BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 124 Hearing Date: April 7, 2015
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|Author: |Leno |
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|Version: |January 16, 2015 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|LT |
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Subject: Juveniles: solitary confinement
HISTORY
Source: Ella Baker Center for Human Rights
Prior Legislation:SB 1363 (Yee) (2012) - failed passage, Senate
Public Safety
SB 61 (Yee) (2013) - died in the Assembly
SB 970 (Yee) (2014) - died in the Senate
Support: Youth Law Center; Legal Services for Children;
American Civil Liberties Union; Lawyers' Committee for
Civil Rights of the San Francisco Bay Area; Legal
Services for Prisoners with Children; Peace Over
Violence; GSA Network; Friends Committee on
Legislation of California; Violence Prevention
Coalition; Children Now; Fair Chance Project; Center
for Educational Excellence in Alternative Settings;
Nollie Jenkins Family Center; Wilks Law; Los Angeles
Community Action Network; American Friends Service
Committee; Californians United for a Responsible
Budget; Children's Defense Fund; Forward Together; The
W. Haywood Burns Institute; National Center for Youth
Law; National Religious Campaign Against Torture; A
New Way of Life Re-Entry Project; Urban Peace
Movement; Center on Juvenile and Criminal Justice;
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Children's Law Center of California; Resurrection
Catholic Community; Riverside Temple Beth El; Bend the
Arc for Justice; Human Rights Watch; California Civil
Liberties Council; Alameda County Board of
Supervisors; Center on Juvenile and Criminal Justice;
National Religious Campaign Against Torture; Manifest
Works; Conference of California Bar Associations;
Coalition for Engaged Education; Aptos Temple Beth El;
Fair Chance Project; Starting Over Inc.; Public
Counsel; California Council of Churches IMPACT;
California Public Defenders Association; Policy Link;
Office of Restorative Justice of the Archdiocese of
Los Angeles; Drug Policy Alliance; National
Association of Black Social Workers; Harvey Milk LGBT
Democratic Club; The Association of Black
Psychologists; California Catholic Conference, Inc.;
Rosie the Riveter High School Youth Build; Every Child
Foundation; California Immigrant Policy Center;
California Families Against Solitary Confinement;
Justice Not Jails; Prisoner Hunger Strike Solidarity;
California Attorneys for Criminal Justice; California
Alliance for Youth and Community Justice; Mental
Research Institute; Life After Uncivil Ruthless Acts;
several individuals
Opposition:California Correctional Peace Officers Association;
State Coalition of Probation Organizations; Chief
Probation Officers of California
PURPOSE
The purpose of this bill is to 1) establish standards and
protocols for the use of solitary confinement in state and local
juvenile facilities for the confinement of delinquent wards, as
specified; and 2) make changes to the composition and duties of
local juvenile justice commissions, as specified.
Existing law provides generally that the purpose of the 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
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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. If removal of a minor is determined
by the juvenile court to be necessary, reunification of the
minor with his or her family shall be a primary objective. If
the minor is removed from his or her own family, it is the
purpose of this chapter to secure for the minor custody, care,
and discipline as nearly as possible equivalent to that which
should have been given by his or her parents . . . ` . . .
Minors under the jurisdiction of the juvenile court who are in
need of protective services shall receive care, treatment, and
guidance consistent with their best interest and the best
interest of the public. Minors under the jurisdiction of the
juvenile court as a consequence of delinquent conduct shall, in
conformity with the interests of public safety and protection,
receive care, treatment, and guidance that is consistent with
their best interest, that holds them accountable for their
behavior, and that is appropriate for their circumstances . . .
(Welfare and Institutions Code ("WIC") § 202.)
Existing law 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.)
Existing law generally provides that when a minor is adjudged a
ward of the court on the ground
that he or she is delinquent, 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).)
Existing law authorizes the court to place a ward of the court
in a juvenile hall, ranch, camp, forestry camp, secure juvenile
home, or the Division of Juvenile Facilities, as specified.
(WIC§ 726.)
