Courts Must Consider Alternatives to Incarceration: A Shift Towards Restorative Justice

In recent years, there has been a growing recognition of the shortcomings of traditional incarceration as a one-size-fits-all approach to criminal justice. The negative impacts of mass incarceration, such as overcrowded prisons, high recidivism rates, and the disproportionate targeting of marginalized communities, have led policymakers and advocates to seek alternative solutions.

In line with this trend, AB 2167 (Stats. 2022, Ch. 775) adds Section 17.2 to the California Penal Code, emphasizing the importance of considering alternatives to incarceration in the disposition of criminal cases.

This article examines the significance of this legislative update and explores various alternative sentencing options that courts can consider.

Section 1 of AB 2167 presents five uncodified legislative findings and declarations that serve as the foundation for the subsequent amendments.

The first four findings (subsections (a) to (d)), recognize the need for a shift in the approach to criminal justice, highlighting the inefficiencies of incarceration as the default solution. It acknowledges that many individuals, including victims and survivors, feel their interests are best served through restorative justice. It also notes that offenders who come into contact with the criminal justice system would be better served by alternatives that address the underlying causes of their behavior, rather than simply removing them from society.

Subsection (e) of Section 1 underscores the Legislature's intent that courts impose alternatives to incarceration whenever possible, except in cases where physical injury to others is likely or where the interests of justice are best served by incarceration. This provision establishes a clear framework for courts to follow, encouraging the consideration of alternatives and emphasizing the need for individualized sentencing.

AB 2167 introduces Section 17.2 to the California Penal Code, outlining the expectations and responsibilities of courts in considering alternatives to incarceration.

Subsection (a) of PC 17.2 explicitly states that the Legislature intends for the disposition of any criminal case to utilize the least restrictive means possible.

Subsection (b) of PC 17.2 highlights specific alternatives to incarceration that courts must consider. Collaborative justice court programs, diversion, restorative justice, and probation are mentioned as examples that broaden the range of options available to judges, empowering them to tailor sentences to the unique circumstances of each case.

Subsection (c) of PC 17.2 reinforces the role of the court in assessing the individual needs of defendants and selecting an appropriate alternative to incarceration, taking into account the severity of the offense and the potential for rehabilitation.

AB 2167's inclusion of specific alternative sentencing options invites further examination of the potential benefits they offer. The following are some alternatives that courts can consider:

1. Collaborative Justice Court Programs: These programs provide a comprehensive, problem-solving approach to address the underlying issues contributing to criminal behavior. They often involve multidisciplinary teams, including judges, prosecutors, defense attorneys, probation officers, and social service providers, who work together to address substance abuse, mental health issues, housing instability, and other root causes of criminal activity.
2. Diversion Programs: Diversion programs typically focus on non-violent offenders. By providing counseling, educational opportunities, job training, and other rehabilitative services, diversion programs offer individuals a chance to rehabilitate themselves and reintegrate into society.
3. Restorative Justice: Restorative justice approaches seek to repair the harm caused by crime by involving all affected parties – victims, offenders, and the community – in a collaborative process. Rather than focusing solely on punishment, restorative justice emphasizes accountability, healing, and meaningful dialogue. Offenders are encouraged to take responsibility for their actions, make amends, and work towards repairing the harm they caused, while victims have the opportunity to share their experiences and have a voice in the resolution process.
4. Probation: Probation is a well-established alternative to incarceration that allows individuals to remain in the community under supervision and certain conditions. Probation officers monitor compliance, provide support, and connect probationers with necessary resources such as counseling, job training, or substance abuse treatment.

The inclusion of Section 17.2 in the California Penal Code through AB 2167 represents a significant step towards a more holistic and individualized approach to criminal justice. As courts begin to incorporate these alternatives into their sentencing practices, it is our hope that the criminal justice system will become more equitable, effective, and focused on rehabilitation rather than punishment.