DJJ Disposition Advocacy a primer for the juvenile defender

1. DJJ Disposition Advocacya primer for the juvenile defender Jonathan Laba Contra Costa County Public Defender’s Office April 2006

2. Components of this Presentation • Legal principles governing a DJJ commitment • Current conditions at DJJ / overview of Farrell v. Hickman lawsuit • Pre-hearing preparation • Handling the disposition hearing

3. Theme: Approach the Hearing Like a Three-Strikes Sentencing • The most important disposition hearing your young client has ever had • Years of his / her life are at stake • Separation from friends and family • Potential for victimization • Likely transformation into a more sophisticated or more mentally ill offender

4. LEGAL PRINCIPLES

5. What is the DJJ? • The entire California corrections system was reorganized effective July 1, 2005 • The California Youth Authority was renamed the Division of Juvenile Justice (DJJ) of the California Department of Corrections and Rehabilitation (CDCR) • DJJ currently houses about 3,000 of California’s most serious juvenile offenders

6. Disposition Factors In determining the appropriate disposition, the juvenile court is expressly required to consider, in addition to other relevant and material evidence: 1) The minor’s age; 2) The circumstances and gravity of the offense committed by the minor; and 3) The minor’s previous delinquent history. W&I § 725.5 In re Tyrone O. (1989) 209 Cal.App.3d 145, 152.

7. Court Must Find “Probable Benefit” No ward of the juvenile court shall be committed to the Youth Authority unless the judge of the court is fully satisfied that the mental and physical condition and qualifications of the ward are such to render it probable that he will be benefited by the reformatory, educational, discipline or other treatment provided by the Youth Authority. W&I § 734; In re John H.(1978) 21 Cal.3d 18, 22.

8. Less Restrictive Alternatives Must Be Ineffective or Inappropriate To support a CYA commitment, the record must show that the minor will probably benefit from CYA and that less restrictive alternatives would be ineffective or inappropriate. In Re Teofilio A. (1989) 210 Cal.App.3d 571, 576.

9. Court Not Required to Attempt Less Restrictive Alternatives • The juvenile court can send a minor to CYA without first attempting less restrictive alternatives. In re John H. (1978) 21 Cal.App.3d 18, 27; In re Martin L. (1986) 187 Cal.App.3d 534. • The juvenile court can send a minor to CYA for a first offense. In re Gerardo B. (1989) 207 Cal.App.3d 1252; In re Asean D. (1993) 14 Cal.App.4th 467. • The juvenile court can send a minor to CYA even if less restrictive local alternatives are available, and even if probation recommends a less restrictive placement. In re John H. (1978) 21 Cal.App.3d 18, 27; In re Martin L. (1986) 187 Cal.App.3d 534, 544.

10. Less Restrictive AlternativesMust Be Considered Although all less restrictive dispositions need not be tried before a commitment to the youth authority is ordered, there must be substantial evidence in the record showing that less restrictive options were properly considered and rejected. In re Teofilio A. (1989) 210 Cal.App.3d 571, 577-78.

11. Punishment as Rehabilitation • Punishment can be used as a rehabilitative tool (W&I § 202); but • A commitment to the DJJ cannot be made solely on grounds of retribution. In re Michael D. (1987) 188 Cal.App.3d 1392, 1396.

12. It’s Hard to Win on Appeal • Standard of review is abuse of discretion • Appellate court will make all reasonable inferences in favor of the DJJ commitment • An abuse of discretion may be found when there is no substantial evidence to support a finding of probable benefit to the minor. In re Teofilio A. (1989) 210 Cal.App.3d 571, 576.

