BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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SB 1296 (Leno) 6
As Introduced: February 21, 2014
Hearing date: April 8, 2014
Code of Civil Procedure and
Welfare and Institutions Code
AA:sl
JUVENILE JUSTICE:
TRUANCY
HISTORY
Source: Youth Law Center; East Bay Children's Law Offices
Prior Legislation: None
Support: All of Us or None; Alliance for Children's Rights;
California Attorneys for Criminal Justice (CACJ);
California Catholic Conference of Bishops; California
Probation, Parole and Correctional Association (CPPCA);
California Public Defenders Association; Chief
Probation Officers of California (CPOC); Children's
Defense Fund of California (CDF-CA); Children's Law
Center of California; Coalition for Juvenile Justice;
Community Rights Campaign; Ella Baker Center for Human
Rights; Friends Committee on Legislation of California;
John Burton Foundation for Children Without Homes;
Legal Advocates for Children and Youth; National
Association for the Education of Homeless Children and
Youth; Pacific Juvenile Defender Center; Public
Defender of the City and County of San Francisco;
Public Counsel
Opposition:Unknown
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KEY ISSUE
SHOULD THE LAW PROVIDE THAT A STATUS OFFENDER WHO IS BEFORE THE
COURT SOLELY ON THE GROUND THAT HE OR SHE IS IN WILLFUL
DISOBEDIENCE OR INTERFERENCE WITH A LAWFUL COURT ORDER RELATING
TO THE MINOR'S TRUANCY SHALL NOT BE DETAINED IN A SECURE
FACILITY?
PURPOSE
The purpose of this bill is to prohibit secured detention as a
sanction for truants who are found in contempt of court solely
on the grounds of failing to comply with a court order relating
to the truancy, as specified.
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.)
Current law generally provides for the jurisdiction of the
juvenile court over a person under the age of 18 who
"persistently or habitually refuses to obey the reasonable and
proper orders or directions of his or her parents, guardian, or
custodian, or who is beyond the control of that person," or who
violates curfew offenses, as specified. (WIC � 601.) These
types of offenses are known generally as "status" offenses -
acts that are illegal only if committed by juveniles (typically,
running away, disobeying parents, curfew violations and
truancy).
Current law provides that if "a minor has four or more truancies
within one school year . . . or a school attendance review board
or probation officer determines that the available public and
private services are insufficient or inappropriate to correct
the habitual truancy of the minor, or to correct the minor's
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persistent or habitual refusal to obey the reasonable and proper
orders or directions of school authorities, or if the minor
fails to respond to directives of a school attendance review
board or probation officer or to services provided, the minor is
then within the jurisdiction of the juvenile court which may
adjudge the minor to be a ward of the court. However, it is the
intent of the Legislature that no minor who is adjudged a ward
of the court pursuant solely to this subdivision shall be
removed from the custody of the parent or guardian except during
school hours. . . ." (Welfare and Institutions Code � 601(b).)
This bill would revise the legislative intent language in this
subdivision to also state that minors adjudged wards of the
court solely because of truancy shall not be held in a secure
facility, except for the purposes of school attendance.
Current law strictly limits the detention of status offenders in
any jail, lockup, juvenile hall, or other secure facility, as
specified. (WIC � 207.)
This bill would enact a new statute providing that a "person
under 18 years of age shall not be detained in a secure
facility,<1> solely upon the ground that he or she is in willful
disobedience or interference with any lawful order of the
juvenile court, if the basis of an order of contempt is the
failure to comply with a court order pursuant to subdivision (b)
of Section 601 (truancy, as defined above). Upon a finding of
contempt of court, the court may issue any other lawful order,
as necessary, to ensure the minor's school attendance."
Current law enumerates specified acts or omissions with respect
to a court of justice or proceedings therein which are contempt
of the authority of the court, including "(d)isobedience of any
lawful judgment, order, or process of the court." (Code of
Civil Procedure � 1209(a)(5).)
Current law generally provides that when the contempt consists
of the omission to perform an act which is yet in the power of
the person to perform, he or she may be imprisoned until he or
she has performed it, and in that case the act shall be
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<1> Specifically, "secure facility" as defined in Section 206
of the Welfare and Institutions Code.
