BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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9
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AB 999 (Skinner)
As Amended June 10, 2009
Hearing date: June 23, 2009
Welfare and Institutions Code
AA:br
DIVISION OF JUVENILE FACILITIES
HISTORY
Source: Books Not Bars
Prior Legislation: SB 1373 (Romero) - 2006, vetoed by Governor
Schwarzenegger
SB 459 (Burton) - Ch. 4, Stats. 2003
Support: California State PTA; National Center for Lesbian
Rights; California State NAACP; Asian Americans for
Civil Rights and Equality; California Public
Defenders Association; California Catholic Conference
of Bishops; Taxpayers for Improving Public Safety
Opposition:SEIU Local 1000; California District Attorneys
Association
Assembly Floor Vote: Ayes 45 - Noes 30
KEY ISSUE
SHOULD "TIME ADDS" - WHERE PAROLE DATES FOR DJJ WARDS ARE EXTENDED
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AS A DISCIPLINARY SANCTION - BE PROHIBITED, AND REPLACED WITH A
SYSTEM WHERE DJJ WARDS CAN EARN TIME CREDITS BASED ON PROGRAMMING
AND GOOD BEHAVIOR, WITH THOSE CREDITS BEING SUBJECT TO FORFEITURE AS
A CONSEQUENCE OF DISCIPLINARY ACTION?
PURPOSE
The purpose of this bill is to revise the disciplinary system at
the Division of Juvenile Justice, where wards currently can be
disciplined with time extensions on their parole dates, by
prohibiting these "time adds" and instead providing a system
where wards can earn time credits based on programming and good
behavior, with those credits being subject to forfeiture as a
consequence of disciplinary action.
Current law provides that the Department of Corrections and
Rehabilitation, Division of Juvenile Justice ("DJJ"), has
jurisdiction over all educational training and treatment
institutions now or hereafter established and maintained in the
state as correctional schools for the reception of wards of the
juvenile court and other persons committed to the department.
(WIC 1000.)
Current law provides that the following powers and duties shall
be exercised and performed by the Division of Juvenile
Facilities: 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
decisionmaking, and referrals pursuant to Section 1800. (WIC
1719 (c).)
This bill would revise this provision to require biannual
(occurring twice a year) reviews.
This bill additionally would add "program time credits" and
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"good behavior time credits" to this provision.
Program Time Credits
This bill would require that program time credits "apply for
satisfactory performance in education, rehabilitation,
therapeutic, work, and other programs meant to prepare a ward
for successful reentry into society."
This bill would require that "(f)or every day of satisfactory
performance in one or more credit qualifying programs, as
designated by the Chief Deputy Secretary for Juvenile Justice,
the parole consideration date of a ward shall be advanced no
less than one day earlier."
This bill would provide that for these purposes "satisfactory
performance" would mean "progress in a credit-qualifying
program, such as any one of the following: completion of
assigned work, continuing or improved participation in
programming or class work, continuing or improved cooperation
with the instructor or person in charge, substantial compliance
with instructions, or meeting requirements for participation in
assigned activity."
This bill would provide that "(f)ailure to work or participate
in program activities for reasons which are beyond the ward's
control shall not be cause for denial or forfeiture of
participation credit. These circumstances may include, but are
not limited to, the following:
(A) The ward has not been given instructions,
an order, or an assignment to perform or participate in
educational, vocational, or program activities.
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(B) The ward's work or program assignment has
been temporarily suspended or permanently terminated, and
the ward has not been admitted into another educational,
vocational, or rehabilitative program.
(C) The ward is medically excluded or
restricted from work or program activities, either on a
temporary basis because of illness or injury, or on a
permanent basis because of medically diagnosed physical
or mental inability to participate.
(D) The ward has failed to perform or
participate after demonstrating a reasonable effort in
the specified activity.
(E) The ward is restricted from reporting to or
participating in an assigned work or program activity by
an order or action of institution staff unrelated to a
disciplinary infraction by the ward.
