New Legislation- Children Accused of Crimes (SB 1391)

Once again the California State Legislature is making progress in reforming juvenile justice laws to reflect the understanding that children are not capable of thinking or planning in the same way as adults, that they should not be treated and punished as adults, and that there is a possibility that even after grievous mistakes and damage, they might still be able to rehabilitate.

Effective January 1, 2019, SB 1391was authored by Senators Lara and Mitchell and approved by Governor Brown. This legislation repeals the authority of a district attorney to request transfer of a minor, who is alleged to have committed a specified serious offense when he or she was only 14 or 15 years of age, from juvenile court to an adult court of criminal jurisdiction. With an amendment that was forced in the Assembly, this new law applies only if the individual was not apprehended before the end of the juvenile court’s jurisdiction.

Historically, a minor could only be transferred from juvenile court to adult criminal court at the age of 16. Then in 1994, as part of a “tough on crime” fear-based initiative that claimed certain children, merely on the bases of the allegations made against them, were too dangerous to society to be considered children, the California State Legislature lowered the age at which a child could be transferred to adult criminal court to only 14 years of age.

However, in reaction to new scientific understandings of children and teens, both physically and mentally, there have been a series of U.S. Supreme Court cases involving juvenile defendants. The cases recognized the inherent difference between kids and adults in legal settings. These differences include the science of adolescent developmental brains, a new appreciation for the legal and social powerlessness of children, and the acknowledgement that children’s characters and futures are not as fixed as those of adults. (See: Miller v. Alabama.)

This body of case law and the research relied upon in these cases prompted the California State Legislature to pass several recent juvenile justice reform measures (see my articles on new 2018 juvenile justice laws here). And in 2016, California voters passed Proposition 57, which among other things, eliminated the ability of a prosecutor to file charges against a juvenile offender directly in criminal court (See the California Court’s Analysis of Prop 57 Here). Now, Senators Lara and Mitchell have filled yet another gap in much-needed juvenile justice reforms with this SB 1391.

Further reading:

“Is Adolescence a Sensitive Period for Sociocultural Processing?”Annual Review of PsychologyVol. 65:187-207 (Volume publication date January 2014) 



New laws affecting juveniles in the criminal justice system 

From the initial point of questioning to whether there is a possibility of parole, the California State Legislature has passed new laws will affect the two crucial beginning and end points in the juvenile court process. For minors who were acquitted or had their cases dismissed, an additional bill allows for the sealing of their juvenile records. Governor Brown has signed six of these bills into new law, effective January 1, 2018. While none of the changes in the law will affect actual sentencing, each of these bills recognizes that juvenile offenders are children, with children’s levels of understanding, and that each has entire lives and potentials ahead of them.


Interrogation and arrest stage for juveniles age 14 and younger

SB 395 (Lara)

First, at the interrogation and arrest stages, children under the age of 15 years old will now be required to consult with an attorney before waiving their rights and before any custodial interrogation. This law is crucial in that children are taught from very young ages to trust the police and to always be completely forthcoming and submissive to authority figures- and especially to the police. Many adults, and most or all children, do not understand the full impact of their Miranda rights, or that the police are trained in sophisticated interrogation techniques- including lying to suspects- in their interrogation training courses. Sadly, many children, in order to please the questioner, to cover up for a friend, to feel important, or merely from stress and hoping to avoid further questions, will falsely confess to crimes they did not commit when they are subjected to interrogation from authority figures. These children do not understand the serious legal consequences of their confessions.

This new law will help children ages 15 or younger receive professional legal guidance before giving up their rights, and before the police interrogate them. These young minors will consult with legal counsel in person, by telephone, or by video conference prior to a custodial interrogation or waiver of the right to remain silent. There are particular nuances and limits to this new legislation, including an exception when necessary to protect life or property from imminent threat, but this could be a good start in the right direction. The new law requires that a small panel reports to the Legislature the relevant data on the effects and outcomes associated with its provisions, and further: the law automatically self- repeals on January 1, 2025.


Fees waived for juveniles under age 21

SB 190 (Mitchell)

Currently, correctional administrators (authorized by Counties) may assess administrative fees and charge application fees to participants in home detention programs or work furlough programs, whether the participants volunteered for the programs or not. Further, probationers must pay for any required drug testing when ordered. Also currently, parents of children accused of crimes must pay for the transportation, food, shelter, and care at juvenile facilities, and for the costs of required programs, such as alcohol or drug programs. Parents must also pay for the costs of probation supervision, home supervision, or electronic surveillance of the minor.