Confinement of Detained Minors
Existing law requires the Board of State and Community
Corrections ("BSCC") to "adopt minimum standards for the
operation and maintenance of juvenile halls for the confinement
of minors." (WIC § 210.)
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Existing law requires the BSCC to "adopt and prescribe the
minimum standards of construction, operation, programs of
education and training, and qualifications of personnel for
juvenile ranches, camps, or forestry camps . . ." (WIC § 885.)
This bill would enact new statutory provisions regulating the
use of "solitary confinement" in juvenile facilities with the
following features and requirements:
Definition and Scope
This bill would define "solitary confinement" to mean "the
placement of an incarcerated person in a locked room or cell
alone with minimal or no contact with persons other than guards,
correctional facility staff, and attorneys. Solitary
confinement does not include confinement of a person in a
single-person room or cell for brief periods of locked-room
confinement necessary for required institutional operations,
including, but not limited to, shift changes, showering, and
unit movements."
This bill would define "juvenile facility" as including any of
the following:
(1)A juvenile hall, as described in Section 850;
(2)A juvenile camp or ranch;
(3)A facility of the Department of Corrections and
Rehabilitation, Division of Juvenile Facilities;
(4)A regional youth educational facility, as specified;
(5)A youth correctional center, as specified; and
(6)Any other local or state facility used for the confinement
of minors or wards.
This bill would define "minor" to mean a person who is any of
the following:
(1)A person under 18 years of age;
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(2)A person under the maximum age of juvenile court
jurisdiction who is confined in a juvenile facility; or
(3)A person under the jurisdiction of the Department of
Corrections and Rehabilitation, Division of Juvenile
Facilities.
This bill would define "ward" to mean a person who has been
declared a delinquent ward of the court, as specified.
Limits on Solitary Confinement
This bill would provide that "solitary confinement shall not be
used for the purposes of discipline, punishment, coercion,
convenience, or retaliation by staff."
Standards for Solitary Confinement Placement and Duration
This bill would provide that a person may be held in solitary
confinement if:
(1)The person poses an immediate and substantial risk of harm to
the security of the facility;
(2)Poses an immediate and substantial risk of harm to others
that is not the result of a mental disorder; or
(3)The person poses a risk of harm to himself or herself that is
not the result of a mental disorder.
This bill would provide that "a person confined in any juvenile
facility who is a danger to himself, herself, or others as a
result of a mental disorder, or who is gravely disabled, as
specified, shall not be subject to solitary confinement and
shall be transported to, and evaluated at, a designated mental
health treatment facility, as specified.
This bill would provide that a person may only be held in
solitary confinement if all other less-restrictive options to
address the risk have been attempted and exhausted.
Standards During Solitary Confinement
This bill would provide that "solitary confinement" be done in
accordance with the following guidelines:
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(1) The person may be held in solitary confinement only for the
minimum time required to address the risk, and for a period of
time that does not compromise the mental and physical health of
the minor or ward, but not to exceed four hours. After the
person is held in solitary confinement, the person shall be
returned to regular programming or placed in individualized
programming that does not involve solitary confinement. If it
appears during the time a person is held in solitary confinement
that the person is suffering from a mental disorder, and
consultation with a qualified mental health professional
determines that it is appropriate, the person shall be
transported to a mental health facility.
(2) If a person in solitary confinement poses a risk of harm to
himself or herself that is not a result of a mental disorder,
the condition of the person shall be monitored closely by a
qualified mental health professional. If a qualified mental
health professional determines that the person cannot be safely
released from solitary confinement, the person shall be
transported to a mental health facility or hospital for the
development and implementation of an individualized suicide
crisis intervention plan.
(3) The use of consecutive periods of solitary confinement shall
be prohibited.
Documentation
This bill would require that each local and state juvenile
facility shall document the usage of solitary confinement,
including all of the following:
(1) The name of the person subject to solitary confinement;
(2) The date and time the person was placed in solitary
confinement;
(3) The date and time the person was released from solitary
confinement;
(4) The name and position of person authorizing the placement of
the person in solitary
confinement;
(5) The names of staff involved in the incident leading to the
use of solitary confinement;
(6) A description of circumstances leading to use of solitary
confinement;
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(7) A description of alternative actions and sanctions attempted
and found unsuccessful;
and,
(8) The dates and times when staff checked in on the person when
he or she was in
solitary confinement and the person's behavior during the
check.
