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Valdivia v. Schwarzenegger

April 23, 2009




On May 2, 1994, the lawsuit now known as Valdivia v. Schwarzenegger was filed. The Court certified the case as a class action by order dated December 1, 1994. On June 13, 2002, the Court granted partial summary judgment in favor of the Plaintiffs. On July 23, 2003, the Court ordered the Defendants to submit a remedial plan, with specific guidance regarding ".a prompt preliminary probable cause hearing that affords the parolee rights provided by Morrissey, including notice of the alleged violations, the opportunity to appear and present evidence, a conditional right to confront adverse witnesses, an independent decision-maker, and a written report of the hearing."

On March 8, 2004, the Court entered the Stipulated Order for Permanent Injunctive Relief ("Permanent Injunction") containing the agreed-upon elements of the settlement terms. On July 1, 2004, the Defendants submitted a variety of policies and procedures to the Court. On June 1, 2005, this Court signed a Stipulated Order Regarding Policies and Procedures for Designating Information as Confidential. On June 8, 2005, the Court filed an order finding violation of the Permanent Injunction regarding remedial sanctions. On August 31, 2005, the Court issued an Order concerning parolee attorney access to information in clients' field files.

On August 18, 2005, a Stipulation and Amended Order Re: Special Master Order of Reference was entered; on December 16, 2005, an Order appointing Chase Riveland Special Master was entered; and on January 31, 2006, an Order was entered appointing Virginia Morrison and Nancy Campbell as Deputy Special Masters.

The Special Master filed his first report on September 14, 2006. Subsequently, the Court issued an Order on November 13, 2006 requiring improvements to Defendants' information system and internal oversight mechanisms. On April 4, 2007, the Court entered a Stipulation and Order Regarding Remedial Sanctions. The second Special Master's report was filed on June 4, 2007 after receiving concurrence from the Court that the report would be delayed.

The Court entered a Revised Stipulated Protective Order Regarding Parolee Defense Counsel Access to Witness Contact Information and Certain Mental Health Information on June 11, 2007. On September 28, 2007 and October 22, 2007, the Court issued Orders determining that interstate parolees and civil addicts were not part of the Valdivia class.

The third Special Master Report was filed with the Court on November 28, 2007, and an Order issued by the Court on January 15, 2008 directed the Defendants to address due process for parolees who appear, either in the judgment of their attorneys or defendants' staff, too mentally ill to participate in revocation proceedings.

The Special Master filed a Report and Recommendation Regarding Motion to Enforce Paragraph 24 of Valdivia Permanent Injunction on February 8, 2008 and the Court adopted the recommendations in an Order issued March 25, 2008. That Order is on appeal, but a stay was denied by both the district and appellate courts. The Special Master filed his fourth report on April 28, 2008. Granting Plaintiffs' motion, this Court ordered on August 8, 2008 that parolees have timely access to inpatient psychiatric hospitalization, and psychiatric evaluation pursuant to California Welfare and Institutions Code § 5150 under certain circumstances..

The Fifth Special Master Report was filed on October 25, 2008. No action was requested of the court, but the following recommendations were made to the Defendants:

"While the Special Master does not seek court orders at this time, it is strongly recommended that Defendants:

1. Address the practice of Deputy Commissioners failing to expressly consider and make findings concerning probable cause during probable cause hearings

2. Address the handling of hearsay objections when it is not consistent with any reading of the law advanced by the parties or endorsed by the Court, and expeditiously implement the Court's March 25, 2008 Order concerning confrontation rights

3. Investigate the causes of myriad deficiencies in revocation proceedings at Los Angeles County Jail and consistently work toward remedying them

4. Pay strict attention to the requirement to maintain staffing levels sufficient to meet all obligations of the Permanent Injunction

5. Investigate the cause for delay in transfer of parolees from jails and institutions to community-based ICDTP programs"

On November 14, 2008, Plaintiffs filed a Motion to Enforce the Injunction and prohibit Defendants from implementing those amendments to Penal Code § 3044 included in the Victims' Rights and Protection Act of 2008 which conflicted with the Permanent Injunction. This Court granted that motion on March 26, 2009.

