BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    SB 1004       Hearing Date:    April 12, 2016    
          
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          |Author:    |Hill                                                 |
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          |Version:   |March 28, 2016                                       |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|AA                                                   |
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                   Subject:  Transitional Youth Diversion Program



          HISTORY

          Source:   Author

          Prior Legislation:None

          Support:  California Police Chiefs Association; California  
                    Public Defenders Association Chief Probation Officers  
                    of California

          Opposition:Pacific Juvenile Defender Center

                                       PURPOSE


          The purpose of this bill is to authorize specified counties to  
          establish a 3-year deferred entry of judgment pilot program  
          under which young adults (18-20) convicted of non-violent,  
          non-serious and non-sex crimes and who are otherwise suitable  
          would serve their custodial time in a juvenile hall instead of a  
          jail, as specified.

          Existing law includes various diversion and deferred entry of  
          judgment programs under which a person arrested for and charged  
          with a crime is diverted from the prosecution system and placed  








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          in a program of rehabilitation or restorative justice. Upon  
          successful completion of the program, the charges and underling  
          arrest are deemed to not have occurred, with specified  
          exceptions. Generally, deferred entry of judgment programs are  
          created and run at the discretion of the district attorney.   
          (See Penal Code § 1000.)  Pre-plea, true drug diversion programs  
          are implemented upon the agreement of the district attorney, the  
          court and the public defender. Some examples of these provisions  
          are:

                 Post-plea deferred entry of judgment (Penal Code §  
               1000);
                 Pre-plea diversion for drug possession. (Pen. Code  
               1000.5);
                 Misdemeanor diversion, excluding driving under the  
               influence, crimes requiring registration as a sex offender,  
               crimes involving violence, as specified (Pen. Code §§ 1001,  
               1001.50-1001.55.) ; and
                 Bad check diversion. (Pen. Code §1001.60.)


          Existing law provides that when "any person under 18 years of  
          age is detained in or sentenced to any institution in which  
          adults are confined, it shall be unlawful to permit such person  
          to come or remain in contact with such adults.

               (b) No person who is a ward or dependent child of the  
               juvenile court who is detained in or committed to any  
               state hospital or other state facility shall be  
               permitted to come or remain in contact with any adult  
               person who has been committed to any state hospital or  
               other state facility as a mentally disordered sex  
               offender under the provisions of Article 1 (commencing  
               with Section 6300) of Chapter 2 of Part 2 of Division  
               6, or with any adult person who has been charged in an  
               accusatory pleading with the commission of any sex  
               offense for which registration of the convicted  
               offender is required under Section 290 of the Penal  
               Code and who has been committed to any state hospital  
               or other state facility pursuant to Section 1026 or  
               1370 of the Penal Code.

               (c) As used in this section, "contact" does not  
               include participation in supervised group therapy or  









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               other supervised treatment activities, participation  
               in work furlough programs, or participation in  
               hospital recreational activities which are directly  
               supervised by employees of the hospital, so long as  
               living arrangements are strictly segregated and all  
               precautions are taken to prevent unauthorized  
               associations.  (WIC § 208.)

          Existing law provides that "(a) Notwithstanding any other law,  
          in any case in which a minor who is detained in or committed to  
          a county institution established for the purpose of housing  
          juveniles attains 18 years of age prior to or during the period  
          of detention or confinement he or she may be allowed to come or  
          remain in contact with those juveniles until 19 years of age, at  
          which time he or she, upon the recommendation of the probation  
          officer, shall be delivered to the custody of the sheriff for  
          the remainder of the time he or she remains in custody, unless  
          the juvenile court orders continued detention in a juvenile  
          facility. If continued detention is ordered for a ward under the  
          jurisdiction of the juvenile court who is 19 years of age or  
          older but under 21 years of age, the detained person may be  
          allowed to come into or remain in contact with any other person  
          detained in the institution subject to the requirements of  
          subdivision (b). The person shall be advised of his or her  
          ability to petition the court for continued detention in a  
          juvenile facility at the time of his or her attainment of 19  
          years of age. Notwithstanding any other law, the sheriff may  
          allow the person to come into and remain in contact with other  
          adults in the county jail or in any other county correctional  
          facility in which he or she is housed.