This bill would subject these records without identifying
information to public disclosure as specified.
Miscellaneous
This bill would provide that its provisions are not intended to
limit the use of single-person rooms or cells for the housing of
persons in juvenile facilities.
This bill would provide that its provisions are not to apply to
minors or wards in court holding facilities or adult facilities.
This bill would provide that its provisions not be construed to
conflict with any law providing greater or additional
protections to minors or wards.
Local and Regional Juvenile Justice Commissions
Existing law provides that in each county there shall be a
juvenile justice commission consisting of not less than 7 and no
more than 15 citizens. Current law requires that two or more of
the members be persons who are between 14 and 21 years of age,
"provided there are available persons between 14 and 21 years of
age who are able to carry out the duties of a commission member
in a manner satisfactory to the appointing authority". (WIC §
225)
This bill would require that two or more of the members shall be
persons who are 14 to 21 years of age, inclusive; two or more of
the members to be parents or guardians of previously or
currently incarcerated youth; one member shall be a licensed
psychiatrist, licensed psychologist, or licensed clinical social
worker with expertise in adolescent development.
Existing law provides that in lieu of county juvenile justice
commissions, the board of supervisors of two or more adjacent
counties may agree to establish a regional juvenile justice
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commission consisting of not less than eight citizens.
This bill would require the regional juvenile justice commission
to consist of no less than ten members.
Existing law provides that two or more of the members shall be
persons who are between 14 and 21 years of age, provided there
are available persons between 14 and 21 years of age who are
able to carry out the duties of a commission member in a manner
satisfactory to the appointing authority.
This bill would require two or more of the members to be 14 to
21 years of age, inclusive. Two or more of the members shall be
parents or guardians of previously or currently incarcerated
youth. One member shall be a licensed psychiatrist, licensed
psychologist, or licensed clinical social worker, with expertise
in adolescent development.
Existing law provides that it shall be the duty of a juvenile
justice commission to inquire into the administration of the
juvenile court law in the county or region in which the
commission serves.
Existing law provides that a juvenile justice commission shall
annually inspect any jail or lockup within the county which in
the preceding calendar year was used for confinement for more
than 24 hours of any minor.
This bill would revise this section to expressly include a
"facility" within its scope.
This bill would revise this section to include a probation
commission as defined in WIC Section 240 to inquire into the
administration of the juvenile court law in the county or region
in which the commission serves.
Existing law provides that a "juvenile justice commission may
recommend to any person charged with the administration of any
of the provisions of this chapter such changes as it has
concluded, after investigation, will be beneficial. A
commission may publicize its recommendations."
This bill would revise this provision to authorize a juvenile
justice commission or probation commission to publicize its
recommendations on the county government's Internet Web site or
other publicly accessible medium.
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Existing law provides that counties having a population in
excess of 6,000,000 in lieu of a county juvenile justice
commission, there shall be a probation commission consisting of
no less than seven members who shall be appointed by the same
authority as that authorized to appoint the probation officer in
that county.
This bill would revise this provision so that two or more of the
members shall be 14 to 21 years of age, inclusive. Two or more
of the members shall be parents or guardians of previously or
currently incarcerated youth. One member shall be a licensed
psychiatrist, licensed psychologist, or licensed clinical social
worker with expertise in adolescent development.
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
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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:
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. Author's Amendments
The author intends to amend this bill in Committee as follows:
Revise the bill's provisions to require that if it appears
during the time a person is held in solitary confinement that
the person is suffering from a mental disorder, the juvenile
facility shall consult with a qualified mental health
professional to determine whether the person suffers from a
mental disorder. If the person suffers from a mental disorder
that may warrant a higher level of care than can be provided
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at the juvenile facility and the person continues to pose a
risk of harm, the juvenile facility shall transport the person
to a mental health facility.