Effective January 1, 2018, the parents of accused and offending minors will no longer be liable for these fees and costs, which will be absorbed by the Counties for juveniles under the age of 21. Juveniles with “dual ward status” will not be affected.

While it seems rational that parents should be required to pay for the costs of their children, one result of juvenile justice’s cost-shifting burden to parents is that charging and incarcerating youths suddenly becomes virtually free for the government- it transfers all of the direct rearing and upbringing of the youth to the government, away from the parents, without any of the associated costs. This means that when considering whether to take and incarcerate a child, the government no longer has to be concerned with the costs of doing so, because the parents pay, which creates a disturbing imbalance of judicial considerations.


Parole processes for Juvenile offenders

AB 1308 (Stone)

SB 394 (Lara and Mitchell)

Two pieces of newly enacted legislation will affect parole processes for juvenile offenders. First, the Board of Parole Hearings generally is required to conduct youth offender parole hearings to consider the release of offenders who committed specified crimes when they were under 23 years of age and who were sentenced to state prison. Beginning in 2018, the Board of Parole Hearings must conduct youth offender parole hearings for those juveniles sentences to state prison who were under 25 years of age at the time they committed those crimes. Because there will be a sudden backlog of necessary hearings, the new law does make time provisions to allow the Board to catch up, and sets deadlines for those hearings that will now be required.

Second, SB 394 requires that children who have been sentenced to life without parole (LWOP) be given a parole hearing after 25 years of incarceration. Thus, a 15-year-old juvenile offender who was sentenced with LWOP will receive a parole hearing when he or she is 40 years old. This law brings California in line with recent Supreme Court decisions. For example, in 2005, the United States Supreme Court held that juveniles have lessened culpability than adults because of the “fundamental differences between juvenile and adult offenders” (Roper v. Simmons (2005) 543 U.S. 551). Then in 2010, it ruled that it is unconstitutional to sentence a youth who did not commit homicide to a sentence of life without the possibility of parole. The Court explained that the Eighth Amendment, which prohibits cruel and unusual punishment, “does not foreclose the possibility that persons convicted of non-homicide crimes committed before adulthood will remain behind bars for life. It does forbid States from making the judgment at the outset that those offenders never will be fit to reenter society” (Graham v. Florida (2010) 540 U.S. 48, 51-52). Again, because this new legislation will require new, necessary hearings, it also makes time provisions to allow the Parole Board to catch up, and sets deadlines for the newly required hearings.


Honorable discharge program re-instated for juvenile offenders

SB 625 (Atkins)

Up until a budget bill was enacted in 2011, there was an honorable discharge program for juvenile offenders under the California Department of Corrections and Rehabilitation’s (CCDCR) Division of Juvenile Facilities. This program allowed juveniles who successfully completed parole after custody, and who demonstrated their ‘ability for honorable self-support,’ to clear their records and to qualify for employment or professional licensure.

Under the budget bill (AB 1628) passed in 2010, and effective 2011, the responsibility of supervision of offenders shifted from the state Juvenile Parole Board to county probation department. Due to a completely and admittedly inadvertent oversight, the new law failed to authorize anyone at the local level to issue honorable discharges. With no one authorized to issue the honorable discharges, the entire program was effectively removed.

This program was crucial for juvenile offenders to be able to make better decisions by pursuing employment and professional license educations. Without the ability to earn a dishonorable discharge, these youths were prevented from earning occupational degrees and licenses, including: barbering, cosmetology, tattoo artists, contractor’s licenses, law degrees, teaching degrees, and many other vital public service career options.

Senator Atkins authored this legislation, which was passed by the legislature and signed by Governor Brown, that reinstates this vital program by authorizing the Board of Juvenile Hearings to grant honorable discharges to those who have proven their ability to desist from criminal behavior and to initiate a successful transition into adulthood.


Sealing of juvenile records

AB 529 (2017) (Stone)

SB 312 (2017) (Skinner)

Two bills passed by the legislature and signed by Governor Brown relating to sealing juvenile records will go into effect on January 1, 2018. Together, they will help youths move forward in positive ways- pursuing education and employment- without the ongoing stigma of having a juvenile record hindering their progress.

