LAO Analysis of the 1997-98 Budget Bill
Judiciary and Criminal Justice, Crosscutting Issues Part b

1. Reforming California's Juvenile Justice System
1. Background--California's Juvenile Justice System
2. State Actions to Address Juvenile Justice Problems
1. Need for Leadership
2. Balanced and Restorative Justice
3. Juvenile Delinquency Prevention
4. Juvenile Court Reforms
5. Data Collection, Analysis, And Dissemination
6. Juvenile Justice System Funding
2. California's Jails and Juvenile Detention Facilities
1. California's Jails
2. County Juvenile Detention Facilities
3. Conclusion
3. The Backlog of Death Penalty Appeals
1. Background
2. Major Backlog of Death Penalty Cases Without Attorneys
3. Steps Taken to Attract More Private Attorneys
1. Legislative Solutions Considered Last Year
4. What Can the Legislature Do?

In this piece, we briefly review the state of the juvenile justice system and focus on the recommendations of the task force. We recommend that the Legislature enact many of the task force's recommendations and modify others.

Background--California's Juvenile Justice System

The juvenile justice system has evolved over the years based on the premise that juveniles are different from adults, and juveniles who commit crimes should be treated differently than adults. Separate courts, detention facilities, rules, procedures, and laws were created for juveniles with the intent to protect their welfare and rehabilitate them, while protecting public safety. Juveniles, like adults, can be charged with a felony, a misdemeanor, or an infraction. Juveniles can also be charged with offenses unique to the young (these are known as status offenses--such as truancy, curfew violation, and running away).

Characteristics of the System. The juvenile justice system is primarily a local responsibility. County probation departments supervise 97 percent of the state's juvenile offenders; the remaining 3 percent are committed to the Department of the Youth Authority and become a state responsibility. In contrast, almost 20 percent of adult offenders are sent to state prison. In addition to probation departments, county departments of social services, child protective services, mental health, drug and alcohol programs, county offices of education, along with local school districts, all provide services for juvenile offenders. Also, many law enforcement agencies have resources that deal specifically with juveniles and the juvenile justice system.

The agencies that arrest, detain, and incarcerate juveniles are allowed a variety of options for dealing with juveniles, in contrast to the system that deals with adults. For example, for very similar crimes, juveniles can be detained in juvenile or adult facilities, tried in juvenile or adult courts, subjected to juvenile or adult sentences, and be incarcerated only with juveniles or only with adults or a mixture of the two.

Further adding to the complexity of the system are the sometimes contradictory goals of protecting the welfare of the juvenile offender and protecting the public. For example, much discussion has centered around questions of which type of court should have jurisdiction over certain types of juvenile offenders, whether juvenile records should be confidential, and when rehabilitation should give way to punishment.

The State of Juvenile Crime. There is no accurate measure of how many of California's almost four million 10 to 17 year olds (the ages most likely to commit crimes) are actually involved in criminal activities. While there is very limited data on juvenile crime, we are able to use juvenile arrest statistics as a measure of activity.

Based on arrest data, juveniles were responsible for 16 percent of all arrests in 1994 (the most recent year for which data are available), while accounting for just 10 percent of the state's population. Furthermore, juveniles were responsible for 15 percent of all arrests for violent offenses in 1994.

While the juvenile arrest rate for violent crime has increased 63 percent since 1985, the rate has actually declined in the past three years. The decline could be due to a variety of factors. For example, the arrest rate may have declined because fewer juveniles have committed crimes as a consequence of prevention, suppression, and enforcement efforts. On the other hand, the rate may have decreased because of limited law enforcement resources have resulted in fewer arrests, not fewer crimes.

Regardless of the data, there is a strong public perception that juveniles are responsible for a disproportionate amount of crime. For example, in a 1996 survey, two-thirds of those sampled responded that they believed that youth violence had increased in their communities. The same proportion of respondents also believed that juveniles commit more violent crimes than adults.

Prevention and Intervention Services. There is a continuing debate on what methods and services are best to prevent or intervene with juveniles who are "at-risk" of becoming delinquent or have already committed an offense. Using specific indicators, juvenile justice system professionals believe they can identify those juveniles who, absent intervention, would be at-risk of becoming habitual offenders. How best to prevent juveniles from becoming habitual offenders is still being evaluated. However, there has been much research showing that integrated, multi-disciplinary services appear to help divert juveniles from a life of crime.

Because the juvenile justice system is primarily locally-administered, there is no statewide authority responsible for evaluating what types of programs are effective, how information on the success or failure of programs can be exchanged, and how to ensure that limited resources are used for the appropriate populations and ensure the greatest chance for success.

Juvenile Justice System Data. There is a serious lack of data on most parts of the juvenile justice system. For example, crime statistics only identify how many juveniles are arrested. There is no statewide data on how many juveniles are detained, adjudicated, or incarcerated in California. Furthermore, information is not available on whether a juvenile fares better in juvenile or adult court, or which court of jurisdiction gives "tougher" sentences to juveniles. Similarly, no comprehensive data are available on the prevalence and trends for most risk factors--those factors that indicate that a juvenile is more likely to become delinquent--such as data on school truancy, juvenile weapon possession, or adolescent substance abuse. Finally, the state doesn't measure the effectiveness of many of its efforts to prevent, suppress, or reduce juvenile crime.

Effects of Demographics and Other Changes. In our May 1995 report entitled Juvenile Crime--Outlook for California, we reported that California's juvenile population is projected to grow over 20 percent through 2004. This increase in the juvenile population has the potential for significant increases in the number of juvenile arrests in the future.

We also identified in that report several other indicators of future growth in juvenile criminality. For example, we reported significant increases in reports of abused, exploited, and abandoned children. In addition, we noted significant school dropout rates among certain young students. Furthermore, recent federal data indicate increases in gang activity, gang-related crimes, and juvenile possession of firearms. Finally, drug testing at three California jails shows significant increases in the number of juveniles who tested positive for drugs at the time they were arrested.

