BILL ANALYSIS Ó SB 1004 Page 1 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 SB 1004 Page 2 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; SB 1004 Page 3 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 SB 1004 Page 4 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. SB 1004 Page 5 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. SB 1004 Page 6 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 SB 1004 Page 7 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 SB 1004 Page 8 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 SB 1004 Page 9 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 SB 1004 Page 10 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 SB 1004 Page 11 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 SB 1004 Page 12 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: SB 1004 Page 13 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 SB 1004 Page 14 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