BILL ANALYSIS
SB 1317
Page 1
Date of Hearing: June 22, 2010
Counsel: Nicole J. Hanson
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 1317 (Leno) - As Amended: June 16, 2010
SUMMARY : Creates a misdemeanor when a parent or guardian of a
pupil of six years of age or older who is in Kindergarten or any
of Grades 1 to 8, inclusive, and who is subject to compulsory
full-time education whose child is a chronic truant, and has
failed to reasonably supervise and encourage the pupil's school
attendance. Specifically, this bill :
1)Deems any pupil a "chronic truant" when he or she is subject
to compulsory full-time education or to compulsory
continuation education who is absent form school without valid
excuse for 10 percent or more of the schooldays in one school
year, from the date of enrollment to the current date,
provided that the appropriate school district officer or
employee as complied with existing law.
2)Provides that a parent or guardian of a pupil of six years of
age or older who is in Kindergarten or any of Grades 1 to 8,
inclusive, and who is subject to compulsory full-time
education or compulsory continuation education, whose child is
a chronic truant as defined under existing law, and who has
failed to reasonably supervise and encourage the pupil's
school attendance, is guilty of a misdemeanor punishable by a
fine not exceeding $2,000, or by imprisonment in the county
jail not exceeding one year, or by both that fine and
imprisonment. A parent or guardian guilty of a misdemeanor,
as specified, may participate in the deferred entry of
judgment (DEJ) program.
3)Allows superior courts to establish DEJ programs that includes
the following components, inclusive, to adjudicate cases
involving parents or guardians of elementary school pupils who
are chronic truants:
a) A dedicated court calendar;
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b) Leadership by a judge of the superior court in that
county; and,
c) Service referrals for parents or guardians, including,
but not necessarily limited to, all of the following:
i) Case management.
ii) Mental and physical health services.
iii) Parenting classes and support.
iv) Substance abuse treatment.
v) Child care and housing.
d) A clear statement that, in lieu of trial, the court may
grant DEJ with respect to the current crime or crimes
charged if the defendant pleads guilty to each charge and
waives time for the pronouncement of judgment and that,
upon the defendant's compliance with the terms and
conditions set forth by the court and agreed to by the
defendant upon the entry of his or her plea, and upon the
motion of the prosecuting attorney, the court will dismiss
the charge or charges against the defendant.
e) A clear statement that failure to comply with any
condition under the program may result in the prosecuting
attorney or the court making a motion for entry of
judgment, whereupon the court will render a finding of
guilty to the charge or charges pled, enter judgment, and
schedule a sentencing hearing as otherwise provided in this
code.
f) An explanation of criminal record retention and
disposition resulting from participation in the DEJ program
and the defendant's rights relative to answering questions
about his or her arrest and DEJ following successful
completion of the program.
4)Mandates funding for the DEJ program shall be derived solely
from non-state sources.
5)Prohibits a prosecutor from charging a parent or guardian of
an elementary school pupil who is a chronic truant, with a
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violation of this section and Penal Code Section 272 relating
to contributing to the delinquency of a minor for parents and
guardians of truant children.
EXISTING LAW :
1)States that every person who commits any act or omits the
performance of any duty, which act or omission causes or tends
to cause or encourage any person under the age of 18 years to
or which act or omission contributes thereto, or any person
who, by any act or omission, or by threats, commands, or
persuasion, induces or endeavors to induce any person under
the age of 18 years or any ward or dependent child of the
juvenile court to fail or refuse to conform to a lawful order
of the juvenile court, or to do or to perform any act or to
follow any course of conduct or to so live as would cause or
manifestly tend to cause that person to become or to remain a
person within the jurisdiction of the dependency or
delinquency court, as specified, is guilty of a misdemeanor
and upon conviction thereof shall be punished by a fine not
exceeding $2,500, or by imprisonment in the county jail for
not more than one year, or by both fine and imprisonment in a
county jail, or may be released on probation for a period not
exceeding five years." [Penal Code Section 272(a).]
2)Provides that a parent or legal guardian to any person under
the age of 18 years shall have the duty to exercise reasonable
care, supervision, protection, and control over their minor
child. [Penal Code Section 272(b).]
3)Creates a diversion program for parents or guardians who are
being prosecuted for contributing to the delinquency of a
minor under Penal Code Section 272, as specified. (Penal Code
Section 1001.70, et seq.)
4)Defines a "truant" as any pupil subject to compulsory
full-time education who is absent without valid excuses three
full days in one school year, or tardy or absent for more than
any 30-minute period on three occasions, or any combination."
(Education Code Section 48260.)
5)Provides that upon a pupil's initial classification as a
truant, the school district shall notify the pupil's parent or
guardian, by first-class mail or other reasonable means, of
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the following:
a) That the pupil is truant.
b) That the parent or guardian is obligated to compel the
attendance of the pupil at school.
c) That parents or guardians who fail to meet this
obligation may be guilty of an infraction and subject to
prosecution.
d) That alternative educational programs are available in
the district.
e) That the parent or guardian has the right to meet with
appropriate school personnel to discuss solutions to the
pupil's truancy.
f) That the pupil may be subject to prosecution.
g) That the pupil may be subject to suspension,
restriction, or delay of the pupil's driving privilege.
h) That it is recommended that the parent or guardian
accompany the pupil to school and attend classes with the
pupil for one day. (Education Code Section 48260.5.)
