overcrowding, and the impact of the population
crisis on the day-to-day prison operations, is staggering:
As of December 31, 2006, the California Department
of Corrections and Rehabilitation (CDCR) was
estimated to have 173,100 inmates in the state
prison system, based on CDCR's fall 2006
population projections. However, . . . the
department only operates or contracts for a total
of 156,500 permanent bed capacity (not including
out-of-state beds, . . . ), resulting in a
shortfall of about 16,600 prison beds relative to
the inmate population. The most significant bed
shortfalls are for Level I, II, and IV inmates, as
well as at reception centers. As a result of the
bed deficits, CDCR houses about 10 percent of the
inmate population in temporary beds, such as in
dayrooms and gyms. In addition, many inmates are
housed in facilities designed for different
security levels. For example, there are currently
about 6,000 high security (Level IV) inmates
housed in beds designed for Level III inmates.
. . . (S)ignificant overcrowding has both
operational and fiscal consequences. Overcrowding
and the use of temporary beds create security
concerns, particularly for medium- and
high-security inmates. Gyms and dayrooms are not
designed to provide security coverage as well as
in permanent housing units, and overcrowding can
contribute to inmate unrest, disturbances, and
assaults. This can result in additional state
costs for medical treatment, workers'
compensation, and staff overtime. In addition,
overcrowding can limit the ability of prisons to
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<3> California's Criminal Justice System: A Primer.
Legislative Analyst's Office (January 2007).
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provide rehabilitative, health care, and other
types of programs because prisons were not
designed with sufficient space to provide these
services to the increased population. The
difficulty in providing inmate programs and
services is exacerbated by the use of program
space to house inmates. Also, to the extent that
inmate unrest is caused by overcrowding,
rehabilitation programs and other services can be
disrupted by the resulting lockdowns.<4>
As a result of numerous lawsuits, the state has entered into
several consent decrees agreeing to improve conditions in the
state's prisons. As these cases have continued over the past
several years, prison conditions nonetheless have failed to
improve and, over the last year, the scrutiny of the federal
courts over California's prisons has intensified.
In February of 2006, the federal court appointed a receiver to
take over the direct management and operation of the prison
medical health care delivery system from the state. Motions
filed in December of 2006 are now pending before three federal
court judges in which plaintiffs are seeking a court-ordered
limit on the prison population pursuant to the federal Prison
Litigation Reform Act. Medical, mental health and dental care
programs at CDCR each are "currently under varying levels of
federal court supervision based on court rulings that the state
has failed to provide inmates with adequate care as required
under the Eighth Amendment to the U.S. Constitution. The courts
found key deficiencies in the state's correctional programs,
including: (1) an inadequate number of staff to deliver health
care services; (2) an inadequate amount of clinical space within
prisons; (3) failures to follow nationally recognized health
care guidelines for treating inmate-patients; and (4) poor
coordination between health care staff and custody staff."<5>
This bill will impose additional sentences against people
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<4> Analysis 2007-08 Budget Bill, supra, fn. 1.
<5> Primer, supra fn. 4.
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convicted of crimes against a person because he or she is
homeless and thus will aggravate the prison and jail
overcrowding crisis outlined above.
COMMENTS
1.Need for This Bill
According to the author:
No state has more homeless individuals than California.
Additionally, on a per capita basis, California ranks
third. As of January 2007, there are 170,270 homeless
men, women and children living in California, 118,275 of
them finding no shelter at night.
Poverty, illness and sleeping exposed leave the homeless
vulnerable to those who prey on the weak.
Predators strike at alarming rates. The CA Department
of Justice (DOJ) produced astounding results when asked
in 2001 by SR 18 (Burton) to assess the extent of crimes
against homeless persons. Sixty-six percent said they
were victims of crime during the year, 31 percent said
they were victimized more than five times. Seventy-five
percent of the victims said they were assaulted,
including 23 percent who said they were raped. Of
assault victims, 76 percent said it happened more than
once.
The vast majority of these crimes go unreported. In the
DOJ study, 75 percent said they did not report the
crimes to police because they felt law enforcement would
not believe them or simply not care.
Recounts of recent attacks reveal the casual, inhumane
nature:
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February 8, 2006 in Berkeley, Maria Catherine King, 48,
less than 100 pounds and struggling with mental illness,
was killed by two 18-year olds after 15 seconds of being
kicked in the head enough to shift her brain 5
centimeters. One suspect, arrested with blood on his
shoes, bragged, "I really kicked her ass."
April 14, 2006 in San Francisco, six homeless
individuals are hurt after being shot with BB guns in
four separate incidents between 2:00 and 3:30 a.m.
June 25, 2006 in Sacramento, four homeless people are
injured after suspects drive up to victims and ask for
directions and then shoot victims at close range.
August 16, 2006 in Los Angeles, two 19-year-olds,
inspired by the "Bumfights" videos, roamed the streets
of downtown Los Angeles hitting sleeping people with
aluminum baseball bats.
