BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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SB 134 (Liu)
As Amended March 24, 2009
Hearing date: January 12, 2010
Welfare and Institutions Code
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JUVENILE JUSTICE:
RIGHTS OF INCARCERATED MINORS
HISTORY
Source: Legal Services for Prisoners with Children; The Center
for Young Women's
Development; California Latinas for Reproductive Justice
Prior Legislation: SB 1250 (Yee) - Ch. 522, Stats. 2008
SB 746 (Yee) - 2008, returned to Secretary of Senate
pursuant to Joint Rule 56 (not
heard in Committee)
SB 518 (Migden) - Ch. 649, Stats. 2007
SB 2081 (Schiff) - Ch. 496, Stats. 1998
Support: Taxpayers for Improving Public Safety; Books Not Bars;
Legal Services for Children; California Youth Connection; Law
Students for Reproductive Justice; All of Us or None; Free
Battered Women; California Coalition for Women
Prisoners; Children's Defense Fund; California Communities
United Institute; Youth Law Center; Children Now; National
Council on Crime and Delinquency; National Association of Social
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Workers, California Chapter; Planned Parenthood
Affiliates of California; AFSCME, AFL-CIO; California Catholic
Conference; several individuals
Opposition:None known
KEY ISSUES
should local juvenile detention facilities be required to consider
the well-being of the children of parents who are in the custody of
those facilities, as specified?
should visitation policies in local juvenile detention facilities be
required to provide opportunities for meaningful contact between
incarcerated parents and their children, as specified?
should telephone access in local juvenile detention facilities be
required to apply to juveniles and their own children when they are
involved in caring for their children, and to the child's other
parent, caregiver, social worker, teacher, physician, other service
providers for the child, and any other individuals who are involved
in the upbringing and caregiving of the child, as specified?
SHOULD wards in the state Division of Juvenile Facilities HAVE THE
RIGHT to maintain frequent and continuing contact with the "other
parent of a child and the child's caregiver, social worker, teacher,
physician, and other service providers involved in the upbringing
and caregiving of the child, and extended family members," as
specified?
SHOULD telephonic and written communication BE AUTHORIZED between
wards IN DJJ and their childREN, the other parent or person involved
"with the upbringing and caretaking of their child" except "in
cases where it is documented that such contact is not in the best
interest of the child," as specified?
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PURPOSE
The purpose of this bill is to 1) require that local juvenile
detention facilities consider the well-being of the children of
parents who are in the custody of those facilities, as
specified; 2) require that visitation policies in local juvenile
detention facilities provide opportunities for meaningful
contact between incarcerated parents and their children, as
specified; (3) require that telephone access in local juvenile
detention facilities be extended to apply to juveniles and their
own children when they are involved in caring for their
children, and to the child's other parent, caregiver, social
worker, teacher, physician, other service providers for the
child, and any other individuals who are involved in the
upbringing and care-giving of the child, as specified; 4)
provide wards in the state Division of Juvenile Facilities the
right to maintain frequent and continuing contact with the
"other parent of a child and the child's caregiver, social
worker, teacher, physician, and other service providers involved
in the upbringing and care-giving of the child, and extended
family members," as specified; and 5) authorize telephonic and
written communication between wards and their children, the
other parent or person involved "with the upbringing and
caretaking of their child," except "in cases where it is
documented that such contact is not in the best interest of the
child," as specified.
Overview: Juvenile Law
Under current law , the purpose of juvenile court law "is to
provide for the protection and safety of the public and each
minor under the jurisdiction of the juvenile court and to
preserve and strengthen the minor's family ties whenever
possible, removing the minor from the custody of his or her
parents only when necessary for his or her welfare or for the
safety and protection of the public." (Welfare and Institutions
Code ("WIC") 202.)
Minors under the jurisdiction of the juvenile
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court as a consequence of delinquent conduct
shall, in conformity with the interests of public
safety and protection, receive care, treatment,
and guidance that is consistent with their best
interest, that holds them accountable for their
behavior, and that is appropriate for their
circumstances. This guidance may include
punishment that is consistent with the
rehabilitative objectives of this chapter. (Id.)
Current law expressly defines the scope and nature of
"punishment" in the juvenile court:
As used in this chapter, "punishment" means the
imposition of sanctions. It shall not include a
court order to place a child in foster care as
defined by Section 727.3. Permissible sanctions
may include the following:
(1) Payment of a fine by the minor.