6)Defines a "habitual truant" as any pupil who has been reported
as a truant three or more times per school year (absent or
tardy at least five days). A pupil may not be deemed
habitually truant unless an appropriate district officer or
employee had made a conscientious effort to hold at least one
conference with a parent and the pupil, after the filing of
either a truancy report to the attendance supervisor or
district superintendent. (Education Code Section 48262.)
7)Authorizes a habitually truant pupil to be referred to a
school attendance review board (SARB) or to the probation
department for services. If the SARB or probation officer
determines that available community services can resolve the
problem, the pupil or pupil's parents shall be directed to
make use of those services. If it is determined that services
cannot solve the problem, or if the pupil and/or parent have
failed to respond to directives, the SARB may notify the
district attorney or probation officer. (Education Code
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Section 48263.)
8)Establishes a truancy mediation program whereby the district
attorney or probation officer may request the parents and the
pupil attend a meeting to discuss the possible legal
consequences of the child's truancy. (Education Code Sections
48260.6 and 48263.5.)
9)Allows schools to require any minor who is reported as a
truant to attend makeup classes during the weekend and
provides that truants are subject to the following:
a) The pupil may be given a written warning by a peace
officer the first time a truancy report is required;
b) The pupil may be assigned by the school to an after
school or weekend study program upon the second truancy
report;
c) The pupil shall be classified a habitual truant and may
be referred to, and required to attend, an attendance
review board or a truancy mediation program upon the third
truancy report; and,
d) The pupil shall be within the jurisdiction of the
juvenile court, which may adjudge the pupil to be a ward of
the court upon the fourth truancy report. (Education Code
Section 48264.5.)
10) Mandates any parent, guardian, or other person having
control or charge of any pupil who fails to comply with this
chapter, unless excused or exempted there from, is guilty of
an infraction and shall be punished as follows:
a) Upon a first conviction, by a fine of not more than
$100.
b) Upon a second conviction, by a fine of not more than
$250.
c) Upon a third or subsequent conviction, if the person has
willfully refused to comply with this section, by a fine of
not more than $500. In lieu of imposing the fines
prescribed, the court may order the person to be placed in
a parent education and counseling program.
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d) Upon first conviction, a person may provide for the
payment of the fine within a specified time or in specified
installments, or for participation in the program. A
judgment granting a defendant time to pay the fine or
prescribing the days of attendance in a program shall order
that if the defendant fails to pay the fine, or any
installment thereof, on the date that it is due, or fails
to attend a program on a prescribed date, he or she shall
appear in court on that date for further proceedings.
Willful violation of the order is punishable as contempt.
e) The court may also order that the person upon his or her
first conviction, immediately enroll or reenroll the pupil
in the appropriate school or educational program and
provide proof of enrollment to the court. Willful
violation of an order under this subdivision is punishable
as civil contempt with a fine of up to $1,000. An order of
contempt under this subdivision shall not include
imprisonment. (Education Code Section 48293.)
11)States that if a minor has four or more truancies within one
school year or a SARB or probation officer determines that the
available public and private services are insufficient or
inappropriate to correct the habitual truancy of the minor, or
to correct the minor's persistent or habitual refusal to obey
the reasonable and proper orders or directions of school
authorities, or if the minor fails to respond to directives of
a school attendance review board or probation officer or to
services provided, the minor is then within the jurisdiction
of the juvenile court which may adjudge the minor to be a ward
of the court. However, it is the intent of the Legislature
that no minor who is adjudged a ward of the court pursuant
solely to this subdivision shall be removed from the custody
of the parent or guardian except during school hours.
[Welfare and Institutions Code (WIC) Section 601(b).]
12)Provides in the event that a parent or guardian or person in
charge of a minor who is reported as a truant fails to respond
to directives of the SARB or to services offered on behalf of
the minor, the SARB shall direct that the minor be referred to
the probation department or to the county welfare department,
and the SARB may require the school district to file a
complaint against the parent, guardian, or other person in
charge of such minor. (WIC Section 601.2.)
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13)Allows counties though adoption of a resolution by the board
of supervisors, establish an At-Risk Youth Early Intervention
Program designed to assess and serve families with children
who have chronic behavioral problems that place the child at
risk of becoming a ward of the juvenile court. The purpose of
the program is to provide a swift and local service response
to youth behavior problems so that future involvement with the
justice system may be avoided. [WIC Section 601.5(a).]
14)States that an act or omission that is punishable in
different ways by different provisions of law shall be
punished under the provision that provides for the longest
potential term of imprisonment, but in no case shall the act
or omission be punished under more than one provision. An
acquittal or conviction and sentence under any one bars a
prosecution for the same act or omission under any other.
Notwithstanding the aforementioned, a defendant sentenced
pursuant thereto shall not be granted probation if any of the
provisions that would otherwise apply to the defendant
prohibits the granting of probation. (Penal Code Section 654.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author of this bill,
"When it comes to breaking the cycle of crime, we can either
pay attention to the signs of trouble now, or we can pay the
price later. We pay that price in more ways than one.
Elementary school children who fail to attend school today
become tomorrow's high school dropouts. Dropouts are those
most likely to end up in the streets as either victims or
perpetrators of crime. . . . . Combating elementary school
truancy is a smart approach to crime prevention.
"The statistics speak volumes. Habitual truants become high
school truants, and it is estimated that as many as 75% of all
truant high school students will eventually drop out of
school. Statewide, three-fourths of prison inmates are high
school dropouts. In San Francisco, over 94% of all homicide
victims under the age of 25 are high school dropouts.
