BILL ANALYSIS Ó SENATE COMMITTEE ON PUBLIC SAFETY Senator Loni Hancock, Chair S 2013-2014 Regular Session B 1 2 9 SB 1296 (Leno) 6 As Introduced: February 21, 2014 Hearing date: April 8, 2014 Code of Civil Procedure and Welfare and Institutions Code AA:sl JUVENILE JUSTICE: TRUANCY HISTORY Source: Youth Law Center; East Bay Children's Law Offices Prior Legislation: None Support: All of Us or None; Alliance for Children's Rights; California Attorneys for Criminal Justice (CACJ); California Catholic Conference of Bishops; California Probation, Parole and Correctional Association (CPPCA); California Public Defenders Association; Chief Probation Officers of California (CPOC); Children's Defense Fund of California (CDF-CA); Children's Law Center of California; Coalition for Juvenile Justice; Community Rights Campaign; Ella Baker Center for Human Rights; Friends Committee on Legislation of California; John Burton Foundation for Children Without Homes; Legal Advocates for Children and Youth; National Association for the Education of Homeless Children and Youth; Pacific Juvenile Defender Center; Public Defender of the City and County of San Francisco; Public Counsel Opposition:Unknown (More) SB 1296 (Leno) PageB KEY ISSUE SHOULD THE LAW PROVIDE THAT A STATUS OFFENDER WHO IS BEFORE THE COURT SOLELY ON THE GROUND THAT HE OR SHE IS IN WILLFUL DISOBEDIENCE OR INTERFERENCE WITH A LAWFUL COURT ORDER RELATING TO THE MINOR'S TRUANCY SHALL NOT BE DETAINED IN A SECURE FACILITY? PURPOSE The purpose of this bill is to prohibit secured detention as a sanction for truants who are found in contempt of court solely on the grounds of failing to comply with a court order relating to the truancy, as specified. Under current law , the purpose of juvenile court law "is to provide for the protection and safety of the public and each minor under the jurisdiction of the juvenile court and to preserve and strengthen the minor's family ties whenever possible, removing the minor from the custody of his or her parents only when necessary for his or her welfare or for the safety and protection of the public." (Welfare and Institutions Code ("WIC") § 202.) Current law generally provides for the jurisdiction of the juvenile court over a person under the age of 18 who "persistently or habitually refuses to obey the reasonable and proper orders or directions of his or her parents, guardian, or custodian, or who is beyond the control of that person," or who violates curfew offenses, as specified. (WIC § 601.) These types of offenses are known generally as "status" offenses - acts that are illegal only if committed by juveniles (typically, running away, disobeying parents, curfew violations and truancy). Current law provides that if "a minor has four or more truancies within one school year . . . or a school attendance review board 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 (More) SB 1296 (Leno) PageC 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 § 601(b).) This bill would revise the legislative intent language in this subdivision to also state that minors adjudged wards of the court solely because of truancy shall not be held in a secure facility, except for the purposes of school attendance. Current law strictly limits the detention of status offenders in any jail, lockup, juvenile hall, or other secure facility, as specified. (WIC § 207.) This bill would enact a new statute providing that a "person under 18 years of age shall not be detained in a secure facility,<1> solely upon the ground that he or she is in willful disobedience or interference with any lawful order of the juvenile court, if the basis of an order of contempt is the failure to comply with a court order pursuant to subdivision (b) of Section 601 (truancy, as defined above). Upon a finding of contempt of court, the court may issue any other lawful order, as necessary, to ensure the minor's school attendance." Current law enumerates specified acts or omissions with respect to a court of justice or proceedings therein which are contempt of the authority of the court, including "(d)isobedience of any lawful judgment, order, or process of the court." (Code of Civil Procedure § 1209(a)(5).) Current law generally provides that when the contempt consists of the omission to perform an act which is yet in the power of the person to perform, he or she may be imprisoned until he or she has performed it, and in that case the act shall be --------------------------- <1> Specifically, "secure facility" as defined in Section 206 of the Welfare and Institutions Code. (More) SB 1296 (Leno) PageD specified in the warrant of commitment. (CCP § 1219(a).) Current law excepts from this authority "the victim of a sexual assault or domestic violence crime for contempt when if the contempt consists of refusing to testify concerning that sexual assault or domestic violence crime, as specified." (CCP § 1219(b).) This bill additionally would provide that, "(n)otwithstanding any other law, a court shall not imprison, hold in physical confinement,<2> or otherwise confine or place in