SB-328 Passes, Determines Criteria for Trying Juveniles as Adults

Source: Legislative Analyst’s Office

SB 382, coauthored by Senators Ricardo Lara and Mark Leno, clarifies the criteria under which the criminal justice system should determine whether to try a juvenile as an adult.

This summary by the Legislative Analyst’s Office provides a good guideline to the way discretion is applied in processing juveniles. Some serious offenses trigger a prosecutorial prerogative of “direct filing”, that is, charging and trying a juvenile’s case in adult court. Alternatively, the D.A. can ask for a “fitness hearing”at the juvenile court, which includes a report by a probation officer and a judicial decision whether to transfer the case.

The newly passed bill enumerates the five criteria to be taken into account when making the call whether to try juveniles in juvenile or adult court, which are as follows:

(A) The degree of criminal sophistication exhibited by the person. This may include, but is not limited to, giving weight to the person’s age, maturity, intellectual capacity, and physical, mental, and emotional health at the time of the offense, the person’s impetuosity or failure to appreciate risks and consequences of criminal behavior, the effect of familial, adult, or peer pressure on the person’s actions, and the effect of the person’s family and community environment and childhood trauma on the person’s criminal sophistication.

(B) Whether the person can be rehabilitated prior to the expiration of the juvenile court’s jurisdiction. This may include, but is not limited to, giving weight to the minor’s potential to grow and mature.

(C) The person’s previous delinquent history. This may include, but is not limited to, giving weight to the seriousness of the person’s previous delinquent history and the effect of the person’s family and community environment and childhood trauma on the person’s previous delinquent behavior.

(D) Success of previous attempts by the juvenile court to rehabilitate the person. This may include, but is not limited to, giving weight to an analysis of the adequacy of the services previously provided to address the person’s needs.

(E) The circumstances and gravity of the offense for which the person has been convicted. This may include, but is not limited to, giving weight to the actual behavior of the person, the mental state of the person, the person’s degree of involvement in the crime, the level of harm actually caused by the person, and the person’s mental and emotional development.

We will be following juvenile matters more closely in the coming weeks, in preparation for a special event: the Hastings Institute for Criminal Justice, with the collaboration and cosponsorship of Rosen, Bien, Galvan & Grunfeld, LLP, will be holding a special screening and discussion of Caitlin McNally’s film Stick Up Kid, which follows Alonza Thomas as he is prosecuted and punished as an adult. McNally will be with us, as well as a lawyer and a student who were formerly tried and incarcerated as juveniles and two advocates for juvenile justice. Save the date – 9/17 – and stay tuned for more.

Film Review: Short Term 12


The wonderful 2013 film Short Term 12 tells the story of a care facility for juveniles in the San Francisco Bay Area, in which twenty-something year old Grace, her partner Mason, and a few other dedicated young staff members take care of kids from difficult backgrounds and abusive homes. Tough and capable, Grace hides a difficult personal history not much different than that of the kids she cares for, and arguably understands them better than the professional therapists she works with. The discovery that she is pregnant, and some bad news regarding her father, undo her just as a new teenager comes to the home, stirring rage and frustration.

While the story discusses institutionalization and incarceration very, very gently, and focuses on the feelings and relationships of the participants, it is a good reminder that crime is real and has real victims. Changing young people’s paths and fates takes a lot of courage and love, and the line between infantilizing someone and believing him or her is very thin.

I was incredibly moved, and that was before I heard about the lovely and important art project inspired by the movie:

 

This highly recommended movie streams live on Netflix.

Juveniles in Solitary: News

Lots of things moving in the right direction in the world of solitary confinement. For one thing, Assemblymember Tom Ammiano has just introduced AB 1652, the product of the legislative hearings, with the intent to limit usage of solitary confinement in California. Among other things, the bill text limits confinement to serious offenses, and creates a 3-year maximum confinement if the assignment to solitary is based on gang status alone.

