BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              S
                             2011-2012 Regular Session               B

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          SB 1363 (Yee)                                              3
          As Amended April 9, 2012 
          Hearing date:  April 24, 2012
          Welfare and Institutions Code                 VOTE ONLY
           AA:mc

                        JUVENILE JUSTICE: SOLITARY CONFINEMENT  


                                       HISTORY

          Source:  Ella Baker Center for Human Rights: Books Not Bars 

          Prior Legislation: None

          Support: American Civil Liberties Union; All Saints Church, 
          Pasadena; Asian Pacific       Environmental Network; California 
          Public Defenders Association; Californians   United for a 
          Responsible Budget; Children's Rights Project at Public Counsel; 
                   Equality California; First Unitarian Church of 
          Oakland's Faith in Action Team; Friends Committee on Legislation 
          of California; Legal Services for Prisoners with  Children; Life 
          Support  Alliance; Youth Justice Institute; Youth Together; 
          California Catholic Conference; Forward Together; National 
          Religious Campaign Against Torture; California Psychiatric 
          Association; CACJ

          Opposition:Peace Officers Research Association of California; 
                   California Correctional Peace Officers Association; 
                   Chief Probation Officers of California; California 
                   State Sheriffs' Association; California Probation, 
                   Parole and Correctional Association
           




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                                      KEY ISSUES
           
          SHOULD STATUTORY STANDARDS AND PROTOCOLS FOR THE USE OF SOLITARY 
          CONFINEMENT IN STATE AND LOCAL JUVENILE FACILITIES FOR THE 
          CONFINEMENT OF DELINQUENT WARDS BE ENACTED, AS SPECIFIED?

                                                                (CONTINUED)



          SHOULD CHANGES BE MADE TO THE COMPOSITION AND DUTIES OF LOCAL 
          JUVENILE JUSTICE COMMISSIONS, AS SPECIFIED?



                                       PURPOSE

          The purpose of this bill is to 1) establish standards and 
          protocols for the use of solitary confinement in state and local 
          juvenile facilities for the confinement of delinquent wards, as 
          specified; and 2) make some changes to the composition and 
          duties of local juvenile justice commissions, as specified.

           Current law  provides generally that the purpose of the 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.  If removal of a minor is determined 
          by the juvenile court to be necessary, reunification of the 
          minor with his or her family shall be a primary objective. 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. . . .  . . .   
          Minors under the jurisdiction of the juvenile court who are in 
          need of protective services shall receive care, treatment, and 




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          guidance consistent with their best interest and the best 
          interest of the public.  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. . . . 
           (Welfare and Institutions Code ("WIC")  202.) 
           
          Current law  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  authorizes the court to place a ward of the court in 
          a juvenile hall, ranch, camp, forestry camp, secure juvenile 
          home, or the Division of Juvenile Facilities, as specified.  
          (WIC
           726.)


           Confinement of Detained Minors
           
           Current law  requires the Corrections Standards Authority ("CSA") 
          to "adopt minimum standards for the operation and maintenance of 
          juvenile halls for the confinement of minors."  (WIC  210.)

           Current law  requires CSA to "adopt and prescribe the minimum 
          standards of construction, operation, programs of education and 
          training, and qualifications of personnel for juvenile ranches, 
          camps, or forestry camps . . . ."  (WIC  885.)




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                                                              SB 1363 (Yee)
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           This bill  would enact new statutory provisions regulating the 
          use of "solitary confinement" in juvenile facilities with the 
          following features and requirements:

           Definitions and Scope

          This bill  would define "solitary confinement" to mean "the 
          involuntary holding of a person in a room, cell, or area from 
          which the person is prevented from leaving."<1>

           This bill  would define "clinician" to mean "a licensed health or 
          mental health care professional."

           This bill  would define "minor" to mean "a person who is under 18 
          years of age or a person under the maximum age of juvenile court 
          jurisdiction who is confined in a juvenile facility."<2>

           This bill  would define "ward" to mean "a person who has been 
          declared a ward of the court pursuant to subdivision (a) of 
          Section 602."
          
