BILL ANALYSIS
AB 999
PageA
Date of Hearing: April 28, 2009
Counsel: Nicole J. Hanson
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 999 (Skinner) - As Amended: March 31, 2009
SUMMARY : Prohibits the Division of Juvenile Facilities (DJF)
in the California Department of Corrections and Rehabilitation
(CDCR) from extending or postponing a ward's parole
consideration date but would permit forfeiture of time credits
for sustained serious misconduct and implements a time credit
program. Specifically, this bill :
1)Permits DJF to possess power and duty over program time
credits.
2)Allots program time credits for performance in education,
rehabilitation, vocational education, training, drug
treatment, anger management, therapeutic, work, and other
programs meant to prepare a ward for successful reentry into
society. For every month of satisfactory performance in a
credit qualifying program, as designated by the Chief Deputy
Secretary for Division of Juvenile Justice (DJJ), the parole
consideration date of a ward shall be advanced one month
earlier.
3)Requires DJF to promulgate policies and regulations
implementing a division-wide system if gradated sanctions for
addressing ward disciplinary matters. DJF shall not extend or
postpone a ward's parole consideration date. Sanctions for
sustained serious misconduct may include forfeiture of program
time credits. In any case in which a program time credit has
been forfeited, the disposition report shall clearly state the
reasons for the forfeiture. The length of any program time
credit forfeiture shall be based on the seriousness of the
misconduct, the ward's prior disciplinary history, the ward's
progress toward treatment objectives, the ward's earned
program time credits, and any extenuating or mitigating
circumstances. A document signed by a DJF official shall be
provided to each ward defining what conduct constitutes
"serious misconduct."
AB 999
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EXISTING LAW :
1)Provides that any ward may appeal an adjustment to his or her
parole consideration date to a panel comprised of at least two
commissioners. [Welfare and Institutions Code (WIC) Section
1719(b).]
2)Gives DJF the power and duty to return of persons to the court
of commitment for redisposition by the court, determination of
offense category, setting of parole consideration dates,
conducting annual reviews, treatment program orders,
institution placements, furlough placements, return of
nonresident persons to the jurisdiction of the state of legal
residence, disciplinary decision making, and referrals. [WIC
Section 1719(c).]
3)Provides that DJF shall promulgate policies and regulations
implementing a department-wide system of graduated sanctions
for addressing ward disciplinary matters. The disciplinary
decision-making system shall be employed as the disciplinary
system in facilities under DJJ's jurisdiction, and shall
provide a framework for handling disciplinary matters in a
manner that is consistent, timely, proportionate, and ensures
the due process rights of wards. DJJ shall develop and
implement a system of graduated sanctions which distinguishes
between minor, intermediate, and serious misconduct. DJJ may
extend a ward's parole consideration date, subject to appeal,
from one to not more than 12 months, inclusive, for a
sustained serious misconduct violation if all other
sanctioning options have been considered and determined to be
unsuitable in light of the ward's previous case history and
the circumstances of the misconduct. In any case in which a
parole consideration date has been extended, the disposition
report shall clearly state the reasons for the extension. The
length of any parole consideration date extension shall be
based on the seriousness of the misconduct, the ward's prior
disciplinary history, the ward's progress toward treatment
objectives, the ward's earned program credits, and any
extenuating or mitigating circumstances. DJJ shall promulgate
regulations to implement a table of sanctions to be used in
determining parole consideration date extensions. DJJ also
may promulgate regulations to establish a process for granting
wards who have successfully responded to disciplinary
sanctions a reduction of up to 50% of any time acquired for
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disciplinary matters. [WIC Section 1719(d).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "AB 999 will
replace the ineffective system of punitive discipline in
California's DJJ youth prisons with a system that provides
youth with incentives to participate in their education and
programming in a positive manner. AB 999 gives youth the
opportunity to earn program credits that allow them to appear
before the Juvenile Parole Board at an earlier date. AB 999
also eliminates the DJJ's outdated use of 'time adds,' an
ineffective disciplinary practice that contributes to
disproportionately long sentences for youth in California. AB
999 is modeled after Penal Code Sections 2931 and 2933, which
allow adult prisoners to earn time credits for program
participation. As under the adult system, AB 999 provides
that consequences for misconduct shall include forfeiture of
earned time credit, under specified conditions.