"In 2007, the National Center for Children in Poverty issued a
study finding that children who miss 10% or more of the days
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in a given school year are the most likely to suffer lower
academic performance in subsequent school years.
"Numerous studies demonstrate a strong correlation between
teenage truancy and juvenile delinquency. The California
Department of Education identified truancy as the most
powerful predictor of juvenile delinquent behavior. The
Office of Juvenile Justice and Delinquency Prevention reported
that truancy correlates with substance abuse, gang
involvement, and other criminal activity. A report by Fight
Crime: Invest in Kids concluded that increasing graduation
rates by 10 percentage points would decrease rates of violent
crime by 20%, and prevent 500 murders and more than 20,000
aggravated assaults each year in California.
"County prosecutors have relied on Penal Code Section 272,
'contributing to the delinquency of a minor' to seek stronger
sanctions against parents of repeatedly truant children.
Although Penal Code Section 272 does not specifically address
truancy, courts have found parents guilty of this misdemeanor
if their failure to get their child in school results in
delinquent juvenile behavior. Under this statute, parents can
be fined up to $2,500 or placed in jail for six months.
"Unfortunately, however, neither the Education Code nor the
Penal Code effectively addresses the most serious problem that
needs the most immediate attention: chronic elementary school
truancy.
"The Education Code does not distinguish between levels of
truancy, leaving the potential for parents of children who
have missed five days to be considered as liable as parents of
children who have missed 50 days for failing to ensure access
to education. The most severe consequence that a parent can
receive under the Education Code is an infraction conviction
and a fine. (Education Code Section 48293.)
"Second, the Penal Code's silence on the issue of truancy leaves
prosecutors and courts with the unhelpful option of focusing
on whether the child is delinquent as a result of missing
school, rather than focusing on the parents' failure to
provide a basic need. Parents who allow their young children
to have chronic levels of truancy are neglecting their child's
needs, regardless of whether that child demonstrates
delinquent behavior. Failing to educate a child is an issue
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of neglect, just like failing to feed or clothe them.
"Finally, when prosecutors do invoke 'contributing to the
delinquency of a minor' to bring misdemeanor charges against
parents of severely truant children, criminal courts have
widely varying responses to these charges. Some courts take a
punitive approach that may levy a fine or jail time on the
parent but may not result in the return of the child to
school, while others may not take these charges seriously,
given the gravity of other criminal offenses being addressed,
and may throw out the cases with no changed circumstances for
the child."
2)Background : According to information provided by the author,
"When it comes to breaking the cycle of crime, we can either
pay attention to the signs of trouble now, or we can pay the
price later. We pay that price in more ways than one.
Elementary school children who fail to attend school today
become tomorrow's high school dropouts. Dropouts are those
most likely to end up in the streets as either victims or
perpetrators of crime. Cities, counties, and the state must
spend millions to police our streets, prosecute criminals and
send them to prison. If we are serious about changing the
factors that lead to bloated prisons and depleted budgets, we
need to get serious about getting our young children in
school.
"Combating elementary school truancy is a smart approach to
crime prevention. The statistics speak volumes. Habitual
truants become high school truants, and it is estimated that
as many as 75% of all truant high school students will
eventually drop out of school. [American Bar Association
(2009). The Relationship between Truancy and Dropping out of
High School.
http://www.abanet.org/youthatrisk/factsheets/truancydropouts.ht
ml.] Statewide, three-fourths of prison inmates are high
school dropouts. [American Youth Policy Forum (2006).
Whatever it Takes: How Twelve Communities are Reconnected
Out-of-School Youth. Every Nine Seconds in America a Student
Becomes a Dropout. The Dropout Problem in Numbers, p. viii.]
In San Francisco, over 94% of all homicide victims under the
age of 25 are high school dropouts.
"The University of California at Santa Barbara California
Dropout Research Project recently released a devastating
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report examining the impact of high school dropouts on
California's economy. The report found that high school
dropouts account for a disproportionate amount of juvenile
crime, and that being a high school graduate is associated
with reductions in property crime by 9%, violent crime by 17%,
and drug-related crimes by 10%. The crimes that dropouts
commit cost the state $1.1 billion per year. Adding in the
social and medical costs, wage taxes lost, and other
associated economic losses, the report estimates that dropouts
cost the state as much as $46.15 billion annually.
[University of California, Santa Barbara, California Dropout
Research Project (2009). High School Dropouts and the
Economic Losses from Juvenile Crime in California, September
2009, pp. 15, 32.]
"Despite the seriousness of the consequences, substantial
reductions in truancy rates for California students remain
elusive. According to the California Department of Education,
over 1.5 million students were truant in California in the
2008-2009 school year, constituting almost one quarter of
California's student body. [California Department of
Education, Data Quest. http://dq.cde.ca.gov/dataquest/.]
Nearly 40% of the truant students in California are in
elementary school. [California Department of Education, Data
Quest. http://dq.cde.ca.
gov/dataquest/]
"Ensuring our children get a good elementary school education is
perhaps one of the most important contributions we can make to
their future success, health, and security. During elementary
school, children learn the building blocks for everything that
follows. They build crucial academic and life skills
including reading, writing, math, science, socialization, and
cooperative skills. Head Start conducted a study of their
students and found that language ability in the first and
second grades accounts for 88% of differences in ability among
third and fourth graders. [Storch, S. A., & Whitehurst, G. J.