State Actions to Address Juvenile Justice Problems

Because of continuing concern about juvenile crime and the juvenile justice system's response to crime, the Legislature enacted Chapter 454, Statutes of 1994 (AB 2428, Epple), which established a task force to analyze all aspects of the juvenile justice system, find creative solutions, explore alternatives, and recommend a plan for improvement. The California Task Force to Review Juvenile Crime and the Juvenile Justice Response met for one year to study all aspects of juvenile justice issues. At the end of its deliberations, the task force unanimously concluded that it is important to retain a juvenile justice system separate from the adult court system, but it also concluded that the system needed to be changed.

The task force, in its final report released in December 1996, identified recommendations in six areas for improving of the juvenile justice system. Figure 5 (see page 28) shows these major areas. We discuss each of them below, along with our analysis of the task force recommendations.

Need for Leadership

Figure 5
California Task Force to Review Juvenile Crime and the Juvenile Justice Response Major Recommendations
	There is a need for increased local and state level leadership in juvenile justice.
	The state should adopt a "balanced and restorative" approach to juvenile justice reform.
	Juvenile delinquency prevention should be a priority.
	Juvenile court reforms are needed to improve the system.
	There is a need to improve data collection, analysis, and dissemination.
	Funding options need to be explored, developed, and expanded.

The task force recommended that the state create a single state department or agency with responsibility for oversight, planning, development, and coordination of juvenile justice policy and program delivery. In addition, the task force recommended establishment of a state office for the prevention of youth violence.

At the time this analysis was prepared, there have been no actions to create a single state agency for juvenile justice issues.

Analyst's Recommendation. We concur with the task force that there is a need for better statewide coordination of juvenile justice issues. We do not believe, however, that the state should create a new state agency, especially one with such large and diverse responsibilities. The new agency envisioned by the task force would exercise state control over juvenile justice policy. However, the current juvenile justice system, like law enforcement, is primarily a localresponsibility. We believe that the state should not extend its control to those governmental functions that are primarily local in nature.

In our 1993 report on sorting out state and local responsibilities, Making Government Make Sense, we noted that the state should seek to maximize the separation of state and local duties to ensure that state and local systems of government worked most effectively. Establishing a single agency could take away local agency accountability for system performance and reduce local flexibility for meeting local problems. Often, what works in one part of the state may not be an appropriate solution in another part of the state. A single state agency for juvenile justice might take from local agencies the flexibility and responsibility for local solutions to local problems.

As an alternative to assuming state control of the juvenile justice system, we believe that the state should aid local governments with better coordination and information sharing. Rather than creating a new state agency, the Legislature should consider designating an existing department, such as the Department of the Youth Authority or the Board of Corrections, as the lead state agency for juvenile justice program information-sharing, providing technical assistance to local agencies, and coordinating state juvenile justice funding. This new juvenile justice coordinating effort would work with local agencies to share information and coordinate services, but would not assume local responsibility for the operation of the juvenile justice system.

Balanced and Restorative Justice

In contrast, the balanced and restorative approach shifts the emphasis to balance the need for punishment with the need to restore the victim and community. The approach clearly identifies punishments for offenders, but goes beyond simple punishment. In practice, an offender is not only punished, but must take actions to "restore" the victim and the community. Therefore, this system does not rely simply on incarceration for punishment, but also requires restitution, community service, and offender education. Each sanction is tied to restoring the community. For example, in jurisdictions that use this model, an offender must meet with the victim of his or her offense to determine how best to make restitution and for the offender to understand the impact of his or her crime on the victim. Furthermore, the victim will be allowed to recommend where the offender might perform community service, such as maintenance work at the victim's favorite park

In addition, the balanced and restorative approach recognizes that the community also has a level of responsibility. This responsibility is to ensure that the offender leaves the justice system more capable of productive participation in society than when he or she entered the system. Consequently, the offender will be punished, but also will receive services in the community (such as education or substance abuse treatment) that will enable him or her to find alternatives to criminality.

In order to implement balanced and restorative justice, the task force recommended changing state law to specify that the balanced and restorative approach be the goal of the juvenile justice system. In addition, the task force recommended that the state provide technical assistance to local agencies to implement the new philosophy.

The Youth Authority has attempted to incorporate some of the precepts of balanced restorative justice into its mission. For example, the Youth Authority's budget includes funds for community service programs for its parolees. The goal of these programs would be to "restore" the communities where parolees committed their criminal offenses through unpaid labor.

Analyst's Recommendation. We recommend that the Legislature consider changes to existing statutes that would allow counties, local entities, and the courts to change the emphasis of the juvenile justice system to the balanced and restorative approach. We believe that the implementation of this approach has the potential for making the juvenile justice system more effective. Offenders who would be required to restore their community through restitution and community service are more likely to understand the consequences of their criminal acts and less likely to re-offend. Furthermore, the system attempts to ensure that offenders get the services they need to become productive members of the community. In addition, the approach works to ensure that victims of crime and the community as a whole have a greater voice in the justice system.

In order to implement such an approach, the Legislature should establish a lead agency to provide technical assistance and training. The Legislature could make the provision of technical assistance for balanced and restorative justice one of the responsibilities of the juvenile justice coordinating effort we discussed above. Alternatively, the Legislature might decide to contract with one of the private nonprofit organizations in the state that provide these services.