"Youth in DJJ currently spend an average of nearly three years
behind bars, three times as long as the national average
sentences, based on data from 19 other states. Over a third
of the time that a young person is incarcerated in a state
facility is due to 'time adds.' Time adds are a disciplinary
sanction, imposed by DJJ personnel, that delays a youth's
eligibility to appear before the Parole board. While an
appearance before the Board does not guarantee release, AB 999
will provide youth with more opportunities to demonstrate
their readiness for release. AB 999 rules are clear and
concise, and easily understandable to a ward and his family -
follow the rules, make best use of the programs here, and you
will have an opportunity to be seen by the parole board
earlier. If however, you commit serious misconduct, you will
lose the credits you have earned to date.
"Research finds that youth in schools and institutions respond
better to a balanced approach that combines predictable
rewards and predictable discipline, than a system based on
punishment alone. Research on persons with conduct disorders,
or impulse disorders, finds that incentive systems are far
superior to the threat of punishment, in fostering desired
behaviors and values.
AB 999
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"The incentives provided to youth under AB 999 are similar to
incentives already provided to adults. In fact, they do not
go as far. AB 999 does not provide for early release dates as
are provided to adults, not does it provide for so-called
'good-time' credits which can reduce an adult's sentence by up
to a third. AB 999 is incremental, providing for an
understandable and balanced approach offering both incentives
and discipline, and allowing youth to earn an earlier parole
consideration hearing."
2)Background : According to information provided by the author,
"The state DJJ does not have clear statutory authority to
provide program credits to wards for participation in
education and rehabilitation programs. There is in imbalance
in the use of credits and disciplinary delays in parole
consideration that results in wards in the State of California
serving disproportionately long terms in state youth prisons,
when compared to youth in other states incarcerated for
similar offenses. As there is no aggregate correlation
between longer DJJ prison terms and improved public safety, or
improved outcomes for wards or their families, it is necessary
to address these ineffective and costly sentencing and parole
policies.
"Youth held in California DJJ prisons do not have the same
rights as adult prisoners in California to earn program
credits for satisfactory participation in programs of
education, job training and rehabilitation. This bill would
create a discipline and incentive system that would allow
wards to earn credit - not toward early release per se - but
to an earlier parole consideration hearing. The bill also
provides that earned programs credits may be forfeited for
serious misconduct.
"Research demonstrates that punishment models are ineffective at
changing youths' behavior, both inside and out of prison
settings.<1> In contrast, positive behavior incentives have
been shown to have a dramatic impact in reducing problem
behaviors.<2>
---------------------------
<1> Nelson, Michael, George Sugai and Carl Smith. Positive
Behavior Support Offered In Juvenile Corrections. National
Association of State Directors of Special Education (NASDSE).
<2> Id.
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"Youth in California's youth prison system serve the longest
sentences in the nation. In 2004, before passage of SB 81,
California's average length of stay was already three times as
long as the national average, based on the available data from
19 other states.<3> Based on an indeterminate sentencing
scheme, youth are imprisoned in DJJ an average of nearly three
years.<4> More than one-third of that time is due to 'time
adds.'<5> Time adds are disciplinary sanctions that may delay
parole consideration dates by up to one year, for each
sanction. Parole consideration dates (PCDs) are set by DJJ
when a youth arrives at DJJ, and represent the earliest date
that a youth could be eligible for supervised release to
parole.
"DJJ spends approximately $234,000 per youth, per year to hold a
youth behind bars. According to data from CDCR, time adds
tack on an additional net average of 12.7 months to each
ward's period of incarceration. That amounts to $247,650 in
additional expenses for each youth at DJJ. For the entire
population of youth currently at DJJ, time-adds cost the
taxpayers over $418,528,500. As there is no relationship
between longer terms and better outcomes for wards or
communities, this is money wasted.
"In addition to extra budgetary costs, overly lengthy sentences
may increase the damage caused to youth by DJJ's notoriously
violent and ineffective system. It is widely understood by
experts that DJJ's warehouse prisons create a hostile
environment that is structurally unsuitable for
rehabilitation. Recidivism remains high under the current
disciplinary models employed by DJJ, over 70%."
3)General Background - DJJ : For the past several years, the DJJ
[formerly the California Youth Authority (CYA)] has been under
intense scrutiny and criticism due to violence in its
institutions, ward suicides, and its wholesale failure to
provide mandated education and treatment to wards, most of
whom have significant mental health problems. Currently, DJJ
is under a court-ordered consent decree to improve its
conditions pursuant to a class action lawsuit brought by the
---------------------------
<3> Farrell Ward Safety and Welfare Plan / Council of
Correctional Administrators
<4> California Department of Corrections, Office of Research.