(F) The ward's behavior is the result of mental
illness or its treatment."
Good Behavior Time Credits
This bill would require that "(g)ood behavior time credits shall
be provided independently of program credit for substantial
compliance with rules of the institution, and substantial
compliance with instructions from staff, the instructor, or the
person in charge."
This bill would require that "(f)or every day of substantial
compliance with disciplinary rules and instructions, a ward
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shall have his or her parole consideration date advanced no less
than one-half day."
Current law requires DJJ to:
promulgate policies and regulations implementing a
departmentwide system of graduated sanctions for
addressing ward disciplinary matters. The
disciplinary decisionmaking system shall be employed
as the disciplinary system in department
institutions, 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. The department shall
develop and implement a system of graduated sanctions
which distinguishes between minor, intermediate, and
serious misconduct. The department may extend a
ward's parole consideration date, subject to appeal
pursuant to subdivision (b), 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. The department shall promulgate
regulations to implement a table of sanctions to be
used in determining parole consideration date
extensions. The department also may promulgate
regulations to establish a process for granting wards
who have successfully responded to disciplinary
sanctions a reduction of up to 50 percent of any time
acquired for disciplinary matters." (WIC 1719
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(d).)
This bill would revise this section as follows:
This bill would delete the requirement in this provision that
DJJ develop and implement a system of graduated sanctions which
distinguishes between minor, intermediate, and serious
misconduct.
This bill would delete the authority in this section for DJJ to
extend a ward's parole consideration date, as specified, and
instead provide that DJJ shall not extend or postpone a ward's
parole consideration date.
This bill instead would provide that sanctions for sustained
serious misconduct may include forfeiture of not more than six
months of combined program and good behavior credits established
by this bill, 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.
This bill would provide that "(i)n any case in which a program
time or good behavior credit has been forfeited, the disposition
report shall clearly state the reasons for the forfeiture."
This bill would provide that the "length of any 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 or good
behavior credits, and any extenuating or mitigating
circumstances."
This bill would require DJJ to "promulgate regulations to
implement a table of sanctions to be used in determining program
or good behavior time credit forfeitures," and regulations to
"establish a process for granting wards who have successfully
responded to disciplinary sanctions a reinstatement of up to 100
percent of any credit forfeited for disciplinary matters."
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This bill would require that a "document signed by a department
official shall be provided to each ward describing what defines
'serious misconduct.' "
This bill would require DJJ to "periodically review the ward's
program credits and good behavior credits and forfeitures, if
any," no less than every six months.
This bill would require that, at "each review, a ward's parole
consideration date shall be adjusted according to the net credit
earned since the last review."
This bill would require that program credits earned before
January 1, 2010, be honored.
This bill would require DJJ to "allow wards who received parole
consideration date extensions after January 1, 2009, and before
January 1, 2010, and who have successfully responded to
disciplinary sanctions a reinstatement of up to 100 percent of
the time added."
This bill would provide that nothing in this section would
"preclude the division from providing credits or other
incentives for other desirable behaviors or program
participation."
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
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to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
incarceration.<1>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
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<1> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
period of two or three years.<2>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
--------------------------
<2> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (Feb. 9, 2009).
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This bill does not aggravate the prison overcrowding crisis
outlined above.
COMMENTS
1. Stated Need for This Bill
The author states in part:
The state Division of Juvenile Justice 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 . . . 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 (DJJ) 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. In contrast, positive
behavior incentives have been shown to have a
dramatic impact in reducing problem behaviors.
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Youth in California's youth prison system serve the
longest sentences in the nation. . . . Based on an
indeterminate sentencing scheme, youth are imprisoned
in (DJJ) an average of nearly 3 years. More than a
third of that time is due to "time adds." Time adds
are disciplinary sanctions that may delay parole
consideration dates by up to one year, for each
sanction. . . .
DJJ spends approximately $234,000 per youth, per year
to hold a youth behind bars. According to data from
the Department of Corrections and Rehabilitation,
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. . . . (citations
omitted.)