Revise the bill's provisions to require that if a person in
solitary confinement poses a risk of harm to himself or
herself that is not a result of a mental disorder, the
condition of the person shall be monitored by custody staff
instead of a qualified mental health professional.
Revise the bill's provisions to add age, race, and gender to the
criteria for documentation on
the use of solitary confinement.
2. Stated Need for This Bill
The author states:
Solitary confinement is an extremely harmful measure, widely
condemned as torture, but overused in California state and local
juvenile justice systems. Without even a legal definition of
solitary confinement, local governments have no standard to
prevent abuse, related injuries or deaths, or to avoid costly
lawsuits.
In 2011, the United Nations called on all countries to ban
solitary confinement of prisoners except in exceptional
circumstances and for brief periods, with an absolute
prohibition in the case of juveniles and people with mental
disabilities. In 2013, the U.S. Senate Judiciary Subcommittee on
the Constitution, Civil Rights, and Human Rights convened the
first hearing on the use of solitary confinement in the United
States.
Despite a long standing consent decree, abuses in California
youth prisons continue. A 2011 audit found that youth were
often isolated in their cells for 23 hours a day or more.
During a 15-week period, there were 249 separate recorded
incidents of solitary confinement at five different facilities.
In one case, a youth reported receiving only one hour out of his
cell in a 10-day period. In a recent 2014 report released by
Barry Krisberg of the Warren Institute at UC Berkeley School of
Law, youth in the most restrictive program known as "Behavior
Treatment Program" were typically there for 60 days. A federal
lawsuit has been filed against Contra Costa County's juvenile
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hall for youth placed in solitary for 23 hours a day in a 12 by
12 foot cell and denied education as punishment.
Solitary confinement endangers mental health and increases risk
for suicide. Nationally, over half of the youth who committed
suicide in a correctional facility were in solitary confinement
at the time. Sixty-two percent had a history of being placed in
solitary confinement.
Six states ban solitary confinement for "punitive reasons" and
New York City has banned solitary confinement for people under
21. The federal bipartisan "Redeem Act" was introduced in the
2014 congressional session to curb the use of solitary
confinement for youth.
3. What This Bill Would Do
As explained in detail above, this bill generally addresses two
areas in the juvenile law: first, it establishes standards and
protocols for the use of solitary confinement in state and local
juvenile facilities for the confinement of minors who have been
detained or committed as juvenile offenders, as specified; and
second, it makes some changes to the composition and duties of
local juvenile justice commissions.
4. Isolating Juvenile Offenders
As noted by the author and supporters of this measure, solitary
confinement for juveniles in detention facilities raises very
serious issues. In 2005, comments on proposed revised
regulations limiting the length of time a juvenile may be placed
in isolation in New Jersey explained:
It is worth noting at the outset that the American
Correctional Association (ACA), which establishes
professional standards for adult correctional and juvenile
justice facilities, limits isolation of juveniles to a
maximum of 5 days. The ACA is a leading national
association and its standard amply supports the proposed
regulations . . . It is also noteworthy that international
law prohibits the use of isolation as a disciplinary tool,
holding that "all disciplinary measures constituting cruel,
inhuman or degrading treatment shall be strictly
prohibited, including corporal punishment, placement in a
dark cell, closed or solitary confinement or any other
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punishment that may compromise the physical or mental
health of the juvenile concerned.
As reflected in social science literature and testimony,
there is ample basis for severely limiting the use of
isolation with juveniles. Simply put, isolation is not an
evidence-based practiced. In fact, the evidence shows that
isolation causes harm to juveniles and increases the risk
of suicide.
A 2001 survey of the literature concluded that "the
research has found seclusion to be harmful to patients and
not related to positive patient outcomes . . . There is no
research to support a theoretical foundation for the use of
seclusion with children. Evidence has been building for
more than 30 years that the practice of seclusion does not
add to therapeutic goals and is in fact a method to control
the environment instead of a therapeutic intervention."
Reinforcing this point, a leading official from the Civil
Rights Division of the United States Department of Justice
has stated that "[t]he use of extended isolation as a
method of behavior control, for example, is an import from
the adult system that has proven both harmful and
counterproductive when applied to juveniles. It too often
leads to increased incidents of depression and
self-mutilation among isolated juveniles, while also
exacerbating their behavior problems. We know that the use
of prolonged isolation leads to increased not decreased,
acting out, particularly among juveniles with mental
illness.