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specified in the warrant of commitment. (CCP � 1219(a).)
Current law excepts from this authority "the victim of a sexual
assault or domestic violence crime for contempt when if the
contempt consists of refusing to testify concerning that sexual
assault or domestic violence crime, as specified." (CCP �
1219(b).)
This bill additionally would provide that, "(n)otwithstanding
any other law, a court shall not imprison, hold in physical
confinement,<2> or otherwise confine or place in custody a minor
for contempt if the contempt consists of the minor's failure to
comply with a court order (relating to truancy, as specified)<3>
if the minor was adjudged a ward of the court on the ground that
he or she is a (truant, as defined) . . . . Upon a finding of
contempt of court, the court may issue any other lawful order,
as necessary, to secure the minor's attendance at school."
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy, known as "ROCA"
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<2> This bill would define "physical confinement" to have the
same meaning as defined in subdivision (d) of Section 726 of the
Welfare and Institutions Code.
<3> Welfare and Institutions Code section 601(b) and 727, the
latter providing the general statutory authority for juvenile
courts to make any "reasonable orders for the care, supervision,
custody, conduct, maintenance, and support of the minor or
nonminor, including medical treatment, subject to further order
of the court," over minors adjudged wards of the juvenile court
(status or delinquency offenders).
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(which stands for "Receivership/ Overcrowding Crisis
Aggravation"), the Committee held measures that created a new
felony, expanded the scope or penalty of an existing felony, or
otherwise increased the application of a felony in a manner
which could exacerbate the prison overcrowding crisis. Under
these principles, ROCA was applied as a content-neutral,
provisional measure necessary to ensure that the Legislature did
not erode progress towards reducing prison overcrowding by
passing legislation, which would increase the prison population.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
submitted that the, ". . . population in the State's 33 prisons
has been reduced by over 24,000 inmates since October 2011 when
public safety realignment went into effect, by more than 36,000
inmates compared to the 2008 population . . . , and by nearly
42,000 inmates since 2006 . . . ." Plaintiffs opposed the
state's motion, arguing that, "California prisons, which
currently average 150% of capacity, and reach as high as 185% of
capacity at one prison, continue to deliver health care that is
constitutionally deficient." In an order dated January 29,
2013, the federal court granted the state a six-month extension
to achieve the 137.5 % inmate population cap by December 31,
2013.
The Three-Judge Court then ordered, on April 11, 2013, the state
of California to "immediately take all steps necessary to comply
with this Court's . . . Order . . . requiring defendants to
reduce overall prison population to 137.5% design capacity by
December 31, 2013." On September 16, 2013, the State asked the
Court to extend that deadline to December 31, 2016. In
response, the Court extended the deadline first to January 27,
2014 and then February 24, 2014, and ordered the parties to
enter into a meet-and-confer process to "explore how defendants
can comply with this Court's June 20, 2013 Order, including
means and dates by which such compliance can be expedited or
accomplished and how this Court can ensure a durable solution to
the prison crowding problem."
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The parties were not able to reach an agreement during the
meet-and-confer process. As a result, the Court ordered
briefing on the State's requested extension and, on February 10,
2014, issued an order extending the deadline to reduce the
in-state adult institution population to 137.5% design capacity
to February 28, 2016. The order requires the state to meet the
following interim and final population reduction benchmarks:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and
137.5% of design bed capacity by February 28, 2016.
If a benchmark is missed the Compliance Officer (a position
created by the February 10, 2016 order) can order the release of
inmates to bring the State into compliance with that benchmark.
In a status report to the Court dated February 18, 2014, the
state reported that as of February 12, 2014, California's 33
prisons were at 144.3 percent capacity, with 117,686 inmates.
8,768 inmates were housed in out-of-state facilities.