13. CURRENT CONDITIONSandFARRELL v. HICKMAN LITIGATION

14. DJJ Current Facts • April 2006 population: approximately 2,900 • Institutional population in 2000: 7,300 • Average length of stay for first commitments: 33 months (2004) – almost triple the national average • DJJ budget: Projected $457MM for FY 06-07 • Institutional cost per ward per year: $125,000 -- 150,000+ (projected) (has more than tripled during past ten years) • County share: Depends on offender classification; ranges from $176 / mo. (Levels I – IV) to $3000 / mo. (Level VII) • Recidivism rate: 70-90%, depending on measure

15. Contra Costa Commitments • As of November 2005, there were 102 wards at CYA that were committed from Contra Costa County • There were 23 new commitments from the county between January and November 2005 • More than half of those were lower-level offenders (ten Category Five; two Category Six)

16. The Farrell v. Hickman Litigation • Taxpayer lawsuit Farrell v. Harper filed January 2003 in Alameda County Superior Court by Prison Law Office and several leading law firms • CYA and AG decided not to fight the case • Parties agreed to jointly designate experts to prepare reports in six areas: • General corrections / ward safety • Mental health and substance abuse • Education • Medical care • Sex offender programs • Wards with disabilities

17. Expert Reports Issued January / February 2004 • Describe a system rife with abusive practices and unsafe conditions • Large, prison-like institutions and large living units the poorest model for rehabilitation • Entrenched gang culture • Absence of programs and little to occupy time • Youth with mental health issues go untreated and often emerge with exacerbated mental illness • Critical shortage of teachers and frequent class cancellations • Inaccessible and poorly delivered medical care • Poor sexual offender programs with extended waiting lists

18. Consent Decree • Consent decree signed November 2004 • Parties (including CYA and Attorney General) agreed “the facts and opinions contained in the reports are substantially correct” • Called for development of remedial plans in each of the six areas with a specific timetable for issuance

19. January 2005 Stipulation • CYA commits to reforming California’s juvenile system to a rehabilitative model based on a therapeutic environment • Parties agree to new schedule for issuance of remedial plans throughout 2005 • Centerpiece Ward Safety and Welfare Plan to be issued November 2005 • Several interim steps are mandated, such as reduction of lockdowns and expansion of open programming

20. Inspector General Audits • Office of the California Inspector General charged with investigating and auditing the state’s juvenile and adult correctional system • Issued in January 2005 the Accountability Audit: Review of Audits of the California Youth Authority 2000-2003 • Issued in May 2005 the Management Review Audit of the N.A. Chaderjian Youth Correctional Facility (“Chad”) • Reports echoed the harsh criticisms of DJJ by the Farrell experts

21. December 2005 Stipulation • Draft Safety and Welfare Plan issued by DJJ November 2005 • Rejected by plaintiffs as lacking necessary detail and timetables • Recognizing the inadequacy of the draft Safety and Welfare Plan, the parties agree to hire five nationally recognized experts to redevelop the Safety and Welfare Remedial Plan by March 2006

22. Remedial Plans • The plaintiffs in Farrell have accepted the remedial plans in the following areas: • Medical Care • Education • Sexual Behavior • Disabilities • Rejected the Mental Health and Ward Safety and Welfare remedial plans • New Ward Safety and Welfare Plan issued March 2006 • New Mental Health plan due May 2006

23. March 2006: Planning Experts IssueRevised Safety and Welfare Plan • Comprehensive and well done • Excellent language you can use in your disposition hearings • “It is not just reform that is needed. Everything needs to be fixed.” • “…[T]his is not a system that needs tinkering around the edges; this is a system that is broken almost everywhere you look.”

24. Safety and Welfare Plan Highlights A system with: • High levels of violence and fear; unsafe for wards and staff • Antiquated facilities unsuited for any mission • An adult corrections mentality with an adult/juvenile mix • Frequent lockdowns to manage violence • Time adds for infractions adding 8+ months to lengths of stay • Hours on end when many youths have nothing to do • Capitulation to gang culture with youths housed by gang affiliation • Abysmal achievement despite enormous outlays for education • Little partnership with counties; poor re-entry planning and parole services • Enormous costs with little to show for it