The most dramatic potential consequence of isolation is the
increased risk of suicide. In 1999, the Office of Juvenile
Justice and Delinquency Prevention of the United States
Justice Department commissioned "the first comprehensive
effort to determine the scope and distribution of suicides
by youth in our public and private juvenile facilities
throughout the country." The study found that 50 percent
of victims were in isolation at the time of their suicide,
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and 62 percent of victims had a history of isolation.<1>
In October of last year, the American Civil Rights Union and
Human Rights Watch issued a report describing the incidence and
effects of solitary confinement concerning young people. That
report included the following information:
Experts assert that young people are psychologically unable
to handle solitary confinement with the resilience of an
adult. And, because they are still developing, traumatic
experiences like solitary confinement may have a profound
effect on their chance to rehabilitate and grow. Solitary
confinement can exacerbate, or make more likely, short and
long-term mental health problems. The most common
deprivation that accompanies solitary confinement, denial
of physical exercise, is physically harmful to adolescents'
health and well-being.
Human Rights Watch and the American Civil Liberties Union
estimate that in 2011, more than 95,000 youth were held in
prisons and jails. A significant number of these
facilities use solitary confinement-for days, weeks,
months, or even years-to punish, protect, house, or treat
some of the young people who are held there. Solitary
confinement of youth is, today, a serious and widespread
problem in the United States.
This situation is a relatively recent development. It has
only been in the last 30 years that a majority of
jurisdictions around the country have adopted various
charging and sentencing laws and practices that have
resulted in substantial numbers of adolescents serving time
in adult jails and prisons. These laws and policies have
largely ignored the need to treat young people charged and
sentenced as if adults with special consideration for their
age, development, and rehabilitative potential.<2>
5. Current Laws and Regulations - Local Facilities
---------------------------
<1>
http://www.njisj.org/document/testimonyyouthdetention-9-16-05.pdf
. (citations omitted.)
<2> ACLU and Human Rights Watch, Growing Up Locked Down: Youth
in Solitary Confinement in Jails and Prisons Across the United
States (Oct. 2012.)
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As noted above, current statute requires the BSCC to promulgate
regulations establishing minimum standards in juvenile halls.
Current regulations pertaining to the segregation of confined
minors provide:
The facility administrator shall develop written policies
and procedures concerning the need to segregate minors.
Minors who are segregated shall not be denied normal
privileges available at the facility, except when necessary
to accomplish the objectives of segregation. Written
procedures shall be developed which provide a review of all
minors to determine whether it is appropriate for them to
remain in segregation and for direct visual observation.
When segregation is for the purpose of discipline, Title
15, Section 1390 shall apply.<3>
Current regulations further provide:
The facility administrator shall develop written policies
and procedures for the discipline of minors that shall
promote acceptable behavior. Discipline shall be imposed
at the least restrictive level which promotes the desired
behavior. Discipline shall not include corporal
punishment, group punishment, physical or psychological
degradation or deprivation of the following:
(a) bed and bedding;
(b) daily shower, access to drinking fountain, toilet and
personal hygiene items, and clean clothing;
(c) full nutrition;
(d) contact with parent or attorney;
(e) exercise;
(f) medical services and counseling;
(g) religious services;
(h) clean and sanitary living conditions;
(i) the right to send and receive mail; and,
(j) education.
The facility administrator shall establish rules of conduct
and disciplinary penalties to guide the conduct of minors.
Such rules and penalties shall include both major
violations and minor violations, be stated simply and
affirmatively, and be made available to all minors.
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<3> 15 CCR § 1354.
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Provision shall be made to provide the information to
minors who are impaired, illiterate or do not speak
English.<4>
Thus, current law generally requires local juvenile detention
administrators to develop written policies and procedures for
segregating detained youth, including providing for a review to
determine whether it is appropriate for them to remain in
segregation and subject to direct visual observation.