Juvenile Delinquency Prevention

The Legislature and the administration have acknowledged the importance of prevention efforts for the juvenile justice system. In fact, the current-year budget includes more than $500 million to support 34 different programs in eight departments. Some of these programs provide general types of prevention services to wide and diverse target populations. For example, the Department of Alcohol and Drug Program's "Friday Night Live" program, provides funds for peer programs to keep teenagers from using alcohol or drugs. Some of the programs target specific risk factors, such as the Department of Social Services' Child Abuse Prevention Program. Other programs are specifically aimed at juvenile offenders. For example, the Repeat Offender Prevention Program in the Board of Corrections provides funds to counties to establish integrated services for first-time juvenile offenders.

Criteria for Prevention Programs. We believe that, to be successful, prevention programs should have certain elements. A prevention program should have:

• Detailed Prevention Goals. The program goals should specifically identify the risk factor or behavior that will be addressed. The goals should be both achievable and measurable.
• Target the Program Population. The program should also identify the population that will be served. Identifying a specific population with specific needs, allows resources to be targeted.
• Allow for Flexibility in Implementation. Recognizing that juvenile offenders have many differing problems, and that each community is different, allowing for program flexibility will promote local solutions to local problems.
• Maximize Available Resources With Integrated Services. To ensure the most economical provision of services, programs should require multi-agency participation and provide integrated services. Without this type of approach, agencies might needlessly duplicate expensive services or fail to maximize other sources of funds, such as federal funds.
• Evaluating Program Performance. Each program should have a mechanism to measure whether it is accomplishing its goals. The evaluation should show the performance of the program and document successes (and failures) and allow for information sharing.

Some of the prevention programs established in the current year have these attributes. For example, the Juvenile Crime Enforcement and Accountability Challenge Grant Program administered by the Board of Corrections--a $50 million one-time local assistance program established by Chapter 133, Statutes of 1996 (SB 1760, Lockyer)--meets these criteria. The grant program identifies the population that should be served and requires an integrated, multi-disciplinary approach to serving the target populations. The program allows each county to develop its own local solutions for serving targeted populations. In addition, the counties identify how they will determine whether the program works or not and will complete periodic evaluations of the program. The Board of Corrections will also evaluate the program during and at the end of the grant period.

Analyst's Recommendation. We strongly agree with the task force's conclusions about the need for prevention programs for juvenile offenders. However, we believe that successful prevention programs must meet the criteria outlined above. As a consequence, we recommend that the Legislature use these criteria as it reviews proposed new prevention programs. If an individual program does not meet the criteria, the Legislature should reject the proposal. The Legislature should also apply these criteria to a review of existing programs. Further, as noted above, the Legislature should ensure that the lessons learned from these programs are shared. This can be accomplished by the state agency that would be responsible for coordination of juvenile justice issues.

Furthermore, the Legislature may wish to consider continuing or augmenting funds for certain programs that meet the prevention program criteria, but may not be fully funded. For example, the Board of Corrections will be evaluating requests from counties and awarding funds for the Juvenile Crime Enforcement and Accountability Challenge Grant program in the spring. The Governor's budget does not propose to continue the program in 1997-98. If the Board of Corrections identifies meritorious applications that exceed the available funds, the Legislature might consider continuing this program with sufficient funding to fully fund these applications.

Juvenile Court Reforms

The task force also made a series of procedural recommendations to improve the court process for adjudicating serious and violent juvenile offenders. These include recommendations for streamlining hearing processes, clarifying processes for selecting judges, and assuring that victims are represented in the court process. The task force also recommended that parents be mandated to attend court hearings and that they be sanctioned if they fail to appear.

Juvenile or Adult Sanctions. The task force did not make a recommendation on a model for when juveniles should be tried as adults and receive adult punishments. The question of how best to handle young offenders who commit serious offenses is a difficult one. On one hand, there is public belief that the current juvenile court system is too lenient on juvenile offenders. For those who hold this position, the most effective remedy is to have serious and violent juvenile offenders tried in the adult criminal courts (often referred to as "remanded" or "waived" to adult court). Advocates of this approach differ on how best to accomplish this, some placing discretion with prosecutors for deciding when a juvenile is sent to adult court and others believing that decisions should be mandated in statute. There is also a great deal of debate over the age at which a juvenile offender should be sent to the adult court. Current law allows minors as young as 14 to be tried as an adult.

On the other side of the debate, some advocates believe that these offenders, even those who commit heinous crimes, are nevertheless still juveniles with special needs that can only be addressed in the juvenile court. Even among those who take this position, many believe that there are some types of offenders who should be transferred to the adult system. Those who favor keeping most minors in the juvenile justice system seek to ensure that in any "fitness" hearing--a proceeding where the juvenile court makes a determination that an offender is not fit for the juvenile court--the prosecutor has the burden of proving the juvenile is not fit for juvenile court and should be remanded into the adult court system.

Complicating this debate is the lack of data on what type of system works best. It is not known how many minors are tried as adults in California, nor, more importantly, we do not know the disposition of their cases. We do not know if juvenile offenders receive harsher sentences in adult court or if transferring juvenile offenders to adult court has a deterrent effect. Research from other states shows that juveniles tried in adult court tended to receive more lenienttreatment than did a comparable group of youths in juvenile court. This more lenient treatment may be due to the offender's age (and its effect on a jury). It may also be attributable to the fact that juvenile offenders, as a consequence of their age, do not have long criminal conviction records, and the severity of adult sentences is often based on prior criminal record. Because of this lack of data, the task force did not make a recommendation on the best model for dealing with serious and violent juvenile offenders.

Analyst's Recommendation. We recommend that the Legislature adopt the task force recommendations for improving judicial proceedings, especially the task force recommendations for ensuring expeditious adjudications for first-time offenders. We also agree with the task force recommendation for recognizing the needs of victims in the court process. We note that these concerns can be addressed through changes in court procedures and through the adoption of the balanced and restorative justice approach.