Special Master Activities

The Special Master's team worked with the parties to develop procedures to: (1) protect due process for mentally ill parolees, (2) review decisions for consistency with the law and regulations, (3) refine the referral and placement processes for remedial sanctions, (4) implement the parole decision-making matrix, and (5) determine the appropriate scope of monitoring in some areas, particularly in ICDTP, one of the remedial sanctions programs. The team worked with CDCR to advance efforts to revise confrontation rights policies, conduct more rigorous probable cause hearings, investigate and address deficiencies at Los Angeles County Jail, improve monitoring processes, and implement requirements in the context of vacancies and budget pressures.

The team observed the Valdivia Task Force and trainings on the decision-making matrix and due process considerations for parole agents. The team participated in site visits to San Quentin State Prison and Stanislaus, San Francisco, Los Angeles, and Placer county jails. The Special Master's team and CDCR continued with monthly information update calls and participated in efforts shaping the information gathering and analysis of CDCR and CalPAP.

As all parties could benefit from clearly defined goals, the Special Master initiated discussions to define substantial compliance with the Permanent Injunction. This will likely be a long-term effort, as the parties consider appropriate measures and qualities for the different requirements. The Special Master has invited the parties' input so that he can reach informed decisions.

Scope and Approach for This Report

This report continues the approach of reviewing each component of the Permanent Injunction and issues arising out of its interpretation. There is particular emphasis on topics subject to this Court's additional orders concerning remedial sanctions, mentally ill parolees, information systems, internal oversight, and confrontation rights.

This report discusses observations and activities spanning September 2008 through March 2009, collectively referred to as "the Round." Where data is employed, it covers the period of September 2008 through January 2009 unless otherwise noted.

This report also uses some language conventions. Progress and compliance are often discussed separately, reflecting that movement during the Round is worth recognizing, even where overall results may not match. The Special Master does not always comment on progress.

In assessing either, this report uses the terms "resolved," "good," "adequate,' and "poor." At this stage of the remedy, one would expect most requirements to be partially implemented and, thus, "adequate." "Good compliance" is a high bar, and it takes sustained Rounds of "good" compliance to reach "resolved" status. When discussing problems, descriptors progress in severity from "minor" to "substantial" to "significant," and then stronger terms are used for issues of greatest concern. References to the Special Master's activities frequently include the actions of one or more members of his team.

The term "monitoring reports" refers collectively to reports generated by Plaintiffs' monitoring and by Defendants' self-monitoring, unless otherwise specified.

Substantial Compliance Initiatives

The Special Master's team decided it was timely to begin to pursue substantial compliance definitions. There are several strategies to consider in doing so. The Special Master established a couple of "ground rules." First, it is the Court that will ultimately decide what the compliance definitions are. Secondly, that meet and confer sessions would be held between one or more members of the Special Master's team and no more than two representatives from each party. The Special Master feels that having a room full of attorneys and staff is not conducive to attempting to reach some agreement on compliance definitions. Thirdly, the Special Master emphasized that the parties reaching agreement on substantial compliance definitions would be desirable but not a requirement, as ultimately, the Special Master would make recommendations to the Court, and the Court would ultimately decide the definitions or conditions of compliance.

The first such meeting was held during this Round between the Special Master and two representatives of each party. Agreement on an approach did not appear imminent. Yet, it is clear that the Defendants are compliant with some requirements of the Orders set forth by the Court, and that some of the Defendants' geographic areas or Decentralized Revocation Units are either at, or close to, compliance more than others. It is the Special Master's belief that it is important to recognize those areas or units that have been successful in fulfilling Court requirements.

The second meeting was held specifically regarding substantial compliance in the area of remedial sanctions. The meeting focused on defining possible models or approaches for defining substantial compliance. Three loosely defined models were discussed; these included the fixed number, needs-based and results models. Strengths and limitations of each model were discussed. Defendants are now reviewing the options with the operations staff at CDCR. Parties agreed that the progress made to date in the area of remedial sanctions needs to be acknowledged and it is time to find ways to increase the Defendants' authority in this area.

It is assumed by the Special Master that the Court does not expect perfection, but rather, performance at a responsible level, particularly in those areas that involve constitutionally protected rights and the potential of harm being done. The Court must have confidence that the Defendants have institutionalized those practices.

The Special Master informed the parties that the Defendants should select what they envision as their best performing Decentralized Revocation Unit (or units) and assess them and 'make the case' for partial or total compliance by those units. Plaintiffs shall review and assess this information. Working together, the parties plan to identify principal factors contributing to the success of the best-performing facilities and methods for promoting such best practices at other locations.