25. March 2006:Special Master Report Issued • Process of reform still in its beginning phases • DJJ is “beset by urgent systemic problems” • Constant and pervasive violence that is “‘stunning,”’ just as Dr. Barry Krisberg (one of the Farrell experts) found in 2003 • High level of violence stems from overpopulation in housing units, inadequate staff to youth ratios, insufficient programs to occupy youth, insufficient resources to meet youths’ individual treatment and rehabilitation needs and insufficient capacity to monitor conditions and practices at the facility level

26. Summary • DJJ has been a disaster for a long time • DJJ is STILL a disaster • Very little progress made to date in reforming system • Many of the proposed changes will require substantial appropriation of funds by the Legislature • Some recent facility-specific improvements in safety due to decrease in population • No reform of treatment programs • Theme: Even if funded, most of the changes will take years to fully implement and will not benefit your client currently facing a DJJ commitment

27. CONTESTING A DJJ RECOMMENDATION

28. Pre-Hearing Preparation Handling the Contested Hearing

29. PART I:PRE-HEARING PREPARATION

30. Pre-Hearing Preparation • Discussing case with colleagues / supervisor • Collecting documents and records • Interacting with probation officer • Consulting with experts (e.g., DJJ expert, mental health or sex offender expert) • Identifying witnesses and evidence for the hearing • Identifying an appropriate alternative disposition • Preparing a sentencing memorandum and motions

31. Scheduling and Time Waivers • Take your time preparing the case, but remember that none of this time will apply to your client’s time to parole • Initially set the case for a TNW dispo so you can get the probation report in timely fashion • Flag for the court that you will likely request additional time if probation recommends DJJ • Tell probation to contact you if they wish for additional time to prepare the report or to screen with placements

32. Before you invest a lot of time . . . • Discuss case with supervisor and colleagues • Consider asking to discuss case in chambers with judge to see if court is truly considering DJJ

33. Collecting Documents and Records • Letters from family, friends, teachers, church leaders, others in the community • Dependency records • Education records / IEPs • Psychiatric and other treatment records • Medical records • Prior probation reports and placement records • Other good stuff (report cards, artwork, athletic awards, etc.) • Review probation file(s) and Juvenile Hall adjustment records / incident reports

34. Dealing with Probation • Try to impact the process before the probation report is written • Demand that your client be screened with actual placements, not just the Placement Screening Committee • Ensure that helpful information is communicated to the p.o. so they are obligated to put it in the report • Communicate your version of the facts • Have p.o. attach relevant documents to the probation report • Talk to their supervisor or the probation manager

35. Prepping Your Client to Talk to P.O. • Educate client about the placement screening process • If case involved a plea, make sure client is prepared to admit the offense and acknowledge responsibility • If client FG at trial, need to strategize whether client should speak to probation at all • Help client write a letter to the judge

36. An Overview of Placement Screening • Placement screening committee: Several members from probation (placement supervisor, another placement p.o., the p.o. writing the dispo); mental health representative; public health nurse; others • It’s a Star Chamber! • Our inarticulate clients are questioned about the offense, whether they are remorseful, their future plans, etc. • Demand any summaries of the offense and offender given to the screening committee and any notes generated by the committee

37. Review the Probation Report • Probation report is due 48 hours prior to dispo • Must carefully review the probation report for accuracy and completeness • Common errors: • Facts parroted from police reports when you did a trial or the D.A. may stipulate otherwise • Failure to include your client’s positive activities and achievements • Misrepresentation of client’s statements to p.o. • Incorrect parole / offender classification

38. Offender Classification • If sentenced to the DJJ, client will receive an initial parole date based on the classification of the offense • Classification levels: • Level 1 – 7 years to parole (murder, kidnapping with substantial injury [“SI”]) • Level 2 – 4 years to parole (vol. manslaughter, 288) • Level 3 – 3 years to parole (rape, 211 w/ SI and weapon) • Level 4 – 2 years to parole (211 w/ SI or weapon, 245 w/ SI, sale or poss. for sale of drugs, burglary w/ weapon or SI) • Level 5 – 18 months to parole (245, 211, 487(c), 460(a)) • Level 6 – one year to parole (all unenumerated felonies) • Level 7 – less than one year to parole (misdemeanors)

