BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 2390 Hearing Date: June 14, 2016
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|Author: |Brown |
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|Version: |February 18, 2016 |
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|Urgency: |No |Fiscal: |No |
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|Consultant:|AA |
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Subject: Juveniles: Honorable Discharge: Release From
Penalties
HISTORY
Source: Conference of California Bar Associations
Prior Legislation:SB 81 (Committee on Budget and Fiscal Review)
(Ch. 175, Stats. 2007)AB 1628 (Committee on Budget) (Ch. 729,
Stats. 2010)
SB 1021 (Committee on Budget and Fiscal Review)
(Ch. 41, Stats. 2012)
Support: Anti-Recidivism Coalition; California Attorneys for
Criminal Justice; California Department of Justice;
California Public Defenders Association; Los Angeles
Area Chamber of Commerce; National Association of
Social Workers; California Chapter; Pacific Juvenile
Defender Center; SEIU Local 1000
Opposition:Chief Probation Officers of California
Assembly Floor Vote: 77 - 0
PURPOSE
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The purpose of this bill is to provide a mechanism for honorable
discharges for persons discharged from the Division of Juvenile
Justice, as specified.
DJJ Commitments, Discharges and Subsequent Community Supervision
Current law authorizes the commitment of a delinquent ward of
the juvenile court to the Department of Corrections and
Rehabilitation, Division of Juvenile Facilities, as specified.
(Welfare and Institutions Code [WIC] § 731.)
Current law provides that a ward of the juvenile court who meets
any condition described below shall not be committed to the
Department of Corrections and Rehabilitation, Division of
Juvenile Facilities ("DJJ"):
a) The ward is under 11 years of age.
b) The ward is suffering from any contagious, infectious,
or other disease that would probably endanger the lives or
health of the other inmates of any facility.
c) The ward has been or is adjudged a ward of the court
pursuant to Section 602, and the most recent offense
alleged in any petition and admitted or found to be true by
the court is not a serious or violent offense, as
specified. <1>This subdivision shall be effective on and
after September 1, 2007. (WIC § 733.)
Current law additionally authorizes the commitment of convicted
persons under the age of 21 under certain circumstances. (WIC §
1731.5.)
Current law provides that DJJ shall accept a ward eligible for
DJJ commitment "if the Chief Deputy Secretary for the Division
of Juvenile Justice believes that the ward can be materially
benefitted by the division's reformatory and educational
discipline, and if the division has adequate facilities, staff,
---------------------------
<1> Specifically, an offense described in subdivision (b) of
Section 707, unless the offense is a sex offense set forth in
paragraph (3) of subdivision (d) of Section 290 of the Penal
Code.
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and programs to provide that care. A ward subject to this
section shall not be transported to any facility under the
jurisdiction of the division until the superintendent of the
facility has notified the committing court of the place to which
that ward is to be transported and the time at which he or she
can be received." (WIC § 736.)
Current law authorizes the Juvenile Parole Board to do the
following:
(1) Set a date on which the ward shall be discharged from
the jurisdiction of DJJ and permitted his or her liberty
under supervision of probation and subject to the
jurisdiction of the committing court, as specified.
(2) Order his or her confinement under conditions the board
believes best designed for the protection of the public, as
limited.
(3) Discharge him or her from any formal supervision when
the board is satisfied that discharge is consistent with
the protection of the public. (WIC § 1766 (a).)
Current law provides that if the Juvenile Parole Board
determines that a ward is ready for discharge to county
supervision, the board shall set a date for discharge from the
jurisdiction of DJJ no less than 14 days after the date of such
determination. The board is required to record any postrelease
recommendations for the ward, which are sent to the committing
court responsible for setting the ward's conditions of
supervision no later than seven days from the date of such
determination. (WIC § 1766(b) (5).)
Current law requires the committing court to convene a reentry
disposition hearing for a ward once DJJ has delivered the ward
to the custody of the probation department of the committing
county, as specified. (WIC § 1766(b)(6).)
Current law provides that the county of commitment shall
supervise the reentry of any ward still subject to the court's
jurisdiction and discharged from the jurisdiction of DJJ. The
conditions of the ward's supervision shall be established by the
court, as specified. (WIC § 1766 (b).)
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Current law provides that the Department of Corrections and
Rehabilitation shall have no further jurisdiction over a ward
who is discharged by the board. (WIC § 1766(b) (7).)