"Fall 2008 Population Projections." September 15, 2008.
<5> Id.
AB 999
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Prison Law Office. (Farrell v. Warner.)
In the mid-1990's, the DJJ population exceeded 10,000; now,
fewer than 3,500 wards populate its facilities and another
4,100 are on DJJ parole. The significant decline in the DJJ
population is due largely to the following circumstances:
a) Decline in Juvenile Crime : California has experienced a
remarkable decline in serious juvenile crime. For example,
between 1991 and 2000, juvenile arrests for homicide
decreased from 969 to 160. Between 1990 and 2001, the rate
of juveniles committing felony offenses dropped 47% (far
outpacing the 25% decline for adults during the same
period).
b) Transfer of "M" Cases : In June 1994, the law was
changed to prohibit convicted young adults - those under
age 21 - from being committed to DJJ; as a result, 824
young inmates were transferred from DJJ to CDCR.
c) Introduction of "Sliding Scale" : Prior to 1995,
counties paid only $25 per month for wards committed to
DJJ. The Legislative Analyst's Office (LAO) and others
found that this low rate allowed some counties to send very
low-level offenders to DJJ even though DJJ was (and
remains) an extremely expensive placement option. In 1995,
legislation was enacted to establish a new fee structure
that charged counties an increasing share of DJJ's actual
costs depending upon the nature of the committing offense,
providing a fiscal incentive to keep youthful offenders in
local placements when appropriate.
d) Development of Local Prevention Programs and Detention
Alternatives : Beginning in the mid-1990's as California
was tightening commitments to DJJ through fiscal
incentives, California simultaneously was increasing state
funding for local juvenile justice programs, which handle
the great majority of California's delinquency population.
4)Time Adds : Currently, wards committed to DJJ serve
indeterminate sentences, subject to specific legal maximums
(top juvenile court jurisdictional age, top DJJ jurisdictional
age and maximum confinement time in relation to adult
determinate sentence laws). Upon commitment, each ward is
given a parole consideration date (PCD) by DJJ. This PCD is
AB 999
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considered to be the earliest date within the indeterminate
sentence framework that the ward will be eligible for release
on parole. The PCD is determined using sentencing guidelines
promulgated by the now repealed Youthful Offender Parole Board
(YOPB). Those guidelines (at 15 CCR Sections 4951-57)
establish presumptive sentence lengths for seven offense
categories from the most severe and violent offenses (Category
I) to the least severe (Category VII). For each category,
there is a baseline sentence or PCD, in years, with an
allowance for assigning a longer initial sentence that is
within an "upward deviation" range allowed for each category.
For example, for a Category 4 offense such as arson or drug
sales, the juvenile will get a baseline PCD of two
institutional years with an upward deviation of six months
assignable at the initial hearing. These initial sentences
can be extended for other reasons, including disciplinary
incidents, at subsequent review hearings.
The process for adding time to PCDs was revamped by SB 459
(Burton), Chapter 4, Statutes of 2003. SB 459 tasked DJJ
staff (rather than the YOPB) with assigning PCDs, annual
reviews and disciplinary decision making. Time adds were
capped at 12 months maximum at each review for each serious
misconduct violation. SB 459 also required DJJ to promulgate
regulations implementing a division-wide system of graduated
sanctions for disciplinary infractions, including a table of
sanctions to be used in determining parole consideration date
extensions.
In current practice, time adds are frequently imposed as
sanctions for ward misconduct. The average time add per ward,
based on the information currently available from DJJ's
Research Division is 3.7 months per ward per year, which adds
up to about seven additional months over the average time
served by all DJJ wards [including parole violators, average
length of stay (ALOS) of 25.5 months in 2004) or 10 months of
additional time served by DJJ first commitments (ALOS for
2004, was 33 months]. According to year 2005 data from DJJ's
Research Division, net time added to sentences for all reasons
actually increased between 2004 and 2004 (by about 10 days per
ward per year).
Time adds have been a chronic problem at DJJ for decades.