To address the question of which court is the most appropriate one for dealing with serious and violent juvenile offenders, we recommend that the Legislature consider adopting the concept of "blended jurisdiction." This concept keeps responsibility for the juvenile in the juvenile courts, but extends to the youth who has committed serious and violent crimes many of the procedural guarantees found in adult courts, such as jury trials. With blended jurisdiction, the juvenile court could impose both a juvenile and adult sanction on juvenile offenders who are convicted of committing serious or violent crimes. The adult sentence for a juvenile offender would be "stayed" until the offender successfully completed all of his or her juvenile sentence (incarceration and parole), and for a period afterwards. If, at any time during this period the juvenile committed another offense, the original adult sentence would be imposed, allowing for immediate incarceration in state prison. In this way, the juvenile could utilize all rehabilitative programs available to juvenile offenders, while at the same time being subject to the more severe adult sentence if the offender commits a subsequent offense. Legislation introduced in 1996, SB 2126 (Marks), contained these elements of a blended system.

Data Collection, Analysis, And Dissemination

The Legislature has already addressed one of the task force's recommendations. Chapter 803, Statutes of 1995 (AB 488, Baca) requires that the DOJ reinstate its systems for collecting and reporting juvenile justice statistical data. According to the DOJ , the first statewide reports from the system will be available in August 1998. In addition, for the current year, the Legislature appropriated $300,000 to the Youth Authority to contract for a study of the long-range needs for juvenile justice system data collection. The contractor will be required to look at all aspects of data availability and collection for the juvenile justice system. The contractor will look at both the criminal justice systems, such as arrest and court disposition data systems, but also review other non-criminal systems, such as educational and social services systems. The contractor will provide a long-range plan for addressing the data deficiencies it identifies.

Analyst's Recommendation. We recommend that the Legislature defer any further action in this area until the long-range plan is completed.

Juvenile Justice System Funding

The task force recommended reorganization of financing for juvenile justice, including consolidating funding through a single state agency for juvenile justice. The task force recommended that funding decisions be made based on caseload distribution, and that policymakers pursue a realignment of funding to ensure that an optimum balance is reached for all components of the juvenile justice system.

As noted above, the state has made a significant investment in juvenile justice programs. Several of the new state-level initiatives (such as the Challenge Grant program) require recipients to fully leverage other sources of funds and develop local resources to maintain the new programs when state funding declines. In addition, many counties have been investigating methods for using disparate funding sources to provide integrated services. For example, in Ventura County, departments that serve the same juvenile caseloads, such as probation, social services and mental health, pool funding to maximize all sources of funds, including federal funds. However, there is no system by which counties that have found new ways to maximize the use of funds can share this knowledge with other counties. Furthermore, various county agencies have identified statutory and regulatory barriers to using various funding sources to provide integrated services. For example, there are statutory and licensing barriers that prevent counties from developing privately operated facilities for juvenile offenders. As a consequence, counties lose the ability to develop alternatives to placements in the Youth Authority.

Analyst's Recommendation. Because so many juvenile offenders need a variety of services to prevent continued criminality, the Legislature should encourage the provision of integrated services using a multiagency approach (such as that used in Ventura County). Such an approach would ensure that existing resources are maximized. To facilitate this type of approach, we recommend that the Legislature designate the state juvenile justice coordinating agency described earlier as responsible for identifying and coordinating information on juvenile justice funding. The agency could take the lead in identifying funding sources and working with local agencies to maximize all types of funding for juvenile offenders. Furthermore, we recommend that the Legislature consider removing any barriers to maximizing juvenile justice funding.

California's 58 counties are responsible for detaining, in secure facilities, both juveniles and adults who (1) have been arrested for a crime and are awaiting trials or court decisions, or (2) are serving time for committing a crime. Adult offenders are housed in county jail facilities. Jail facilities are generally the responsibility of the county sheriff. Juveniles are housed in juvenile halls or other county detention facilities, such as ranches and camps. County juvenile detention facilities are generally the responsibility of the county's Chief Probation Officer. These adult and juvenile local detention facilities are literally the "front door" of the state's criminal justice system.

The state's Board of Corrections oversees the operations of jails. It does this by setting jail standards, inspecting facilities biennially, establishing staff training standards, and administering jail bond construction funds. In addition, the board maintains data on the state's jails. The board also sets standards for, and inspects, local juvenile facilities.

California's Jails

Figure 6
California's Jails
	1.3 million people booked into California jails in 1996.
	Average daily population of jails in 1996 was 72,473 individuals.
	Capacity of the state's jails was 66,358, resulting in overcrowding of 109 percent.
	70 percent of inmates are being held on felony charges.
	59 percent of inmates are awaiting trial or sentencing; the remaining 41 percent are sentenced.
	27 counties, accounting for 74 percent of all jail beds, are under court imposed population limits.
	By the year 2000, the average daily population is expected to be 102,247, with a capacity of 68,982 beds, resulting in overcrowding of 148 percent.

In 1980, there were almost 32,000 jail beds statewide. However, by 1996, after the largest capital outlay program for county jails in the United States, the number of beds increased to just over 66,000. This building program was largely funded by $1.5 billion from five state general obligation bonds passed throughout the 1980s. Monies generated from the bond issues have been used to construct more than 27,000 new jail beds. To qualify for state bond monies, counties were required to pay 25 percent of the costs of new construction. The Board of Corrections reports, however, that local governments actually paid about 50 percent of all costs. A 1996 bond measure (Proposition 205), that would have provided $350 million for local jails, was defeated by the voters in the November election.

How Many People Are in Jail? Almost 1.3 million adults, more than 104,000 per month, were booked into jail in 1996. On any given day the state's jails house between 70,000 and 75,000 adults either awaiting trial, court decision, or who have been sentenced. More than 70 percent of jail inmates are being held for, or have been convicted of, felonies. Almost two-thirds of the jail population is awaiting trial or sentencing; the remaining inmates are serving sentences (generally less than one year). Figure 7 shows the growth in average daily jail population for the past ten years.