Segregated youth cannot be denied normal privileges "except when
necessary to accomplish the objectives of segregation."
Similarly, current law requires administrators of local juvenile
facilities to develop written policies and procedures for
discipline. As described above, the regulations prohibit
corporal punishment, group punishment, physical or psychological
degradation, or deprivation of specified basic provisions.
6. Division of Juvenile Facilities
The provisions of this bill would apply to the Division of
Juvenile Facilities ("DJF"). Historically, the use of solitary
confinement in DJJ has posed significant issues and concerns.
Fifteen years ago, this Committee investigated a number of
issues relating to conditions at what was then the California
Youth Authority ("CYA"). On May 16, 2000, this Committee
conducted a joint informational hearing with the Assembly Public
Safety Committee regarding conditions at CYA. A former CYA ward
testified about his experience on "lock-down" at CYA in the
early-to-mid 1990s:
I spent ten months on the Taft lock-down unit for
assaultive wards. I was considered a threat to regular
staff. For the first month-and-a-half that I was there, I
came out of my room for one hour a day. As soon as the
shift came on, which is about 6 o'clock in the morning, I
would have my handcuffs removed out of my room to shower.
My shower would count as part of my hour, as part of my
large muscle exercise. I would sometimes have to eat in my
handcuffs in front of the TV. That would be part of my
large muscle exercise. That would be it. For a
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<4> 15 CCR 1390.
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month-and-a-half I did that.<5>
That hearing also included the following testimony from Sue
Burrell, staff attorney for the Youth Law Center:
California is completely off the charts in its use of
lockdown for kids . . . Youth Authority is one of only 4
percent of state training schools that has no limit on the
period in which kids are held in isolation.
I have had letters from kids who were, for example, in
Sacramento Hall at Chaderjian for ten months. It is not
unusual to find kids that are in for five or six months,
and many of these kids are in for reasons, such as we heard
this morning, where maybe they're a Sureño and they're in
the north or vice-versa. They wind up essentially in
protective custody, locked down 23 hours a day. They get
the wonderful educational services which are basically a
sham, to have a teacher come to the crack in your door for
ten minutes a day. You get out of your cell for maybe an
hour in which time you are required to do your showering
and your recreational exercise. And at Chaderjian, that
happens outside in a cage. And other kids are not there in
protective custody but they're there because they've messed
up in other programs. Some of the kids are in what are
called 'recalcitrant programs' but it's kind of like the
Emperor's New Clothes because there is no program. You are
basically just locked down.<6>
As part of comprehensive litigation involving conditions at DJF
which commenced in 2003 - Farrell v. Cate - DJF is required to
adopt reformed methods for dealing with containment or isolation
of wards. (See Consent Decree, Farrell v. Allen (Nov. 19, 2004)
(http://www.prisonlaw .com /pdfs/farrellcd2.pdf.); Safety and
Welfare Remedial Plan: Implementing Reform in California (July
10, 2006) http://www. prisonlaw.com/pdfs/SafetyPlanFinal.pdf.)
In her most recent (and 30th) report in the Farrell case in
November of 2014, Special Master Nancy Campbell wrote in part:
There have been significant reductions in the reliance on
solitary confinement in DJJ since 2005. The older and
discredited policy and practice of confining youth in a lockup
unit for 23 hours a day with minimal services is gone. In its
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<5> Transcript, Joint Oversight Hearing of the Senate and
Assembly Committees on Public Safety Regarding the California
Department of the Youth Authority, (May 16, 2000.)
( http://spsf.senate.ca.gov/jointinformationalhearingon
thecaliforniayouthauthoritymay162000.)
<6> Id.
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place, the DJJ has developed a range of options that constitute
a short term limitation on the program of youth who are in some
kind of crisis and who may be a danger to themselves or others.
These alternatives include a very short term "cool down period
in the youngster's room (or in a separate room) in those few
remaining dormitory units. Another option for staff is to
utilize "room confinement" in which the youth stays in their own
room, usually for less than a day. Youth needing more
specialized attention are managed in the Treatment Intervention
Program (TIP) that is designed to last only a few days.