2. What This Bill Would Do
This bill addresses the use of "time adds" - disciplinary
sanctions which extend a ward's parole date - as a disciplinary
sanction for wards in DJJ institutions. This bill would limit
time sanctions to program or good behavior time credits which
have been earned by wards. In this way, under this bill a
ward's Projected Board Date ("PBD") - essentially his or her
parole date - would be the ward's maximum term, with the
possibility of a shorter term based upon program and behavior
credits earned and not forfeited through disciplinary action.
In this way, this bill would limit time-based discipline
sanctions to the forfeiture of time-reduction credits.
Current law authorizes the extension of a ward's PBD as a
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disciplinary sanction.<3> These extensions are known as "time
adds." Current law also authorizes DJJ to establish a process
for granting wards credits based on their progress in meeting
specified programming objectives. Wards also can gain time
credits for successfully responding to disciplinary sanctions -
that is, credits that reduce time adds.
This bill would change this framework and prohibit time adds .
The bill instead would employ new program and good behavior time
credits as potential disciplinary sanctions through forfeiture.
In other words, instead of the current system, which disciplines
wards with time adds and allows them to "earn back" disciplinary
time adds, this bill would provide a system where wards could
earn time credits based on programming and good behavior, with
those credits being subject to forfeiture as a consequence of a
disciplinary action . This bill would repeal DJJ's authority to
extend a ward's parole consideration date.<4> Instead, the bill
provides a statutory framework under which disciplinary
sanctions would include forfeiture of credits. This bill would
provide for day-for-day program credits and not less than
1-for-2 days "good behavior time credits," as specified.
DJJ would be required to implement a table of sanctions for time
credit forfeitures, and a process for restoring forfeited
credits based on ward conduct, as specified. The bill would
require that the length of credit forfeiture 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 or good behavior credits, and any
extenuating or mitigating circumstances.
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<3> This sanction is described in the division's "Disciplinary
Decision Making System" policy (the "DDMS"), most recently
revised in January of this year.
<4> The term "parole consideration date" has been replaced with
the term "Projected Board Date." This is the date set for a
ward's parole. The author may wish to consider amending this
bill to reflect this new term.
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The bill contains additional, related provisions.
3. General Background - DJJ
For the past several years, the Division of Juvenile Justice
("DJJ"; formerly the California Youth Authority) has been under
intense scrutiny and criticism because of violence in its
institutions, ward suicides, and the failure to provide mandated
education and treatment to wards, most of whom have significant
mental health problems. The DJJ currently is under a
court-ordered consent decree to improve its conditions pursuant
to a class action lawsuit brought by the Prison Law Office
(Farrell v. Warner).
In the mid-1990's, the DJJ population exceeded 10,000; now,
there are about 1,650 wards in DJJ institutions, and another
1,970 on parole. Current DJJ spending is about $380 million for
operations, with about $35 million for parole.
The significant decline in the DJJ population is due largely to
the following circumstances:
Recent Realignment Restricted DJJ to only
serious/violent offenders : In SB 81 (2007),
lower-level juvenile offenders were excluded from
eligibility for DJJ commitment. As a result, DJJ
population has dropped from 2,500 in fall of 2007 to
1,650 today.
Decline in Juvenile Crime . California has
experienced a remarkable decline in serious juvenile
crime. For example, between 1991 and 2000 juvenile
arrests for homicide fell from 969 to 160. Between
1990 and 2001, the rate of juveniles committing felony
offenses dropped 47 percent (far outpacing the 25
percent decline for adults during the same period).
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Transfer of "M" Cases . In June of 1994, the law
was changed to prohibit convicted young adults - those
under 21 - from being committed to CYA; as a result,
824 young inmates were transferred from CYA to the
Department of Corrections ("CDC").