(2002). Oral language and code-related precursors to reading:
Evidence from a longitudinal structural model. Developmental
Psychology, 38, pp. 934-947.] Harvard University's Center on
the Developing Child reports that education is particularly
important for early childhood because young children's brains
are more malleable. The wiring of the brain is harder to
change as a child matures. They conclude that remedial
education is both less effective and more costly compared to
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early childhood education. [National Scientific Council,
Center on the Developing Child at Harvard University. (2007).
The Science of Early Childhood Development: Closing the Gap
Between What We Know and What We Do, Cambridge, MA, p. 8.]
Just as a house cannot be built without a foundation, a child
cannot learn without the basic skills acquired in elementary
school.
"In their article, 'Present, Engaged, and Accounted For,' Hedy
Chang and Mariajos? Romero state the obvious: students have
to be present in school in order to learn. [Chang, H. &
Romero, M. (2008). Present, Engaged, and Accounted For: The
Critical Importance of Addressing Chronic Absence in the Early
Grades, p. 1.] In 2007, the National Center for Children in
Poverty issued a study finding that children who miss 10% or
more of the days in a given school year are the most likely to
suffer lower academic performance in subsequent school years.
[Romero, M., and Lee, Y. (2007). National Center for Children
in Poverty. A National Portrait of Chronic Absenteeism in the
Early Grades. p. 3.] That means missing 10% or more is a
tipping point: children who miss less than 10% can recover,
while children who miss more than 10% begin to fall through
the cracks.
"Chang and Romero note that students who are not present and do
not learn essential elementary school skills in the early
grades are at great risk of permanently falling behind and
dropping out of school. [Chang, H & Romero, M, supra note 8,
at 3.] The Center for Social Organization of Schools at Johns
Hopkins University concluded that poor attendance in
elementary school is one of the most reliable predictors of
who will drop out of high school. [Nauer et al (2008).
Strengthening Schools by Strengthening Families: Community
Strategies to Reverse Chronic Absenteeism in the Early Grades
and Improve Supports for Children and Families, p. 5.]
"In addition to predicting future dropout rates, elementary
school truancy also leads to truancy and associated problems
among older children, before students drop out. Numerous
studies demonstrate a strong correlation between teenage
truancy and juvenile delinquency. The California Department
of Education identified truancy as the most powerful predictor
of juvenile delinquent behavior. [California Department of
Education (2003). SARB Report. p. 5.] The Office of
Juvenile Justice and Delinquency Prevention reported that
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truancy correlates with substance abuse, gang involvement, and
other criminal activity. [U.S. Department of Justice, Office
of Juvenile Justice and Delinquency Prevention (2001).
Juvenile Justice Bulletin. Truancy Reduction: Keeping Students
in School, p. 1.] A report by Fight Crime: Invest in Kids
concluded that increasing graduation rates by 10 percentage
points would decrease rates of violent crime by 20%, and
prevent 500 murders and more than 20,000 aggravated assaults
each year in California. [Fight Crime: Invest in Kids (2007).
School or the Streets: Crime and California's Dropout Crisis.
http://fightcrime.org/sites/
default/files/reports/CA%20dropout.pdf, p. 6.] Similarly,
Sacramento Police Chief Rick Braziel notes that a 10% increase
in graduation rates would mean 22 fewer homicides and 1,100
fewer aggravated assaults in Sacramento County each year.
[Braziel, R. (2009). The Time to Act is Before the Dropout
gets Arrested. Sacramento Bee.]
"Chronic truancy impacts outcomes into adulthood, beyond high
school years. Adults who were frequently truant are much more
likely to be in poor health, have lower paying jobs, rely on
welfare, and experience an increased rate of incarceration.
[U.S. Department of Justice, supra, note 13, at 1.] High
school dropouts are 72% more likely to be unemployed than
graduates, and, for those who work, they earn far less than
their graduate counterparts. [Preventing Dropouts, A Critical
and Immediate National Goal, National Center on Secondary
Education and Transition, http://www.ncset.org/publications/
essentialtools/
dropout/handout1.asp.]
3)Need for this Bill as Stated by the Author : According to the
author, "The California Education Code makes it a crime for a
child to go without an education. The Education Code
establishes that any child who has three or more unexcused
absences from school is truant, and that the responsible
parent or caretaker can be cited with an infraction for
breaking the law after as few as five unexcused absences.
Surprisingly, however, the Education Code does not establish
the consequences for more serious episodes of truancy.
Moreover, the Penal Code does not directly address truancy in
any section.
"County prosecutors have relied on Penal Code Section 272,
'contributing to the delinquency of a minor' to seek stronger
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sanctions against parents of repeatedly truant children.
Although Penal Code Section 272 does not specifically address
truancy, courts have found parents guilty of this misdemeanor
if their failure to get their child in school results in
delinquent juvenile behavior. Under this statue, parents can
be fined up to $2,500 or placed in jail for six months.
"Unfortunately, however, neither the Education Code nor the
Penal Code effectively addresses the most serious problem that
needs the most immediate attention: chronic elementary school
truancy.