(2) Rendering of compulsory service without
compensation performed for the benefit of the
community by the minor.
(3) Limitations on the minor's liberty imposed
as a condition of probation or parole.
(4) Commitment of the minor to a local
detention or treatment facility, such as a
juvenile hall, camp, or ranch.
(5) Commitment of the minor to the Department
of the Youth Authority.
"Punishment," for the purposes of this chapter,
does not include retribution. (Id.)
Current law provides that when a minor is adjudged a delinquent
ward of the court, "the court may make any and all reasonable
orders for the care, supervision, custody, conduct, maintenance,
and support of the minor, . . . ." (WIC 727) The juvenile
court has broad discretion in imposing probation conditions.
(In re Josue S. (1999) 72 Cal.App.4th 168.)
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Local Juvenile Detention Facilities
Current statute contains the ""Arnold-Kennick Juvenile Court
Law," the purpose of which is to "provide for the protection and
safety of the public and each minor under the jurisdiction of
the juvenile court and to preserve and strengthen the minor's
family ties whenever possible, removing the minor from the
custody of his or her parents only when necessary for his or her
welfare or for the safety and protection of the public. . . .
If the minor is removed from his or her own family, it is the
purpose of this chapter to secure for the minor custody, care,
and discipline as nearly as possible equivalent to that which
should have been given by his or her parents. This chapter
shall be liberally construed to carry out these purposes." (WIC
202(a).)
Current law provides that minors "under the jurisdiction of the
juvenile court as a consequence of delinquent conduct shall, in
conformity with the interests of public safety and protection,
receive care, treatment, and guidance that is consistent with
their best interest, that holds them accountable for their
behavior, and that is appropriate for their circumstances. This
guidance may include punishment that is consistent with the
rehabilitative objectives of this chapter." (WIC 202(b).)
Current law requires the Corrections Standards Authority<1> to
"adopt minimum standards for the operation and maintenance of
juvenile halls for the confinement of minors." (WIC 210.)
This bill would enact statutory law providing that "(l)ocal
juvenile detention facilities shall consider the well-being of
the children of parents who are in the custody of those
facilities. Visitation policies shall provide opportunities for
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<1> The statute contains an outdated reference in this section
to the "Board of Corrections." This Board became the
Corrections Standards Authority in 2005 as a result of the
Governor's reorganization of the Youth and Adult Correctional
Agency into the California Department of Corrections and
Rehabilitation. (See SB 737 (Romero), Ch. 10, Stats. 2005.)
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meaningful contact between incarcerated parents and their
children. "'Meaningful contact shall include, when feasible,
contact visits."
Current law requires administrators of juvenile facilities in
California to "develop and implement written policies and
procedures to provide minors with access to telephone
communications." (Cal. Code of Regs. Title 15, Div. 1, Ch. 1,
Subch. 5, 1376.)
This bill would require that a "juvenile who is a parent, who is
involved in caring for his or her child, and who is authorized
for telephone communication, shall be permitted to place
telephone calls to his or her child, and to the child's other
parent, caregiver, social worker, teacher, physician, other
service providers for the child, and any other individuals who
are involved in the upbringing and caregiving of the child,
within the restriction policy for telephone use at the local
juvenile detention facility."
This bill would provide that these provisions shall not "change
the number of calls, length of calls, and call schedule as
defined by the restriction policy for telephone use." As used
in these provisions, "local juvenile detention facility" would
mean "any city, county, or regional facility used for the
confinement of juveniles for more than 24 hours."