          Standard for Solitary Confinement Placement and Duration

          This bill  would provide that a "minor or ward who is detained 
          in, or sentenced to, any juvenile facility or other secure state 
          or local facility shall not be subject to solitary confinement, 
          unless the minor or ward poses an immediate and substantial risk 
          of harm to others or to the security of the facility, and all 
          other less-restrictive options have been exhausted."  
           
           Purpose of Solitary Confinement

          This bill  would provide that solitary "confinement shall not be 
          used for the purposes of discipline, punishment, coercion, 
          convenience, or retaliation by staff."
           
          ---------------------------
          <1>   See Comment 2 for amendments the author proposes to revise 
          this language.
          <2>   Id.



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           Standards During Solitary Confinement
           
          This bill would provide that a "minor or ward may be held in 
          solitary confinement only in accordance with all of the 
          following guidelines:

               (1) The minor or ward shall be held in solitary confinement 
          only for the minimum time required to address the safety risk, 
          and that does not compromise the mental and physical health of 
          the minor or ward.
               (2) The minor or ward shall be evaluated face to face by a 
          clinician within one hour after                        placement 
          in solitary confinement, and every four hours thereafter to 
          determine if the                                       minor or 
          ward shall remain in solitary confinement.<3>  Each evaluation 
          shall be documented and shall include the reason for continued 
          placement in solitary confinement.
               (3) The minor or ward shall not be placed in solitary 
          confinement for more than 24 consecutive hours in a one-week 
          period without the written approval of the Chief of the Division 
          of Juvenile Facilities or his or her designee."<4>  

           This bill  would provide that a minor or ward who has exhibited 
          suicidal behavior or committed acts of self-harm shall not be 
          subject to solitary confinement, except as provided in 
          paragraphs (1) and (2) above, and if both of the following 
          conditions are met:

               (A) The condition of the minor or ward is monitored 
               closely by a clinician in order to reduce and 
               eliminate the risk of self-harm.<5>
               (B) Treatment staff implement an individualized 
               suicide crisis intervention plan approved by a 
               clinician within four hours of placing the minor or 
          -------------------------
          <3>   Id.
          <4>   Id.
          <5>   Id.



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               ward in solitary confinement.

           This bill  would require the minor or ward shall be moved to 
          an off-site hospital or mental health hospital if the 
          suicide risk is not resolved within 24 hours.

           This bill  would provide that nothing in its provisions "shall be 
          construed to conflict with any law providing greater or 
          additional protections to minors or wards."

           Documentation
           
           This bill  would require each local and state juvenile facility 
          to "document the usage of solitary confinement, including the 
          dates and duration of each occurrence and the reason for 
          placement in solitary confinement.  These records shall be 
          available for public inspection . . ." as specified.  
          




           Local Juvenile Justice Commissions
           
           Current law  provides that in each county there shall be a 
          juvenile justice commission consisting of not less than 7 and no 
          more than 15 citizens, as specified.  Current law requires that 
          two or more of the members be persons who are between 14 and 21 
          years of age, "provided there are available persons between 14 
          and 21 years of age who are able to carry out the duties of a 
          commission member in a manner satisfactory to the appointing 
          authority." (WIC  225.) 

           This bill  would require that two or more members shall be 
          parents or guardians of previously or currently incarcerated 
          youth, and that one member shall be a licensed social worker 
          with expertise in adolescent development.<6>

           Current law  provides that in lieu of county juvenile justice 


          ---------------------------
          <6>   Id.



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          commissions, the boards of supervisors of two or more adjacent 
          counties may agree to establish a regional juvenile justice 
          commission consisting of not less than eight citizens, and 
          having a sufficient number of members so that their appointment 
          may be equally apportioned between the participating counties.  
          (WIC  226.)   Current law  requires that two or more of the 
          members be persons who are between 14 and 21 years of age, 
          "provided there are available persons between 14 and 21 years of 
          age who are able to carry out the duties of a commission member 
          in a manner satisfactory to the appointing authority."  (WIC  
          226.)

           This bill  would require that two or more members shall be 
          parents or guardians of previously or currently incarcerated 
          youth, and that one member shall be a licensed social worker 
          with expertise in adolescent development.