"The Education Code does not distinguish between levels of
truancy, leaving the potential for parents of children who
have missed five days to be considered as liable as parents of
children who have missed 50 days for failing to ensure access
to education. The most severe consequence that a parent can
receive under the Education Code is an infraction conviction
and a fine. (Education Code Section 48293)
"Second, the Penal Code's silence on the issue of truancy leaves
prosecutors and courts with the unhelpful option of focusing
on whether the child is delinquent as a result of missing
school, rather than focusing on the parents' failure to
provide a basic need. Parents who allow their young children
to have chronic levels of truancy are neglecting their child's
needs, regardless of whether that child demonstrates
delinquent behavior. Failing to educate a child is an issue
of neglect, just like failing to feed or clothe them.
"Finally, when prosecutors do invoke 'contributing to the
delinquency of a minor' to bring misdemeanor charges against
parents of severely truant children, criminal courts have
widely varying responses to these charges. Some courts take a
punitive approach that may levy a fine or jail time on the
parent but may not result in the return of the child to
school, while others may not take these charges seriously,
given the gravity of other criminal offenses being addressed,
and may throw out the cases with no changed circumstances for
the child.
"The Penal Code should be amended to include chronic truancy as
a violation of parents' responsibilities to provide for their
children, under Section 270, Failure to Provide, and adopt a
DEJ program approach that courts and prosecutors can employ to
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address underlying causes and compel parents to get their kids
in school. Under the umbrella of neglect fall failure to
feed, clothe, or shelter a child, all basic rights of children
and necessary to thrive. It has already been established that
the lack of an education puts a child at risk for adverse
consequences later in life. Education is another basic right
and, according to California law, a requirement of all
children. Because of the grave impacts that failing to
educate a child has, and because education is largely
classified as a right and necessity, sound public policy
requires that failure to educate a child should fall under the
definition of general neglect as defined in the California
Penal Code."
4)Criticism of Parental Responsibility Statutes : In the past 20
years, approximately one-half of all states enacted or
strengthened existing parental liability statutes that make
parents criminally liable for the actions of their delinquent
children. (Applebome, A Carrot and Stick for Parenthood, N.Y.
Times, June 16, 1996, 4 at p. 5.) These statutes, which
traditionally impose only civil liability, are infrequently
used and appear to be decreasing in popularity with state
legislatures. [Casgrain, Note, Parental Responsibility Laws:
Cure for Crime or Exercise in Futility? (1990) 37 Wayne L.
Rev. 161, 169.] Recently, however, parental liability
statutes have reemerged as a method to attack juvenile
delinquency.
Critics of parental responsibility statutes state that these
laws are an attempt to impose a simple solution onto a complex
socio-economic problem. This criticism faults the statutes as
parents are not the only cause of a child's delinquency.
[Scarola, Note, Creating Problems Rather Than Solving Them:
Why Criminal Parental Responsibility Laws Do Not Fit Within
Our Understanding of Justice (1997) 66 Fordham L.Rev. 1029,
1056.] Numerous factors can contribute to the delinquency of
a child, such as poverty, racism, and failures of social
policy. [Spergel, Department of Justice (1993) Gang
Suppression and Intervention, p. 43.] Attempting to solve
this multi-faceted problem with a "simplistic" solution only
diverts resources and energy from the criminal justice system.
As a result, the justice system is unable to deal effectively
with the criminal law functions it must perform, while leaving
the societal problem unresolved. [Greenberg, Just Deserts in
an Unjust Society: Limitations on Law As a Method of Social
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Control (1997) 23 New Eng. J. on Crim. & Civ. Confinement 333,
334-35, 341.]
Parental liability statutes can unnecessarily stigmatize single
mothers, minorities, and low-income families by holding them
to an unreasonable standard. Although the statutory language
is neutral, the use of a reasonable standard forces law
enforcement officers and prosecutors to make subjective
judgments about whether a parent's behavior falls within the
boundaries of the statute. Therefore, when applied, the
statutes establish a normative standard, which reflects a
white, middle-class ideal. [See Ward, Consenting to a Search
and Seizure in Poor and Minority Neighborhoods: No Place For A
"Reasonable Person," (1993) 36 How. L.J. 239, 257 (concluding
use of reasonable person standard in Fourth Amendment context
is biased because it fails to account for racial and ethnic
tensions between police and minorities).] The statutes ignore
the reality that different contexts require different
parenting methods. [Roberts, Motherhood and Crime (1993) 79
Iowa L. Rev. 95, 120-121.] The result is that the state
shames these families and reinforces the idea that they are
deviant by telling them that their parenting is inadequate.
[Braithwaite, Crime, Shame and Reintegration (1989) p. 12-13
(discussing that while certain types of shaming are helpful to
society, shaming that leads to stigmatization is ultimately
harmful).]
While some types of shaming can be productive to society, the
punishments imposed by these statutes cause detrimental rather
than positive effects. (Ibid.) The sole purpose of imposing
fines as high as $ 2,000 and sentences as long as one year in
county jail is to punish, rather than to help the parent or
guardian achieve better parenting, which would help both the
parent and the community. This punishment may lead the parent
or guardian to turn further into the criminal subculture,
therefore making her more likely to commit a crime, or to
withdraw from society altogether due to her feelings of
inadequacy. (Id. at 12-13.)
In addition thereto, the idea of punishment for lack of invoking
reasonable parental responsibility, does not conform to the
traditional notions for which criminal liability is imposed
which are: deterrence and retribution. [Lafave & Scott,
Criminal Law, 1.5, at 24-25.]
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5)California's Existing Parental Responsibility Statutes : The
California Supreme Court upheld a parental responsibility
statute with criminal penalties. [Williams v. Garcetti (Cal.