The ongoing prison overcrowding litigation indicates that prison
capacity and related issues concerning conditions of confinement
remain unresolved. While real gains in reducing the prison
population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore,
the Committee's consideration of ROCA bills -bills that may
impact the prison population - will be informed by the following
questions:
Whether a measure erodes realignment and impacts the
prison population;
Whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a bill corrects a constitutional infirmity or
legislative drafting error;
Whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and,
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Whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Stated Need for This Bill
The author states:
California law has long prohibited the secure
confinement of "status offenders"- those who are under
the court's jurisdiction for behavior that would not
be illegal except for the individual's age. These
violations include breaking curfew, running away,
being beyond the control of one's parents, and truancy
(see Welfare and Institutions Code Sec. 601). While
young people may be made a ward of the court for
truancy, under current law they must not be held in
secure confinement.
Unfortunately, court decisions have found a way around
the statutory prohibition against incarceration in
California and nationally by using contempt or
violation of a valid court order. This loophole has
allowed truants to be incarcerated over the years for
contempt or failing to obey a court order to attend
school. In many cases, incarceration of these youths
has made things worse for children whose only
transgression is not going to school. SB 1296 would
close that loophole, and prohibit secure confinement
as a sanction in such instances.
California has been active in trying to stem the
School to Prison Pipeline with creative school
disciplinary measures and truancy interventions.
Counties around the state have developed active School
Attendance Review Boards that work to keep youth out
of the justice system, through mediation programs for
young people as well as for parents, and access to
extensive service systems that provide tutoring,
mentoring, school safety support, assessment of
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disabilities, alternative education programs,
transportation, and remedial services.
As a result, incarceration for truancy has been
dramatically reduced. Still, data from 2012 and 2013
suggest that four counties still rely upon
incarceration. The vast majority of the cases
involved youth of color, and some were as young as age
12. Many were incarcerated multiple times, raising
further questions about the effectiveness of
incarceration as a sanction.
Research on truancy has established that persistent
refusal to attend school stems from a complex series
of factors that have nothing to do with disrespect for
the law. Some youth are afraid to go to school
because of bullying or gang activity. Others have
challenges at home ranging from abuse, neglect or
drugs, to situations that require the youth to stay
home to care for relatives, or help support the
family. Still others are too humiliated or frustrated
to attend school because of disabilities, intellectual
limitations, or because disruptions have caused them
to fall far behind their classmates.
Incarceration for truancy is an illusory "solution"
that actually makes things worse. Research indicates
that youth who are incarcerated find it more difficult
to complete their education and their employability is
negatively impacted. Also, while state law requires
that truants be separated from delinquent youth, the
incarceration leads many of these youths to view
themselves as criminals, and to act accordingly.
It is important to note that SB 1296 leaves intact a
court's power to punish contempt or violations of
court orders related to truancy, but simply eliminates
incarceration from the available sanctions in those
narrow instances. SB 1296 reaffirms the Legislature's
long held intention that truants should not be
incarcerated.
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2. Background: Status Offenders and Truants
Courts and policymakers have long struggled with how best to
address status offenders, including truants. In an op-ed piece
published last fall Judge Michael Nash, who since 1995 has
served as either Presiding Judge of the Juvenile Court or
Supervising Judge of the Juvenile Dependency Court in Los
Angeles, noted:
We are now approaching the last quarter of 2013 and
the subject of status offenders and what we should do
with them or for them is still an active subject of
discussion within the framework of our juvenile
justice systems, and rightfully so. This is so despite
the fact that our courts, law enforcement entities,
child advocates, communities and law makers have been
talking about this issue for more than 40 years. . . .
In Los Angeles, where I preside, we have had a court
called the Informal Juvenile and Traffic Court (IJTC)
for many of these offenses. In calendar year 2011, our
IJTC handled approximately 65,000 citations including
thousands for daytime loitering (aka truancy), curfew
violations and possession offenses.
In 1974, Congress passed the Juvenile Justice and
Delinquency Prevention Act (JJDPA) that, among other
things, limited the placement of status offenders in
secure detention or correctional facilities because of
concerns that the delinquency system was
inappropriately treating these youth as criminal
offenders. Partially due to concerns of judges, JJDPA
was amended in 1980 to allow the detention of status
offenders who had violated court orders such as "stop
running away" or "go to school regularly." That
exception, known as the Valid Court Order exception
(VCO), has resulted in the detention of thousands of
youth classified as status offenders. The VCO is still
in effect in most states, but there are significant
efforts to eliminate it if and when Congress
reauthorizes the JJDPA, which it has not done since
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2002. There are good reasons for this, and there are
positive developments in this area.