Currently, a juvenile who has been arrested or who has had his or her case dismissed must petition the court within 5 years to seal those juvenile records. Under AB 529, the court will be required to automatically seal the records of minors who were either acquitted or had their cases dismissed. If, however, within six months of a dismissal, new evidence is found, or if a witness becomes available, the prosecution may ask to refile those dismissed cases.

Also, existing law bans juvenile offenders who have been convicted of serious crimes from sealing their juvenile records. Beginning January 1, 2018, according to SB 312, this ban will be slightly less strict. In 2018, a person will be able to petition the court to seal their juvenile records after they have completed any period of probation supervision at age 21 (if the juvenile offender was committed to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities) or at age 18 (if he or she was not committed to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities). Certain serious violent or sexual crimes will not be affected.

Whether it’s automatic sealing by the court or allowing youths to have their own juvenile records sealed, young people merely accused of crimes as well as young convicted offenders will all be able to move forward into productive, valuable lives- without the lifetime barriers to jobs, education, housing, military service and other barriers that criminal records create.

Eight Common Myths about the US Justice System

The United States Justice System is filled with flaws that are hidden by eight common myths. The first myth is that eyewitnesses are highly reliable and this is simply not true because of the stressful circumstances these people witness the crimes under. In courts throughout the country expert witnesses are called to discuss the variables surrounding the ability to identify a person.  There are several factors that exist to consider before we can trust an identification.  Individuals from different races illustrates a major factor regarding the reliability of a witness because many tend to discriminate. In fact 1/3 of wrongful convictions are due to mistaken eyewitness testimonies.

The second myth surrounds the belief that fingerprint evidence is foolproof.  There are many factors that contradict this statement. Prints left in the field are often smudged or incomplete and there is a great error rate in identifying fingerprints.  Once again, experts must be enlisted to testify in this great area of uncertainty.  When and how a print is placed is ample area for challenging this myth.

The third myth is that human memories are reliable.  Most expert witnesses use in this area will tell you that memories can be distorted. We know this from our own personal experience living or day to day lives.  Several external factors often affect how memories are retrieved and described. The stress of the situation can ultimately alter the memory because human memory is fundamentally flawed.

Number four focuses on notion that innocent people never confess.  The reality is that many people feel compelled to confess to or plead to a crime because of the emotional and financial exhaustion that a court case comes with.  Minors and adult must always remember to exercise their rights under the fourth and fifth amendments of the Constitution at all times.  The system is not kind and when mistakes are made success to reverse your actions may be slim or none.

The fifth myth surround the notion that the police are objective in their investigations. The fact is that police often decide the majority of the case and manipulate evidence to point the crime at a specific person. Being objective takes time and effort.  Unfortunately police don’t feel they have those options when beginning an investigation.  Police may create, ignore or destroy evidence early in an investigation because their attention is drawn to certain witnesses who are bias.  That bias may not be determined right away by police so any other avenues which could be taken are unexplored.  As a result, the possibility of innocent people spending time in jail or prison exist because of these wrongdoings.

Myth number six revolves around the idea that guilty pleas are proof of guilt. This does not reflect reality because often times the defendant may plead guilty to one count, but the sentence involves all of the counts brought against the defendant. This also does not account for the fear of being impeached in trial because of previous involvement with the law.

The seventh myth is that prosecutor’s play fair.  We would like to believe that the prosecutor is impartial in their beliefs and administer the pursuit of justice evenhandedly.  This can be misleading because not all prosecutors follow the necessary rules. A very common broken rule is handing over all exculpatory evidence to the defense. Not doing this vital step can greatly impact the outcome of the case and possibly put an innocent person in jail.  Courts have focused on this trend by requiring the full disclosure from prosecutors but more importantly, authorizing sanctions and penalties for violations of the rules regarding disclosure of information or the altering of it by the prosecutor’s hand.

The last myth is that long sentences deter crime. This is simply not true because crime rates have been dropping all over the world.  The United States is the only country with a crime rate 5 times that of other industrialized nations. Harsher sentences do not help get rid of crime; instead they become a burden on taxpayers to pay for.  The recent moves in California with propositions 36 and 47 show a movement towards fairer sentencing and a hope to reduce the incarceration rates which are far too high.