If the reviewed unit (or units) is found to be in substantial compliance with some or all of the requirements the Court has set forth, the Special Master will treat that unit (or units) as exempt from monitoring. This would remain in place unless information is provided by the Plaintiffs to the Special Master, or the Special Master learns independently, that performance has deteriorated. In that instance, the Special Master's team would investigate the circumstances and determine if the relief from monitoring should be withdrawn.

Concurrently, attempts have been initiated to develop substantial compliance definitions around remedial sanctions, particularly the availability of programs for those decision-makers who are to consider remedial sanctions as alternatives to revocation. Again, it would be desirable for the parties to agree to a level of availability. If not, however, the Special Master will make recommendations regarding substantial compliance to the Court.

In their objections to this report, Plaintiffs argue that substantial compliance is not the appropriate standard. The Special Master will consider this argument as he continues to work with the parties to determine appropriate measures and goals.

Ultimately, the objective will be the development of an exit plan. Certainly, it is incumbent upon the Defendants to display sustainable progress sufficient to give the Court confidence that not only have the expectations of the Court been met, but that those expectations will be continued into the foreseeable future.

Areas of Emphasis

As implementation has evolved, a set of issues has emerged as requiring priority. Some are complex and carry the risk of great harm. Some are systems necessary to guide and structure future compliance in many areas. Some negotiations had been underway long-term and require closure. Some arose from compliance failure or from legal challenges.

In talks with CDCR staff in late 2008, the Special Master's team summarized those issues as:

1. Development and implementation of the plan for mentally ill parolees unable to participate in revocation proceedings (January 15, 2008 and August 8, 2008 Orders)

2. Ensuring that hearing officers assess probable cause in probable cause hearings (Fifth Report recommendations)

3. Preserving confrontation rights (March 25, 2008 Order; Fifth Report)

4. Aspects of remedial sanctions (April 4, 2007 Order; Fifth Report) -- especially definitions of the third prong of the remedial sanctions requirements (selfhelp/outpatient aftercare programs and structured and supervised environments), ICDTP monitoring, timely transfer to ICDTP, structured decision-making

5. Addressing myriad compliance deficiencies at Los Angeles County Jail (Fifth Report)

6. Staffing sufficient to carry out the Permanent Injunction (Fifth Report)

7. Decision review

8. Resolution of Marsy's Law challenge

9. Information systems improvements (November 13, 2006 Order)

10. Translating and simplifying forms

11. Timeliness of hearings after an optional waiver has been activated

The development of sustainable, effective internal oversight also remains a key goal. (November 13, 2006 Order)

Defendants took up the challenge very well during this Round. Executives contributed to shaping the effort. Divisions mobilized and redirected staff to priority tasks. Effort was sustained to ensure that projects, drafting, and negotiations continued to progress. Nearly all of the priority areas received some attention and some are nearing implementation. This is an important step forward. It demonstrates a renewed seriousness of purpose toward achieving Valdivia compliance, and a capacity to accomplish it. These are the some of the qualities necessary in the long run for CDCR to assume full responsibility for its operations without court oversight. This Round gives the Mastership reason for optimism.

Most of the priority areas will be discussed in the sections that follow. In summary, there has been good progress concerning mentally ill parolees, confrontation rights, remedial sanctions, decision review, and Los Angeles County Jail issues. There is a reasonable pace in carrying forward the Marsy's Law challenge and information systems. There has been limited attention to probable cause assessments, forms translation, optional waivers, and staffing. In some cases, this is a reasonable matter of prioritization; in some, significantly more will be needed in the short term.

Efforts have been strong, but there are glaring exceptions. The parties and the Mastership will need to continue emphasis on these topics to ensure that they come to fruition and that effective practices truly take root.

Since the Los Angeles County Jail issues cut across various requirements, this will be discussed here.*fn1 This is critical in the short term as the number of parolees affected represents such a significant percentage of the total in the state, and is critical in the long term if substantial compliance is ever to be achieved. CDCR initiated its efforts by convening executive level representatives from multiple divisions and confirming lists of problems identified at Los Angeles County Jail.

Paroles Division has since done excellent work to address issues within its control. Headquarters staff conducted multiple visits and designed enhanced oversight by identifying several regional administrators to coordinate improvement activities and redirecting a Parole Administrator position from another region. Regional administrators will report on the status of improvements, including the reasons for progress or its absence, in monthly conference calls with the division's Deputy Director.