               (b) The county shall apply to the Corrections  
               Standards Authority for approval of a county  
               institution established for the purpose of housing  
               juveniles as a suitable place for confinement before  
               the institution is used for the detention or  
               commitment of an individual under the jurisdiction of  
               the juvenile court who is 19 years of age or older but  
               under 21 years of age where the detained person will  
               come into or remain in contact with persons under 18  
               years of age who are detained in the institution. The  
               authority shall review and approve or deny the  
               application of the county within 30 days of receiving  
               notice of this proposed use. In its review, the  









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               authority shall take into account the available  
               programming, capacity, and safety of the institution  
               as a place for the combined confinement and  
               rehabilitation of individuals under the jurisdiction  
               of the juvenile court who are over 19 years of age and  
               those who are under 19 years of age.  (WIC § 208.5.)

          This bill would enact a deferred entry of judgment program for  
          certain young adult offenders entitled the "Transitional Youth  
          Diversion Program" ("program"), with the following features and  
          requirements.

          Permissive Juvenile Hall Pilot Program in Specified Counties

          This bill would provide that the following counties may  
          establish a pilot juvenile hall program "to operate a  
          transitional youth diversion program for eligible defendants,"  
          as specified below:

             (1)  County of Alameda.

             (2)  County of Butte.

             (3)  County of Napa.

             (4)  County of Nevada.

             (5)  County of Santa Clara.

          Eligibility: Ages 18 - 20, Qualified Offenses, Guilty Plea, and  
          Suitability 

          This bill would provide that a "defendant may participate in a  
          transitional youth diversion program within the county's  
          juvenile hall if that person is charged with committing an  
          offense, other than the offenses listed (below), he or she  
          pleads guilty to the charge or charges, and the probation  
          department determines that the person meets all of the following  
          requirements:

             (1)  Is 18 years of age or older, but under 21 years of age  
               on the date the offense was committed.

             (2)  Is suitable for the program after evaluation using a  









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               risk assessment tool, as specified.

             (3)  Shows the ability to benefit from services generally  
               reserved for delinquents, including, but not limited to,  
               cognitive behavioral therapy, other mental health services,  
               and age-appropriate educational, vocational, and  
               supervision services, that are currently deployed under the  
               jurisdiction of the juvenile court.

             (4)  Meets the rules of the juvenile hall.

             (5)  Does not have a prior or current serious or violent  
               offense conviction, as specified.

             (6)  Is not required to register as a sex offender.

          This bill would require probation, in consultation with the  
          superior court, district attorney, and sheriff or other operator  
          of the county jail, to develop an evaluation process using a  
          risk assessment tool to determine eligibility for the program.

          Ineligible Offenses and Sentences

          This bill would provide that the "commission by the defendant of  
          one or more of the following offenses makes him or her not  
          eligible for the program:

             (1)  A "serious" felony, as defined in Penal Code section  
               1192.7(c).

             (2)  A "violent" felony, as defined in Penal Code section  
               667.5(c).

             (3)  A serious or violent crime as defined in juvenile law,  
               WIC section 707(b).

          This bill would provide that the program would apply "to a  
          defendant that would otherwise serve time in custody in a county  
          jail. Participation in a program pursuant to this section shall  
          not be authorized as an alternative to a sentence involving  
          community supervision."

          Deferred Entry of Judgment if Defendant Agrees to Participate in  
          the Program









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          This bill would require the court to "grant deferred entry of  
          judgment if an eligible defendant consents to participate in the  
          program, waives his or her right to a speedy trial or a speedy  
          preliminary hearing, pleads guilty to the charge or charges, and  
          waives time for the pronouncement of judgment."