. . . (R)esearch shows that responses such as secure
detention of status offenders is ineffective and
potentially dangerous. Rather than punish them, youth,
particularly status offenders, are better served by
being diverted from the justice system. When you
couple that with community programs that include
engagement of youth and their families as well as
programs designed to meet their specific needs, the
chances of achieving positive outcomes for youth and
their communities are greatly enhanced. . . .<4>
In a policy brief released last month, the Texas Public Policy
Foundation reported that as of 2011 (the most recently available
data), California was one of more than 33 states that authorized
the secured detention of status offenders for the violation of a
court order. Characterizing these violations as a tool to
"criminalize status offenses," the brief explained in part:
The treatment of status offenders was complicated by a
1980 congressional amendment to the JJDP Act regarding
valid court orders imposed on status offenders. The
1980 amendment enabled judges to confine status
offenders in secure detention facilities for limited
periods of time and to adjudicate a status offender as
a delinquent if the status offender was found to
violate a VCO. The amendment was originally intended
to address concerns that the USDOJ's
Deinstitutionalization of Status Offenders mandate was
depriving judges of a tool they needed to handle
status offenders. The bottom line of the exception,
however, is that it created a mechanism for judges to
criminalize status offenses. As of 2011, the year of
the most-recent nationwide data on youth confinement,
more than 60 percent of the states (33) permitted
their juvenile courts to use the VCO exception for all
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<4> Nash, Improving the Court's Response to Status Offenders,
Oct. 14, 2013
(http://jjie.org/op-ed-improving-the-courts-response-to-status-of
fenders/.)
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status offenses, down from 36 states in 2001. [fn.:
". . . 16 states in which secure detention of status
offenders were prohibited included: Connecticut,
Delaware, Iowa, Maryland, Massachusetts, Minnesota,
Montana, New Hampshire, New Jersey, New Mexico, New
York, Pennsylvania, Rhode Island, Utah, Vermont, and
West Virginia. . . ."]<5>
A court of appeal decision published last fall clearly explains
how California courts have contended with the issue of
sanctioning noncompliant truants with secured detention:
The Legislature has expressly limited the power of the
juvenile court to order the secure confinement of
section 601 wards. As relevant to truancy wards, . .
. "it is the intent of the Legislature that no minor
who is adjudged a ward of the court pursuant solely to
this subdivision shall be removed from the custody of
the parent or guardian except during school hours."
Section 207, subdivision (a) applies more generally to
all section 601 wards and provides in relevant part
that "[n]o minor shall be detained in any jail,
lockup, juvenile hall, or other secure facility who is
taken into custody solely upon the ground that he or
she is a person
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<5> Kids Doing Time for What's Not a Crime: The
Over-Incarceration of Status Offenders, (March 2014) The Texas
Public Policy Foundation
(http://www.texaspolicy.com/sites/default/files/documents/2014-03
-PP12-JuvenileJustice
StatusOffenders-CEJ-DerekCohenMarcLevin.pdf); See also,
Szymanski, What is the Valid Court Order Exception to Secure
Detention for Status Offenders? (May 2011) Nat'l Center for
Juvenile Justice (http://www.ncjj.org/pdf/
Snapshots/2011/vol16_no5_What%20is%20the%20Valid%20Court%20Order%
20Exception%20to%20Secure%20Detention%20for%20Status%20Offenders.
pdf.)
described by Section 601 or adjudged to be such or
made a ward of the juvenile court solely upon that
ground ? ." Section 207, subdivision (b) provides
time-limited exceptions to the prohibition against
secure confinement of section 601 wards in order to
determine if there are any outstanding warrants or
holds against the minor or to locate the minor's
parents. . . .
