Transcript DJJ Disposition Advocacy

DJJ Disposition Advocacy
a primer for the juvenile defender
Jonathan Laba
Contra Costa County Public Defender’s Office
April 2006
Components of this Presentation
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Legal principles governing a DJJ commitment
Current conditions at DJJ / overview of Farrell
v. Hickman lawsuit
Pre-hearing preparation
Handling the disposition hearing
Theme: Approach the Hearing
Like a Three-Strikes Sentencing
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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
LEGAL PRINCIPLES
What is the DJJ?
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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
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.
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.
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.
Court Not Required to Attempt
Less Restrictive Alternatives
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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.
Less Restrictive Alternatives
Must 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, 57778.
Punishment as Rehabilitation
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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.
It’s Hard to Win on Appeal
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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.
CURRENT CONDITIONS
and
FARRELL v. HICKMAN
LITIGATION
DJJ Current Facts
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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
Contra Costa Commitments
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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)
The Farrell v. Hickman Litigation
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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:
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General corrections / ward safety
Mental health and substance abuse
Education
Medical care
Sex offender programs
Wards with disabilities
Expert Reports Issued
January / February 2004
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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
Consent Decree
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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
January 2005 Stipulation
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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
Inspector General Audits
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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
December 2005 Stipulation
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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
Remedial Plans
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The plaintiffs in Farrell have accepted the remedial
plans in the following areas:
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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
March 2006: Planning Experts Issue
Revised Safety and Welfare Plan
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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.”
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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
March 2006:
Special Master Report Issued
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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
Summary
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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
CONTESTING A DJJ
RECOMMENDATION
Pre-Hearing Preparation
Handling the Contested Hearing
PART I:
PRE-HEARING
PREPARATION
Pre-Hearing Preparation
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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
Scheduling and Time Waivers
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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
Before you invest a lot of time . . .
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Discuss case with supervisor and colleagues
Consider asking to discuss case in chambers
with judge to see if court is truly considering
DJJ
Collecting Documents and Records
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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
Dealing with Probation
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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
Prepping Your Client to Talk to P.O.
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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
An Overview of Placement
Screening
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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
Review the Probation Report
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Probation report is due 48 hours prior to dispo
Must carefully review the probation report for accuracy
and completeness
Common errors:
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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
Offender Classification
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If sentenced to the DJJ, client will receive an initial
parole date based on the classification of the offense
Classification levels:
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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)
Consider Hiring an Expert
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Sex offender treatment experts
A Step Forward (Art Paull, Dr. Tia Halpern)
 Crossroads (Dr. Larry Wornian)
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Other mental health experts
DJJ expert
Dan Macallair, Center on Juvenile and Criminal
Justice
 Sandra Tellers, California Justice Coalition
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Consult with a DJJ Expert
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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
Develop Alternatives to the DJJ
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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
Prepare Motions for the Hearing
Motion to strike irrelevant / unsubstantiated portions of
probation report (e.g., unsupported gang info):
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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
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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)
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Can make the motion to strike in your sentencing brief
Prepare Motions for the Hearing
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Motion for judicial notice of expert reports
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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
Prepare a Sentencing Memorandum
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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
PART II:
HANDLING THE
CONTESTED HEARING
Handling the Contest
TOPICS:
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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)
Prep the Client for the Hearing
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Educate client about what will occur
If client wishes to address the court, have him
prepare a written statement he can read
First Move: Ask for Your Client
To Be Unshackled
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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
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Submitting Documentary Evidence
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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)
Correcting and Modifying the
Probation Report
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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
Examining the Probation Officer
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You should put the p.o. on the stand unless
there is a good tactical reason for not doing so
Most p.o.’s know nothing about the DJJ; allows
you to highlight their ignorance
Can use their testimony as opportunity to elicit
helpful facts they did not put in the probation
report
Grill them regarding their phone call to the DJJ
Intake Unit
Motion for Judicial Notice
of Expert Reports
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At a minimum, you should request judicial notice of
the General Corrections Review (December 2003), the
Consent Decree, and the new Safety and Welfare Plan
(March 2006) and First Report of Special Master
(March 2006)
Request notice of other appropriate reports depending
on your client’s needs (e.g., sex offender report, mental
health report)
Remember to mark all the reports and request they be
moved into evidence
Present DJJ Expert
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Even if expert not doing a case workup, make sure they
know something about your client and his / her case
Review with the expert the documents you want to
discuss during their testimony
Even if judicial notice has been denied, calling the
expert gives you another opportunity to get the
contents of the expert reports into evidence because
they are a basis for the experts’ opinion
Have expert testify as to current conditions and lack of
programs and relate those conditions to your individual
client
Have Family, Friends, and Others
Address the Court
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They don’t need to take the witness stand (and if they
do, they are subject to cross examination)
Statements of family can be quite moving (although it
rarely seems to have much effect on the dispo result)
See if any juvenile hall staff would speak favorably on
behalf of client
See if Reverend Tinsley has worked with your client,
and if so, whether he would be willing to come to court
and / or speak on your client’s behalf
Arguing the Appropriate Disposition
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Stand up!
Present an alternative if you have one (and
consider arguing for juvenile hall if no other
alternative exists)
Use passion and emotion – after all, your client’s
life is at stake
Requesting Findings and Orders
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Factual findings re the case
Individual with exceptional educational needs
(for special education clients)
Court request for client to get certain programs
(e.g., sex offender programs) – DJJ not required
to follow but they consider it
Setting the Maximum
Term of Confinement
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Court must set a maximum term of confinement based upon the
“facts and circumstances of the matter or matters which brought
or continued the minor under the jurisdiction of the juvenile
court.” W&I 731(b).
Provides for court consideration of factors about the offense
and the offender’s history which would be comparable to those
employed now for the triad sentencing of adults. In re Sean W.
(2005) 127 Cal.App.4th 1177, 1185.
Court not limited to the felony sentencing triad for adults; the
juvenile court is to consider the facts and circumstances of the
matter, rather than being restricted solely to the criminal
aggravating or mitigating circumstance scheme. In re Carlos E.
(2005) 127 Cal.App.4th 1529, 1542.
Statutory Factors Governing the Max
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Rule 4.414 – criteria when evaluating suitability
for probation (can be quite useful)
Rule 4.421 – circumstances in aggravation
Rule 4.423 – circumstances in mitigation
Be aggressive but reasonable with what you ask
for
FINAL STEPS:
WHAT TO DO WHEN
YOU LOSE
It’s Not Over Yet
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We will continue to represent the client pursuant
to Rule 1479
Get file in order for post-dispo attorney
Have client and family sign release forms
Educate client and family about the process
going forward
Fill out CYA data form and give to supervisor
FILE AN APPEAL, without exception!
A Parting Thought