          Standard Criminal Proceedings if Defendant is not Diverted to  
          the Program

          This bill would provide that if the probation officer determines  
          that the defendant is not eligible for, or does not consent to  
          participating in the program, the proceedings shall continue as  
          in any other case.

          Return to Court if Probation Concludes Defendant Performing  
          Unsatisfactorily

          This bill would provide that, it "it appears to the probation  
          department that the defendant is performing unsatisfactorily in  
          the program as a result of the commission of a new crime or the  
          violation of any of the rules of the juvenile hall or that the  
          defendant is not benefiting from the services in the program,  
          the probation department may make a motion for entry of  
          judgment. After notice to the defendant, the court shall hold a  
          hearing to determine whether judgment should be entered. If the  
          court finds that the defendant is performing unsatisfactorily in  
          the program or that the defendant is not benefiting from the  
          services in the program, the court shall render a finding of  
          guilt to the charge or charges pled, enter judgment, and  
          schedule a sentencing hearing as otherwise provided in this  
          code, and the probation department, in consultation with the  
          county sheriff, shall remove the defendant from the program and  
          return him or her to custody in county jail. The mechanism of  
          when and how the defendant is moved from custody in juvenile  
          hall to custody in a county jail shall be determined by the  
          local justice stakeholders."

          Dismissal of Criminal Charge(s) if Defendant Performs  
          Satisfactorily

          This bill provides that, if "the defendant has performed  
          satisfactorily during the period in which deferred entry of  
          judgment was granted, at the end of that period, the court shall  









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          dismiss the criminal charge or charges."

          Reentry Services

          This bill would require probation to "develop a plan for reentry  
          services, including, but not limited to, housing, employment,  
          and education services, as a component of the program."

          This bill would require probation to "submit data relating to  
          the effectiveness of the program to the Division of Recidivism  
          Reduction and Re-Entry, within the Department of Justice,  
          including recidivism rates for program participants as compared  
          to recidivism rates for similar populations in the adult system  
          within the county."

          No Contact with Minors

          This bill would require that a defendant participating in the  
          program "shall not come into contact with minors within the  
          juvenile hall for any purpose, including, but not limited to,  
          housing, recreation, or education."

          This bill would require that a county that establishes this  
          program "shall work with the Board of State and Community  
          Corrections to ensure compliance with requirements of the  
          federal Juvenile Justice and Delinquency Prevention Act of 1974  
          (42 U.S.C. Sec. 5601 et seq.), as amended, relating to "sight  
          and sound" separation between juveniles and adult inmates."

          Sunset

          This bill would sunset on January 1, 2020.

          Legislative Findings

          The California Constitution provides that, "(a) All laws of a  
          general nature have uniform operation.  (b) A local or special  
          statute is invalid in any case if a general statute can be made  
          applicable."  (Cal. Const., Art. IV, Sec. 16.)

          This bill contains legislative findings that "a special law is  
          necessary and that a general law cannot be made applicable  
          within the meaning of Section 16 of Article IV of the California  
          Constitution because of the unique circumstances in the Counties  









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          of Alameda, Butte, Napa, Nevada, and Santa Clara. Recent  
          research on the adolescent brain development has found that  
          brain development continues well after an individual reaches 18  
          years of age. This bill would therefore allow for the criminal  
          justice system to apply the most recent brain development  
          research to its practices in these counties by allowing certain  
          transitional age youth access to age-appropriate rehabilitative  
          services available in the juvenile justice system when an  
          assessment determines that the individual would benefit from the  
          services, with the aim of reducing the likelihood of the youth  
          continuing in the criminal justice system."

                    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  
          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  









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          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.