California jails account for 15 percent of the nation's total jail population, and the state's average daily population exceeds the total average daily populations for all jails in the Northeastern states (including New York and Pennsylvania).

Jails Are Overcrowded. All of the state's jail facilities have experienced increased population and almost all of them have reported overcrowding. Much of this growth, prior to 1994, can be attributed to a variety of factors. Among these factors are (1) growth in the state's population, (2) increases in the number of individuals arrested for crimes, and (3) reduced capacity of certain other county facilities, most notably, county institutions for the mentally ill and substance abusers.

In 27 counties with overcrowded conditions, the federal courts have imposed limits on the number of people who can be held at any one time. Jails in these counties account for more than 70 percent of the state's total jail beds. For these counties, jail administrators have to release inmates to reduce population, whenever population exceeds the cap, or face monetary or other sanctions. As a result, inmates who would have been held for longer periods of time, either awaiting trial or to complete a sentence, are often released early.

Impact of "Three Strikes." The implementation of the "Three Strikes and You're Out" law has contributed to jail overcrowding. In 1996, there were approximately 6,500 "second- and third-strikers," or 8.8 percent of the total jail population, awaiting trial. These inmates have had several effects on jails. Because persons charged with a strike are more likely to contest their cases in court rather than accept a plea bargain, they tend to stay in jail longer awaiting a trial, which has lengthened the average stay of inmates in jail. Additionally, because "strikers" stay in jail longer awaiting trial, there is a larger percentage of nonsentenced versus sentenced inmates held in jail. Longer lengths of stay and increasing numbers of nonsentenced inmates result in a smaller pool of inmates that can be released to meet population caps.

The second- and third-strike inmates require higher levels of security than average inmates, primarily because of the longer sentences these inmates are facing. For example, a person arrested for felony petty theft might spend three to six months in jail as a minimum security inmate. However, under the provisions of the "Three Strikes" law, the same inmate when charged as a "striker" could face 25 years to life. In this instance, the inmate would be reclassified as a maximum security inmate because the inmate poses a greater escape risk. Figure 8 shows the security classification of jail inmates for 1996.

The Board of Corrections reports that the capacity of the state's jails has decreased by up to 2,000 beds because of the changes in security needs. These beds are rated for lower security inmates (for example, these facilities could be easy to escape from without extensive modification), and cannot be used for higher-risk inmates, such as the "strikers" awaiting trial.

Large Numbers of Inmates Being Released Early. As a result of jail overcrowding, many inmates are released earlier from jail than they would be otherwise. About one third of all people arrested and booked in the state are released early because of a lack of jail space. Each month 29,000 inmates are released early from California jails--7,000 who are awaiting trial and 22,000 before the completion of their sentence. Some jails report that sentenced inmates will serve less than 20 percent of their sentences because of overcrowding.

Many Offenders Never Get to Jail. In addition to early releases, many jails report that they no longer accept certain types of offenders. For example, most large counties no longer accept bookings of persons arrested for misdemeanors, such as prostitutes, public inebriates, and vandals. These individuals, who in the past would have been booked and held in county jails, are now "cited and released" by law enforcement officials. The inmates released before trial and those cited and released are required to appear before court. If they fail to appear the court issues an arrest warrant. As of September 30, 1996, in more than 2.6 million cases (10 percent of them felonies), an individual who was never booked, or had been released early from jail, never showed up for court.

The Future for Jails. The Board of Corrections estimates that, in order to house all those persons who are being released early, counties would need by the year 2000 to construct jail facilities containing an additional 30,000 beds, which would cost several billion dollars to construct. If these facilities are not constructed, or other alternatives developed, larger numbers of inmates will be released early or will never be booked into jail. In addition, there will be a continuing need to improve the security levels of existing facilities, in order to safely house inmates.

Finally, we expect that there will also be increasing numbers of mentally ill and substance abusing inmates as part of the jail populations. These types of inmates place significant and specialized demands on jail facilities. Federal drug utilization data show that in Los Angeles, San Diego, and Santa Clara Counties between 52 percent and 73 percent of all arrestees test positive for some illegal drug, regardless of offense. Those under the influence of drugs present important management problems for jail administrators.

There is no data on the number of mentally ill inmates in jail, but jail administrators in several of the largest jurisdictions have estimated that up to 10 percent of those arrested have some mental problem. Many jails, such as the Sacramento County Jail, have fully staffed mental health hospitals as part of the jail. These needs and the needs of sick inmates will also put pressures on California's jails in the future.

County Juvenile Detention Facilities

Juvenile Halls. Juvenile offenders, after being arrested, are detained in local juvenile halls, usually for short stays. While in the hall, juvenile offenders go to school and participate in various recreational and other programs. Juveniles placed in juvenile halls usually are awaiting court action. Many of these youths are being detained for very serious or violent offenses. Figure 10 shows the types of offenses of juveniles detained in 1995.

Figure 9
California's Local Juvenile Detention Facilities
	47 juvenile halls operated by 43 counties.
	Juvenile halls house more than 6,400 juvenile offenders.
	Juvenile offenders held for violent offenses account for 50 percent of juvenile hall population.
	Ranches and camps in 25 counties.
	Ranches and camps house more than 4,000 juvenile offenders.
	Juvenile offenders held for violent offenses account for 35 percent of ranches and camps population.

Almost all of the halls report overcrowding. The overcrowding is due primarily to the growth in the number of juvenile offenders. Juveniles who are awaiting trial as adults, are also detained in juvenile halls. Because of federal law, juveniles under most circumstances cannot be held in adult jail. The federal law requires that juvenile offenders cannot come in "sight or sound" contact with an adult criminal offender. Consequently, only a very small number of jails has the ability to house juveniles--ten counties with only 138 beds in 1995.