Introduction of "Sliding Scale" . Prior to 1995,
counties paid only $25 per month for wards committed
to CYA. The Legislative Analyst's Office and others
found that this low rate allowed some counties to send
very low-level offenders to CYA, even though CYA 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 CYA's actual costs depending upon the nature
of the committing offense. This has provided a fiscal
incentive to keep youthful offenders in local
placements when appropriate.
Development of Local Prevention Programs and
Detention Alternatives . Beginning in the mid-1990's,
as the state was tightening commitments to CYA through
fiscal incentives, it simultaneously was increasing
state funding for local juvenile justice programs,
which handle the great majority of California's
delinquency population.
4. Time Adds
Three years ago, this Committee considered and passed SB 1373
(Romero), which attempted to address time adds.<5> Observations
made by juvenile justice expert David Steinhart in support of
that measure equally apply to this bill:
Currently, wards committed to DJJ serve an
indeterminate sentence, 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).
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<5> That measure was vetoed by Governor Schwarzenegger.
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Upon commitment, each ward is given a Parole
Consideration Date (PCD) by DJJ. This date is
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 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.
. . .
Time adds have been a chronic problem at CYA and DJJ
for decades. Commonweal's 1988 book, Reforming the
CYA, described the "vicious circle" of time adds and
institutional violence as 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 - hauntingly similar to today's
figures. The book cited case examples, such as the
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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, besides 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 max time
and toward the tipping point at which custodial
sanctions (such as extended PCDs) may no longer be
effective.
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The following chart depicts time adds and cuts at DJJ by month
for November 2007 through November 2008.<6> As demonstrated by
this chart, time adds greatly outweigh time cuts.
ARE "TIME ADDS" AN APPROPRIATE SANCTION FOR WARDS WHO HAVE
COMMITTED SERIOUS CONDUCT VIOLATIONS?
WOULD THE SYSTEM OF CREDITS AND CREDIT FORFEITURES PROPOSED BY
THIS BILL BE A BETTER SANCTION THAN TIME ADDS?
5. Opposition
SEIU, Local 1000, which represents the non-custodial staff such
as teachers, nurses, cooks and clerks at DJJ facilities, opposes
this bill, argues this bill "may inadvertently lead to less
effective control of juveniles who would no longer be concerned
about their parole date being extended as a result of their
behavior. While this may not be the best tool to use, we are
concerned that the possible closing of juvenile facilities will
lead to larger classroom sizes and commensurate problems with
control of the ward's behavior."
The California District Attorneys Association, which also
opposes this bill, argue that features of a determinate
sentencing system - credits - should not be applied to minors
who have been given indeterminate commitments.
The purpose of youth incarceration has more
traditionally been focused on rehabilitation and
therefore (credit-earning programs) should be a part
of their programming on the natural, not an extra
incentive to have their sentence reduced. . . . Time
adds . . . are a meaningful sanction and we are not
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<6> CDCR Division of Juvenile Justice, Monthly Population
Trends, November 2008.
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convinced that sufficient reason has been provided to
abolish their use. Over the last 13 years, the DJF
population has shrunk from approximately 10,000 wards
to fewer than 1,700. Those who are left in the system
are, for the most part, hardcore juvenile offenders
and we should not hamstring DJF in its oversight of
those wards.
WOULD THIS BILL RESULT IN LESS EFFECTIVE CONTROL OF YOUTHFUL
OFFENDERS IN DJJ FACILITIES? OR, WOULD ITS CREDIT FORFEITURE
PROVISIONS BE AT LEAST AS EFFECTIVE AS THE CURRENT "TIME ADD"
SYSTEM?
ARE TIME ADDS AN APPROPRIATE AND EFFECTIVE SANCTION FOR WARD
DISCIPLINE? WOULD THE CREDIT FORFEITURE APPROACH PROPOSED BY
THIS BILL PROVIDE A BETTER SANCTION FOR WARD DISCIPLINE?
ARE PROGRAM TIME CREDITS APPROPRIATE FOR YOUTH WHO HAVE BEEN
COMMITTED TO DJJ?
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