Division of Juvenile Facilities; Contact Between Wards and Their
Children
Current law states that "it is the policy of the state that all
youth confined in a facility of the Division of Juvenile
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Facilities shall have" certain rights, as specified.<2>
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<2> Specifically, the rights enumerated in this provision are
to: (a) live in a safe, healthy, and clean environment
conducive to treatment and rehabilitation and where they are
treated with dignity and respect; (b) be free from physical,
sexual, emotional, or other abuse, or corporal punishment; (c)
receive adequate and healthy food and water, sufficient personal
hygiene items, and clothing that is adequate and clean; (d)
receive adequate and appropriate medical, dental, vision, and
mental health services; (e) refuse the administration of
psychotropic and other medications consistent with applicable
law or unless immediately necessary for the preservation of life
or the prevention of serious bodily harm; (f) not be searched
for the purpose of harassment or humiliation or as a form of
discipline or punishment; (g) maintain frequent and continuing
contact with parents, guardians, siblings, children, and
extended family members, through visits, telephone calls, and
mail; (h) make and receive confidential telephone calls, send
and receive confidential mail, and have confidential visits with
attorneys and their authorized representatives, ombudspersons
and other advocates, holders of public office, state and federal
court personnel, and legal service organizations; (i) have fair
and equal access to all available services, placement, care,
treatment, and benefits, and to not be subjected to
discrimination or harassment on the basis of actual or perceived
race, ethnic group identification, ancestry, national origin,
color, religion, sex, sexual orientation, gender identity,
mental or physical disability, or HIV status; (j) have regular
opportunity for age-appropriate physical exercise and
recreation, including time spent outdoors; (k) contact
attorneys, ombudspersons and other advocates, and
representatives of state or local agencies, regarding conditions
of confinement or violations of rights, and to be free from
retaliation for making these contacts or complaints;(l)
participate in religious services and activities of their
choice; (m) not be deprived of any of the following as a
disciplinary measure: food, contact with parents, guardians, or
attorneys, sleep, exercise, education, bedding, access to
religious services, a daily shower, a drinking fountain, a
toilet, medical services, reading material, or the right to send
and receive mail; (n) receive a quality education that complies
with state law, to attend age-appropriate school classes and
vocational training, and to continue to receive educational
services while on disciplinary or medical status; (o) attend all
court hearings pertaining to them; (p) have counsel and a prompt
probable cause hearing when detained on probation or parole
violations; and (q) make at least two free telephone calls
within an hour after initially being placed in a facility of the
Division of Juvenile Facilities following an arrest. (WIC
224.71.)
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Current law includes within these rights, the right to "maintain
frequent and continuing contact with parents, guardians,
siblings, children, and extended family members, through visits,
telephone calls, and mail." (WIC 224.71(g) (emphasis added.)
This bill would expand this provision to also include the right
to maintain frequent and continuing contact with "the other
parent of a child and the child's caregiver, social worker,
teacher, physician, and other service providers involved in the
upbringing and caregiving of the child, and extended family
members . . . ."
Current law provides that a ward confined in a state adult or
DJF facility "shall be encouraged to communicate with family
members, clergy, and others, and to participate in programs that
will facilitate his or her education, rehabilitation, and
accountability to victims, and that may help the ward become a
law-abiding and productive member of society. If the division
or a facility requires a ward to provide a list of allowed
visitors, calls, or correspondents, that list shall be
transferable from facility to facility, so that the transfer of
the ward does not unduly interrupt family and community
communication." (WIC 1712.1(a).)
Current law further requires that a ward "be allowed a minimum
of four telephone calls to his or her family per month. A
restriction or reduction of the minimum amount of telephone
calls allowed to a ward shall not be imposed as a disciplinary
measure. If calls conflict with institutional operations,
supervision, or security, telephone usage may be temporarily
restricted to the extent reasonably necessary for the continued
operation and security of the facility. When speaking by
telephone with a family member, clergy, or counsel, a ward may
use his or her native language or the native language of the
person to whom he or she is speaking. (WIC 1712.1(b).)
This bill would revise this provision to additionally provide
that, "(e)xcept in cases where it is documented that such
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contact is not in the best interest of the child, if the ward
has a child, the ward may communicate, both over the telephone
and in writing, with all of the following persons in order to
aid in the attachment and involvement of the ward in his or her
child's life, to increase the ward's ability to parent the
child, and to reduce the detrimental impact on the ward's child
as a result of having an incarcerated parent:
(A) The ward's child.
(B) The other parent of the child.
(C) Any caregiver, social worker, teacher, or physician of
the child.
(D) Any other person involved with the upbringing and
caretaking of the ward's child."
This bill would make technical conforming revisions to
incorporate the changes of this bill into existing provisions
concerning the correspondence rights of wards. The bill also
would add language to expressly require that nothing in this
section be construed to limit any right defined by any other
statute.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
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
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
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incarceration.<3>
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
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
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<3> "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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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.<4>
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.
This bill does not aggravate the prison overcrowding crisis
outlined above.
COMMENTS
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<4> 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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1. Stated Need for This Bill
The author states in part:
Many incarcerated adolescent parents face long periods of time
where they have little or no contact with their children. A
national survey completed in 2003 found that of incarcerated
girls 11% of girls fifteen and under, 10% of sixteen
year-olds, 8% of seventeen year-olds, and 13% of eighteen year
olds were parents. The same survey found that of incarcerated
boys 13% of fifteen year-olds, 15% of sixteen year-olds, 17%
of seventeen year-olds, and 21% of eighteen year olds were
parents. The trauma of an arrest event and the resulting
parent-child separation can have profound effects on the
child's development, lasting well into adulthood. . . .
