BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    SB 1004


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          Date of Hearing:  June 28, 2016


          Counsel:               Stella Choe








                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY


                       Reginald Byron Jones-Sawyer, Sr., Chair





          SB  
                          1004(Hill) - As Amended May 31, 2016


                       As Proposed to be Amended in Committee





                                    FOR VOTE ONLY


          


          SUMMARY:  Establishes a pilot program, until January 1, 2020,  
          authorizing specified counties to operate a transitional youth  








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          diversion program whereby certain young offenders would serve  
          time in juvenile hall rather than county jail.  Specifically,  
          this bill:



          1)Authorizes the counties of Alameda, Butte, Napa, Nevada and  
            Santa Clara to operate a transitional youth diversion program.

          2)Provides that a defendant may participate in the program  
            within the county's juvenile hall if that person is charged  
            with committing a felony offense, other than the offenses  
            listed, he or she pleads guilty to the charge or charges, and  
            the probation department determines that the person meets all  
            of the following requirements:



             a)   Is 18 years of age or older, but under 21 years of age  
               on the date the offense was committed;

             b)   Is suitable for the program after evaluation using a  
               risk assessment tool, as described;



             c)   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;



             d)   Meets the rules of the juvenile hall;











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             e)   Does not have a prior or current conviction for  
               committing a violent or serious felony; and,



             f)   Is not required to register as a sex offender.



          3)Requires the probation department, in consultation with the  
            superior court, district attorney, and sheriff of the county  
            or the governmental body charged with operating the county  
            jail, to develop an evaluation process using a risk assessment  
            tool to determine eligibility for the program.

          4)Excludes defendants who commit a violent felony, serious  
            felony, or one of the offenses enumerated in existing  
            provisions of law authorizing juveniles to be tried in adult  
            court.



          5)States that the court shall 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.



          6)Provides that if the probation officer determines that the  
            defendant is not eligible for the transitional youth diversion  
            program or the defendant does not consent to participate in  
            the program, the proceedings shall continue as in any other  
            case.



          7)Authorizes the probation department to file a motion for entry  








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            of judgment if 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.



          8)States 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 dismiss  
            the criminal charge or charges.



          9)Limits the time a defendant may serve in juvenile hall to one  
            year.



          10)Requires the probation department to develop a plan for  
            reentry services, including, but not limited to, housing,  
            employment, and education services, as a component of the  
            program.



          11)States that the probation department shall 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.



          12)Prohibits defendants participating in the program from coming  
            into contact with minors within the juvenile hall for any  
            purpose.








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          13)Requires a county to apply to the Board of State and  
            Community Corrections (BSCC) for approval of a county  
            institution as a suitable place for confinement for the  
            purpose of the pilot program prior to establishing the  
            program, as specified.



          14)Requires that a county that establishes this program to work  
            with the BSCC to ensure compliance with requirements of the  
            federal Juvenile Justice and Delinquency Prevention Act  
            relating to "sight and sound" separation between juveniles and  
            adult inmates



          15)Specifies that the program applies to a defendant who would  
            otherwise serve time in custody in a county jail, and  
            participation in the program shall not be authorized as an  
            alternative to a sentence involving community supervision.



          16)Requires each county to establish a multidisciplinary team  
            that meets periodically to review and discuss the  
            implementation, practices, and impact of the program, and  
            specifies groups that shall be represented on the team.



          17)Requires a county that establishes a pilot program pursuant  
            to the provisions in this bill to submit data to BSCC and  
            requires BSCC to conduct an evaluation of the pilot program's  
            impact and effectiveness. 










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          18)Specifies that BSCC's evaluation shall include, but not be  
            limited to, evaluating each pilot program's impact on  
            sentencing and impact on opportunities for community  
            supervision, monitoring the program's effect on minors in the  
            juvenile facility, if any, and its effectiveness with respect  
            to program participants, including outcome-related data for  
            program participants compared to young adult offenders  
            sentenced for comparable crimes.



          19)Requires each evaluation to be combined into an inclusive  
            report and submitted to the Assembly and Senate Public Safety  
            Committees.



          20)Provides that BSCC may contract out to an independent entity,  
            including, but not limited to, the University of California,  
            to perform the evaluation.





          EXISTING LAW:



          1)States 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.  "Contact" does not  
            include participation in supervised group therapy or 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  








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            segregated and all precautions are taken to prevent  
            unauthorized associations.  (Welf. & Inst. Code, § 208.)