In Michael G., supra, 44 Cal.3d at page 287, our
Supreme Court considered whether a contemptuous
section 601 ward may be confined in a secure facility
during non-school hours despite the express
limitations on secure confinement of status offenders
in sections 207 and 601. The court held that "a
juvenile court retains the authority, pursuant to its
contempt power, to order the secure, non-school hours
confinement of a contemptuous section 601 ward."
(Michael G., supra, at p. 287.) Although the court
concluded that the statutory limitations in sections
207 and 601 did not deprive the court of its inherent
power to punish a contemptuous section 601 ward with
secure confinement during non-school hours, it
recognized that "respect for the intent of our coequal
branch of government demands that courts exercise
caution when imposing such sanctions against
contemptuous status offenders." (Michael G., supra, at
p. 296.)
In furtherance of the goal of exercising caution in
contempt proceedings against status offenders, the
Michael G. court adopted additional requirements that
must be satisfied before a juvenile court may find a
section 601 ward in contempt. . . . First, a
juvenile court must ensure that the ward "is given
sufficient notice to comply with the order and
understands its provisions." Second, the violation
must be egregious. "The requirement of an egregious
violation ensures that secure incarceration will not
become a commonplace sanction in contravention of the
Legislature's intent to comply with the federal
mandate to deinstitutionalize status offenders."
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Third, the juvenile court must have considered less
restrictive alternatives and found them to be
ineffective. Fourth, the confinement conditions
ordered by the court must ensure that the contemptuous
section 601 ward is not allowed to intermingle with
section 602 wards. (44 Cal.3d at pp. 297, 300.)
. . . By (also) requiring express findings, the
Michael G. court ensured "the court is aware that, by
ordering the secure confinement of a juvenile who has
not committed a criminal offense, it is taking the
extraordinary step of acting contrary to the wishes of
the Legislature but is justified in doing so because
it is convinced there is no other alternative which
will adequately serve the purpose of the contempt
citation." . . .
. . . (T)he court's inherent power to punish contempt
is tempered by reasonable procedural safeguards
enacted by the Legislature in Code of Civil Procedure
section 1209 et seq. . . . In Michael G., the court
went to great lengths to caution against making the
secure confinement of section 601 wards a commonplace
occurrence, going so far as to impose additional
requirements upon a juvenile court that may be
considering holding a status offender in contempt of
court. . . . The court did not suggest these
requirements were imposed in lieu of the contempt
provisions of the Code of Civil Procedure. Indeed,
given the court's cautious approach and reference to
the "extraordinary step of acting contrary to the
wishes of the Legislature" concerning the
incarceration of status offenders, it is difficult to
conceive that the Michael G. court envisioned
stripping section 601 wards of the procedural
safeguards contained in the Code of Civil Procedure.
A fair reading of Michael G. suggests that a juvenile
court must comply with the contempt provisions of the
Code of Civil Procedure as well as the additional
requirements specified by the Michael G. court.
The Attorney General contends the Supreme Court in
Michael G. permitted the confinement of a contemptuous
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section 601 ward without requiring compliance with the
Code of Civil Procedure. We disagree with the
Attorney General's characterization of the case. As
we have discussed, while it is true the court did not
specifically address whether the juvenile court had to
comply with the Code of Civil Procedure, the court
assumed the contempt provisions of the Code of Civil
Procedure apply to contempt proceedings under Welfare
and Institutions Code section 213. (In re M.R. (2013)
Cal.App.4th 49, 59-62 (some citations omitted).
3. Data: Truancy in California
Based on the most recent information available on the Department
of Justice's website - for the year 2011 -- of the 21,827 status
offense arrests reported in California, 5,423 - 24.8 percent -
were for truancy. Juveniles in the 12-14 age group were more
likely to be arrested on a truancy violation than any other age
group (27.5 percent). Hispanic juveniles were more likely to be
arrested for truancy violations compared to any other
race/ethnic group (28.4 percent). In 2011, of the 16,357
petitioned status offenses reported, 2.5 percent (408) were for
truancy.<6>
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<6> 2011 Juvenile Justice in California, California Dept. of
Justice.