BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 703 Hearing Date: June 9, 2015
-----------------------------------------------------------------
|Author: |Bloom |
|-----------+-----------------------------------------------------|
|Version: |April 13, 2015 |
-----------------------------------------------------------------
-----------------------------------------------------------------
|Urgency: |No |Fiscal: |Yes |
-----------------------------------------------------------------
-----------------------------------------------------------------
|Consultant:|AA |
| | |
-----------------------------------------------------------------
Subject: Juveniles: Attorney Qualifications
HISTORY
Source: East Bay Children's Law Offices; Youth Law Center
Prior Legislation:SB 166 (Liu) - 2013, held on suspense in
Senate Appropriations
SB 988 (Liu) - 2013, held on suspense in Senate
Appropriations
Support: American Civil Liberties Union of California; The
Anti-Recidivism Coalition; California Public Defenders
Association; California State PTA; Children's Advocacy
Institute; Children's Defense Fund - California;
Children Now; Judicial Council of California; League
of Women Voters' of California; National Alliance on
Mental Illness; National Center for Lesbian Rights;
Office of the Sacramento County Public Defender;
Pacific Juvenile Defender Center; Public Defender of
the City and County of San Francisco
Opposition:None Known
Assembly Floor Vote: 78 - 0
AB 703 (Bloom ) PageB
of?
PURPOSE
The purpose of this bill is to 1) establish specified
requirements for attorneys appointed to represent minors in the
juvenile justice system, and 2) require the Judicial Council to
establish minimum hours of training and education necessary in
order to be appointed as counsel in delinquency proceedings by
July 1, 2016, as specified.
Current law provides that minors under the age of 18 years may
be adjudged to be a ward of the court where they "persistently
or habitually refuse to obey the reasonable and proper orders or
directions of his or her parents, guardian, or custodian," are
"beyond the control of that person," "violated any ordinance of
any city or county of this state establishing a curfew based
solely on age . . . ," or are habitually truant, as specified.
(Welfare and Institutions Code ("WIC") § 601.)
Current law further provides that minors under the age of 18
years may be adjudged to be a ward of the court for violating
"any law of this state or of the United States or any ordinance
of any city or county of this state defining crime," as
specified. (WIC § 602.)
Current law generally provides that when a minor is adjudged a
ward of the court on the ground that he or she is delinquent -
delinquency generally pertaining to the status and criminal
conduct described above - the court may make any and all
reasonable orders for the care, supervision, custody, conduct,
maintenance, and support of the minor, including medical
treatment, subject to further order of the court, as specified.
(WIC § 727(a).)
Current law requires that counsel appointed in a dependency case
"shall have a caseload and training that ensures adequate
representation of the child. The Judicial Council shall
promulgate rules of court that establish caseload standards,
training requirements, and guidelines for appointed counsel for
children . . . ." (WIC § 317(c); See also California Rule of
AB 703 (Bloom ) PageD
of?
Court 5.660(d)<1>.)
This bill would require that counsel appointed to represent
youth in delinquency proceedings, as specified (Sections 601 and
602), shall do all of the following:
1) Provide effective, competent, diligent, and
conscientious advocacy and make rational and informed
decisions founded on adequate investigation and
preparation.
2) Provide legal representation based on the client's
expressed interests, and maintain a confidential
relationship with the minor.
3) Confer with the minor prior to each court hearing, and
have sufficient contact with the minor to establish and
maintain a meaningful and professional attorney-client
relationship, including in the post dispositional phase.
4) When appropriate, delinquency attorneys should consult
with social workers, mental health professionals,
educators, and other experts reasonably necessary for the
preparation of the minor's case, and, when appropriate,
seek appointment of those experts pursuant to Sections 730
and 952 of the Evidence Code.
This bill would provide that nothing in its provisions shall be
construed to modify the role of counsel pursuant to subdivision
(b) of Section 657 (relating to a minor admitting in a detention
---------------------------
<1> California Rule of Court 5.660(d) provides: "(d) Competent
counsel () Every party in a dependency proceeding who is
represented by an attorney is entitled to competent counsel.