          COMMENTS

          1.Stated Need for This Bill

          The author states:









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               Under current law, young adult offenders convicted of  
               specified crimes serve their sentence locally in  
               county jails. But while legally they are adults, young  
               offenders age 18-21 are still undergoing significant  
               brain development and it's becoming clear that this  
               age group may be better served by the juvenile justice  
               system with corresponding age appropriate intensive  
               services. Research shows that people do not develop  
               adult-quality decision-making skills until their early  
               20's. This can be referred to as the "maturity gap."  
               Because of this, young adults are more likely to  
               engage in risk-seeking behavior which may be  
               cultivated in adult county jails where the young  
               adults are surrounded by older, more hardened  
               criminals.

               As such, in order to address the criminogenic and  
               behavioral needs of young adults, it is important that  
               age appropriate services are provided, services they  
               may not get in adult county jails. Juvenile detention  
               facilities have such services available for young  
               adults including, but not limited to, cognitive  
               behavioral therapy, mental health treatment,  
               vocational training, and education, among others.

           2.What This Bill Would Do

          As explained in detail above, this bill would authorize five  
          counties - Alameda, Butte, Napa, Nevada, and Santa Clara - to  
          operative a pilot program where certain young adult offenders  
          would serve their time in a juvenile hall instead of a jail.   
          The young adults must be under the age of 21, and not convicted  
          of a serious, violent or sex crime.  They also would have to be  
          assessed and found suitable for the program.

          As structured by the bill, this would be a deferred entry of  
          judgment program - which means while participants would have to  
          plead guilty to be eligible for the program, if they succeed in  
          the program the criminal charges would be dismissed.  Probation  
          would be required to develop a plan for reentry services,  
          including, but not limited to, housing, employment, and  
          education services, as a component of the program.  The bill has  
          a 3-year sunset.









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          Members and the author may wish to discuss why the pilots this  
          bill would authorize are limited to the five counties specified  
          in the bill.  

          3.Human Brain Development

          As noted by the author, and considered by the Committee in many  
          prior hearings on juvenile law and sentencing youthful  
          offenders, the science of adolescent brain development has  
          become very relevant in crafting state and national law and  
          policy.  With respect to the importance and progression of that  
          development, Laurence Steinberg, Ph.D., the Distinguished  
          University Professor and Laura H. Carnell Professor of  
          Psychology at Temple University and a leading expert on  
          adolescence, explained in a 2014 white paper:

               There is now incontrovertible evidence that  
               adolescence is a period of significant changes in  
               brain structure and function.   Although most of this  
               work has appeared just in the past 15 years, there is  
               already strong consensus among developmental  
               neuroscientists about the nature of these changes. And  
               the most important conclusion to emerge from recent  
               research is that important changes in brain anatomy  
               and activity take place far longer into development  
               than had been previously thought. Reasonable people  
               may disagree about what these findings may mean as  
               society decides how to treat young people, but there  
               is little room for disagreement about the fact that  
               adolescence is a period of substantial brain  
               maturation with respect to both structure and  
               function. 

               . . .  These structural and functional changes do not  
               all take place along one uniform timetable, and the  
                                                                                      differences in their timing raise two important points  
               relevant to the use of neuroscience in public policy.  
               First, there is no simple answer to the question of  
               when an adolescent brain becomes an adult brain. Brain  
               systems implicated in basic cognitive processes reach  
               adult levels of maturity by mid-adolescence, whereas  
               those that are active in self-regulation do not fully  
               mature until late adolescence or even early adulthood.  









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               In other words, adolescents mature intellectually  
               before they mature socially or emotionally, a fact  
               that helps explain why teenagers who are so smart in  
               some respects sometimes do surprisingly dumb things. 

               To the extent that society wishes to use developmental  
               neuroscience to inform public policy decisions on  
               where to draw age boundaries between adolescence and  
               adulthood, it is important to match the policy  
               question with the right science.<1>

          

          4.Opposition

          The Pacific Juvenile Defender Center, which opposes this  
          bill, argues in part:

               Though we strongly support efforts to allow  
               transitional age youth to access rehabilitative  
               services, the approach taken by SB 1004 runs counter  
               to the research that shows that incarceration and  
               detention of youth may increase recidivism and impede  
               successful life outcomes.