But there are other news as well. As some readers know, there is an ongoing lawsuit against the Contra Costa Juvenile Hall for locking up youth with disabilities for 23 hours a day. Today, the feds have joined the battle – on the side of the inmates. Disability Rights Advocates reports:

Youth with disabilities generally are disproportionately represented in juvenile correctional facilities and by Contra Costa County’s own estimate, roughly 32% of the students at the Contra Costa County Juvenile Hall have disabilities that require some form of special education. Despite their disabilities, youth at Contra Costa County Juvenile Hall are locked for days and weeks at a time in cells that have barely enough room for a bed and a narrow window the width of a hand and length of an arm. Indeed young people are routinely held in conditions like those in a maximum security prison. The results of such conditions are devastating. For instance, named Plaintiff W.B. was placed in solitary confinement for more than 90 days, during which time he deteriorated mentally to the point where he was smearing feces on the wall and, ultimately, was held in a psychiatric hospital for three weeks.

“The United States Department of Justice and Department of Education have singled out Contra Costa County Juvenile Hall for a reason,” said Mary-Lee Smith, Managing Attorney at Disability Rights Advocates. “Contra Costa County and Contra Costa County Office of Education’s refusal to accept their legal obligations cannot continue, too many young people with disabilities are suffering and that must end.”

“United States Department of Justice and Department of Education involvement in this case should be a wake-up call to Contra Costa County and the County Office of Education,” said Laura Faer, Statewide Education Rights Director. “Every day more young people are harmed by their failure to take responsibility and follow federal and state law. These flagrant violations of children’s rights to education and rehabilitative services must stop.”

Note that the feds are dressing their objections to this practice as an educational issue: that is, the problem is not that segregation is cruel and unusual per se, but that it hampers these students educational opportunities. Even on such a narrow basis, it’s remarkable that the feds have found it politically sayable to oppose these practices and place themselves squarely on the side of the inmates.

Assembly to Consider Bill Allowing Parole for Juveniles Sentenced as Adults

SB 260, proposed by Senator Loni Hancock, offers the possibility of judicial review of sentences of juveniles who were tried as adults. From the bill [cleaned-up text]:

This bill would require the Board of Parole Hearings to conduct a youth offender parole hearing to consider release of offenders who committed specified crimes prior to being 18 years of age and who were sentenced to state prison and. The bill would require parole consideration to be given during the 15th year of incarceration if the person meeting these criteria received a determinate sentence, during the 20th year if the person received a sentence that was less than 25 years to life, and during the 25th year of incarceration if the person received a sentence that was 25 years to life. The bill would require the board, in reviewing a prisoner’s suitability for parole, to give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law. The bill would require that, in assessing growth and maturity, psychological evaluations and risk assessment instruments, if used by the board, be administered by licensed psychologists employed by the board and take into consideration the diminished culpability of juveniles as compared to that of adults, the hallmark features of youth, and any subsequent growth and increased maturity of the individual. The bill would permit family members, friends, school personnel, faith leaders, and representatives from community-based organizations with knowledge about the young person prior to the crime or his or her growth and maturity since the commission of the crime to submit statements for review by the board and would permit the individual to designate one person to attend the youth offender parole hearing and read a brief statement. 

This bill is, in a way, an extension of SB 9, which created a similar process for juveniles sentenced to life without parole. It would extend the courtesy of judicial review to juveniles serving long sentences. The release is not automatic or mandated, and as the text says, the offenders will have already served lengthy sentences – 20 or 25 years, depending on the original sentence. The bill will not apply to third strikers or to folks whose resentencing is covered by SB 9.

The bill hits the Assembly floor tomorrow.

Get Tough or Get Smart? Guest Post by Felix Lucero

On February 2nd a panel explored the theme of juvenile justice, from a brief history of reform schools to the over 10,000 adolescents incarcerated in the California Youth Authority by the mid-90’s.  The theme, Get Tough or Get Smart, explored child brain development, socioeconomic background, environmental stressors along with factors that increase the possibilities for rehabilitation and detour future criminal conduct by young offenders.  What stood out was the possibility of change by both youth offenders and the institutions that incarcerate them.  Today, less than 900 youth are incarcerated in CYA and more counties are using restorative justice models to address youth crime.  Innovative programs like the Huckleberry Community Assessment and Referral Center in San Francisco evaluate individual needs of youth offenders and offer solutions that reduce recidivism rates and strengthen the ties between the child and the community.  As a former youth offender and one of the panelists, I can say that I made a rational decision in an irrational situation.  Youth crime and poverty are parallel functions of society; it doesn’t excuse criminal conduct but at the very least we should recognize the transitory qualities of youth and make every effort to correct mal behavior rather than just punish.