Juvenile offenders awaiting trial in adult court can stay in a juvenile hall for months and sometimes years. In contrast, the average juvenile offender awaiting a hearing before the juvenile court is detained for less than a month. At the main juvenile hall in Los Angeles, an average of up to 200 juveniles out of a total of 750 are offenders awaiting trial in adult court for murder or other serious or violent crimes. Some smaller counties report that the majority of their beds at any time are occupied by these types of offenders.

Because of overcrowding, many counties report that their juvenile halls will not accept many juveniles who have been arrested. Police agencies, when they arrest a juvenile, bring the offender to the juvenile hall. However, the probation department makes the decision to book and detain the juvenile offender. If the hall is full with violent offenders or with those awaiting trial in adult court, the arrested juvenile is not booked because no space is available. When the juvenile offender is not booked, he or she is released to the custody of parents and returned to the community. In some counties, a juvenile might be arrested several times for property offenses, such as burglary or car theft, before he or she is actually booked into juvenile hall.

Juvenile Ranches and Camps. Ranch and camp beds are placements for offenders whose cases have been adjudicated in court. Juveniles who have been adjudicated for very serious offenses, such as murder, can be placed in camps at the discretion of each county.

Figure 11 shows, by type of offense, the juveniles detained in 1995.

While placed in a ranch or camp, the offender receives a variety of rehabilitative services and attends school. Several county ranches and camps offer specialized programs such as "boot camps," sports camps, and conservation camps. Generally, a ranch or camp placement is the county's last placement option before an offender is committed to the Youth Authority. However, counties report that they do not have enough space for all offenders whom they wish to place in a ranch or camp. Recently, counties have received both federal and state funds to support their local juvenile facilities. (We discuss this issue later in this chapter in our analysis of the Youth Authority.)

Other Placement Options. In addition to juvenile halls, ranches and camps, county probation departments use a variety of other placement options. For example, juvenile offenders can be placed in foster care or group homes if they otherwise meet the eligibility requirements for these programs. Counties also use nonresidential placements, such as day treatment centers. A day treatment center is a nonresidential placement where a probationer must report at a specified hour--usually in the early morning--and stay at the center until the evening. At the center the probationer receives schooling, counseling, and other services. In addition, the probationer is supervised for the entire time while at the center.

State Support for Juvenile Facilities. In 1988 and 1990, the voters approved a total of $100 million in general obligation bonds (Propositions 86 and 147) for renovating, constructing, and acquiring new juvenile facilities. In November 1996, a bond measure (Proposition 205) that would have provided $350 million for local juvenile facility construction was defeated by the voters. In addition, the state has provided General Fund support for local ranches and camps. This subsidy, allocated based on the number of available beds in each county, totaled $32.7 million in the current year and is proposed for the budget year. Furthermore, the Governor's welfare reform proposal includes $139 million in federal funds for county probation departments to provide services to eligible juvenile offenders. We discuss this proposal in our analysis of the Youth Authority budget.

The Future for Local Juvenile Detention Facilities. The need for services and space for juvenile offenders is expected to increase in future years. In 1995, juveniles age 11 to 17, the population of juveniles most likely to commit crimes, was 11 percent of the state's population, but accounted for 16 percent of all arrests. California's juvenile population is expected to increase 33 percent by 2004. An increase in the juvenile population has the potential for a significant increase in the number of juvenile arrests. However, because of overcrowding, juvenile arrests do not always result in the juvenile being detained.

We also expect that the number of juvenile offenders who are mentally ill or substance abusers will likely increase. For example, probation departments report that, because there are limited county mental health resources available for adolescents, there has been a significant increase in the number of offenders who are mentally ill. Often juvenile halls are the only place in a county where juveniles can be securely detained. As a consequence, a mentally ill or suicidal juvenile is placed in a hall because it is the only place that his or her safety can be guaranteed.

In addition, large numbers of juvenile arrestees are also substance abusers. Federal data on Los Angeles, San Diego, and Santa Clara counties estimate that between 35 percent and 58 percent of all juveniles arrested tested positive for some type of illegal drug.

A March 1995 assessment of California's juvenile halls, ranches, and camps conducted for the Youth Authority identified the need for over $350 million to upgrade and develop new juvenile facilities through the year 2000. This assessment noted that, like adult violent inmates, violent juvenile offenders require higher levels of security. Increases in the number of juvenile offenders held for violent offenders, might actually lead to a decrease in the number of state's juvenile beds because of increasing security needs. This would occur because violent offenders need closer supervision, and with existing staff resources, county probation departments would not be able to supervise as many beds. In addition, because of changing fiscal incentives that could reduce county use of the Youth Authority, counties may decide to develop new local alternative placements. There has been no estimate or assessment undertaken to evaluate the state's needs for nonresidential placement options.

Conclusion

In addition, because of the lack of jail and juvenile hall space, many offenders who are arrested are never incarcerated. While we do not have data on the number of adults who have been arrested but not booked because of a lack of space, we do know that there are over 2.6 million unserved misdemeanor and felony warrants for those who failed to appear before court. We do not know how many juvenile arrestees are never booked into juvenile halls, but are allowed to return--unpunished--to their community.

We estimate that costs for upgrading and building sufficient new adult and juvenile space could cost in the billions, although some stop-gap measures can be used to partially ameliorate the problems. In our Capital Outlay chapter of this Analysis, we recommend that the Legislature earmark federal prison construction funds for improving existing jail and juvenile facility security. In addition, we note that part or all of the state's monies from these federal grants can be used for construction of new local juvenile facilities. Finally, counties should be encouraged to develop alternatives to incarceration. Day reporting programs for both adult and juvenile offenders are less costly to operate and also provides a higher level of supervision than regular community supervision. County programs that prevent and intervene for the mentally ill and substance abusers could also reduce demand on both adult and juvenile facilities.

