BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
9
8
8
SB 988 (Liu)
As Amended March 19, 2012
Hearing date: March 27, 2012
Welfare and Institutions Code
AA:mc
JUVENILE DELINQUENCY PROCEEDINGS:
ATTORNEY QUALIFICATIONS
HISTORY
Source: Author
Prior Legislation: None
Support: Commonweal; Juvenile Justice Project
Opposition:California District Attorneys Association
KEY ISSUE
SHOULD DEFENSE COUNSEL IN JUVENILE DELINQUENCY PROCEEDINGS BE
REQUIRED TO COMPLETE AT LEAST 8 HOURS OF CONTINUING EDUCATION
RELATING TO DELINQUENCY LAW EVERY THREE YEARS, AS SPECIFIED?
PURPOSE
(More)
SB 988 (Liu)
PageB
The purpose of this bill is to require defense attorneys in
delinquency proceedings to complete 8 hours of continuing
education relating to juvenile delinquency law and practice, as
specified.
Current law provides that minors under the age of 18 years may
be adjudged to be a ward of the court where they "persistently
or habitually refuse to obey the reasonable and proper orders or
directions of his or her parents, guardian, or custodian," are
"beyond the control of that person," "violated any ordinance of
any city or county of this state establishing a curfew based
solely on age . . . ," or are habitually truant, as specified.
(Welfare and Institutions Code ("WIC") � 601.)
Current law further provides that minors under the age of 18
years may be adjudged to be a ward of the court for violating
"any law of this state or of the United States or any ordinance
of any city or county of this state defining crime," as
specified. (WIC � 602.)
Current law generally provides that when a minor is adjudged a
ward of the court on the ground
that he or she is delinquent, the court may make any and all
reasonable orders for the care,
supervision, custody, conduct, maintenance, and support of the
minor, including medical treatment, subject to further order of
the court, as specified. (WIC � 727(a).)
Current law requires that counsel appointed in a dependency case
"shall have a caseload and training that ensures adequate
representation of the child. The Judicial Council shall
promulgate rules of court that establish caseload standards,
training requirements, and guidelines for appointed counsel for
children . . . ." (Welfare and Institutions Code ("WIC") �
(More)
SB 988 (Liu)
PageD
317(c); See also California Rule of Court 5.660(d)<1>.)
This bill would require that, commencing January 1, 2014,
defense attorneys in delinquency proceedings complete at least
eight hours of training approved for minimum continuing legal
education credit by an approved State Bar of California agency
prior to representing a juvenile for the first time, and an
additional eight hours within the regular minimum continuing
legal education requirements due per three-year cycle. This
bill would provide that these training hours may be counted
toward the minimum continuing legal education hours required by
the State Bar of California.
This bill would require that the required eight hours of minimum
continuing legal education per three-year cycle "include
developments in juvenile delinquency law, child development,
special education, mental health issues, child abuse and
neglect, counsel's ethical duties, appellate issues, direct and
collateral consequences of court involvement, and how to secure
effective rehabilitative resources."
This bill further would provide that, "(w)hile public defender
offices and agencies contracting to
---------------------------
<1> California Rule of Court 6.660(d) provides: "(d) Competent
counsel () Every party in a dependency proceeding who is
represented by an attorney is entitled to competent counsel.