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Felix Lucero is an activist working in numerous self-help and community service programs, and a former youth offender.

Dan Macallair, mentioned in the panel, will also speak at our upcoming California Correctional Crisis: Realignment and Reform conference, March 21-22, at the State Building.

Newt Gingrich and Pat Nolan Publicly Endorse SB9

Wow! Talk about narrow coalitions! First we get Pat Robertson’s enthusiastic support of marijuana legalization, and now this: Newt Gingrich and Pat Nolan offering support for Senate Bill 9, which would allow for resentencing youth who have been sentenced to life imprisonment without parole. Their op-ed in the U-T San Diego explains:

You might expect that these LWOP sentences are limited to the “worst of the worst,” but that is not the case. A young teen can be a bit player in a crime, e.g., act as a lookout while his buddies go in to steal beer from a convenience store. None of them is armed, and there is no plan for violence. Then it all goes haywire. The clerk pulls a gun, and one of the kids tries to grab it away. In the struggle that ensues, the gun goes off and the clerk dies. 

Under California’s “felony murder” rule, every person involved in that crime, no matter how minor their role, is equally guilty of murder, even if they did not plan or expect a murder to occur. According to the fiction of our law, the lookout is as much to blame as the person who pulled the trigger. About 45 percent of the inmates serving LWOP for a teenage crime were not the person who caused the death. Yet they will die in prison of old age, with no chance for release. 

But should these youngsters die in prison for something they did when they were so young? Wouldn’t it be better to re-evaluate them after serving a long stretch in prison and consider whether they have matured and improved themselves? 

We are conservative Republicans, and we believe that some people are so dangerous that we must separate them from our communities. That is what prisons are for. But sometimes we overuse our institutions. California’s teen LWOP is an overuse of incarceration. It denies the reality that young people often change for the better. And it denies hope to those sentenced under it.

This op-ed joins a long stream of previous statements from conservative politicians who express a willingness to deviate from the traditionally tough-on-crime stance on the right. And notably, while there is a savings strand here, there is also text about compassion and humaneness. Good stuff.

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Cross-posted to PrawfsBlawg.

Bill Allowing Resentencing of Lifer Juveniles Passes Assembly

Excellent news: SB9 – a Senate bill allowing lifer juveniles to have their life without parole sentence reevaluated by a judge – has passed the California Assembly.

This is a major achievement. Leland Yee has been pushing this issue for years. The full text of SB9 is here. And there is more information on the Fair Sentencing for Youth website.

In order to pass, the bill needs to be reaffirmed by the Senate (which has already approved it) and signed into law by the Governor, who is already being pressured by opposition groups.

Here’s what you can do to help: Click here to contact the Governor, and your Senator, and express your support for the bill.

And: Regarding our last post – the California Supreme Court has done the right thing. In CA v. Caballero, the Court has held a 110-year sentence to violate Graham v. Florida. This case joins CA v. Mendez, in which the Court struck down a 84-year sentence for a juvenile who did no harm.

Once you’ve emailed your Senator and the Governor, rejoice with all Californians who believe that everyone, especially at a very young age, should be offered a glimmer of hope and redemption.

Solitary Confinement for Juveniles

Earlier this week, the Public Safety Committee killed SB 1363, a bill that would disallow subjecting any minors, whether in prison or in jail, to solitary confinement, unless they pose an immediate and substantial risk or harm to others and other options have been exhausted. Even in the latter case, the juvenile would have to be constantly evaluated.

Activists are making one more push for it this coming Tuesday. Linda Roldan’s post on the Ella Baker Center blog, A Mother’s Nightmare, offers a personal perspective on the immense harms of solitary confinement for minors.