           Current law  provides that it "shall be the duty of a juvenile 
          justice commission to inquire into the administration of the 
          juvenile court law in the county or region in which the 
          commission serves: 

               For this purpose the commission shall have access to 
               all publicly administered institutions authorized or 
               whose use is authorized by this chapter situated in 
               the county or region, shall inspect such institutions 
               no less frequently than once a year, and may hold 
               hearings.  A judge of the juvenile court shall have 
               the power to issue subpoenas requiring attendance and 
               testimony of witnesses and production of papers at 
               hearings of the commission.

               A juvenile justice commission shall annually inspect 
               any jail or lockup within the county which in the 
               preceding calendar year was used for confinement for 
               more than 24 hours of any minor.  It shall report the 
               results of such inspection together with its 
               recommendations based thereon, in writing, to the 
               juvenile court and to the Board of Corrections.  (WIC 
                229.)




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           This bill  would revise this section to expressly include a 
          "facility" within its scope.

           This bill  additionally would require, as part of the annual 
          inspection, the commission to "review the records of the jail, 
          lockup, or facility as to the use of solitary confinement," as 
          specified.

           This bill  additionally would require the commission to report 
          the results of its inspections to the board of supervisors, to 
          present these reports at an annual hearing on the condition of 
          juvenile justice corrections as part of a regularly scheduled 
          public meeting of the county board of supervisors, and to 
          publish these reports on the county government Internet Web 
          site.  

           Current law  provides that a "juvenile justice commission may 
          recommend to any person charged with the administration of any 
          of the provisions of this chapter such changes as it has 
          concluded, after investigation, will be beneficial.  A 
          commission may publicize its recommendations."  (WIC  230.)

           This bill  would revise this provision to require a commission to 
          "publicize its recommendations on the county government Internet 
          Web site."


                    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 




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          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 
          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 




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          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 
               (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:

               Solitary confinement is a harsh measure, widely 
               condemned as torture, but used rampantly in the state 
               and local juvenile justice systems.  Its use is 
               contrary to rehabilitation, which is the purpose of 
               the juvenile justice system. 

               In October 2011, the United Nations (UN) called on all 
               countries to ban solitary confinement of prisoners 
               except in very exceptional circumstances and for as 
               short a time as possible, with an absolute prohibition 
               in the case of juveniles and people with mental 
               disabilities.




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               Nationally, over half of the youth who committed 
               suicide while in a correctional facility were in 
               solitary confinement at the time and 62 percent had a 
               history of being placed in solitary confinement.  
               Research also shows that individuals who were forced 
               into solitary confinement had much higher rates of 
               recidivism as well as developing psychopathologies.

               The use of solitary confinement of a child is wrong 
               and should be used only in the most extreme 
               situations.  The studies are clear - holding juveniles 
               in solitary increases recidivism rates, exacerbates 
               existing mental illness, and makes youth more likely 
               to attempt suicide.  Solitary confinement does nothing 
               to help rehabilitate and thus SB 1363 is necessary to 
               limit the cruel practice.

               California Code of Regulations Title 15, Section 1354 
               states that the facility administrator shall develop 
               written policies and procedures concerning the need to 
               segregate minors.  Minors who are segregated shall not 
               be denied normal privileges available at the facility, 
               except when necessary to accomplish the objectives of 
               segregation.  Written procedures shall be developed 
               which provide a review of all minors to determine 
               whether it is appropriate for them to remain in 
               segregation and for direct visual observation.

               However, these regulations fail to adequately protect 
               youth from excessive isolation.  Particularly, youth 
               with mental health needs, mental disabilities, and/or 
               LGBTQ youth are at increased risk of isolation in 
               juvenile facilities.  In addition, studies demonstrate 
               that social interaction is particularly helpful for 
               the rehabilitation of females. 

               Six states, including Connecticut, Arizona, Maine, 
               Oklahoma, West Virginia, and Alaska, ban solitary 
               confinement for "punitive reasons."  On the heels of 




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               the UN statement on solitary confinement, now is the 
               time for California to follow suit.

          2.  Author's Amendments

           The author intends to submit the following substantive 
          amendments in Committee:

                 The definition of minor will be revised to include "a 
               person who is under the jurisdiction of the Department of 
               Corrections and Rehabilitation, Division of Juvenile 
               Facilities."

                 The definition of solitary confinement would be changed 
               to mean "the involuntary holding of a person in a room or 
               cell from which the person is prevented from leaving, in 
                                            isolation from other persons other than guards, facility 
               staff, and attorneys, during hours other than facility 
               sleep hours."