custody a minor for contempt if the contempt consists of the minor's failure to comply with a court order (relating to truancy, as specified)<3> if the minor was adjudged a ward of the court on the ground that he or she is a (truant, as defined) . . . . Upon a finding of contempt of court, the court may issue any other lawful order, as necessary, to secure the minor's attendance at school." RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION For the last several years, severe overcrowding in California's prisons has been the focus of evolving and expensive litigation relating to conditions of confinement. On May 23, 2011, the United States Supreme Court ordered California to reduce its prison population to 137.5 percent of design capacity within two years from the date of its ruling, subject to the right of the state to seek modifications in appropriate circumstances. Beginning in early 2007, Senate leadership initiated a policy to hold legislative proposals which could further aggravate the prison overcrowding crisis through new or expanded felony prosecutions. Under the resulting policy, known as "ROCA" --------------------------- <2> This bill would define "physical confinement" to have the same meaning as defined in subdivision (d) of Section 726 of the Welfare and Institutions Code. <3> Welfare and Institutions Code section 601(b) and 727, the latter providing the general statutory authority for juvenile courts to make any "reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the minor or nonminor, including medical treatment, subject to further order of the court," over minors adjudged wards of the juvenile court (status or delinquency offenders). (More) SB 1296 (Leno) PageE (which stands for "Receivership/ Overcrowding Crisis Aggravation"), the Committee held measures that created a new felony, expanded the scope or penalty of an existing felony, or otherwise increased the application of a felony in a manner which could exacerbate the prison overcrowding crisis. Under these principles, ROCA was applied as a content-neutral, provisional measure necessary to ensure that the Legislature did not erode progress towards reducing prison overcrowding by passing legislation, which would increase the prison population. In January of 2013, just over a year after the enactment of the historic Public Safety Realignment Act of 2011, the State of California filed court documents seeking to vacate or modify the federal court order requiring the state to reduce its prison population to 137.5 percent of design capacity. The State submitted that the, ". . . population in the State's 33 prisons has been reduced by over 24,000 inmates since October 2011 when public safety realignment went into effect, by more than 36,000 inmates compared to the 2008 population . . . , and by nearly 42,000 inmates since 2006 . . . ." Plaintiffs opposed the state's motion, arguing that, "California prisons, which currently average 150% of capacity, and reach as high as 185% of capacity at one prison, continue to deliver health care that is constitutionally deficient." In an order dated January 29, 2013, the federal court granted the state a six-month extension to achieve the 137.5 % inmate population cap by December 31, 2013. The Three-Judge Court then ordered, on April 11, 2013, the state of California to "immediately take all steps necessary to comply with this Court's . . . Order . . . requiring defendants to reduce overall prison population to 137.5% design capacity by December 31, 2013." On September 16, 2013, the State asked the Court to extend that deadline to December 31, 2016. In response, the Court extended the deadline first to January 27, 2014 and then February 24, 2014, and ordered the parties to enter into a meet-and-confer process to "explore how defendants can comply with this Court's June 20, 2013 Order, including means and dates by which such compliance can be expedited or accomplished and how this Court can ensure a durable solution to the prison crowding problem." (More) SB 1296 (Leno) PageF The parties were not able to reach an agreement during the meet-and-confer process. As a result, the Court ordered briefing on the State's requested extension and, on February 10, 2014, issued an order extending the deadline to reduce the in-state adult institution population to 137.5% design capacity to February 28, 2016. The order requires the state to meet the following interim and final population reduction benchmarks: 143% of design bed capacity by June 30, 2014; 141.5% of design bed capacity by February 28, 2015; and 137.5% of design bed capacity by February 28, 2016. If a benchmark is missed the Compliance Officer (a position created by the February 10, 2016 order) can order the release of inmates to bring the State into compliance with that benchmark. In a status report to the Court dated February 18, 2014, the state reported that as of February 12, 2014, California's 33 prisons were at 144.3 percent capacity, with 117,686 inmates. 