39. Consider Hiring an Expert • Sex offender treatment experts • A Step Forward (Art Paull, Dr. Tia Halpern) • Crossroads (Dr. Larry Wornian) • Other mental health experts • DJJ expert • Dan Macallair, Center on Juvenile and Criminal Justice • Sandra Tellers, California Justice Coalition

40. Consult with a DJJ Expert • Decide if you want them to do a case workup / alternative dispo report or if you want them to simply testify about poor conditions at the DJJ • If they will do a case workup, provide them with all relevant materials as soon as possible (police reports, probation reports, education, medical and mental health records, letters, etc.) • If they will be interviewing client, prepare confidential authorization letter and fax to juvenile hall • Engage them as early as possible

41. Develop Alternatives to the DJJ • Contact placements directly or have your expert contact the placements (or send a packet) • Some placements reluctant to screen clients for us because concerned about probation repercussions • If probation claims your client was rejected by the placement, you may wish to speak to the facility yourself

42. Prepare Motions for the Hearing Motion to strike irrelevant / unsubstantiated portions of probation report (e.g., unsupported gang info): • Due Process Clause precludes court from considering facts at a sentencing hearing that have not been proven by a preponderance of the evidence. United States v. Watts (1997) 519 U.S. 148, 156-57 • Presentence reports must be founded on accurate and reliable information; court does not have “unbridled judicial discretion” to consider any evidence contained in a probation report. People v. Chi Ko Wong (1976) 18 Cal.3d 698, 719 (overruled on other grounds in People v. Green (1980) 27 Cal.3d 1) • Can make the motion to strike in your sentencing brief

43. Prepare Motions for the Hearing • Motion for judicial notice of expert reports • All the judges in this county will deny it • Making the request allows for marking of expert reports for appellate purposes • Judge may say they are denying notice but have read and considered the reports • Appellate court will not grant judicial notice if request not made in the trial court • Joinder motion when other agencies fail in their duties (W&I §727(a)) – but court cannot impose joinder if client committed to DJJ

44. Prepare a Sentencing Memorandum • File a sentencing brief in every case where DJJ is realistically on the table • Personalize your client • Force judge to consider information that probation will ignore • Narrate your version of the facts • Argue 731(b) factors in aggravation and mitigation • Attach relevant documents to the brief

45. PART II:HANDLING THE CONTESTED HEARING

46. Handling the Contest TOPICS: • Preparing the client • Presenting letters, records, and other documentary evidence • Striking and correcting portions of the probation report • Putting the probation officer on the stand • Making a record of current conditions at DJJ (judicial notice of reports; presenting expert) • Presenting character witnesses and family • Argument (incl. dispo and 731(b) issues)

47. Prep the Client for the Hearing • Educate client about what will occur • If client wishes to address the court, have him prepare a written statement he can read

48. First Move: Ask for Your Client To Be Unshackled • You know the case will be appealed if you lose – so make the record re shackling • Make the request at every court appearance, not just the dispo hearing • Don’t just ask – cite the cases: • Deck v. Missouri (2005) 125 S.Ct. 2007 • People v. Fierro (1991) 1 Cal.4th 173, 218-20 • People v. Duran (1976) 16 Cal.3d 282, 290-91 • United States v. Howard (9th Cir. 2005) 429 F.3d 843

49. Submitting Documentary Evidence • You are building an appellate record • Mark exhibits and move them into evidence • Mark each of the expert reports for which you are requesting judicial notice • Mark letters and other documents (can do some as group exhibits)

50. Correcting and Modifying the Probation Report • If probation officer has agreed to any of the corrections, let the court know • If the D.A. is agreeing to any modifications of the facts, prepare a stipulation or a settled statement of facts • Make sure court rules on your motion to strike unsubstantiated or inaccurate portions of report