                 The word "jail" will be removed from the bill's scope 
               (subdivision (b) of section 208.3 as added by Section 1 of 
               the bill.)

                 The amendments clarify that the evaluation required 
               every 4 hours be done by a "clinician."

                 The amendments add chief probation officer, or his or 
               her designee, to the bill's requirements that solitary 
               confinement be subject to written approval where the period 
               of confinement exceeds 24 hours in a one-week period.

                 In subparagraph (A) of paragraph (1) of subdivision (d) 
               of section 208.3 as added by Section 1 of the bill, the 
               "and" following "reduce," pertaining to wards who have 
               exhibited suicidal behavior or committed acts of self-harm, 
               is changed to an "or."  (Page 5:15.)

                 The amendments change the bill's proposals concerning 
               membership on local juvenile justice commissions to provide 




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               that in addition to one member being a licensed social 
               worker, as specified, that "slot" also could be filled by a 
               licensed psychiatrist, or a licensed psychologist with 
               expertise in adolescent development.

          3.  What This Bill Would Do
           
          As explained above, this bill generally addresses two areas in 
          the juvenile law:  first, it establishes standards and protocols 
          for the use of solitary confinement in state and local juvenile 
          facilities for the confinement of delinquent wards, as 
          specified; and second, it makes some changes to the composition 
          and duties of local juvenile justice commissions.

          4.  Isolating Juvenile Offenders
           
          As noted by the author and supporters of this measure, solitary 
          confinement for juveniles in detention facilities raises very 
          serious issues.  In 2005, comments on proposed revised 
          regulations limiting the length of time a juvenile may be placed 
          in isolation in New Jersey explained:

               It is worth noting at the outset that the American 
               Correctional Association (ACA), which establishes 
               professional standards for adult correctional and 
               juvenile justice facilities, limits isolation of 
               juveniles to a maximum of 5 days.  The ACA is a 
               leading national association and its standard amply 
               supports the proposed regulations. . . .  It is also 
               noteworthy that international law prohibits the use of 
               isolation as a disciplinary tool, holding that "all 
               disciplinary measures constituting cruel, inhuman or 
               degrading treatment shall be strictly prohibited, 
               including corporal punishment, placement in a dark 
               cell, closed or solitary confinement or any other 
               punishment that may compromise the physical or mental 
               health of the juvenile concerned."

               . . .
               As reflected in social science literature and 




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               testimony, there is ample basis for severely limiting 
               the use of isolation with juveniles.  Simply put, 
               isolation is not an evidence-based practiced.  In 
               fact, the evidence shows that isolation causes harm to 
               juveniles and increases the risk of suicide.

               A 2001 survey of the literature concluded that "the 
               research has found seclusion to be harmful to patients 
               and not related to positive patient outcomes. . . .  
               There is no research to support a theoretical 
               foundation for the use of seclusion with children.  
               Evidence has been building for more than 30 years that 
               the practice of seclusion does not add to therapeutic 
               goals and is in fact a method to control the 
               environment instead of a therapeutic intervention."  
               Reinforcing this point, a leading official from the 
               Civil Rights Division of the United States Department 
               of Justice has stated that "t]he use of extended 
               isolation as a method of behavior control, for 
               example, is an import from the adult system that has 
               proven both harmful and counterproductive when applied 
               to juveniles.  It too often leads to increased 
               incidents of depression and self-mutilation among 
               isolated juveniles, while also exacerbating their 
               behavior problems.  We know that the use of prolonged 
               isolation leads to increased, not decreased, acting 
               out, particularly among juveniles with mental 
               illness."