(1) Definition. "Competent counsel" means an attorney who is a
member in good standing of the State Bar of California, who has
participated in training in the law of juvenile dependency, and
who demonstrates adequate forensic skills, knowledge and
comprehension of the statutory scheme, the purposes and goals of
dependency proceedings, the specific statutes, rules of court,
and cases relevant to such proceedings, and procedures for
filing petitions for extraordinary writs. (2) Evidence of
competency. The court may require evidence of the competency of
any attorney appointed to represent a party in a dependency
proceeding. (3) Experience and education. Only those attorneys
who have completed a minimum of eight hours of training or
education in the area of juvenile dependency, or who have
sufficient recent experience in dependency proceedings in which
the attorney has demonstrated competency, may be appointed to
represent parties. In addition to a summary of dependency law
and related statutes and cases, training and education for
attorneys must include information on child development, child
abuse and neglect, substance abuse, domestic violence, family
reunification and preservation, and reasonable efforts. Within
every three years attorneys must complete at least eight hours
of continuing education related to dependency proceedings. (4)
Standards of representation. Attorneys or their agents are
expected to meet regularly with clients, including clients who
are children, regardless of the age of the child or the child's
ability to communicate verbally, to contact social workers and
other professionals associated with the client's case, to work
with other counsel and the court to resolve disputed aspects of
a case without contested hearing, and to adhere to the mandated
timelines. The attorney for the child must have sufficient
contact with the child to establish and maintain an adequate and
professional attorney-client relationship. The attorney for the
child is not required to assume the responsibilities of a social
worker and is not expected to perform services for the child
that are unrelated to the child's legal representation. (5)
Attorney contact information. The attorney for a child for whom
a dependency petition has been filed must provide his or her
contact information to the child's caregiver no later than 10
days after receipt of the name, address, and telephone number of
the child's caregiver. If the child is 10 years of age or
older, the attorney must also provide his or her contact
information to the child for whom a dependency petition has been
filed no later than 10 days after receipt of the caregiver's
contact information. The attorney may give contact information
to a child for whom a dependency petition has been filed who is
under 10 years of age. (6) Caseloads for children's attorneys.
The attorney for a child must have a caseload that allows the
attorney to perform the duties required by section 317(e) and
this rule, and to otherwise adequately counsel and represent the
child. To enhance the quality of representation afforded to
children, attorneys appointed under this rule must not maintain
a maximum full-time caseload that is greater than that which
allows them to meet the requirements stated in (3), (4), and
(5)."
(More)
SB 988 (Liu)
PageE
provide representation under Sections 601 and 602 are encouraged
to provide training that meets the requirements (stated above),
each attorney shall be solely responsible for fulfilling those
training and education requirements. District attorneys in
delinquency proceedings are encouraged, but not required, to
pursue education in the relevant areas."
This bill would require that a "defense attorney representing a
minor in any proceeding under Section 601 or 602 shall do all of
the following:
(1) Provide diligent and conscientious advocacy and make
rational and informed decisions founded on adequate
investigation and preparation.
(2) Comply with Rule 5.663 of the California Rules of
(More)
SB 988 (Liu)
PageF
Court.<2>
(3) Represent the expressed interests of the minor, meet
regularly with the minor, and maintain a confidential
relationship with the minor. The attorney for the minor shall
have sufficient contact with the minor to establish and maintain
a meaningful and professional attorney-client relationship.
(4) Consult with social workers and mental health and other
experts when appropriate for the minor's defense, and seek
appointment, when appropriate, of those experts pursuant to
Sections
730 and 952 of the Evidence Code. Experts appointed pursuant to
Sections 730 and 952 of the Evidence Code are agents of the
attorney and shall adhere to the attorney-client privilege."
---------------------------
<2> California Rules of Court, Rule 5.663 provides:
"Responsibilities of children's counsel in delinquency
proceedings (�� 202, 265, 633, 634, 634.6, 679, 700) (a)
Purpose. This rule is designed to ensure public safety and the
protection of the child's best interest at every stage of the
delinquency proceedings by clarifying the role of the child's
counsel in delinquency proceedings. This rule is not intended
to affect any substantive duty imposed on counsel by existing
civil standards or professional discipline standards. (b)
Responsibilities of counsel A child's counsel is charged in
general with defending the child against the allegations in all
petitions filed in delinquency proceedings and with advocating,
within the framework of the delinquency proceedings, that the
child receive care, treatment, and guidance consistent with his
or her best interest. (c) Right to representation A child is
entitled to have the child's interests represented by counsel at
every stage of the proceedings, including postdispositional
hearings. Counsel must continue to represent the child unless
relieved by the court on the substitution of other counsel or
for cause. (Subd(c) amended effective January 1, 2007.) s(d)
Limits to responsibilities A child's counsel is not required:
(1) To assume the responsibilities of a probation officer,
social worker, parent, or guardian;
(2) To provide nonlegal services to the child; or (3) To
represent the child in any proceedings outside of the
delinquency proceedings."