(1) Definition. "Competent counsel" means an attorney who is a
member in good standing of the State Bar of California, who has
participated in training in the law of juvenile dependency, and
who demonstrates adequate forensic skills, knowledge and
comprehension of the statutory scheme, the purposes and goals of
dependency proceedings, the specific statutes, rules of court,
and cases relevant to such proceedings, and procedures for
filing petitions for extraordinary writs. (2) Evidence of
competency. The court may require evidence of the competency of
any attorney appointed to represent a party in a dependency
proceeding. (3) Experience and education. Only those attorneys
who have completed a minimum of eight hours of training or
education in the area of juvenile dependency, or who have
sufficient recent experience in dependency proceedings in which
the attorney has demonstrated competency, may be appointed to
represent parties. In addition to a summary of dependency law
and related statutes and cases, training and education for
attorneys must include information on child development, child
abuse and neglect, substance abuse, domestic violence, family
reunification and preservation, and reasonable efforts. Within
every three years attorneys must complete at least eight hours
of continuing education related to dependency proceedings. (4)
Standards of representation. Attorneys or their agents are
expected to meet regularly with clients, including clients who
are children, regardless of the age of the child or the child's
ability to communicate verbally, to contact social workers and
other professionals associated with the client's case, to work
with other counsel and the court to resolve disputed aspects of
a case without contested hearing, and to adhere to the mandated
timelines. The attorney for the child must have sufficient
contact with the child to establish and maintain an adequate and
professional attorney-client relationship. The attorney for the
child is not required to assume the responsibilities of a social
worker and is not expected to perform services for the child
that are unrelated to the child's legal representation. (5)
Attorney contact information. The attorney for a child for whom
a dependency petition has been filed must provide his or her
contact information to the child's caregiver no later than 10
days after receipt of the name, address, and telephone number of
the child's caregiver. If the child is 10 years of age or
older, the attorney must also provide his or her contact
information to the child for whom a dependency petition has been
filed no later than 10 days after receipt of the caregiver's
contact information. The attorney may give contact information
to a child for whom a dependency petition has been filed who is
under 10 years of age. (6) Caseloads for children's attorneys.
The attorney for a child must have a caseload that allows the
attorney to perform the duties required by section 317(e) and
this rule, and to otherwise adequately counsel and represent the
child. To enhance the quality of representation afforded to
children, attorneys appointed under this rule must not maintain
a maximum full-time caseload that is greater than that which
allows them to meet the requirements stated in (3), (4), and
(5)."
AB 703 (Bloom ) PageE
of?
hearing to the allegations of a petition and waiving the
jurisdictional hearing).
This bill would require the Judicial Council, by July 1, 2016
and in consultation and collaboration with delinquency defense
attorneys, judges and other justice partners including child
development experts, to adopt rules of court to do all of the
following:
1) Establish minimum hours of training and education, or
sufficient recent experience in delinquency proceedings in
which the attorney has demonstrated competence, necessary
in order to be appointed as counsel in delinquency
proceedings. Training hours that the State Bar has
approved for Minimum Continuing Legal Education (MCLE)
credit shall be counted toward the MCLE hours required of
all attorneys by the State Bar.
2) Establish required training areas that may include, but
are not limited to, an overview of juvenile delinquency law
and procedure, child and adolescent development, special
education, competence and mental health issues, counsel's
ethical duties, advocacy in the post dispositional phase,
appellate issues, direct and collateral consequences of
court involvement for a minor, and securing effective
rehabilitative resources.
3) Encourage public defender offices and agencies that
provide representation in proceedings under Sections 601
and 602 to provide training on juvenile delinquency issues
that the State Bar has approved for MCLE credit.
4) Provide that attorneys practicing in juvenile
delinquency courts shall be solely responsible for
compliance with the training and education requirements
adopted pursuant to this section.
This bill contains uncodified legislative findings and
declarations concerning the complexity of representing minors in
the juvenile justice system and the importance of ensuring
competent legal representation in delinquency proceedings, as
specified.
AB 703 (Bloom ) PageF
of?
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past eight years, this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
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.
In February of this year the administration reported that as "of
February 11, 2015, 112,993 inmates were housed in the State's 34
adult institutions, which amounts to 136.6% of design bed
capacity, and 8,828 inmates were housed in out-of-state
facilities. This current population is now below the
court-ordered reduction to 137.5% of design bed capacity."(
Defendants' February 2015 Status Report In Response To February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).
While significant gains have been made in reducing the prison
population, the state now must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
AB 703 (Bloom ) PageG
of?
Whether a proposal erodes a measure which has
contributed to reducing the prison population;
Whether a proposal addresses a major area of public
safety or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1.Stated Need for This Bill
The author states:
Juvenile delinquency practice is a specialty area of
the law, with its own ethical duties, procedures,
timelines, and case law. It requires counsel to be
knowledgeable in traditional criminal law, but also in
adolescent development and rehabilitative services.