Current law establishes the Youthful Offender Block Grant Fund,
under which counties receive state funding for necessary
services relating to wards released from DJJ, as specified.
(WIC § 1951 et seq.)
Honorable Discharges; This Bill
Current statute provides that when a person is paroled from DJJ
and "has proved his or her ability for honorable self-support,
the Youth Authority Board shall give him or her honorable
discharge. Any person on parole who violates the conditions of
his or her parole may be returned to the Youth Authority." (WIC
§ 1177.)
Current statute provides that DJJ "may grant honorable discharge
to any person committed to or confined in any such school. The
reason for that discharge shall be entered in the records."
(WIC § 1178.)
Current statute provides that all persons honorably discharged
from control of DJJ "shall thereafter be released from all
penalties or disabilities resulting from the offenses for which
they were committed, including, but not limited to, any
disqualification for any employment or occupational license, or
both, created by any other provision of law. However, that a
person shall not be eligible for appointment as a peace officer
employed by any public agency if his or her appointment would
otherwise be prohibited," as specified. (WIC § 1179(a).)
Current statute provides that a person may be appointed and
employed as a peace officer by DJJ "if (1) at least five years
have passed since his or her honorable discharge, and the person
has had no misdemeanor or felony convictions except for traffic
misdemeanors since he or she was honorably discharged by the
board, or (2) the person was employed as a peace officer by the
department on or before January 1, 1983. No person who is under
the jurisdiction of the department shall be admitted to an
examination for a peace officer position with the department
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unless and until the person has been honorably discharged from
the jurisdiction of the department by the Youth Authority
Board." (WIC § 1179(b).)
Current law provides that upon "the final discharge or dismissal
of any such person, (DJJ) shall immediately certify the
discharge or dismissal in writing, and shall transmit the
certificate to the court by which the person was committed. The
court shall thereupon dismiss the accusation and the action
pending against that person." (WIC § 1179(c).)
This bill would revise section 1179 (described in the last three
paragraphs) as follows:
Include persons "honorably discharged" "from the
control of the county probation department by the juvenile
court"; and
Make additional and related technical revisions to this
section.
Current law provides that except as specified, every person
honorably discharged from control by DJJ who has not, during the
period of control by DJJ, been placed by DJJ in a state prison
"shall thereafter be released from all penalties and
disabilities resulting from the offense or crime for which he or
she was committed, and every person discharged may petition the
court which committed him or her, and the court may upon that
petition set aside the verdict of guilty and dismiss the
accusation or information against the petitioner who shall
thereafter be released from all penalties and disabilities
resulting from the offense or crime for which he or she was
committed, including, but not limited to, any disqualification
for any employment or occupational license, or both, created by
any other provision of law." (WIC § 1772(a).)
Current law further provides that persons subject to this
section "shall not be eligible for appointment as a peace
officer employed by any public agency if his or her appointment
would otherwise be prohibited . . . . However, that person may
be appointed and employed as a peace officer by (DJJ) if (A) at
least five years have passed since his or her honorable
discharge, and the person has had no misdemeanor or felony
convictions except for traffic misdemeanors since he or she was
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honorably discharged by (DJJ), or (B) the person was employed as
a peace officer by (DJJ) on or before January 1, 1983. No person
who is under the jurisdiction of (DJJ) shall be admitted to an
examination for a peace officer position with the department
unless and until the person has been honorably discharged from
the jurisdiction of the Youth Authority Board." (WIC §
1772(b).)
This bill would revise this provision as follows:
Include persons "honorably discharged" "from the
control of the county probation department by the juvenile
court"; and
Make additional and related technical revisions to this
section.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past several 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 December of 2015 the administration reported that as "of
December 9, 2015, 112,510 inmates were housed in the State's 34
adult institutions, which amounts to 136.0% of design bed
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capacity, and 5,264 inmates were housed in out-of-state
facilities. The current population is 1,212 inmates below the
final court-ordered population benchmark of 137.5% of design bed
capacity, and has been under that benchmark since February
2015." (Defendants' December 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).) One
year ago, 115,826 inmates were housed in the State's 34 adult
institutions, which amounted to 140.0% of design bed capacity,
and 8,864 inmates were housed in out-of-state facilities.
(Defendants' December 2014 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 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:
" 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.
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COMMENTS
1. Stated Need for This Bill
The author states:
Among other things, AB 1628 of 2010, the Corrections
Budget Trailer Bill for that year, established
"Juvenile Parole Realignment," which shifted
responsibility for the supervision of offenders
released from state juvenile facilities from the state
Juvenile Parole Board to county probation departments.