(More)
SB 988 (Liu)
PageG
This bill would provide that a "defense attorney representing a
minor in any proceeding under Section 601 or 602 is not required
to do any of the following:
(1) Assume the responsibilities of a probation officer,
social worker, parent, or guardian.
(2) Provide nonlegal services to the minor.
(3) Represent the minor in any proceeding outside of the
delinquency proceedings.
This bill contains codified legislative findings and
declarations, as specified.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code section 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
ineligible for jail and therefore subject to state prison.
Under these principles, ROCA has been applied as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress towards reducing prison
(More)
SB 988 (Liu)
PageH
overcrowding by passing legislation which could increase the
prison population. ROCA will continue until prison overcrowding
is resolved.
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). 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 January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
than the following:
167 percent of design capacity by December 27, 2011
(More)
SB 988 (Liu)
PageI
(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
COMMENTS
1. Stated Need for This Bill
The author states in part:
Despite the high stakes involved in today's juvenile
court proceedings, many children still fail to receive
effective legal representation. In some
jurisdictions, children appear in delinquency
proceedings with no attorney at all, one that is
under-trained, or one who has not been trained at all
to handle the unique and complex issues raised in
juvenile delinquency court. Disappointingly, a 2009
survey by the MacArthur Juvenile Indigent Defense
Action Network of California delinquency counsel found
that 47% of panel and contract attorneys had no
specific juvenile training when they began to
represent children in delinquency cases, and that of
those who did have some training, 48% had a day or
less. . . .
Competent representation in juvenile proceedings is
important to the young person and her family, the
juvenile justice system, and the community at large.
Even a relatively minor offense exposes youth to
life-changing consequences. . . . Competent
representation is needed to preserve the integrity of
the justice system, prevent wrongful conviction, and
reduce unnecessary incarceration. . . .
(More)
SB 988 (Liu)
PageJ
As the counterpart to juvenile delinquency court, the
juvenile dependency court has long recognized the need
for standards of practice for all participants in that
sector. Not only are dependency attorneys required to
meet mandatory minimum training and education
requirements to certify that they are qualified to
represent children in dependency proceedings, all
stakeholders in dependency court are required to meet
mandatory minimum education and training requirements
and standards of practice before working in dependency
court and on a continuing basis.
. . . This bill would require individuals who
represent children in the delinquency system to
complete at least eight hours of continuing education
related to delinquency proceedings every three years.
These training hours may be counted toward the minimum
continuing legal education hours required by the State
Bar of California. California lawyers are required to
complete (and pay for) 25 hours of continuing legal
education every three years with four of those hours
being in ethics, one on substance abuse and one on the
elimination of bias.
2. What This Bill Would Do
As explained by the author, this bill would require defense
counsel in juvenile delinquency proceedings to complete at least
8 hours of continuing education relating to delinquency law
every three years. This is consistent with the continuing
education requirements currently applicable to attorneys in the
dependency court. With respect to this bill, district attorneys
would be encouraged but not required to "pursue education" in
this area, and public defender offices and agencies contracting
to provide minor representation in delinquency matters would be
encouraged but not be required to provide training; attorneys
practicing delinquency law would be individually responsible for
fulfilling the continuing education requirements set forth in
the bill.
(More)
SB 988 (Liu)
PageK
This bill also sets forth certain statutory duties, enumerated
above, that would apply to attorneys representing minors in
delinquency proceedings. The bill also specifies acts not
required of attorneys representing minors in these proceedings;
these provisions mirror existing Rules of Court.
3. Background: Delinquency Proceedings; Attorney Training and
Education
In 2010 - the most recent available data - 185,867 juveniles
were arrested in California. Of those, over 95,000 were
referred to the juvenile court for disposition.<3>
In April of 2008, the Administrative Offices of the Court
released its Juvenile Delinquency Court Assessment. With
respect to attorneys practicing before the juvenile court, the
report concluded in part:
Results from both surveys indicate that many
prosecutors and defense attorneys are new to juvenile
delinquency. This is particularly true for
prosecutors and public defenders; many are in their
first juvenile delinquency assignment and few reported
having prior professional roles in the juvenile
system. These findings may raise some concerns
regarding the general lack of experience of some
attorneys working in the juvenile delinquency courts.