Background

As the figure shows, there is a considerable delay--generally three to four years--in appointing appellate counsel. One result of this lengthy appellate process has been a substantial increase in the number of inmates on death row. Figure 13 shows that there are currently 464 inmates on death row awaiting appeal of their cases in state and federal courts. Of these inmates, 285 have direct appeal cases pending before the California Supreme Court. Appellate attorneys have been appointed to 138 of these cases. The remaining 147 inmates are awaiting appointment of an attorney.

Figure 12
Estimated Time to Process Death Penalty Appeal In California Supreme Court
Event	Duration
Entry of formal death judgment in Superior Court	Process begins
Receipt of judgment of death in Supreme Court	2 to 3 weeks
Appointment of appellate counsel	3 to 4 years
Certification of the record in Superior Court and filing of the record in the Supreme Courta	1 to 5 years
Filing of appellant's opening brief	6 to 24 months
Filing of respondent's brief by the Attorney General	6 to 14 months
Preparation of memorandum and oral argument before the Supreme Court	6 to 18 months
Supreme Court opinion	up to 90 days
Total time	6 to 15 years
Source: Judicial Council of California.
aRecent legislation sets new guidelines which could shorten this process.

Figure 13
Status of Cases of Inmates on Death Row January 1, 1997
Total inmates on Death Row	464
Sentences affirmed by California Supreme Court, Now appeal in federal courts	175
Sentences reversed, awaiting retrial	4
Direct appeals pending before California Supreme Court	285
Cases with attorneys	(138)
Cases without attorneys	(147)

In recent years, the Supreme Court has come to rely on the CAC, in lieu of the SPD, to represent most of the inmates on death row. About 100 private attorneys are currently serving as court-appointed counsel in 116 of the 138 direct appeals cases for which counsel has been appointed. These private counsel also generally handle the state habeas corpus proceedings for those cases in which they handle the automatic direct appeal. Habeas corpus claims concern issues of whether the defendant received a fair trial. These claims often include matters which are not necessarily reflected in any of the trial court records, and require independent investigation. Examples include claims of ineffective assistance of counsel and failure of the district attorney to disclose certain evidence. Habeas corpus claims are filed in both the state and federal court. Generally, a new attorney is appointed by the federal courts for a federal habeas corpus claim.

Currently, the SPD plays a much smaller role in the process than private attorneys. The SPD has taken appointments in approximately 12 new direct appeals cases since 1992 and is currently handling only about 25 cases on direct appeal. This is due in large part to budget reductions experienced by the SPD, totaling about 15 percent since 1990-91.

Major Backlog of Death Penalty Cases Without Attorneys

According to the Judicial Council, it often takes three to four years before counsel is appointed to appeal an inmate's sentence. The Supreme Court's capital appeals monitor indicates that currently appointments are being made in cases where the death sentence was rendered in 1992. This delay in appointing counsel is due in part to the lack of private attorneys who are willing and qualified to accept such cases and the limited resources of the SPD.

Backlog Worsens in the Current Year. The Judicial Council has indicated that only 2 appointments were made between June and December 1996. The council indicates that private attorneys did not take on new cases primarily due to issues concerning the possibility that the hourly rate for new appointments might increase from $95 per hour to $125 per hour (it actually increased from $95 per hour to $98 per hour). In the meantime, the backlog of cases awaiting appointment of counsel increased from approximately 128 last June to 147 as of January 1997.

Steps Taken to Attract More Private Attorneys

CAC Offers Fixed Fee Option. In January 1994, in an attempt to recruit additional private counsel, the Judicial Council was authorized to pay attorneys based on either an hourly rate or a fixed-fee basis. The fixed fee option allows for six lump-sum payments to attorneys once certain milestones of the direct appeal are attained, such as record certification or filing of the appellant's opening brief. The lump sum payments to attorneys have totaled between $87,700 and $232,100 per case depending on the length of the case record and the complexity of the case. Payments above $232,000 must be approved by the court.

The Judicial Council has indicated that the fixed fee option provides appointed counsel with greater predictability regarding compensation and significantly reduces administrative paperwork. According to the Judicial Council, since this option was made available, most new cases with appointed counsel are being handled on a fixed fee basis. In addition, 30 attorneys appointed prior to January 1994 have converted to the fixed fee option.

Attorney Pay Rates Have Increased. In 1995-96 the rate paid to attorneys performing services in capital cases was increased from $75 per hour to $95 per hour. The 1996-97 Budget Act increased the rate to $98 per hour. The Governor's Budget proposes to increase the rate to $125 per hour in the budget year. The Judicial Council has not performed a formal analysis to determine whether increasing the hourly pay has resulted in more attorneys handling these cases. However, the capital appeals monitor reported that for 1995-96, appointments increased from the recent average of two per month to three per month. While this appointment rate was not enough to reduce the backlog, it is significant in that it was enough to keep pace with the new incoming cases.

Further analysis of the impacts of the above changes will be important in determining a method to reduce the backlog of cases. The Judicial Council is preparing a report on the efficiency and effectiveness of the court appointed counsel program in the Supreme Court and the courts of appeal which should be available prior to budget hearings.

Budget For SPD Has Decreased. Prior to 1989, the SPD handled death penalty appeals in the Supreme Court and other appellate cases in the courts of appeal. However, since 1989 the SPD has focused its resources only on capital appeal cases. Since 1990-91, the budget for the SPD has decreased by 15 percent. Over this period, the total number of cases handled by the SPD has varied between 40 to 65 cases. Additionally, the office is no longer taking new cases in the federal courts, and currently has only one case pending in the federal courts. The budget request for 1997-98 does not propose an increase above current-year estimated expenditures and contains no proposals for the SPD to handle additional workload.