          2)Provides, 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  
            specified requirements.  (Welf. & Inst. Code, § 208.5, subd.  
            (a).)



          3)Requires the county to apply to the Corrections Standard  
            Authority [now BSCC] 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 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  








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            age.  (Welf. & Inst. Code, § 208.5, subd. (c).)



          4)Authorizes various diversion programs 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 in a program of rehabilitation or restorative  
            justice. Generally, deferred entry of judgment programs are  
            created and run at the discretion of the district attorney.   
            (Pen. Code § 1000 et seq.)



          FISCAL EFFECT:  Unknown.





          COMMENTS:



          1)Author's Statement:  According to the author, "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.

            "SB 1004 will allow specific counties to adopt a pilot program  
            that gives young adult offenders the opportunity to take  
            advantage of the supportive and educational services in the  
            juvenile justice system, rather than serve their time in an  








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            adult county jail."

          2)Diversion Generally:  Diversion is the suspension of criminal  
            proceedings for a prescribed time period with certain  
            conditions.  A defendant may not be required to admit guilt as  
            a prerequisite for placement in a pretrial diversion program.   
            If diversion is successfully completed, the criminal charges  
            are dismissed and the defendant may, with certain exceptions,  
            legally answer that he or she has never been arrested or  
            charged for the diverted offense.  If diversion is not  
            successfully completed, the criminal proceedings resume,  
            however, a hearing to terminate diversion is required.

          This bill creates a post-plea diversion program for young  
            offenders who committed a non-violent, non-serious felony that  
            does not require sex offender registration.  Typically,  
            diversion programs require defendants to participate in an  
            out-of-custody program, whereas this bill creates an  
            in-custody diversion program. 

          3)Will this Bill Lead to Increased Incarceration?  This bill  
            authorizes five counties to place young adult offenders in  
            juvenile hall facilities instead of county jails for certain  
            felony offenses.  Although the bill provides that "the program  
            applies to a defendant who would otherwise serve time in  
            custody in a county jail, and participation in the program  
            shall not be authorized as an alternative to a sentence  
            involving community supervision," in practice it would be  
            difficult to ascertain whether a defendant would receive a  
            term of incarceration until he or she is actually sentenced.  
            Since this is a deferred entry of judgment program, the  
            program would be offered to the defendant prior to sentencing.  
            Thus, as brought up by one of the opponents, there would have  
            to be an assumption made as to the sentence that would be  
            received in adult court.  Additionally, it is quite possible  
            that a young defendant who committed a non-serious,  
            non-violent, non-sex-based offense would receive probation  
            rather than a term of custody.  As written, the bill  
            authorizes any custodial term up to a year to be applied to  








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            these defendants.  The determination on the length of custody  
            will likely be determined by each local probation department  
            participating in the pilot program.

            Could this bill make it more likely that these defendants  
            would receive a custodial sentence rather than a non-custodial  
            sentence or probation?  Additionally, since the program would  
            be offered prior to sentencing and requires the defendant to  
            enter a guilty plea, is there a likelihood that this bill  
            would influence people to plead their case out rather than  
            going forward to trial and risk a felony conviction on their  
            record? Is there sufficient oversight provided in the bill by  
            requiring each county to establish a multidisciplinary team  
            with representatives from the county Public Defender's office  
            and youth advocate organization to periodically review and  
            discuss the implementation, practices, and impact of the  
            program?

          4)Argument in Support:  Chief Probation Officers of California  
            writes, "Recent research on adolescent brain development notes  
            that young adults are continuing to develop and mature during  
            the early adult years and it's becoming clear that this age  
            group represents a population that may be better served in the  
            juvenile justice system with age appropriate intensive  
            services.

          "The pilot program proposed under SB 1004 will allow the  
            Counties of Alameda, Butte, Napa, Nevada and Santa Clara to  
            voluntarily enact a pilot program creating a new category of  
            'transitional adult youth' that allows young adult offenders  
            ages 18-21 to be housed in a juvenile detention facility in  
            separate units so no comingling will occur in housing,  
            education or recreation. Juvenile detention facilities have  
            such services available for adolescents including, but not  
            limited to, cognitive behavioral therapy, mental health  
            treatment, vocational training, and education among others.  
            The program would enable these young adults to enter into  
            deferred entry of judgement and have their charges dismissed  
            upon successful completion of the program. Eligibility is  








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            based upon a risk assessment and determination of suitability;  
            additionally, persons with serious or violent felonies or sex  
            offenses are not eligible for the program. Further, this bill  
            provides for a reentry plan for these young adults and outcome  
            measures to determine effectiveness of the pilot."