In describing the qualifications for prosecutors, the
National Prosecution Standards . . . on the Standards
for Juvenile Justice recommends that training and
experience should be required for handling juvenile
delinquency cases and that entry-level attorneys
working in juvenile delinquency should receive
----------------------
<3> Juvenile Justice in California 2010 (California Dept. of
Justice) (http://ag.ca.gov/cjsc/publications/misc
/jj10/preface.pdf?).
(More)
SB 988 (Liu)
PageL
training related to juvenile matters. According to
the National Juvenile Defender Center's Principles in
Practice, legal representation of children is
considered to be a specialized area that requires
ongoing, delinquency-specific training. Although no
specific recommendation is made regarding the level of
expertise necessary for juvenile delinquency
attorneys, the principles do state that new defenders
should be supervised by more experienced attorneys to
ensure high-quality legal work and manageable
caseloads.
Given the complexity and the unique nature of the
juvenile delinquency court setting, having
experienced, well-trained attorneys is critical in
order to ensure the fair processing of delinquency
cases and quality representation for youth who enter
the delinquency system. The fact that there are many
professionals who are new to the delinquency system
indicates the importance of early training when first
entering a juvenile delinquency assignment. Training,
along with other practices that allow for attorneys
with delinquency-related experience to handle or
supervise delinquency cases, should be encouraged by
district attorneys' and public defenders' offices.<4>
(More)
-------------------------
<4> Juvenile Delinquency Court Assessment: Attorney Report
(AOC, April 2008) (http://www.courts.ca.gov/
documents/JDCA2008V2Ch4.pdf.)(footnotes omitted).
As part of this report, the Family and Juvenile Law Advisory
Committee recommended that judicial officers, attorneys, and
probation should be adequately trained and educated to
understand the myriad issues in delinquency court and the
importance of the work.<5>
4. Opposition; Related Issues
The California District Attorneys Association, noting that it
understands the bill has been amended to no longer apply to
prosecutors, opposes the bill. CDAA states in part:
As you know, the State Bar of California is the
professional licensure organization that oversees the
legal profession and regulates ongoing educational
standards thereof. The Bar sets rigorous requirements
as it regards continuing education and we believe this
is the appropriate way to ensure the proper training
of attorneys. We do not support micromanagement by
the Legislature when it comes to the specific nature
of legal education. Though we appreciate your attempt
to guarantee excellence in one part of the legal
profession, setting educational standards for
attorneys should be the province of the State Bar.
Additionally, we are concerned that, although this
bill only applies to defense counsel, there will be
future efforts to apply similar restrictions on
prosecutors. Often, juvenile court calendars are
covered by different deputy district attorneys and
this sort of requirement, if it were to be imposed in
the future, would be a severe burden to prosecutor
offices as several attorneys would have to undergo
this training as a practical matter.
Members of the Committee may wish to consider the provisions of
---------------------------
<5> Juvenile Delinquency Court Assessment 2008 (AOC, Center for
Families, Children & the Courts), p. 8
(http://www.courts.ca.gov/documents/JDCA2008V1Full.pdf).
(More)
SB 988 (Liu)
PageN
this bill in the larger context of the relationship between the
legislative and judicial branches of government. The authority
of attorneys to practice in a state court of law generally
derives from the California Supreme Court; current law provides
that, upon certification by the State Bar that an applicant has
fulfilled the requirements for admission to practice law, the
Supreme Court may admit such applicant as an attorney at law in
all the courts of this State. (Business and Profession Code �
6064.) Every person admitted and licensed to practice law in
this State is and shall be a member of the State Bar except
while holding office as a judge of a court of record. (Art. 6,
Cal. Const., � 9.)
Current statute requires the State Bar to "request the
California Supreme Court to adopt a rule
of court authorizing the State Bar to establish and administer a
mandatory continuing legal education program," as specified.
(Business and Professions Code � 6070.) As noted above, current
law requires the Judicial Council to promulgate rules for
dependency counsel. As members consider the underlying merits
of ensuring that attorneys practicing in delinquency courts are
properly trained and qualified, they also may wish to give
further consideration to the mechanisms for achieving this goal.
***************
SB 988 (Liu)
PageO