My son is not a tough kid and wasn’t ready for the gladiator school called DJJ. On his very first day, he was beat up. He’s seen things he should never see, like kids fighting each other and guards assaulting and pepper-spraying kids on a daily basis. After experiencing solitary confinement, violence, and humiliation by guards, he now suffers from severe depression and hallucinations. He never had serious mental health issues before. Now he is suicidal.

We’ll keep you posted as to the status of the bill.

State Juvenile Program Profile

Photo credit Lea Suzuki for the San Francisco Chronicle.

Juvenile realignment is such a thorny issue these days, with so much talk about direct filing concerns and proper institutions. Here’s one more thing to consider: Some unique state programs, which are costly, but truly make a difference for juvenile state inmates convicted of serious crimes.

These programs are the focus of a story by Marisa Lagos on yesterday’s Chron (only available online as of this afternoon. Lagos visited two of these unique institutions, O.S. Close and N.A. Chaderjan, and brought back stories from the administrators and the wards.
Here’s a description of one of these facilities:
The facility is oriented around Chad’s sprawling central yard, a huge expanse of grass that includes football and soccer fields and an adjoining basketball court. In the early evenings, before dinner and nighttime treatment sessions, the yard fills with youths in matching outfits, playing sports and participating in other recreational activities. 


But during business hours, vocational programs are under way in the squat buildings that are the hallmark of these correctional facilities.


Inside one of those large rooms, various pieces of computer hardware rest in neat piles as five wards – dressed in polo shirts emblazoned with a “Merit Partners” logo – inspect open hard drives.
The youths are employees of the nonprofit Merit Inc., which was founded 14 years ago with the goal of training incarcerated youths in useful job skills. The Stockton facility is a registered Microsoft refurbisher, and the wards that work here are all trained in rebuilding and repairing dated equipment that is donated by corporations.


Unlike most prison jobs, they are paid well – starting at minimum wage, which is $8 an hour in California, and up to $10 an hour. They work up to 40 hours a week, money that goes toward restitution for victims of violent crimes, room and board at the facility, family support if appropriate, and a savings account in the worker’s name that will help them land on their feet when they are released.
The workers also learn “soft skills,” such as how to create a resume, apply for a job and dress for and conduct themselves during an interview.


“I’ve learned a lot – I never thought I’d be learning about fixing computers,” said Terrance Turner, a 21-year-old ward who grew up in San Francisco’s Potrero Hill neighborhood. “And before I was scared to talk to groups of people. Now I am trying to overcome that.”

Would the counties be able to come up with comparable, and less expensive, rehabilitative options for their juvenile population?

Juvenile Realignment Delayed

The Senate Budget Sub-Committee has decided to delay their approval for the Governor’s proposal to stop intake of juvenile offenders at the State Division of Juvenile Justice (DJJ) on January 1, 2013, shift responsibility for the juveniles to local governments, and fund local governments $10 million in 2011-2012 for the planning of the incoming youthful offenders. This is after Budget Sub-Committee staff recommended waiting to move on the Governor’s proposal to realign DJJ to the local governments until the May Revise.

Budget Sub-Committee staff noted “potential hurdles” in implementing the Governor’s proposal including: an increase in direct files; court commitment changes; “sight and sound” barriers for minors housed in adult institutions; and statutory changes, as counties can only house wards until age 21 while DJJ houses wards up to age 25.

Center on Juvenile and Criminal Justice Executive Director Dan Macallair and Commonweal Juvenile Justice Program Director David Steinhart spoke about these items on a panel at the hearing. Macallair recommended pushing back the deadline for DJJ closure to 2015-2016 to allow more time for planning. He also recommended Ventura Youth Correctional Facility be closed, and encouraged the Legislature to take advantage of private foundation support. Steinhart proposed more housing options for older and more violent juvenile offenders. He also recommended penalties for counties that have high rates of direct files. Sumayyah Waheed of the Ella Baker Center also testified, noting concerns with the current progress on implementing the stipulations from the Farrell v. Cate case regarding unconstitutional conditions at DJJ facilities, including problems such as guard harassment and “room sweeps.”