          5)Argument in Opposition:  Commonweal, the Juvenile Justice  
            Program, is opposed and raises the following concerns:

          "1. We view the basic premise of the bill-that juvenile halls  
            are appropriate as facilities that can provide good remedial  
            programming to young adults-- as flawed.  Juvenile halls are  
            principally designed and operated to serve as short-term  
            detention facilities for minors charged with public offenses,  
            pending trial and disposition or placement.  While some minors  
            serve commitment time in juvenile halls, the statewide average  
            length of stay (per BSCC data) is 26 days. The programming  
            capacity in juvenile halls is therefore limited by facility  
            design and by the service capacity of the probation  
            departments operating the halls.  We have grave doubt that the  
            programming benefits referenced obliquely in SB 1004 can be  
            implemented in a meaningful way for the proposed young adult  
            population, having up to one year of confinement.  The  
            juvenile hall education program is presently geared to meet  
            school-age requirements, not to serve continuing education  
            needs of young adults. Vocational and re-entry services are  
            largely non-existent in the context of juvenile hall  
            operations. Mental health services vary greatly by county and  
            may not be oriented to a young adult population; for example,  
            counties with Mentally Ill Offender Crime Reduction (MIOCR) -  
            Juvenile grants may not be able to apply those resources to  
            young adults.  The bill does not outline or include program  
            elements that are specific to the proposed young adult  
            population.  We fear that the bill may serve more as a measure  
            of convenience, to shift young adults from crowded jails to  
            available juvenile hall space, than as a viable 'transition'  
            program for young adults.

          "2. Even with BSCC inspection and certification, some juvenile  








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            halls simply lack the available space to maintain separation  
            (as required by the bill) between the juvenile and confined  
            adult populations.  In smaller county facilities, there may be  
            only one program, recreation or dining space.  The movements  
            of juvenile and adult populations, in these smaller  
            facilities, would inevitably result in sight or sound contact  
            between children and young adults. Three-fourths of juvenile  
            hall youth in California are between 15-17 years of age, and  
            12 percent are age 12-to 14, according to BSCC data. While  
            developmental science tells us that brain progression to  
            maturity continues to age 25, there remain important  
            differences (and vulnerabilities) between 12-15 year olds and  
            18-22 year olds in custody.

            "3. From a defense perspective, we continue to ask how the  
            pilots will operate with respect to the bill's requirement  
            that the bill will apply only to defendants 'who would  
            otherwise serve time in custody in a county jail'.  At the  
            time a defendant is plea bargained or offered the juvenile  
            hall custody option, the adult sentencing outcome will not yet  
            be known.  Thus the ability to meet this requirement of the  
            bill is based on speculation as to the adult outcome.  A  
            better approach, in our view, would be to offer the juvenile  
            hall transition custody option at sentencing in the adult  
            court, when the jail-time status of the defendant can be more  
            clearly ascertained. We do not want to see the measure become  
            a net-widening custody program for young adults who would  
            otherwise receive non-custodial adult court sentences."

          6)Prior Legislation:  SB 261 (Hancock), Chapter 471, Statutes of  
            2015, expanded the youth offender parole process, a parole  
            process for persons sentenced to lengthy prison terms for  
            crimes committed before attaining 18 years of age, to include  
            those who have committed their crimes before attaining the age  
            of 23.



          REGISTERED SUPPORT / OPPOSITION:








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          Support


          


          Alameda County Board of Supervisors


          Butte County Board of Supervisors


          California Police Chiefs Association


          California Public Defenders Association


          California Youth Empowerment Network


          Chief Probation Officers of California


          Santa Clara Board of Supervisors





          Opposition


          








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          California Attorneys for Criminal Justice


          Center on Juvenile and Criminal Justice


          Commonweal, the Juvenile Justice Program


          Pacific Juvenile Defender Center


          Prison Law Office


          Professor Barry Krisberg, U.C. Berkeley School of Law





          Analysis Prepared by:Stella Choe / PUB. S. / (916)  
          319-3744