               The most dramatic potential consequence of isolation 
               is the increased risk of suicide.  In 1999, the Office 
               of Juvenile Justice and Delinquency Prevention of the 
               United States Justice Department commissioned "the 
               first comprehensive effort to determine the scope and 
               distribution of suicides by youth in our public and 
               private juvenile facilities throughout the country."  
               The study found that 50 percent of victims were in 
               isolation at the time of their suicide, and 62 percent 






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               of victims had a history of isolation.<7>

          5.  Current Laws and Regulations - Local Facilities
           
          As noted above, current statute requires the Corrections 
          Standards Authority ("CSA") to promulgate regulations 
          establishing minimum standards in juvenile halls.  Current 
          regulations pertaining to the segregation of confined minors 
          provide:

               The facility administrator shall develop written 
               policies and procedures concerning the need to 
               segregate minors.  Minors who are segregated shall not 
               be denied normal privileges available at the facility, 
               except when necessary to accomplish the objectives of 
               segregation.  Written procedures shall be developed 
               which provide a review of all minors to determine 
               whether it is appropriate for them to remain in 
               segregation and for direct visual observation.  When 
               segregation is for the purpose of discipline, Title 
               15, Section 1390 shall apply.<8>

          Current regulations further provide:

               The facility administrator shall develop written 
               policies and procedures for the discipline of minors 
               that shall promote acceptable behavior.  Discipline 
               shall be imposed at the least restrictive level which 
               promotes the desired behavior.  Discipline shall not 
               include corporal punishment, group punishment, 
               physical or psychological degradation or deprivation 
               of the following:

               (a) bed and bedding;
               (b) daily shower, access to drinking fountain, toilet 
               and personal hygiene items, and clean clothing;
               ----------------------
          <7>   
          http://www.njisj.org/document/testimonyyouthdetention-9-16-05.pdf
          . (citations omitted.)
          <8>   15 CCR  1354.



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               (c) full nutrition;
               (d) contact with parent or attorney;
               (e) exercise;
               (f) medical services and counseling;
               (g) religious services;
               (h) clean and sanitary living conditions;
               (i) the right to send and receive mail; and,
               (j) education.

               The facility administrator shall establish rules of 
               conduct and disciplinary penalties to guide the 
               conduct of minors.  Such rules and penalties shall 
               include both major violations and minor violations, be 
               stated simply and affirmatively, and be made available 
               to all minors.  Provision shall be made to provide the 
               information to minors who are impaired, illiterate or 
               do not speak English.<9>

          Thus, current law generally requires local juvenile detention 
          administrators to develop written policies and procedures for 
          segregating detained youth, including providing for a review to 
          determine whether it is appropriate for them to remain in 
          segregation and subject to direct visual observation.  
          Segregated youth cannot be denied normal privileges "except when 
          necessary to accomplish the objectives of segregation."  

          Similarly, current law requires administrators of local juvenile 
          facilities to develop written policies and procedures for 
          discipline.  As described above, the regulations prohibit 
          corporal punishment, group punishment, physical or psychological 
          degradation, or deprivation of specified basic provisions.

          CSA performs ongoing reviews of regulations under its authority. 
           As explained in its website:

               The CSA has historically operated an Ongoing 
               Regulation Review System (ORRS) to ensure that every 
               regulation under its jurisdiction is subjected to a 
               comprehensive review and, if necessary, revision or 


               ----------------------
          <9>   15 CCR 1390.



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               repeal on a biennial or triennial schedule depending 
               on the area of regulation.  ORRS examines each 
               regulation's linkage to current legal statutes, and 
               evaluates each regulation for current relevance, 
               validity, fairness, and cost-benefit of 
               implementation.  ORRS is responsive to affected cities 
               and counties, and involves administrative-level 
               constituents and subject matter experts through their 
               service on a Local Executive Steering Committee and 
               related task forces.  ORRS promotes creativity and 
               critical thinking in crafting regulations that are the 
               least intrusive, most responsive and achievable rules 
               to implement the law.<10> 

          CSA currently is reviewing regulations in this area.  A 
          workgroup<11> has met and made recommendations that will be 
          ---------------------------
          <10>  CSA Ongoing Regulations Review System 
          (http://www.cdcr.ca.gov/CSA/FSO/CSA_On_Going 
          _Regulations_Review_System.html.)
          <11>  This classification working group was comprised of the 
          following members:  Stephanie Roque, Division Director, San 
          Bernardino County (chair); Gary Joralemon, Superintendent, San 
          Luis Obispo County; Beth Gong, Superintendent, Kern County; Roy 
          Brasil, Deputy Chief Probation Officer, San Mateo County; Barry 
          Calabrese, Supervisor, San Diego County; Wendy Stanley, Santa 
          Barbara County; Vince Janette, Superintendent, El Dorado County; 
          Brent Hungrige, Superintendent, Yuba County; Maria Lopez, 
          Superintendent, Sonoma County: Ed Kristal, Supervisor, San 
          Benito County; Paula Hernandez, Deputy Chief, Contra Costa 
          County; Sue Burrell, Staff Attorney Youth Law Center; Tim Toste, 
          Superintendent, Humboldt County; Shannan Wilber, Executive 
          Director, Legal Services for Children. 