Commonweal's 1988 book, "Reforming the CYA", described the
"vicious circle" of time adds and institutional violence as
AB 999
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follows: 'In crowded dormitories, fights break out causing
youth to have their confinement time extended. The time adds
create more crowding which in turn sparks more violence" (at
page 24). Time adds, according to this 1988 book, averaged
7.9 months for each youth discharged in 1986-87 - disturbingly
similar to today's figures. The book cited case examples,
such as the 16-year-old Hispanic youth committed for the crime
of glue sniffing who had 15 months added to his original
sentence.
Time adds have other effects, in addition to population and cost
effects, in the present DJJ system. A widely recognized
problem related to ward behavior and violence in DJJ
institutions is "maxing out" of available confinement time.
Wards who reach their statutory maximum confinement time, or
nearly so, may lack incentive to cooperate with institutional
requirements. Time adds push wards toward maximum time and
toward the tipping point at which custodial sanctions (such as
extended PCDs) may no longer be effective.
In 1988-89, as CYA populations were rising, the Legislature
imposed a net time-add cap of one month per ward, per year on
Youthful Offender Parole Board (YOPB) and required the YOPB to
make regular reports to the Legislative Budget Committees on
time adds, time credits and net time added or subtracted from
sentences. This action by the Legislature produced a swift
and sharp decline in the CYA inmate population at the time,
but the decline was short-lived as the cap and related
reporting requirements were allowed to lapse.
5)Establishing A Time Credit Program : Adults in California
prisons earn "work-time credits" against their determinate
sentences under the provisions of Penal Code Section 2933, et.
seq. Performance on work assignments and participation in
education programs can qualify for a day-for-day sentence
reduction (six months for six months). Although state prisons
lack a sufficient number of programs for all prisoners seeking
work-time credits, work-time credits can be earned by
prisoners under current CDCR policy if the prisoner is willing
to participate in a qualifying program. Credits can be lost
for a variety of disciplinary and other reasons, and "truth in
sentencing" credit caps apply to some prisoners incarcerated
for listed serious crimes.
In DJJ, wards do not automatically earn credit for good behavior
AB 999
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or for program participation. However, DJJ does have a
"program credit" plan that allows a ward to accumulate credits
against his or her PCD if he or she meets specific performance
criteria and if the credit is then granted to the ward by DJJ
and by the Board of Parole Hearings. In addition, if a ward
has received a disciplinary extension of his or her PCD, DJJ
has special provisions allowing a ward to earn back up to 50%
of the disciplinary decision-making system (DDMS) time added
for subsequent good behavior.
In 2006, DJJ modified its program credit policy though the
introduction of a new "Ward Incentive Program". Under this
program, wards who meet specific behavior criteria can earn up
to 15 days of credit per month against their assigned PCDs, up
to a maximum of 180 days per year. To qualify for this
credit, wards must apply for the program, must achieve an "A"
level of privileges, must remain free of serious disciplinary
infractions, and meet other on-going behavior and
participation criteria. Wards in some classifications (e.g.,
violators awaiting Morrissey hearings, wards in behavior
treatment programs) are not eligible for these credits.
Credits are ultimately discretionary and the program comes
with the disclaimer that "the BPH is under no obligation to
approve recommendations for program credits" (from "15-Day
Program Credits, General Policy", DJJ).
6)LAO Recommends Shorter Stays in State Youth Correctional
Facilities : The LAO has repeatedly recommended reductions in
institutional time served by DJJ wards. The LAO has also
recommended that counties making DJJ commitments (and paying
for them in many cases) be given a greater measure of control
over the time served by its committed wards in DJJ facilities.
In a 2000 analysis of the Budget Bill, LAO offered three
proposals for giving counties greater control over how long
their wards stay in DJJ facilities (99/00 Budget Bill,
Criminal Justice Issues, page 17). For Level V to VII
(sliding scale) cases (now comprising about 40% of DJJ's
institutional population), the LAO also recommended as
follows:
"Shorter institutional stays are needed with more services
delivered on parole. For
(Level V - VII) wards, institutional confinement time is not
required primarily to protect the public, but rather to
provide structure and accountability for the offender. As a
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result institutional confinement time for these offenders
should be limited to the time necessary to achieve this
objective. At present, the average PCD for these offenders is
more than 17 months, while the programs they are failing at
the county level are generally about six months in duration.
This 11-month difference appears unnecessarily large,
especially given the fact that a DJJ commitment of any
duration is a more severe and punitive sanction than spending
time in a county camp or ranch. . . . One way to encourage
(YOPB) to reduce the length of commitments for these less
serious, intractable offenders would be to provide short-term
institutional programming directly related to their needs.