Parole Administrators and Supervising Notice Agents were tasked with designing viable corrective actions with input from line staff. Headquarters, regional, and local management reviewed the performance of staff and conducted other investigations to determine the likely source of breakdowns.

As they believe promotions with insufficient training were one contributing factor, these management levels jointly conducted training in basic Valdivia duties and requirements for all of the region's unit supervisors and district administrators in March 2009. Likewise, they jointly retrained all notice agents concerning the substance of the conversation when serving notice, timeliness, and completeness of service document packets. Agents reportedly were provided laminated reminder cards summarizing required steps. To address frequent turnover, Paroles Division plans to make the division audit team and Parole Administrators available to coach other staff; to provide one-onone training when new hires are in place before full, scheduled trainings; and to repeat trainings on the March 2009 topics periodically. This staff also plans to work with parole agents to improve the timeliness of providing notice documents, the quality of factual summaries, and the accuracy of identifying information.

Leaders have taken steps to address other causes, including reorganizing notice agents' areas of responsibility. They are negotiating for a centralized office with data line capability, support staff, and better access to Board staff; an improved location for service; and additional times to access parolees to serve them.

The Board, on the other hand, did not demonstrate any serious efforts to address longstanding problems. Reportedly, there was limited inquiry into the problems identified by the Special Master, monitoring reports, and the executive-level committee. The Board appeared not to examine internal practices that may cause or contribute to deficiencies; it did not issue corrective action plans as requested. Staff reportedly initiated discussions to improve inter-division coordination, which certainly is part of this puzzle. Otherwise, the Board did not appear to attempt solutions.

These omissions are particularly troubling. All divisions have contributions to make to improving compliance at Los Angeles County Jail, and the Mastership will look to the Board for more participation.

Remedial Sanctions

Defendants have continued to make consistent and good progress on meeting the requirements of the Remedial Sanctions Order*fn2 and have begun to lay the foundation for the broader discussion of what additional steps may be needed to achieve compliance with the Permanent Injunction. Defendants have demonstrated consistency in their efforts to meet the benchmarks of the Remedial Sanctions Order, maintained the progress achieved in prior Rounds, and have made progress on further enhancing and institutionalizing the use of remedial sanctions. It is the opinion of the Special Master that the Defendants have continued to meet the following benchmarks of the Remedial Sanctions Order:

· Establish policies and procedures necessary to implement both interim and longterm remedial sanctions;

· Provide training regarding the remedial sanction programs and the implementation of policies and procedures;

· Establish 1,800 In-Custody (or In Community) Drug Treatment Program ("ICDTP") beds for use as remedial sanctions;

· Establish a minimum of 400 ICDTP beds per region;

· Establish a minimum of 40 ICDTP beds per region for female parolees;

· Establish a minimum of 20 ICDTP beds per region for dually diagnosed parolees;

· Have 500 electronic monitoring units available statewide and dedicate the use of 250 of these to remedial sanction placements;

· At the discretion of CDCR, provide telephone service for use in electronic monitoring;

· Make available one-half of Residential Multi-Service Center, Female Residential Multi-Service Center, and Parolee Service Center beds for remedial sanctions until 1,800 ICDTP beds are available;

§ Given the success in meeting the objective of establishing and filling

1,800 ICDTP beds, it is no longer necessary to continue reserving half of the interim remedial sanction beds for parolees in the revocation process;

· Report every 60 days regarding the development and implementation of a parole decision-making matrix;

· Modify policy to allow for the temporary placement of out-of-county parolees into remedial sanction programs;

· Develop a system by which every Paroles Division and Board decision-maker is able to determine the availability of ICDTP remedial sanctions statewide on any given day; and

· Provide parolee defense counsel all program policies and procedures, to include exclusionary and inclusionary placement criteria.

In addition, the following issues were identified in the last Round as areas in the Remedial Sanctions Order that may require additional exploration.

· There has not yet been the development of a system by which every Paroles Division and Board decision maker is able to determine the availability of electronic monitoring remedial sanctions statewide on any given day.

· While there are ICDTP beds in each region for female parolees and also a Female Residential Multi-Service Center, there has not yet been discussion regarding the issue of whether women are offered an equivalent service or equal access to remedial sanctions. The issue of equivalency for disabled parolees has not yet been fully explored. Defendants are revising their policies and procedures to ensure equal access.