. . . Programs created to promote positive contact between
parents and their children have been shown to decrease the
negative impact of the mother's imprisonment on the child.
Empirical studies have found that increased contact between
inmates and their families can contribute to their
re-integration into the community after release. Successful
re-integration can reduce recidivism. Encouraging
communication between incarcerated adolescents and their
children will benefit the state of California by contributing
to decreased recidivism rates among incarcerated adolescent
parents, decreasing the likelihood that their children will
one day be involved with the criminal justice system, and
allowing for better re-integration of incarcerated adolescents
into their families and communities upon their release. . .
State facilities currently do not specify that a ward may talk
to his or her child and disallow phone contact with important
individuals involved in the child's upbringing. County
detention facilities vary greatly on their regulations for
phone contact. Some counties allow unlimited unsupervised
calls while others offer calls only once a week to guardians
only. Our bill will improve the ability of youth incarcerated
in state facilities to parent their children by allowing them
to communicate over the phone and in writing with their child
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and also with their child's caregiver, other parent, social
worker, teacher, physician or any other person involved in the
child's upbringing. The bill will also provide youth who are
incarcerated in local facilities with similar opportunities
for communication with their children and key individuals
within the restriction policy for phone use at the facility.
In addition, the bill will require local detention facilities
to provide opportunities for meaningful contact, including in
person visits, between incarcerated youth and their children.
. . .
2. What This Bill Would Do
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As explained in detail above, this bill is intended to address
the needs of incarcerated youth who themselves have children.
With respect to juveniles incarcerated in local juvenile
detention facilities, this bill would:
require that the well-being of their children be
considered, as specified;
require that visitation policies provide opportunities
for meaningful contact between incarcerated parents and
their children, as specified; and
require that telephone access apply to juveniles and
their own children when they are involved in caring for
their children, and to the child's other parent, caregiver,
social worker, teacher, physician, other service providers
for the child, and any other individuals who are involved
in the upbringing and care-giving of the child, as
specified.
With respect to wards in the state Division of Juvenile
Facilities this bill would:
provide the right to maintain frequent and continuing
contact with the "other parent of a child and the child's
caregiver, social worker, teacher, physician, and other
service providers involved in the upbringing and
care-giving of the child, and extended family members," as
specified; and authorize telephonic and written
communication between wards and their children, the other
parent or person involved "with the upbringing and
caretaking of their child," except "in cases where it is
documented that such contact is not in the best interest of
the child," as specified.
3. Children with Incarcerated Parents
There is a significant body of research concerning the incidence
and effect of incarcerated parents with respect to their
children and families. In February of 2009 the Sentencing
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Project reported:
In 2007 there were 1.7 million children in America
with a parent in prison, more than 70% of whom were
children of color. Children of incarcerated parents
live in a variety of circumstances. Some were
previously in homes of two-parent families, where the
non-incarcerated parent can assume primary
responsibility for the children. Many children,
especially in cases of women's incarceration, were in
single-parent homes and are then cared for by a
grandparent or other relative, if not in foster care.
And in some cases, due to substance abuse and other
factors, incarcerated parents had either not lived
with their children or not provided a secure
environment for them. Following release from prison
both parents and children face challenges in reuniting
their families. Parents have to cope with the
difficulty of finding employment and stable housing
while also reestablishing a relationship with their
children.
The increasing incarceration of women means that more
mothers are being incarcerated than ever before.
There is some evidence that maternal incarceration can
be more damaging to a child than paternal
incarceration, which results in more children now
suffering negative consequences. The number of
incarcerated mothers has more than doubled (122%) from
29,500 in 1991 to 65,600 in 2007.<5>
Committee staff was unable to find data substantiating the
number of youth detained in California who are parents.
However, anecdotal evidence suggests the numbers are not
insignificant. Materials developed for the "Young Men as
Fathers" program in the Division of Juvenile Justice estimated
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<5> Incarcerated Parents and their Children, Trends 1991-2007
(The Sentencing Project)(Feb. 2009).
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that more than 20 percent of wards were fathers.<6>
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<6> See http://www.cdcr.ca.gov/News/YMAF_docs/foreword.pdf
(undated materials).