Because the counties are opting to use six- to nine-month
locally based secure programs, we recommend that DJJ examine
the feasibility of providing institutional programming in a
similar time frame. We recognize that a six- to nine- month
period would not be sufficient to address all of the needs of
most of these wards, but many of the issues that require more
time, such as substance abuse and academic and vocational
skills, could be provided in a community setting under the
supervision of DJJ parole." (LAO, Fiscal Year 1999-2000
Budget Bill, Criminal Justice Issues, page 18).
7)Argument in Support : According to Commonwealth, the Juvenile
Justice Program , "Time-adds imposed on incarcerated youth by
DJF staff and by the Juvenile Parole Board have been a chronic
problem. Youthful offenders in the California Division of
Juvenile Facilities are incarcerated for more than three times
the national average term of incarceration in secure state
youth facilities. The average length of stay in DJF has risen
steadily over the years. For new commitments (excluding
parole violation), custody time now averages nearly three
years per ward (35 months for 2008 releases). About one-third
of this custody time consists of 'time adds' to the original
sentence assigned upon commitment (the 'parole consideration
date' or PCD). Time adds may be imposed by DJF staff for
disciplinary infractions ('DDMS' adds) or for the 'treatment'
or 'program' reasons ('TTA' adds).
"According to the CDCR research division, the net time added to
DJF sentences in 2006-07 was 4.6 months per ward per year.
This is the net of time adds and time credits per ward. Time
adds far exceed time credits granted to wards. In fact, the
average time credit per ward was only one-half month per year
in this reporting period, compared to time adds of 5.1 months
AB 999
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per ward per year.
"These time-adds drive up DJF population and costs. They
account for almost one-third of all beds occupied at DJJ
institutions. At the present annual DJF admission rate of 460
new juvenile court commitments per year, the estimated annual
operating cost attributable to time adds exceeds $100 million
per year.
"Time adds are justified by DJF and by the Parole Board as
legally authorized adjustment of youth indeterminate
sentences, and as the additional time necessary to ensure
rehabilitation and public safety upon release. However, there
is little in the way of research evidence to support the
thesis that longer time served in DJF institutions produces
better outcomes and lower recidivism rates. Recidivism and
revocation rates remain high for this population, despite
longer stays in confinement.
"DJF's time add policies also mean that many youth are 'maxed
out' of available confinement time - in other words, they have
time added repeatedly to their sentence until, under
jurisdictional laws, they can no longer be confined for the
offense or for parole violations. Kids who max out in
confinement do poorly on parole, because both the youth and
the parole agent know that the youth can no longer be
reincarcerated for violation of the conditions of parole.
"AB 999 directs DJF policy so that wards have greater incentives
to succeed in institutional programs. In addition, by
reducing time adds (at the staff level), AB 999 means that
wards will max out less frequently and will have more
enforceable parole supervision time upon release. AB 999
addresses the deficiencies of current DJF time credit policies
by requiring DJF to provide wards with month-for-month time
credits for successful program participation. It also ends
the practice of staff adding time to sentences for
disciplinary infractions within the institutions."
8)Prior Legislation : SB 1373 (Romero), of the 2005-06
Legislative Session, would have required the DJJ to have as a
performance objective, the reduction of the average length of
stay and a reduction of net time added to all ward parole
consideration dates for disciplinary reasons. SB 1373 would
have required the DJJ to make specified reports to the
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Legislature with regard to that objective. SB 1373 was
vetoed. In his veto message the Governor stated, "While the
objectives contained in this bill will measure a change in the
system, the objectives by themselves do not necessarily
indicate that the State is providing wards with better
services. Rather than increasing reporting requirements and
placing random performance objectives in statute, the State
should instead focus on improving the treatment, education and
rehabilitation of the wards entrusted to its care so that they
can return to their families and our communities as healthy,
productive citizens."
REGISTERED SUPPORT / OPPOSITION :
Support
Asian Law Caucus
Books Not Bars
California Church IMPACT
Commonwealth, The Juvenile Justice Program
Friends Committee on Legislation of California
Greenlining Institute
Juvenile Justice Program
National Center for Lesbian Rights
Prison Law Office
W. Haywood Burns Institute
Youth Law Center
Opposition
California District Attorneys Association
Analysis Prepared by : Nicole J. Hanson / PUB. S. / (916)
319-3744