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          presented to the Executive Steering Committee<12> ("ESC") for 
          juvenile regulation revisions later this month, and to the full 
          CSA board in May; these recommendations will propose changes to 
          the regulations described above.  Once CSA approves these 
          revised regulations, the proposed changes will then go to the 
          Office of Administrative Law ("OAL") for its process.   

          Recommendations now pending appear to reflect the current 
          approach of directing local administrators to develop their own 
          written procedures in this area which meet fairly broad state 
          standards.  One key proposed change - again, not yet approved by 
          the ESC, the CSA or the OAL  - would be to require that these 
          local policies and procedures ensure a daily review of separated 
          youth to determine if "separation" - the proposed new word 
          instead of "segregation" - remains necessary.  Another proposed 
          change would be to specify that these local policies and 
          procedures address "the separation of youth for reasons that 
          include, but are not be limited to, medical and mental health 
          conditions, assaultive behavior, disciplinary consequences and 
          protective custody."

          By enacting statutory law, this bill essentially would override 
          current and proposed regulatory provisions for local juvenile 
          facilities in this area and would impose statewide standards for 
          "solitary confinement," known now in regulations as 
          "segregation."

          The Peace Officers Research Association of California, which 
          opposes this bill, argues that this bill "does not take into 
          account a ward placed in solitary confinement for their own 
          safety and protection.  Also, this bill would put an additional 
          burden on counties and raise the cost of housing juveniles, but 
          does not include any provisions regarding how these costs will 
          be addressed . . . ."

          Members and the author may wish to discuss the existing 
          regulations in this area and the current efforts to revise these 
          ---------------------------
          <12>  This ESC consists of the following members:  Adele Arnold, 
          Chief Probation Officer, (chair); David Kuge, Chief Probation 
          Officer; Marcia Parsons, Assistant Chief Probation Officer; 
          Yvette Klepin, Deputy Chief Probation Officer; Mike Sanchez, 
          Superintendent; Karen Tait, M.D., Health Officer; Pete Judy, 
          Chief Probation Officer;
          Sheila Mitchell, Chief Probation Officer; Tom Crowell, Chief 
          Probation Officer; Jim Salio, Chief Probation Officer;
          Twila Collins, Juvenile Justice Commissioner; Mark Emmett, 
          Supervisor; Sue Burrell, Staff Attorney, Youth Law Center; Al 
          Lammers, Juvenile Justice Commissioner; Carole D'Elia, Deputy 
          Executive Director/Juvenile Justice Commissioner.



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          regulations described above.  The Committee specifically may 
          wish the author and sponsor to address why these standards are 
          better established and detailed through the legislative process 
          and statute than through the existing regulatory process.  
          Members also may wish to discuss the impact of this bill on 
          counties and county agencies.

          6.  Division of Juvenile Facilities

           The provisions of this bill would apply to the Division of 
          Juvenile Facilities ("DJF").  Historically, the use of solitary 
          confinement in DJJ has posed significant issues and concerns.  
          Twelve years ago, this Committee investigated a number of issues 
          relating to conditions at what was then the California Youth 
          Authority ("CYA").  On May 16, 2000, this Committee conducted a 
          joint informational hearing with the Assembly Public Safety 
          Committee regarding conditions at CYA.  A former CYA ward 
          testified about his experience on "lock-down" at CYA in the 
          early-to-mid 1990s:

               I spent ten months on the Taft lock-down unit for 
               assaultive wards.  I was considered a threat to 
               regular staff.  For the first month-and-a-half that I 
               was there, I came out of my room for one hour a day.  
               As soon as the shift came on, which is about 6 o'clock 
               in the morning, I would have my handcuffs removed out 
               of my room to shower.  My shower would count as part 
               of my hour, as part of my large muscle exercise.  I 
               would sometimes have to eat in my handcuffs in front 
               of the TV.  That would be part of my large muscle 
               exercise.  That would be it.  For a month-and-a-half I 
               did that.<13>

          That hearing also included the following testimony from Sue 
          Burrell, staff attorney for the Youth Law Center:
          ---------------------------
          <13>   Transcript, Joint Oversight Hearing of the Senate and 
          Assembly Committees on Public Safety Regarding the California 
          Department of the Youth Authority, (May 16, 2000.) 
          (http://spsf.senate.ca.gov/jointinformationalhearingon 
          thecaliforniayouthauthoritymay162000.)