Although young people in juvenile delinquency
proceedings have the right to be represented by
competent legal counsel, close to half of California
delinquency defense counsel begin their practice with
zero training in juvenile specific law and practice.
This results in wrongful conviction, over
incarceration, unnecessary costs in legal challenges,
and a variety of costs in relation to future
delinquency, when youth do not have their needs
addressed. Because the system depends on all players
in the court process being able to competently uphold
their part, ill-trained attorneys also harm the
integrity of the juvenile justice system. Further,
young people who are represented by such attorneys
understandably perceive the system as unfair - not the
kind of civics lesson we want them to receive.
Many of the most common mistakes made by delinquency
AB 703 (Bloom ) PageH
of?
counsel could be avoided if counsel had basic
knowledge about their ethical duties and training in
the essentials of juvenile law and procedure, how to
work with adolescents, and how to assure that their
clients receive appropriate rehabilitative services.
Dependency counsel for children are already required
to have such training, but California has not yet
assured that lawyers for youth in delinquency cases
have the requisite knowledge and skills to provide
competent representation.
This bill sets forth the basic duties of juvenile
delinquency defense counsel with respect to
representing the expressed interests of the client,
confidentiality, investigation of the case, use of
experts, and maintenance of an ongoing relationship
with the client. The bill also requires the Judicial
Council, by July 1, 2016, to establish minimum hours
of training and education necessary to be appointed as
counsel in delinquency proceedings, required training
areas, and provisions for exemption of experienced
attorneys. The required training will count toward
the State Bar required continuing legal education
requirements that California attorneys must complete.
This is a modest change that will vastly improve
current practice in the state and help to ensure the
integrity of the juvenile justice system.
2.Background: Delinquency Proceedings; Attorney Training and
Education
In 2010, 185,867 juveniles were arrested in California. Of
those, over 95,000 were referred to the juvenile court for
disposition.<2>
In April of 2008, the Administrative Offices of the Court
released its Juvenile Delinquency Court Assessment. With
respect to attorneys practicing before the juvenile court, the
report concluded in part:
Results from both surveys indicate that many
----------------------
<2> Juvenile Justice in California 2010 (California Dept. of
Justice) (http://ag.ca.gov/cjsc/publications/misc
/jj10/preface.pdf?).
AB 703 (Bloom ) PageI
of?
prosecutors and defense attorneys are new to juvenile
delinquency. This is particularly true for
prosecutors and public defenders; many are in their
first juvenile delinquency assignment and few reported
having prior professional roles in the juvenile
system. These findings may raise some concerns
regarding the general lack of experience of some
attorneys working in the juvenile delinquency courts.
In describing the qualifications for prosecutors, the
National Prosecution Standards . . . on the Standards
for Juvenile Justice recommends that training and
experience should be required for handling juvenile
delinquency cases and that entry-level attorneys
working in juvenile delinquency should receive
training related to juvenile matters. According to
the National Juvenile Defender Center's Principles in
Practice, legal representation of children is
considered to be a specialized area that requires
ongoing, delinquency-specific training. Although no
specific recommendation is made regarding the level of
expertise necessary for juvenile delinquency
attorneys, the principles do state that new defenders
should be supervised by more experienced attorneys to
ensure high-quality legal work and manageable
caseloads.
Given the complexity and the unique nature of the
juvenile delinquency court setting, having
experienced, well-trained attorneys is critical in
order to ensure the fair processing of delinquency
cases and quality representation for youth who enter
the delinquency system. The fact that there are many
professionals who are new to the delinquency system
indicates the importance of early training when first
entering a juvenile delinquency assignment. Training,
along with other practices that allow for attorneys
with delinquency-related experience to handle or
supervise delinquency cases, should be encouraged by
district attorneys' and public defenders' offices.<3>
As part of this report, the Family and Juvenile Law Advisory
---------------------------
<3> Juvenile Delinquency Court Assessment: Attorney Report
(AOC, April 2008) (http://www.courts.ca.gov/
documents/JDCA2008V2Ch4.pdf.)(Footnotes omitted).
AB 703 (Bloom ) PageJ
of?
Committee recommended that judicial officers, attorneys, and
probation should be adequately trained and educated to
understand the myriad issues in delinquency court and the
importance of the work.<4>
A law review article<5> published in 2012 addressed the
quality of counsel in delinquency cases, and argues for the
type of minimum education and training standards proposed by
this bill. The article states in part:
The quality of legal representation plays a critical
role in assuring justice for individual youth,
reducing the societal costs of juvenile crime, and
assuring the integrity of the justice system. With so
much at stake, youth need legal assistance that is
knowledgeable, skilled and zealous. Delinquency
representation requires a complex set of specialized
skills that includes knowledge of criminal and
juvenile law, juvenile court procedure, trial and
appellate skills, adolescent development, juvenile
adjudicative competence, rehabilitative services, and
collateral consequences of court involvement. The
systems providing appointed counsel for young people
in juvenile proceedings must be designed to provide
this specialized legal representation.