August 16, 2006 in Fairfield, a homeless father was
beaten, stomped on and left in a pool of blood in a
church parking lot. The three male suspects under the
age of twenty blinded the man and left him
neurologically damaged.
October 25, 2006 in Sacramento, two teenage males
dressed like ninjas accosted a homeless man and shot him
with a pellet gun.
Targeted state action is needed to counter the alarming
rate of crimes aimed at this vulnerable population.
Naming crimes against the homeless as hate crimes is the
appropriate remedy.
These crimes are similar to hate crimes in that the
victims are stereotyped, offenders often act on latent
prejudices, offenders seek thrills through the crime or
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feel superior to their victims, and a mob mentality
often sweeps away caution.
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What is more, naming crimes against the homeless as a
hate crime will signal to victims that these crimes are
unacceptable and encourage victims to report in greater
frequency, as was witnessed after the passage of
enhanced protections for other groups such as those
targeted for their sexual orientation.
2. New Category of "Hate Crime"
Existing law provides for enhancements to penalties for crimes
against specified categories of people because of the person's
status within the specified group. These "hate crime"
enhancements apply when the crime was committed in whole or in
part because of the victim's disability, gender, nationality,
race or ethnicity, religion or sexual orientation or because of
the victim's association with a person or group in one of the
protected classes. This bill adds "homeless status" to the list
of protected classes.
In general, in order for the hate crime enhancement to apply a
person must be convicted of a felony and if the jury finds the
additional factor that the felony was committed because of the
victim's protected status then an additional term of one, two or
three years is added to that sentence. The enhancement will
have little if no effect if a person is convicted of torture,
which would be applicable in cases where a homeless victim is
burned, and would also subject a defendant to a life sentence
under Penal Code Section 206 and 206.1. If a person is
convicted of 1st degree murder and it is charged and proven that
the person committed the murder because the person was homeless
and thus committed a hate crime, this bill would make the
penalty life without parole instead of 25 to life. However, in
most of the examples given by the author and supporters, the
death penalty or a life without parole sentence would already
apply under the existing special circumstances and may actually
be easier to prove than a hate crime.
2. Support
Supporters state an increase in crimes against the homeless in
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recent years as the need for this bill. The Western Center on
Law and Poverty states:
The media have reported with disturbing regularity
attacks against the homeless. Homeless have been beaten,
set afire, and murdered, for no other reason than their
homelessness and helplessness.
[This] bill would send a clear message that these sorts
of behaviors toward some of the most vulnerable of our
society will not be tolerated, and will result in
increased criminal charges.
The Los Angeles Coalition to End Hunger and Homelessness states:
The National Coalition for the Homeless[NCH] has been
documenting the rise of hate crimes against homeless
people in their annual report, Hate, Violence and Death
on Main Street, USA, over the past five years. Since
2002, in California alone, there have been 68 attacks on
homeless people documented by NCH, leading to 26 deaths,
many of which were brutal attacks, including beheadings
and homeless people being set on fire. These attacks
have occurred in citied, big and small round the state,
including El Cerrito, Eureka, Berkeley, Fairfield, Indo,
Modesto, Oxnard, Los Angeles, San Francisco and
Sacramento. This has lead NCH to declare California as
"the number one most dangerous state for homeless
people."
4. Opposition
California Attorneys for Criminal Justice ("CACJ") notes:
Recent new accounts of attacks on homeless individuals
describe acts already covered by California's Penal
Code. Prosecutors may, and have, filed charges of
assault, battery, robbery and murder against individuals
who have attacked homeless individuals. CACJ is unaware
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of any reports stating that California's Penal Code does
not punish attacks on homeless individuals. Therefore,
CACJ believes SB 122 is unnecessary.
In addition, CACJ is troubled by the legal anomaly
created by this measure. SB 122 expands California's
"hate crime" statute to a category of individuals who
are NOT also granted civil rights protections. In fact,
if SB 122 is adopted, homeless individuals would be the
only category of individuals covered by criminal "hate
crimes" that is not also a protected class under state
or federal civil rights laws. While this inconsistency
may seem unimportant, CACJ is concerned adoption of SB
122 will set a dangerous precedent and double-standard.
For example, homeless individuals are regularly arrested
by local law enforcement for minor criminal violations
related to their "basic life activities." Sweeps of
homeless camps are often initiated to "clean up" certain
cites before parades or other large public events.
Unfortunately, many advocates have unsuccessfully
complained that such targeting by local law enforcement
and city officials should be prohibited discrimination.
However, these activities have largely escaped state and
federal civil rights laws because homelessness is not a
legally protected class. SB 122 would give the false
impression that homeless individuals are now going to
receive the same civil rights protections as other
protected classes. In effect, the Legislature would be
increasing punishment of the wayward teen who assaults a
homeless individual one day and the next day, continue
to allow the same homeless individual to be arrested -
again - for trespassing.
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