8,768 inmates were housed in out-of-state facilities. The ongoing prison overcrowding litigation indicates that prison capacity and related issues concerning conditions of confinement remain unresolved. While real gains in reducing the prison population have been made, even greater reductions may be required to meet the orders of the federal court. Therefore, the Committee's consideration of ROCA bills -bills that may impact the prison population - will be informed by the following questions: Whether a measure erodes realignment and impacts the prison population; Whether a measure addresses a crime which is directly dangerous to the physical safety of others for which there is no other reasonably appropriate sanction; Whether a bill corrects a constitutional infirmity or legislative drafting error; Whether a measure proposes penalties which are proportionate, and cannot be achieved through any other reasonably appropriate remedy; and, (More) SB 1296 (Leno) PageG Whether a bill addresses a major area of public safety or criminal activity for which there is no other reasonable, appropriate remedy. COMMENTS 1. Stated Need for This Bill The author states: California law has long prohibited the secure confinement of "status offenders"- those who are under the court's jurisdiction for behavior that would not be illegal except for the individual's age. These violations include breaking curfew, running away, being beyond the control of one's parents, and truancy (see Welfare and Institutions Code Sec. 601). While young people may be made a ward of the court for truancy, under current law they must not be held in secure confinement. Unfortunately, court decisions have found a way around the statutory prohibition against incarceration in California and nationally by using contempt or violation of a valid court order. This loophole has allowed truants to be incarcerated over the years for contempt or failing to obey a court order to attend school. In many cases, incarceration of these youths has made things worse for children whose only transgression is not going to school. SB 1296 would close that loophole, and prohibit secure confinement as a sanction in such instances. California has been active in trying to stem the School to Prison Pipeline with creative school disciplinary measures and truancy interventions. Counties around the state have developed active School Attendance Review Boards that work to keep youth out of the justice system, through mediation programs for young people as well as for parents, and access to extensive service systems that provide tutoring, mentoring, school safety support, assessment of (More) SB 1296 (Leno) PageH disabilities, alternative education programs, transportation, and remedial services. As a result, incarceration for truancy has been dramatically reduced. Still, data from 2012 and 2013 suggest that four counties still rely upon incarceration. The vast majority of the cases involved youth of color, and some were as young as age 12. Many were incarcerated multiple times, raising further questions about the effectiveness of incarceration as a sanction. Research on truancy has established that persistent refusal to attend school stems from a complex series of factors that have nothing to do with disrespect for the law. Some youth are afraid to go to school because of bullying or gang activity. Others have challenges at home ranging from abuse, neglect or drugs, to situations that require the youth to stay home to care for relatives, or help support the family. Still others are too humiliated or frustrated to attend school because of disabilities, intellectual limitations, or because disruptions have caused them to fall far behind their classmates. Incarceration for truancy is an illusory "solution" that actually makes things worse. Research indicates that youth who are incarcerated find it more difficult to complete their education and their employability is negatively impacted. Also, while state law requires that truants be separated from delinquent youth, the incarceration leads many of these youths to view themselves as criminals, and to act accordingly. It is important to note that SB 1296 leaves intact a court's power to punish contempt or violations of court orders related to truancy, but simply eliminates incarceration from the available sanctions in those narrow instances. SB 1296 reaffirms the Legislature's long held intention that truants should not be incarcerated. (More) SB 1296 (Leno) PageI 2. Background: Status Offenders and Truants Courts and policymakers have long struggled with how best to address status offenders, including truants. In an op-ed piece published last fall Judge Michael Nash, who since 1995 has served as either Presiding Judge of the Juvenile Court or Supervising Judge of the Juvenile Dependency Court in Los Angeles, noted: We are now approaching the last quarter of 2013 and the subject of status offenders and what we should do with them or for them is still an active subject of discussion within the framework of our juvenile justice systems, and rightfully so. This is so despite the fact that our courts, law enforcement