Data on TIP for June 2014 revealed that more than half of the
youngsters assigned to this program were returned to regular
programs within one day and only 18% were in TIP for more than 3
days. Most important, the TIP program includes educational
services, mental health services and is designed to return youth
back to their regular programs as soon as possible. The goal of
TIP is not punishment, but closely monitored separation for a
very short duration to assist the youth to return to a more
appropriate program placement and treatment services. These
limited program options permitted DJJ to eliminate Temporary
Detention that had been a regular feature of past DJJ practice.
Further, these programs rely on delivery of counseling and
mental health interventions, not depravation of basic services.
Youth in TIP generally spend a large number of waking hours out
of their rooms and engaged in education, recreation and other
positive activities. This approach is consistent with the best
professional thinking and the growing literature on the harm to
adolescents of extreme isolation.
The most restrictive level of limited programming is the
Behavioral Treatment Program (BTP). These youth have engaged in
repeated and very serious disciplinary infractions. The BTP
program had 65 youngsters assigned to it in June 2014. The 22
youth in the OHCYCF BTP stayed an average of 37 days. At NACYCF
there were 15 residents of the BTP, who stayed an average of 106
days and at the VYCF there were 28 youth who stayed an average
of 106 days. These average lengths of stay figures are greatly
affected by a very small number of young people who might remain
in the BTP for a very long period. More typical BTP assignments
are for less than two months.
Before the Farrell reforms took hold, the DJJ lockup units had
as many as 400 youth on any given day and the length of stay was
at least 270 days. In the "bad old days" the lockup units
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included a wide range of youth who had engaged in serious
assaults, had defied staff orders, evidenced severe mental
health issues, or were in the lockup unit in protective custody.
The BTP is now almost reserved exclusively for very assaultive
young people and the DJJ uses its other programming options for
other young people in the BTPs markedly improved.
DJJ introduced more services, counseling and groups in the BTP
units that focused on cognitive behavioral skills, anger
management and preparation for community reentry. Staff
assigned to the BTPs have embraced its new philosophy of
increasing mental health services, improving youth communication
and conflict resolution skills, and providing opportunities for
vocational and educational achievements.
Opposition
Opponents generally argue solitary confinement of juvenile
offenders already has been adequately addressed in
California. California Correctional Peace Officers
Association, states for example:
We recognize that many parties believe that solitary
confinement was overused in the past within the
Department of the Youth Authority and the Division of
Juvenile Facilities. However those issues were
addressed by the Farrell court and subsequently by
DJJ. In our view, the DJJ has adopted a far reaching
set of policies governing the isolation of wards.
These policies are specifically designed to keep
wards safe and, when necessary, place a ward in a
treatment program run by staff who are trained in
evidence based curriculum to address the ward's
violent or aggressive behavior ? While in many
respects the apparent goals of SB 124 are similar to
the goals of the new policies, SB 124 would
complicate the operational aspects of these policies
and treatment programs. In addition, the four hour
minimums contained in the SB 124 would jeopardize the
safety and security of wards that are conforming to
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expected standards of behavior, of staff, and would
compromise the programming of the general ward
population.
Similarly, The State Coalition of Probation Organizations
submits:
Given the on-going regulation of juvenile
separation, and the need to ensure the safety of all
youth and staff, we believe that (SB 124) will
present obstacles to the effective and limited use
of separation and programming restrictions. These
restrictions will potentially compromise the health
and safety of youth and staff alike in juvenile
facilities.
Members may wish to discuss the effect of Farrell on the use of
solitary confinement in DJJ facilities, and whether Farrell
reforms have adequately addressed this issue. Similarly,
members may wish to discuss whether existing local juvenile
facility regulations adequately regulate the use and conditions
of solitary confinement in local juvenile facilities.
Local Juvenile Justice Commissions
As explained above, this bill would change the composition of
local juvenile justice commissions to include family members and
certain mental health professionals, as specified. The current
statutes only specify the inclusion of certain young people,
"provided there are available persons between 14 and 21 years of
age who are able to carry out the duties of a commission member
in a manner satisfactory to the appointing authority."
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