Research into appointed counsel contracts in
California reveals a disappointing lack of attention
into these basic components of delinquency
representation. The prevalent use of generic
contracts for multiple kinds of cases means that cases
are regularly handled without reference to critical
issues such as post-disposition representation. The
failure of many contracts to include qualifications
for employment represents a missed opportunity for
contracting agencies to obtain experienced,
well-trained counsel and to provide ongoing training
requirements and quality assurance. More importantly,
counsel appointed under these contracts are left with
----------------------
<4> Juvenile Delinquency Court Assessment 2008 (AOC, Center for
Families, Children & the Courts), p. 8
(http://www.courts.ca.gov/documents/JDCA2008V1Full.pdf).
<5> The article is written by a Staff Attorney at the Youth Law
Center, a co-sponsor of this bill.
AB 703 (Bloom ) PageK
of?
little idea of what is expected of them, and no basis
from which to negotiate resources and conditions of
employment that are needed to provide competent
representation. The contracts also provide a window
into troubling deficiencies with respect to
compensation, oversight, and lack of independence for
appointed counsel.
Competent representation is most likely to occur if
appointed counsel contracts include the elements that
make juvenile delinquency representation its own
specialty, and provide adequate compensation for each
element. Appointed counsel systems are most likely to
uphold the right to competent delinquency
representation if attorneys are experienced and
properly trained. The integrity of the system is most
likely to be protected if appointed counsel systems
operate independently and have meaningful oversight.
By including delinquency-specific ethical
requirements, scope of work, experience, training,
compensation, quality assurance and oversight, and
independence of the appointment system, contracts will
help to ensure that youth are represented by qualified
counsel who know what is expected and that counsel are
compensated for providing the full range of services
required for competent representation. In this way,
both the parties to the contract, and the youth whose
lives are in the balance, will receive the benefit of
the bargain.<6>
According to an article in the Los Angeles Times last year, a
Loyola Law School report released in 2013 analyzed about 3,000
Los Angeles County juvenile cases and concluded that, on
average, youths represented by panel attorneys got more severe
convictions and heavier sentences than those represented by
public defenders. "The researchers also found that public
defenders were more active than panel attorneys in filing
motions, bringing in experts and seeking pretrial release of
their clients." Advocates for youth attribute the discrepancy
in quality, among other things, to greater experience and
---------------------------
<6> Burrell, Contracts for Appointed Counsel in Juvenile
Delinquency Cases: Defining Expectations (Winter 2012) UC Davis
Journal of Juvenile Law & Policy Vol. 16:1.
AB 703 (Bloom ) PageL
of?
training of attorneys working in the public defender's office
and flat fees for panel attorneys, which according to critics,
result in a disincentive to investigate cases and file motions.
(http://articles.latimes.com/2014/feb/11/local/
la-me-juvenile-defense-20140212)
Low-quality legal representation in juvenile delinquency cases
has a disproportionately negative impact on economically
disadvantaged families and communities of color. According to
the author:
In 2013, there were 58,001 juvenile court petitions filed
in California, and youth in 43,198 (92%) of those petitions
were represented by a court appointed attorney. That
number includes 31,489 represented by a public defender,
and 11,709 by other appointed counsel. (Source: Juvenile
Justice in California 2013, California Department of
Justice, Criminal Justice Statistics Center, Table 20.)
Of the 43,198 cases in which youth were represented by
appointed counsel in 2013, fully 35,618 involved youth who
are Black, Latino or of other non-white race/ethnicity.
(Source: Juvenile Justice in California 2013, California
Department of Justice, Criminal Justice Statistics Center,
Table 20.)
3.Prior Legislation
SB 988 (Liu) in 2012 required defense attorneys in delinquency
cases to have a minimum of 8 hours of continuing education.
This bill passed this Committee (5-1) and was held on suspense
in Senate Appropriations. SB 166 (Liu) in 2013 required the
Judicial Council to establish minimum training and education
standards for attorneys in juvenile delinquency cases. This
bill passed this Committee (5-1) and also was held on suspense
in Senate Appropriations.
AB 703 (Bloom ) PageM
of?
-- END -