               The program outlined in SB 1004 is troubling primarily  
               because the program is based in a custodial setting  
               and appears to be intended for those charged with  
               misdemeanor offenses.^ Such individuals would be  
               better served by a community-based, out-of-custody  
               rehabilitation setting than an in-custody program  
               provided by probation. Studies have shown that  
               incarcerating youth can increase recidivism.^  
               Researchers have reported higher levels of substance  
               ahuse, school difficulties, delinquency, violence and  
               adjustment difficulties in adulthood for those who  
               have been treated in settings where deviant/delinquent  
               youth are brought together for treatment.'*

               ----------------------
          <1> Steinberg, Should the Science of Adolescent Brain  
          Development Inform Public Policy? (2014)  
          (https://drive.google.com/folderview?id=0B4e3FILdCIeReTNUb3M5Sk1a 
          dVU&usp=sharing&tid=0B4e3FILdCIeRVjhmX1M2SlY0YzQ









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               . . .  Of equal concern to PJDC is that the creation  
               of such a program for misdemeanants will have the  
               unintended consequence of net-widening of the criminal  
               justice system: increasing the number of incarcerated  
               individuals at a time when jurisdictions across the  
               country are turning away from incarceration as a  
               solution and pursuing community-based alternatives for  
               treatment and rehabilitation. . . . The proposed  
               legislation states that only individuals who would  
               otherwise serve time in custody are eligible for this  
               program; however, this provision alone does not  
               provide enough protection that individuals who would  
               otherwise get probation, or a minimal number of days  
               in county jail, could still he placed in this program.  
               And though the program also provides reentry services,  
               even the best-laid reentry plan often fails because of  
               the difficulties of transitioning hack to the  
               community after a period of incarceration . . .

               Lastly, this bill is troubling because this program  
               could very well have a greater impact on communities  
               of color. As it stands, African Americans and Latinos  
               make up a disproportionate percentage of drug arrests  
               and jail and prison populations. Without any  
               purposeful measures to ensure against such  
               overrepresentation by African American and Latino  
               defendants, these diversion programs could he yet  
               another reflection of that disproportionate impact.

          Members may wish to discuss these and other potential  
          unanswered concerns or details about the bill.  For  
          example: 

                   The bill provides that the pilot "applies to a  
                defendant that would otherwise serve time in custody  
                in a county jail. Participation in a program pursuant  
                to this section shall not be authorized as an  
                alternative to a sentence involving community  
                supervision."  Is this language sufficient to ensure  
                that the pilot would not increase the likelihood that  
                a youthful offender would receive a custodial  
                sanction instead of community supervision?

                   Could this pilot influence plea bargaining, and  









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                cause defendants to plead to custodial sanctions (in  
                the juvenile hall instead of the jail) which  
                otherwise may not have been part of their sentence?

                   What would be the time limits on these sentences  
                -- how long could a young adult end up serving in  
                juvenile hall? 

                   The bill is silent on oversight of these piloted  
                projects except for ensuring federal sight and sound  
                separation laws between juveniles and adults are met.  
                 Should the Board of State and Community Corrections,  
                which now inspects juvenile hall, have a stronger  
                role in inspecting these pilot programs, including to  
                ensure minors in juvenile hall are not being  
                adversely affected, even remotely, by the new  
                population of young adults? 

                   While the bill would require pilots to "submit  
                data relating to the effectiveness of the program to  
                the Division of Recidivism Reduction and Re-Entry,  
                within the Department of Justice, including  
                recidivism rates for program participants as compared  
                to recidivism rates for similar populations in the  
                adult system within the county," is this sufficient  
                to evaluate the impact of the pilot?

                                      -- END -