· Defendants have done several rounds of training for decision-makers in the Valdivia process. Data analysis in this Round shows evidence of remedial sanctions being considered at each stage in the revocation process, but it is unclear if actions to date are adequate. There is no defined plan for how to track the consideration of remedial sanctions at each stage in the proceeding.

· While there is clear evidence of the use of other programs that are not specifically called remedial sanctions to avert revocation, it is not clear what is the standard to achieve the benchmarks regarding "alternative placement in structured and supervised environments" and "self-help outpatient/aftercare programs."

Removed from this list is the issue of availability of Electronic In-Home Detention equipment, equivalency of services for parolees with disabilities, and consideration of remedial sanctions at each step of the Valdivia process. There are no known problems with lack of availability of Electronic In-Home Detention equipment. As seen in the section on Parolees with Disabilities, the Defendants have created a system to further refine which community-based providers are best equipped to serve specific disabilities and will place parolees accordingly. Similarly, the data supports that decisionmakers throughout the Valdivia process are considering remedial sanctions. The question remains whether the decision-makers are knowledgeable enough about the array of remedial sanctions to make judicious placements. This is an issue that can continue to be discussed in the context of the broader Permanent Injunction. It is the opinion of the Special Master that the remaining issues can also be discussed in the context of the broader Permanent Injunction and that the Defendants have fully met the requirements of the Remedial Sanctions Order.

§ Defendants have completed all of the requirements of the Remedial Sanctions

Order. There is continued and good compliance and progress on this item.

Policies and Procedures

The most notable accomplishment in this Round with regard to Remedial Sanctions policy and procedures was the agreement reached by parties to eliminate the interim policy that Defendants make available one-half of Residential Multi-Service Center, Female Residential Multi-Service Center, and Parolee Service Center beds for remedial sanctions until 1,800 ICDTP beds are available. Policy 09-02 that rescinds Policy 07-04 was issued on February 24, 2009 and takes effect on March 24, 2009.*fn3

Defendants have continued to use the programs listed above as resources for parolees in the revocation process. Because Defendants have consistently demonstrated their ability and commitment to keeping the 1,800 ICDTP beds filled, this interim measure designed to create options for parolees as an alternative to revocation when there were not 1,800 ICDTP beds available is no longer required.

Another area of notable progress was the revision of the permanent ICDTP policies and procedures.*fn4 After lengthy negotiations between the parties, the policies and procedures were revised to clarify the changes in practice that have resulted from the transfer of many ICDTP functions from the Paroles Division to the Division of Addiction and Recovery Services, to distinguish between the procedures for the community-based program and the jail-based program, and to address Plaintiffs' concerns regarding parolees with disabilities. The policies are in negotiations with labor and have not yet been sent to the field for implementation.

It is the belief of the Special Master that the issue of interim policies and procedures no longer needs to be addressed after this Round because Defendants have not only implemented permanent policies and procedures that meet all the requirements of the Remedial Sanctions Order, but have moved into a stage of revising and improving the permanent policies and procedures.

§ Defendants have completed all of the requirements of the Remedial Sanctions

Order contained in the Long-Term Memorandum Regarding Remedial Sanctions. There is continued and good compliance and progress on this item.

Interim Remedial Sanction Placements

In a meet and confer session on November 26, 2008,, Defendants informed Plaintiffs that having met the Remedial Sanctions Order benchmark for making available and filling 1,800 ICDTP beds, they would no longer dedicate one-half of the Residential Multi-Service Center, Female Residential Multi-Service Center, and Parolee Service Center beds for remedial sanctions. Defendants agreed to share the policy memo with the Plaintiffs prior to disseminating it to the field. Plaintiffs requested 60 days' notice before implementation of the policy memo. On February 24, 2009, policy 09-02 was issued; it amends policy 07-40. Implementation of the policy began on March 24, 2009.

Defendants have indicated that they are only removing the reservation of one-half of these program beds for remedial sanctions and will continue to encourage parole agents to refer parolees in the revocation process to these programs. Policy 09-02 explicitly states "programs available as remedial sanctions include Residential MultiService Centers, In-Custody Drug Treatment, Parolee Substance Abuse Program, Community-Based Coalition, Female Residential Multi-Service Center, Day Reporting Centers and Substance Abuse Services Coordination Agencies" and encourages parole agents to use these programs as remedial sanctions. The omission of Parolee Service Centers was an oversight and they remain a placement option for parolees in the revocation process.*fn5 Because the agreement regarding this matter was arrived at so late in the Round, a brief exploration of the use of the interim remedial sanction placements during the Round was undertaken by the Special Master's team.