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               California is completely off the charts in its use of 
               lockdown for kids. . . .  Youth Authority is one of 
               only 4 percent of state training schools that has no 
               limit on the period in which kids are held in 
               isolation.

               I have had letters from kids who were, for example, in 
               Sacramento Hall at Chaderjian for ten months.  It is 
               not unusual to find kids that are in for five or six 
               months, and many of these kids are in for reasons, 
               such as we heard this morning, where maybe they're a 
               Sureo and they're in the north or vice-versa.  They 
               wind up essentially in protective custody, locked down 
               23 hours a day.  They get the wonderful educational 
               services which are basically a sham, to have a teacher 
               come to the crack in your door for ten minutes a day.  
               You get out of your cell for maybe an hour in which 
               time you are required to do your showering and your 
               recreational exercise.  And at Chaderjian, that 
               happens outside in a cage.  And other kids are not 
               there in protective custody but they're there because 
               they've messed up in other programs.  Some of the kids 
               are in what are called 'recalcitrant programs' but 
               it's kind of like the Emperor's New Clothes because 
               there is no program.  You are basically just locked 
               down.<14>

          As part of comprehensive litigation involving conditions at DJF 
          which commenced in 2003 -  Farrell v. Cate  - DJF is required to 
          adopt reformed methods for dealing with containment or isolation 
          of wards.  (See Consent Decree,  Farrell v. Allen  (Nov. 19, 2004) 
          (http://www.prisonlaw .com /pdfs/farrellcd2.pdf.);  Safety and 
          Welfare Remedial Plan: Implementing Reform in California (July 
          10, 2006) http://www. prisonlaw. com/pdfs/SafetyPlanFinal.pdf.)  
          The sponsor of this bill has provided the Committee with 
          documents relating to the  Farrell  case, including a May 20, 2011 
          letter from the Special Master in that case, Nancy Campbell.  
          Ms. Campbell's letter stated in part:


          ---------------------------
          <14>  Id.



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               Some DJJ youth do not receive the minimum required 180 
               minutes out-of-room time each day. . . . The youth 
               most impacted by DJJ's failure to provide services 
               outside of youths' assigned rooms for at least three 
               hours per day are those assigned to closed room . . . 
               facilities and/or those on Temporary Detention ("TD") 
               . . . or Temporary Intervention Plans ("TIP") . . . . 
               In the 14 weeks documented (at Ventura), there were 
               173 out of 1453 incidents during which youth on TD or 
               TIP spent more than 21 of 24 hours confined to his or 
               her rooms.  . . .  In one instance, a youth reported . 
               . . that he had been confined to his room for more 
               than 24 hours . . .  .

          In his January 2, 2012, Safety and Welfare Remedial Plan 
          Comprehensive Report required under  Farrell  , Dr. Barry Krisberg 
          observed:

               In 2001, DJJ was housing between 300 to 400 youth in 
               the Special Management Programs (SMPs) on any given 
               day.  Too many youth were languishing in the SMPs and 
               in Temporary Detection (TD) programs for very long 
               periods of time and been confined to their room 23 
               hours a day with minimal educational, recreational, 
               and counseling services.

               To its credit, DJJ completely eliminated SMPs with the 
               closure of the last SMP unit at Stark in 2010.  I was 
               actively involved with DJJ working groups that 
               designed two new programs, the Treatment Intervention 
               Program (TIP) and the Behavioral Treatment Program 
               (BTP) that are intended to reduce or eliminate the use 
               of more traditional restricted programs.  Of the three 
               remaining DJJ facilities, OH Close and Chad have 
               discontinued using TD and replaced it with the TIP 
               program.  Ventura continues to use both TD and TIP 
               program, sometimes interchangeably.  From my 
               standpoint, I do not see TIP being a major issue at OH 
               Close.  Data compiled by OSM showed that OH Close had 




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               a 33 incidents in July 2011 that resulted in 26 youth 
               been placed on TIP during that month.  For August 
               2011, 43 incidents occurred that resulted in 38 youth 
               been placed on TIP.  The average duration of each TIP 
               placement was 1.6 days in July and 2.4 days in August. 
                This should not pose significant problems in the 
               facility's ability to provide program, treatment, and 
               services to youth.