entities, child advocates, communities and law makers have been talking about this issue for more than 40 years. . . . In Los Angeles, where I preside, we have had a court called the Informal Juvenile and Traffic Court (IJTC) for many of these offenses. In calendar year 2011, our IJTC handled approximately 65,000 citations including thousands for daytime loitering (aka truancy), curfew violations and possession offenses. In 1974, Congress passed the Juvenile Justice and Delinquency Prevention Act (JJDPA) that, among other things, limited the placement of status offenders in secure detention or correctional facilities because of concerns that the delinquency system was inappropriately treating these youth as criminal offenders. Partially due to concerns of judges, JJDPA was amended in 1980 to allow the detention of status offenders who had violated court orders such as "stop running away" or "go to school regularly." That exception, known as the Valid Court Order exception (VCO), has resulted in the detention of thousands of youth classified as status offenders. The VCO is still in effect in most states, but there are significant efforts to eliminate it if and when Congress reauthorizes the JJDPA, which it has not done since (More) SB 1296 (Leno) PageJ 2002. There are good reasons for this, and there are positive developments in this area. . . . (R)esearch shows that responses such as secure detention of status offenders is ineffective and potentially dangerous. Rather than punish them, youth, particularly status offenders, are better served by being diverted from the justice system. When you couple that with community programs that include engagement of youth and their families as well as programs designed to meet their specific needs, the chances of achieving positive outcomes for youth and their communities are greatly enhanced. . . .<4> In a policy brief released last month, the Texas Public Policy Foundation reported that as of 2011 (the most recently available data), California was one of more than 33 states that authorized the secured detention of status offenders for the violation of a court order. Characterizing these violations as a tool to "criminalize status offenses," the brief explained in part: The treatment of status offenders was complicated by a 1980 congressional amendment to the JJDP Act regarding valid court orders imposed on status offenders. The 1980 amendment enabled judges to confine status offenders in secure detention facilities for limited periods of time and to adjudicate a status offender as a delinquent if the status offender was found to violate a VCO. The amendment was originally intended to address concerns that the USDOJ's Deinstitutionalization of Status Offenders mandate was depriving judges of a tool they needed to handle status offenders. The bottom line of the exception, however, is that it created a mechanism for judges to criminalize status offenses. As of 2011, the year of the most-recent nationwide data on youth confinement, more than 60 percent of the states (33) permitted their juvenile courts to use the VCO exception for all ---------------------- <4> Nash, Improving the Court's Response to Status Offenders, Oct. 14, 2013 (http://jjie.org/op-ed-improving-the-courts-response-to-status-of fenders/.) (More) SB 1296 (Leno) PageK status offenses, down from 36 states in 2001. [fn.: ". . . 16 states in which secure detention of status offenders were prohibited included: Connecticut, Delaware, Iowa, Maryland, Massachusetts, Minnesota, Montana, New Hampshire, New Jersey, New Mexico, New York, Pennsylvania, Rhode Island, Utah, Vermont, and West Virginia. . . ."]<5> A court of appeal decision published last fall clearly explains how California courts have contended with the issue of sanctioning noncompliant truants with secured detention: The Legislature has expressly limited the power of the juvenile court to order the secure confinement of section 601 wards. As relevant to truancy wards, . . . "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." Section 207, subdivision (a) applies more generally to all section 601 wards and provides in relevant part that "[n]o minor shall be detained in any jail, lockup, juvenile hall, or other secure facility who is taken into custody solely upon the ground that he or she is a person (More) ---------------------- <5> Kids Doing Time for What's Not a Crime: The Over-Incarceration of Status Offenders, (March 2014) The Texas Public Policy Foundation (http://www.texaspolicy.com/sites/default/files/documents/2014-03 -PP12-JuvenileJustice StatusOffenders-CEJ-DerekCohenMarcLevin.pdf); See also, Szymanski, What is the Valid Court Order Exception to Secure Detention for Status Offenders? (May 2011) Nat'l Center for Juvenile Justice (http://www.ncjj.org/pdf/ Snapshots/2011/vol16_no5_What%20is%20the%20Valid%20Court%20Order% 20Exception%20to%20Secure%20Detention%20for%20Status%20Offenders. pdf.) described by Section 601 or adjudged to be such or made a ward of the juvenile court solely upon that ground ? ." Section 207, subdivision (b) provides time-limited exceptions to the prohibition against secure confinement of section 601 wards in order to determine if there are any outstanding warrants or holds against the minor or to locate the minor's parents. . . . In Michael G., supra, 44 Cal.3d at page 287, our Supreme Court considered whether a contemptuous section 601 ward may be confined in a secure facility during non-school hours despite the express limitations on secure confinement of status offenders in sections 207 and 601. The court held that "a juvenile court retains the authority, pursuant to its contempt power, to order the secure, non-school hours confinement of a contemptuous section 601 ward." (Michael G., supra, at p. 287.) Although the court concluded that the statutory limitations in sections 207 and 601 did not deprive the court of its inherent power to punish a contemptuous section 601 ward with secure confinement during non-school hours, it recognized that "respect for the intent of our coequal branch of government demands that courts exercise caution when imposing such sanctions against contemptuous status offenders." (Michael G., supra, at p. 296.) In furtherance of the goal of exercising caution in contempt proceedings against status offenders, the Michael G. court adopted additional requirements that must be satisfied before a juvenile court may find a section 601 ward in contempt. . . . First, a juvenile court must ensure that the ward "is given sufficient notice to comply with the order and understands its provisions." Second, the violation must be egregious. "The requirement of an egregious violation ensures that secure incarceration will not become a commonplace sanction in contravention of the Legislature's intent to comply with the federal mandate to deinstitutionalize status offenders." (More) SB 1296 (Leno) PageM Third, the juvenile court must have considered less restrictive alternatives and found them to be ineffective. Fourth, the confinement conditions ordered by the court must ensure that the contemptuous section 601 ward is not allowed to intermingle with section 602 wards. (44 Cal.3d at pp. 297, 300.) . . . By (also) requiring express findings, the Michael G. court ensured "the court is aware that, by ordering the secure confinement of a juvenile who has not committed a criminal offense, it is taking the extraordinary step of acting contrary to the wishes of the Legislature but is justified in doing so because it is convinced there is no other alternative which will adequately serve the purpose of the contempt citation." . . . . . . (T)he court's inherent power to punish contempt is tempered by reasonable procedural safeguards enacted by the Legislature in Code of Civil Procedure section 1209 et seq. . . . In Michael G., the court went to great lengths to caution against making the secure confinement of section 601 wards a commonplace occurrence, going so far as to impose additional requirements upon a juvenile court that may be considering holding a status offender in contempt of court. . . . The court did not suggest these requirements were imposed in lieu of the contempt provisions of the Code of Civil Procedure. Indeed, given the court's cautious approach and reference to the "extraordinary step of acting contrary to the wishes of the Legislature" concerning the incarceration of status offenders, it is difficult to conceive that the Michael G. court envisioned stripping section 601 wards of the procedural safeguards contained in the Code of Civil Procedure. A fair reading of Michael G. suggests that a juvenile court must comply with the contempt provisions of the Code of Civil Procedure as well as the additional requirements specified by the Michael G. court. The Attorney General contends the Supreme Court in Michael G. permitted the confinement of a contemptuous SB 1296 (Leno) PageN section 601 ward without requiring compliance with the Code of Civil Procedure. We disagree with the Attorney General's characterization of the case. As we have discussed, while it is true the court did not specifically address whether the juvenile court had to comply with the Code of Civil Procedure, the court assumed the contempt provisions of the Code of Civil Procedure apply to contempt proceedings under Welfare and Institutions Code section 213. (In re M.R. (2013) Cal.App.4th 49, 59-62 (some citations omitted). 3. Data: Truancy in California Based on the most recent information available on the Department of Justice's website - for the year 2011 -- of the 21,827 status offense arrests reported in California, 5,423 - 24.8 percent - were for truancy. Juveniles in the 12-14 age group were more likely to be arrested on a truancy violation than any other age group (27.5 percent). Hispanic juveniles were more likely to be arrested for truancy violations compared to any other race/ethnic group (28.4 percent). In 2011, of the 16,357 petitioned status offenses reported, 2.5 percent (408) were for truancy.<6> *************** --------------------------- <6> 2011 Juvenile Justice in California, California Dept. of Justice.