1993) 853 P.2d 507, 508; see Penal Code Section 272.] On its
face, the Penal Code Section 272 seemed to be a
straightforward attempt to criminalize the act of contributing
to a minor's delinquency, but a 1988 amendment to the statute
provoked the constitutional challenge. That amendment read:
"For purposes of this subdivision, a parent or legal guardian
to any person under the age of 18 years shall have the duty to
exercise reasonable care, supervision, protection, and control
over their minor child." [Penal Code Section 272(a)(2),
(emphasis added).] The court rejected the complainants'
challenge that the statute was "unconstitutionally vague" and
"overbroad." [Williams, supra, 853 P.2d at 509.] Rejecting
the vagueness challenge, the court stated that requiring
parents to exercise "reasonable care" provided "sufficiently
certain" guidance because it "incorporates the definitions and
the limits of parental duties that have long been a part of
California dependency law and tort law." [Id. at 511.] The
court acknowledged that "neither the amendment nor prior case
law sets forth specific acts that a parent must perform or
avoid in order to fulfill the duty of supervision and control"
over minor children, but the court shrugged off that obvious
difficulty, stating that "a statutory definition of "perfect
parenting' would be inflexible." (Id. at 512-513.) Instead,
"law-abiding parents" should look to "the concept of
reasonableness" as their guide to statutory compliance. (Id.
at 513.)
Despite the California Supreme Court's ruling in Garcetti,
convictions under that statute, and similar statutes in other
states, are rare. [Chapin, Note, Out of Control? The Uses
and Abuses of Parental Liability Laws to Control Juvenile
Delinquency in The United States (1997) 37 Santa Clara L. Rev.
621, 652-53 & n. 183.] Such parental responsibility statutes
have, however, been used as threats to encourage parents to
control their children. (Ibid.) This seems to be
particularly true in California, where instead of criminal
prosecution, the city attorney's office refers parents to
parenting classes of a statutorily approved diversion program.
(See Penal Code Section 1001.70, et seq.) If the parents do
not attend they are then threatened with criminal prosecution
under the statute. (See Penal Code Section 272.)
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"Garcetti's affirmation of the statute and the lack of
prosecution under it demonstrates the tension between
society's desire to hold parents criminally responsible for
acts committed by their children and its reluctance to
interfere with family privacy or responsibility." [Lockwood,
Comment: Where are the Parents? Parental Criminal
Responsibility for the Acts of Children (2000) 30 Golden Gate
U.L. Rev. 497, 550.] The enactment of parental responsibility
laws certainly demonstrates society's belief that parents' are
responsible for juvenile delinquency, but the courts have been
reluctant to actually enforce those laws. (Id.)
a) Existing Laws Suffice : Current law provides that a
pupil may not be deemed habitually truant unless an
appropriate district officer or employee had made a
conscientious effort to hold at least one conference with a
parent and the pupil, after the filing of either a truancy
report to the attendance supervisor or district
superintendent. (Education Code Section 48262.) After a
student is classified as truant, he or she is referred to
SARB. If the SARB or probation officer determines that
available community services can resolve the problem, the
pupil or pupil's parents shall be directed to make use of
those services. If it is determined that services cannot
solve the problem, or if the pupil and/or parent have
failed to respond to directives, the SARB may notify the
district attorney or probation officer. (Education Code
Section 48263.) At that time, charges may be filed under
Penal Code Section 272 or Education Code Section 48293.
Penal Code Section 272(a) provides every "person who commits
any act or omits the performance of any duty, which act or
omission causes or tends to cause or encourage any person
under the age of 18 years to or which act or omission
contributes thereto, or any person who, by any act or
omission, or by threats, commands, or persuasion, induces
or endeavors to induce any person under the age of 18 years
or any ward or dependent child of the juvenile court to
fail or refuse to conform to a lawful order of the juvenile
court, or to do or to perform any act or to follow any
course of conduct or to so live as would cause or
manifestly tend to cause that person to become or to remain
a person within the jurisdiction of the dependency or
delinquency court, as specified, is guilty of a misdemeanor
and upon conviction thereof shall be punished by a fine not
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exceeding $2,500, or by imprisonment in the county jail for
not more than one year, or by both fine and imprisonment in
a county jail, or may be released on probation for a period
not exceeding five years." Although this statute does not
specifically use the word "truant," a minor may become a
ward of the court if he or she does not attend school
regularly, thus falling under the statute. This statute
provides the same amount of jail time as this bill and a
nearly identical fine. As with this bill, Penal Code
Section 272(a) offers a diversion program.
Less draconian penalties may be impressed upon parents
through Education Code Section 48293 which mandates any
parent, guardian, or other person having control or charge
of any pupil who fails to comply with the law, unless
excused or exempted there from, is guilty of an infraction.
(See Penal Code Section 48293.) Fines start at $100 and
increase to $1,000.
In addition to the criminal fines and penalties, parents and
guardians are advised that the parent or guardian is
obligated to compel the attendance of the pupil at school,
failure to compel attendance can lead to infractions and
prosecution. (Education Code Section 48260.5) Parents and
guardians are also informed about alternative educational
programs are available in the district and that they have
the right to meet with appropriate school personnel to
discuss solutions to the pupil's truancy. (Id.) Schools
must also inform the parent or guardian that it is
recommended that the parent or guardian accompany the pupil
to school and attend classes with the pupil for one day.
(Id.)