Measuring the use of Residential Multi-Service Centers was done through comparing the Residential Multi-Service Center tracking sheet*fn6 and reports from the revocation database titled Closed Case Remedial Sanctions by Decentralized Revocation Unit*fn7 for the period of the Round. The majority of referrals to Residential Multi-Service

Centers continue to be made by parole agents and there is growth in the number of other decision-makers throughout the process who are using interim remedial sanctions.

In past Rounds, the data regarding interim remedial sanctions in the Remedial Sanctions Monthly Workload Report for Residential Multi-Service Centers and the Female Residential Multi-Service Center aligned with internal Paroles Division data systems. This trend continues for the Female Residential Multi-Service Center. In this Round, the Parolee Service Center data also aligns with the revocation database information.*fn8 The revocation database and the Paroles Division Residential Multi-Service Center placement numbers are slightly different. The differences in data sources are insignificant enough that the Remedial Sanctions Monthly Workload Report will be used as the source of assessing the use of interim remedial sanctions.

As seen in Table 1, the number of interim remedial sanction referrals has remained consistent for the Round and there are differences from the last Round in some trends. The number of remedial sanction referrals to the Female Residential Multi-Service Center and Parolee Service Centers has remained largely the same since the last Round. The number of remedial sanction referrals to Residential Multi-Service Centers has dropped from an average of 177 per month for the eight-month period from February to August, 2008 to 74 per month for the five-month period of this Round. The revocation database data shows fewer placements than the Paroles Division tracking sheet. It is unclear if the revocation database data is underreporting referrals or if the decline is an artifact of having more ICDTP placements available and, thus, less reliance on the interim remedial sanctions. Despite this discrepancy, Defendants have clearly demonstrated the use of interim remedial sanctions throughout the Round.

Table 1*fn9

Interim Remedial Sanction Referrals

MonthResidential Multi-Service CenterFemale Residential Multi-Service CenterParolee Service Center September 08721977 October 08641774 November 08662474 December 08791420 January 09902182

In light of the agreement to no longer designate one-half of the beds in Residential Multi-Service Centers, the Female Residential Multi-Service Center, and Parolee Service Centers for remedial sanctions, it is the opinion of the Special Master that after this Round, assessment of the use of these programs will continue as part of the remedy for the Permanent Injunction but not under the terms of the Remedial Sanctions Order. Until such time as agreement has been reached between the parties regarding what constitutes substantial compliance for remedial sanctions under the Permanent Injunction, no further monitoring of these programs will be done by the Special Master.

§ Defendants have completed all of the requirements of the Remedial Sanctions

Order regarding the use of interim remedial sanctions. There is continued and good compliance and progress on this item.

Expanding Jail and Community-Based ICDTP Programs

The Remedial Sanctions Order required the Defendants to make every reasonable effortto establish 1,800 ICDTP beds by April 1, 2008. In addition, it requires that there beno fewer than 400 ICDTP beds per region, and no fewer than 40 ICDTP beds designated for female parolees in each region. The Remedial Sanctions Order also indicates that Defendants shall make every efforttosecure 20 beds in each region that target the needs of parolees with dual diagnoses of mental illness and substance abuse. Defendants have continued to refine their strategies and systems to meet the requirements of the Remedial Sanctions Order. They have done an excellent job of creating a pool of identified beds that ensures availability of the type and number of beds required by the Remedial Sanctions Order. As of January 30, 2009, there were 1,830 parolees in ICDTP beds throughout the state.*fn10 Defendants have demonstrated high use of the ICDTP programs throughout the Round.

Table 2 demonstrates that there has been a slight change in the numbers and location of community-based and jail-based beds. This table reflects the best estimate of ICDTP beds designated for each region. The "available beds" is a list created daily that indicates, by community-based program, where there is space available.*fn11 An available bed is one in which a parolee could be placed within 5 days. In each region, Defendants remain in compliance with the Remedial Sanctions Order.

