BILL ANALYSIS Ó
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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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 "Ýt]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
Sureño 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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