However, the amended law failed to authorize anyone at
the local level to issue honorable discharges pursuant
to Welfare and Institutions Code §1772 and §1179.
This oversight effectively rendered inoperable the
existing "honorable discharge" program which enabled
juvenile offenders who successfully completed parole
after custody and demonstrated an "ability for
honorable self-support" to clear their records and
qualify for employment or licensure.
Courts that have confronted the issue have
acknowledged that the removal of this authority was
inadvertent, but have stated that the problem must be
fixed by corrective statutory amendment (see In re
J.S., 237 Cal.App.4th 452 (2015).
The intent of AB 2390 is to re-establish the
"honorable discharge" program by empowering counties
at the local level to grant this status, after
appropriate consideration, to juveniles who
successfully completed their supervision.
2. Background; Juvenile Justice Realignment and "Honorable
Discharge" from DJJ
In 2007, the jurisdiction of the DJJ - formerly the California
Youth Authority, now technically the Department of Corrections
and Rehabilitation, Division of Juvenile Facilities - was
narrowed to allow DJJ commitment only for delinquent wards of
the court who had been found to have committed a serious or
violent offense, as specified. As part of the broader juvenile
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justice "realignment" in California that has occurred over the
past several years, probation departments now supervise wards of
the juvenile court upon their release from DJJ. A ward
discharged from DJJ is no longer subject to the jurisdiction of
DJJ or CDCR. The county of commitment is required to supervise
the reentry of any ward who has been discharged from the
jurisdiction of DJJ and subject to the court's jurisdiction. The
conditions of the ward's supervision are established by the
court.
Prior to juvenile realignment, the Board of Parole Hearings (and
before that, the Youthful Offender Parole Board) retained
jurisdiction over a ward released from a DJJ institution during
the period of parole; DJJ parole agents supervised the ward's
parole in the community. The honorable discharge provisions
that are the subject of this bill operated at a time when DJJ
retained jurisdiction over a ward during both custody and
parole. With the passage of AB 1628 in 2010, the jurisdiction
and supervision responsibilities for wards coming out of DJJ
passed from the state to the counties and the courts once a ward
was discharged from a DJJ institution into local jurisdiction.
None of the measures enacting or revising the juvenile
realignment amended the DJJ honorable discharge statutes. These
provisions remain intact in the code, unchanged since 2004. As
explained above, this bill essentially revises some of these
provisions to include a reference to persons "honorable
discharged" from "the control of the county probation department
by the juvenile court."
The application of the DJJ honorable discharge provisions in
statute was considered by an appellate court decision issued in
June of last year. In In re J.S., 237 (2015) Cal.App.4th 452, a
DJJ ward was released after the enactment of AB 1628 in 2010.
As a result, the ward was supervised by local probation instead
of DJJ parole. The court explained, "the Board of Parole
Hearings (Board) did not, as they had been required to in the
past, make a finding upon release as to whether his discharge
from parole was honorable or otherwise." The ward petitioned
the trial court to make the honorable discharge finding in the
place of DJJ, and the court of appeal affirmed the trial court's
denial of the petition, noting its (the appellate court's)
conclusion that "the Legislature should amend the statutory
scheme to be consistent with Realignment . . . ."
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In re J.S. lays out the issue this bill attempts to address:
Prior to Realignment, once a youth completed his
commitment at the DJJ and parole period, the Board
determined his eligibility for discharge. As part of
this determination, the Board was required to give the
youth an honorable discharge where the Board found
that the "person so paroled has proved his or her
ability for honorable self-support." Otherwise, the
Board could award a general or dishonorable discharge.
If honorably discharged, a youth was automatically
entitled to release from all penalties and
disabilities resulting from the offense or crime for
which he was committed. . . . (W)hether honorably
discharged, generally discharged or dishonorably
discharged, any youth can also petition the juvenile
court to set aside the verdict of guilty and dismiss
the accusation or information against the youth, and
thereafter the youth would be eligible for release
from all penalties and disabilities.
. . .
. . . . Because DJJ-administered parole no longer
exists, the Board cannot make an honorable discharge
determination prior to release, as mandated by section
1177.
The Legislature did not repeal or amend section 1177
to make it consistent with the new local procedures.