In sum, current law provides the same elements as directed
under this bill. The difference, however, between this
bill and current law is that this bill places truancy
specifically within the Penal Code. Should questionable
parenting skills be addressed through criminal penalties of
fines and incarceration? Does penal punishment of a parent
or guardian help or hinder a minor's future?
b) San Francisco's Truancy Initiative : San Francisco
created an elementary pupil truancy program. This program
encourages the San Francisco District Attorney's Office to
hold mediations with parents and truant pupils. Such
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programs are encouraged under Welfare and Institutions Code
Section 601.3. San Francisco has also instituted a
specialized Truancy Court which monitors families. The
sponsor of this bill indicates this program has been
successful at improving attendance. It is important to not
that this program succeeds without the creation of a
specialized Penal Code statute for truancy which punishes
parents and or offers diversion programs. Perhaps the
Legislature should allow counties to decide how to deal
with the parents of truant children.
6)The Double Jeopardy Clause : The United States Supreme Court
has stated that when the defendant has been convicted of
multiple offenses arising out of the same course of conduct
and the issue of cumulative sentencing arises, the threshold
question is one of legislative intent. The initial critical
question is whether or not Congress intended to punish each
statutory violation separately. [Jeffers v. United States
(1977) 432 U.S. 137, 155.] At the least, the Double Jeopardy
Clause precludes federal courts from imposing consecutive
sentences unless expressly authorized to do so. [Whalen v.
United States (1980) 445 U.S. 684, 689.] The Supreme Court
has also indicated that, while the Double Jeopardy Clause may
not circumscribe state courts in the same manner as it does
the federal courts, the Due Process Clause of the Fourteenth
Amendment would presumably prohibit state courts from
depriving persons of liberty or property as punishment for
criminal conduct except to the extent authorized by state law.
(Ibid.) However, the Court has indicated that if the
Legislature intended to impose multiple punishments for the
same offense, such punishment is constitutionally permissible.
[Albernaz v. United States (1981) 450 U.S. 333, 344.]
In cases in which legislative intent is not clear, the courts
may discuss intent in terms of the Blockburger test. [See,
e.g., Whalen v. United States (1980) 445 U.S. 684, 690-695.]
The test is a rule of statutory construction originally set
forth in Blockburger v. United States. [See Blockburger v.
United States (1932) 284 U.S. 299, 304.] The assumption
underlying this rule is that Congress ordinarily does not
intend to punish the same offense under two different
statutes. Accordingly, when two statutory provisions
proscribe the same offense, they are not construed to
authorize cumulative punishment in the absence of a clear
indication of contrary legislative intent. (Ibid.)
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California Legislative intent is clear. Penal Code Section 654
states that "an act or omission that is punishable in
different ways by different provisions of law shall be
punished under the provision that provides for the longest
potential term of imprisonment, but in no case shall the act
or omission be punished under more than one provision. An
acquittal or conviction and sentence under any one bars a
prosecution for the same act or omission under any other.
Notwithstanding the aforementioned, a defendant sentenced
pursuant thereto shall not be granted probation if any of the
provisions that would otherwise apply to the defendant
prohibits the granting of probation." (Penal Code Section
654.) This bill and Penal Code Section 272 provide for the
same amount of imprisonment, i.e. both one-year misdemeanors.
Thus, the language provided under this bill's section 3, which
prohibits prosecutors from charging a parent or guardian of an
elementary school pupil who is a chronic truant, and a
violation of this section and Penal Code Section 272 relating
to contributing to the delinquency of a minor for parents and
guardians of truant children, is unnecessary. Even if a
parent or guardian was charged under Penal Code Section 272
and the new misdemeanor created by this bill, only one
punishment may be applied.
7)Argument in Support : According to the San Francisco District
Attorney, Kamala D. Harris , "As the elected District Attorney
for the City and County of San Francisco, all the time I see
what happens on the back end when children do not stay in
school: young lives are being lost to street violence or
prison time at an appalling rate. Investing in effective
strategies to reduce chronic elementary school truancy is a
smart approach to crime prevention.
"Three years ago, I joined with the San Francisco Unified School
District to begin a comprehensive initiative focused on
elementary school truancy. Every fall, I send out letters to
parents of all students informing them that truancy is against
the law. During the school year, prosecutors from my office
hold mediations with parents and truant students at schools
across the City to reinforce this message and urge them to get
help to improve their children's attendance. In most cases,
attendance improves. But when it does not, my office p
prosecutes parents in a specialized Truancy Court we created
that combines close court monitoring with tailored family
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services. We have service providers on hand to work with
families and resolve underlying issues such as transportation,
unstable housing, substance abuse, mental health, neglect or
unresolved special education needs. Our strategy is showing
promising results. So far, we have seen a 20-percent
reduction in elementary school truancy.
"SB 1317 will allow local jurisdictions to establish and
strengthen efforts like these to hold parents accountable and
get elementary school children back in school. Children will
either get their education in the streets or in school. The
fabric of our community, and the future of our economy,
depends on our ability to ensure that education happens in
class."
8)Argument in Opposition : According to the Public Counsel Law
Center , SB 1317 imposes "unnecessary and severely punitive
consequences for families in the public school system. In the
Los Angeles Unified School District (LAUSD), the largest
district in California, over 90% of students are students of
color and over 70% of the schools receive Title I
funding. . . . This punitive approach will increase court
involvement for poor families and creates contentious
relationships between parents and schools. Further,
prosecuting families under these proposed laws will have the
effect of exacerbating existing educational inequities and
disproportionately impacting poor families of color in the
public schools.