               The situation at Chad appears to be more serious, but 
               fixable.  The facility had 100 incidents that resulted 
               in 76 youth been placed on TIP during July 2011 and 
               106 incidents involving 76 youth been on TIP in August 
               2011.  The average duration of each TIP placement was 
               1.9 days in July and 2.1 days in August.  While more 
               challenging, the facility should still be able to 
               deliver needed services to this group of youth.

               The situation at Ventura is far more troubling and 
               merits immediate attention by DJJ management.  The TD 
               issue originally surfaced during an OSM site visit in 
               May 2010 that found youth placed on TD were confined 
               to their room 23 hours a day with virtually no 
               counseling, treatment, or services.  A subsequent 
               audit by OACC confirmed the problem, which prompted a 
                         series of remedial actions by DJJ headquarters and the 
               facility's management.  A follow-up audit by OACC in 
               October 2011 found that improvements have been made 
               regarding the youth's out-of- room time.  There 
               remains to be serious operational issues concerning 
               youth shuffling between TD and TIP for most of the 
               month and Ventura staff that I interviewed did not 
               have clear understanding of the difference between the 
               two programs.  The OACC report suggested that DJJ 
               headquarters was not providing adequate oversight of 
               the restricted programs by noting other programs such 
               as youth on "solo" status and program change 
               protocols.  As noted in earlier reports, Ventura was 
               using excessive amounts of mechanical restraints in 
               its BTP units and High Core Units, this practice is 




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               now being reversed by DJJ management.











































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               Data compiled by OSM from Ventura indicate that there 
               had been 159 incidents that resulted in 96 youth been 
               placed on TD (some multiple times) for an average 
               duration of 2.58 days per incident in July 2011.  
               There were another 23 incidents that resulted in 21 
               youth placed on TIP for an average of 6.8 days per 
               incident.  Of the 21 youth on TIP, 19 were also on TD, 
               some multiple times during the month.

               The numbers for August 2011 are equally concerning.  
               There were 222 incidents that resulted in 119 youth 
               been placed on TD for an average duration of 1.84 days 
               per incident.  There were another 23 incidents that 
               resulted in 22 youth been placed on TIP for an average 
               duration of 9.8 days per incident.  Of the 22 youth 
               that were on TIP, 13 were also on TD during the month. 
                Besides the large number of youth having been placed 
               on TD and TIP, OACC report also identified other 
               programs such as youth on solo program and youth on 
               program change protocol that could adversely affect 
               youth treatment and services.  It is logistically not 
               possible to deliver adequate quantity and quality 
               services to youth under this environment. 

               I also looked at PbS data (Order 08 and 09) on youth 
               isolation and room confinement but these data seem 
               inconsistent with the above observations.  DJJ needs 
               to assess the validity of data PbS data being 
               collected on this issue.

          The California Correctional Peace Officers Association, which 
          opposes this bill, argues in part that it "would jeopardize the 
          safety and security of wards that are conforming to expected 
          standards of behavior and of staff.  Additionally, it would 
          compromise the programming of the ward population."

          Members may wish to discuss the effect of  Farrell  on the use of 
          solitary confinement in DJJ facilities, and whether  Farrell  
          reforms have adequately addressed this issue.  




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          7.  Local Juvenile Justice Commissions

           As explained above, this bill would change the composition of 
          local juvenile justice commissions to include family members and 
          certain mental health professionals, as specified.  The current 
          statutes only specify the inclusion of certain young people, 
          "provided there are available persons between 14 and 21 years of 
          age who are able to carry out the duties of a commission member 
          in a manner satisfactory to the appointing authority."  The 
          author and/or the Committee may wish to consider whether this 
          language should be added to the persons this bill proposes to 
          specify for these local commissions.


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