Under the law as currently written, there is no other
entity authorized to make the honorable discharge
finding. The Legislature, in enacting Realignment,
neither set up another mechanism for determining
eligibility for honorable discharge, nor did it amend
section 1772, subdivision (a) to remove the automatic
relief provision in the statute based on such a
finding. Currently, therefore, the automatic provision
of section 1772, subdivision (a), which is triggered
by an honorable discharge finding under section 1177,
is de facto inoperable. Appellant is correct that this
appears to be an oversight by the Legislature.
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. . .
Even if we were inclined to intervene, we cannot
presume to know how the Legislature would harmonize
these statutes. In correcting this inconsistency, the
Legislature could do a number of things. It could
transfer the authority to make the honorable discharge
finding to the trial court as appellant suggests, or
it could choose to eliminate the entire concept of
honorable discharge, eliminating along with it the
automatic relief portion of section 1772, subdivision
(a). (In re J.S., supra, (citations omitted).)
3. Considerations
Members of the Committee and the author may wish to discuss
whether this bill effectively addresses the objectives of the
author and resolves the issues raised by the appellate decision
described above. As currently drafted the bill would reference
persons discharged "from the control of the county probation
department by the juvenile court" in statutory sections
pertaining to persons honorably discharged from DJJ. The
statute that authorizes an honorable discharge - which pertains
only to the "Youth Authority Board" (now, the Juvenile Parole
Board) - is not amended by this bill. Therefore, without this
section revised it is not clear that this bill would provide
authority for an honorable discharge to be granted.
Members additionally may wish to consider a number of details
relating to how honorable discharges for DJJ wards
post-realignment could be determined, including:
" Since wards discharged by DJJ are supervised in the
community by probation, should courts make honorable
discharge decisions? If so, on what basis and under what
procedure should these decisions be made? Should wards
or former wards be required to petition the court?
" Should honorable discharges be automatic, or based on
objective criteria relating to the petitioner's conduct?
Would a noticed hearing be required, or could this be
done administratively?
" Should DJJ or the Juvenile Parole Board have a role in
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the court's consideration?
" Should DJJ or the Juvenile Parole make honorable
discharge decisions? If so, could that decision be
administrative, or would it require some kind of
procedural decision-making process?
4. Support
The Anti-Recidivism Coalition, which supports this bill, states
in part:
AB 2390 aims to remove significant barriers to
successful re-entry from the lives of those honorably
discharged from The Department of Corrections and
Rehabilitation, Division of Juvenile Justice (DJJ).
This bill is in keeping with "ban the box" efforts
proliferating around the county, and would remove all
collateral consequences flowing from a juvenile
conviction, including crucial disqualifications from
employment, licensing, and housing opportunities.
Overwhelmingly, ex-offenders have tenuous
relationships to the labor market. Approximately 70%
have dropped out of high school, contributing to their
unemployability.1 Moreover, time spent incarcerated
can make the matter worse by depriving those
incarcerated the chance to develop the job skills and
social capital necessary for success in the labor
market later in life.1 These existing barriers to
employment and successful reintegration are further
exacerbated by existing policies that automatically
disqualify ex-offenders from pursuing certain
positions, acquiring licenses and even obtain stable
housing.
AB 2390 removes these obstacles. With these obstacles
removed, ARC members and many other Californians will
be able to qualify for a larger number of the type of
meaningful job opportunities that we know help drive
down recidivism rates.
5. Opposition
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The Chief Probation Officers of California, which opposes this
bill, states in part:
We appreciate the objective of this legislation and
share the intent to set forth a path for juvenile
offenders to obtain employment, education, and related
services to support their reentry and rehabilitative
efforts. However, inserting county probation
departments into a statute written for the California
Division of Juvenile Justice is very problematic from
an operational and implementation perspective.
Under AB 1628 in 2010, juvenile parole functions were
realigned to county probation. As such, these minors
have been legally converted to wards of the local
court. Therefore, the provisions of the honorable
discharge program, which were created during a time
that the DJJ had jurisdiction of juvenile parole
functions, does not reflect local practices nor does
it operationally work to fit probation and county
court procedures into existing statute. Conversely,
setting up an entirely new honorable discharge program
within each county would be costly and require a
significant amount of coordination and involvement of
the impacted stakeholders.
We very much welcome further discussions on how best
to set forth opportunities for this specific
population. However, we believe that in order to
appropriately address the intent of the bill, as well
as set up a system that would be workable, it would
require the stakeholders to have a more comprehensive,
and longer-term, discussion on how best to achieve the
desired outcomes.
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