Legislative Solutions Considered Last Year

Procedural Changes. Chapter 1086, Statutes of 1996 (AB 195, Morrow), sets forth new statutory guidelines for the trial court record certification process. Trial court records in death penalty cases are often longer than 10,000 pages and can reach 90,000 pages. As Figure 1 shows, currently the process of correction and certification of the record can take up to five years. The changes are intended to expedite the record certification process by setting specific time lines for the completion and correction of the record soon after completion of the trial.

Attorney Appointment Process. Two other bills, which were not enacted, would have changed the manner in which counsel are appointed for indigent persons convicted and sentenced to death. These changes would have made the California appointment process similar to the Florida process. Under the proposal, there would have been two separate entities, one for state and federal habeas corpus claims and the other for direct appeals. Senate Bill 1533 (Calderon) would have created a new state agency, the Office of Post Conviction Counsel. The primary responsibility for the office would have been to handle both state and federal habeas petitions, as is done by the Capital Collateral Representative's Office in Florida.

A companion bill, AB 2008 (K. Murray) provided that the primary responsibilities for the SPD would be for automatic appeals of death penalty cases. The intent of this legislation was to expand the SPD's responsibilities to eventually handle all the direct capital appeals so that the hiring of private counsel would no longer be necessary. The proposal included provisions for the SPD to begin a training program for attorneys and also increased pay for private attorneys taking new appointments to $125 per hour. Under the bill, private counsel would have continued to take cases in order to help reduce the growing backlog of cases. The Governor vetoed AB 2008 because SB 1553 was not enacted by the Legislature.

What Can the Legislature Do?

The Legislature has been concerned about the backlog of inmates on death row without legal representation. Without an attorney, which is guaranteed by the Constitution, an inmate's appeal to the Supreme Court--which is required under the state's death penalty law--cannot go forward. The current delays in appointing attorneys to these cases place serious burdens on many parties--the inmates, the families of victims, the Attorney General (who handles the appeal for the state), and law enforcement and criminal justice officials who prosecuted the original case.

Reducing the backlog of cases without legal representation will not be easy. This is because the size of the backlog is large. Given that there are only 132 attorneys currently handling these cases statewide, the Legislature should consider options which may attract more attorneys to take cases. This could prove difficult, however, because many attorneys will not meet the Judicial Council's minimum qualifications and most qualified attorneys can only handle one case at a time. In addition, the cases are frequently very long, complex, and generally unattractive. Below we discuss various options available to the Legislature in addressing this backlog.

Changing Minimum Qualifications. The Judicial Council has established minimum qualifications for attorneys appointed to death penalty cases. These qualifications include the following: (1) active practice of law for four years in California state courts or equivalent experience; (2) attendance at three approved appellate training programs, including one program concerning the death penalty; (3) completion of seven appellate cases, one of which involves a homicide; and (4) submission of two appellant's opening briefs written by the applicant, one of which involves a homicide case, for review by the court. It is not known how many attorneys in California meet the minimum qualifications.

One option available to the Legislature for increasing the pool of available attorneys is to lower the minimum qualifications required of attorneys to handle death penalty cases. Although it may be possible to attract more attorneys this way, such changes could also affect the quality of attorney services provided. We note that one reason that the Supreme Court took over the appointment process in 1992 was because of concern regarding the quality of representation that was being provided.

Increase the Pay for Attorneys. Another option available to the Legislature is to increase the pay rate for attorneys in order to attract more qualified attorneys. The Governor's budget includes a proposal to increase the rate that attorneys are paid from $98 per hour to $125 per hour. No formal analysis of previous pay rate changes has been performed, so it is not clear what the impact of such a change is likely to be. However, we note that the Judicial Council indicates that the proposed rate will be comparable to the rate paid to attorneys for such cases in federal court.

Expand the SPD and CAC. Assuming that enough qualified attorneys can be found, the Legislature could expand one or both of the current SPD and CAC programs. In order to consider this option, the Legislature may want to compare the two programs. Currently, information is not available which compares the cost, efficiency, or quality of service between the programs. In 1988, the Little Hoover Commission reviewed the operation and performance of the SPD. At that time, the commission attempted to calculate a comparative average cost per case and a comparative cost per hour of attorney's time between the SPD and private appointed counsel, but was unable to obtain adequate data to make either calculation.

Before expanding one or both programs, we recommend that the Legislature obtain more information on the comparability of cost and efficiency of the two programs and expand the program that is most cost-effective. The Legislature could direct the Bureau of State Audits to perform a management audit of the two programs to identify an average cost per case and an average cost per hour of attorney time for the two programs. Assessing differences in quality between the two programs will be more difficult, however.

In addition, before expanding an existing program, it would be important to ensure that the program has adequate workload standards and management infrastructure to make an expansion successful. For example, the SPD currently has no workload standards for attorneys. In addition, the SPD is just at the beginning stages of implementing an automated caseload tracking system in the budget year.

Move Some or All Appellate Functions to New State Agency. Another alternative would be to consider having a new state agency take over part of the appellate function. This would be similar to the concept in last year's SB 1533, in which a new Office of Post Conviction Counsel would handle state and federal habeas petitions. Similar issues to those affecting the CAC and SPD--that is the number of qualified attorneys and the need for adequate workload standards and management infrastructure--would need to be addressed in order to make sure that a new entity could manage the caseload effectively.

Conclusion: As we indicated earlier, the budget does not contain any proposals to reduce the backlog of inmates on death row without attorneys. There are several options that the Legislature could consider if it wishes to address this problem, including changes in qualifications and pay of attorneys, expansion of existing programs, and creation of new state entities. It is not clear, however, that any option will reduce the backlog in the near term.