* * *
"SB 1317 is an example of an exclusionary approach to school
discipline. The bill approaches truancy by laying the blame
for student absences squarely on the parents and proposes to
offer supportive services only to those parents who are
willing to plead guilty to a misdemeanor charge. . . . As a
result, the families prosecuted under this bill will be from
the most vulnerable communities. By supporting this bill, the
Senate is telling those communities that supportive services
are, in fact, available, but only if the parents admit guilt.
"This message runs contrary to the committed direction by LAUSD
and other forward thinking districts to implement School-Wide
Positive Behavior Support to address issues of school
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discipline. [See LAUSD Bulletin 3638.0, Discipline Foundation
Policy: School-Wide Positive Behavior Support (March 2007).]
School-Wide Positive Behavior Support is an evidence-based,
systematic approach that acknowledges that schools must
simultaneously create a culture conducive to learning and
utilize consequences that are instructional and fair. In
contrast, [this bill relies] solely on the overburdened
criminal justice system to impose penalties on families
despite the fact that social resources, such as trusting
relationships between schools and parents, are more closely
ties to dropout prevention. Further, state law already
provides accountability mechanisms that are designed to
further the legislative intent to promote the maximum use of
community resources and alternative prior to any involvement
with the judicial system. (Cal. Ed. Code section 48320.)
"Public Counsel's Children's Rights Project and allies
throughout the state are working to deter the criminalization
of school-related conduct, such as student attendance, because
it is an exclusionary form of discipline that alienates
students and families. It is well documented that family
factors, including parent supervision, are just one of many
underlying factors that may contribute to truancy. [See e.g.,
OJJDP, Truancy Reduction: Keeping Students in School (2001);
See also Vera Institute of Justice, Approaches to Truancy
Prevention (2002).] In fact, factors outside students' and
parents' control, including hostile, inflexible or culturally
insensitive school climates, and lack of public resources like
transportation and child care, make up the majority of the
potential causes of truancy.
"From our extensive work with at-risk youth, we have seen that
students who disengage from school not only are at a higher
risk of entering the juvenile justice system, but also tend to
face obstacles to academic achievement related to their
special education needs and their social, emotional and
physical health. [This bill] will impose yet another stressor
on families. Given the complexity of this problem and the
variance in circumstances for individual students and
families, preventing and reducing truancy must require a
multi-disciplinary approach that is supported by schools,
parents and community groups.
"Educational inequities are having severe impacts on
California's most vulnerable communities. English learners
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represent 30% of the state's overall dropouts. [California
Dropout Research project, Solving California's Dropout Crisis
(2008).] In Los Angeles, close to one-third of LAUSD students
are English learners and only 3% are proficient in English and
math. LAUSD is currently under investigation by the US
Department of Education for civil rights violations in the
provision of educational services for this population.
Educational inequities continue to persist among Black and
Latino communities as well. African-American students are
disproportionately suspended and expelled in LAUSD and
represent 16.4% of the students receiving special education
services compared to the total Black student population of
11.2% in 2007. [See LAUSD Resolution Re: Support Equal
Protections and Civil Rights for All Students in the Los
Angeles Unified School District (2007).]
" . . . Instead of imposing criminal sanctions on already
disadvantaged families, please consider alternative
legislation that addresses the many factors that contribute to
truancy, such as hostile school climates, insufficient funding
for schooling and inequitable school conditions, lack of
sufficient resources for students with disabilities and mental
health needs, and lack of public resources for poor families."
9)Related Legislation :
a) SB 1357 (Steinberg) requires the Department of Education
to prepare the California Longitudinal Pupil Achievement
Data System for the inclusion of data on pupil attendance
contingent upon the receipt of federal funding for this
purpose. SB 1357 specifies the system modifications will
support districts in their efforts to identify pupils at
risk of dropping out and would identify "chronic absence"
as a circumstance in which a pupil is absent on 10% of the
days within a school year. SB 1357 is pending hearing in
the Senate Committee on Appropriations.
b) SB 1148 (Alquist) defines a "chronic truant" as any
pupil who is absent from school without a valid excuse for
at least 10% of the school year, and requires the
permanent record of a pupil to reflect if he or she has
been deemed a chronic truant. SB 1148 was held in the
Senate Committee on Appropriations.
c) SB 540 (Romero) made notification to a pupil's parent or
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guardian regarding his or her truancy optional but
encourages school districts to make the notification if the
district determines such notification would achieve the
goal of preventing truancy. SB 540 was never heard by the
Senate Education Committee and was returned to the
Secretary of the Senate.
10)Prior Legislation : SB 344 (Steinberg), of the 2007-08
Legislative Session, would have provided, when resources
allow, for school districts to report to the California
Department of Education on the number of pupils in Grades 6
through 9 who meet certain criteria that identify the pupils
as being at risk of dropping out of school, including being
absent without an excuse for 10 days in one semester. SB 344
was later amended into a different subject area.
REGISTERED SUPPORT / OPPOSITION :
Support
California District Attorneys Association
California Probation, Parole, and Correctional Association
California State PTA
California Teachers Association
Chief Probation Officers of California
San Francisco District Attorney, Kamala D. Harris
Santa Cara District Attorney, Lois Baer
Opposition
American Civil Liberties Union
California Public Defenders Association
Public Counsel Law Center
Analysis Prepared by : Nicole J. Hanson / PUB. S. / (916)
319-3744