Table 2*fn12

ICDTP Beds by Region

Type of BedRegion IRegion IIRegion IIIRegion IV Total Jail-Based478*fn13220-0-72 Total Community-Based124280600330 Female*fn1480756086 Total Beds602500600402

As identified in Table 3, the number of identified community-based ICDTP beds as of January 31, 2009 was 2,461. The term "identified beds" is the number of beds the Substance Abuse Services Coordination Agencies and providers have agreed is a realistic representation of potential availability for any given program. The Division of Addiction and Recovery Services maintains a list of identified beds statewide. This number is significantly higher than the 1,800 beds agreed to in the Remedial Sanctions Order because of the fluctuations in movement of the multiple contracts of the communitybased ICDTP providers.

Table 3*fn15

Division of Addiction and Recovery Services Provider Counts Tracking

Community Based ICDTP Bed Capacity

[Editor's Note: Table/graphic unavailable]

Most important is the data from this Round that shows a very high level of occupancy in both the jail-based and community-based programs. In residential settings, maintaining an occupancy rate in the 90th percentile is, at best, challenging and is rarely achieved. The Defendants' system of creating a pool of identified beds has resulted in their ability to maintain very high occupancy rates. Table 4 shows the average number of parolees in jail- and community-based programs by month during this Round.

Table 4*fn16

Average Number of Participants Statewide*fn17

MonthAverage Number of Participants Statewide September 081,812 October 081,770 November 081,698 December 081,728 January 091,827

Plaintiffs have continued to raise concerns about the validity of the number of beds attributable to specific programs.*fn18 It is the Special Master's opinion that the number of identified and available beds is not of concern as long as the system results in filling the 1,800 beds agreed upon in the Remedial Sanctions Order. Who the Defendants contract with and in what number is relevant only if there is a failure to meet the requirements of the Remedial Sanctions Order. This issue will again be addressed in the discussion of ICDTP monitoring.

Plaintiffs have raised concerns regarding the measures taken by the Division of Addiction and Recovery Services to keep the number of placements in jail and community-based ICDTPs within their budget authority. Placements have averaged higher than the 1800 beds authorized by the Defendant's budget in some months and resulted in a reduction in placements in other months to ensure staying within the legislatively authorized budget allocation.

Concerns were also raised during the last Round by Plaintiffs that many system decision-makers, such as Deputy Commissioners, did not have accurate or timely information regarding the nature of the programs and bed availability.*fn19 One measure of progress in this area is the number of ICDTP placements ordered by Deputy Commissioners. Recognizing the difference in timing between placements and referrals, out of 8,835 parolees in jail- and community-based ICDTP programs in this Round, there were 3,639 Board referrals to jail- and community-based ICDTP programs.*fn20 It would appear that approximately 40% of the cases are being referred through Board actions, which may, in turn, indicate that many Deputy Commissioners are familiar with the program.

Another issue from the last Round is that of unacceptably long time periods to transfer parolees from some jails and institutions to ICDTP community-based programs. While the full number is not known and the cases appear small in number, more examples of delays have occurred in this Round. Defendants began an audit process this Round to attempt to better understand any impediments in the referral and placement process with a major focus on the transportation delays from jails and institutions to ICDTP programs. The audit for Region I was completed and the Region II audit is underway.*fn21

The Division of Addiction and Recovery Services has implemented the first recommendation from the Region I audit. To expedite the transfer process from jails to ICDTP, once the Board has identified a referral to ICDTP, the referral is immediately forwarded to the Division of Addiction and Recovery Services to initiate the placement process. It is hoped that this change in practice will expedite placement timeframes.

Despite not having completed the Region II audit, the Division of Addiction and Recovery Services has made a change at the Humboldt County Jail.*fn22 Historically, parolees were moved immediately, which resulted in the parolees going to a CDCR institution, where they were held to schedule transportation to the ICDTP. Upon arriving at an institution, parolees must go through a medical screening process, which slows their transfer. Rather than moving parolees immediately, Humboldt County Jail has agreed to provide time for the Division of Addiction and Recovery Services to find a bed in a local ICDTP program. If a local bed is available, the parolee is moved directly to the program, eliminating the waiting period at the institution. Five parolees have now been moved directly to a program as a result of this change.

Another important change is the modification of the revocation database so that the Division of Addiction and Recovery Services has immediate access to the names and CDCR numbers of parolees who accept ICDTP placement. This eliminates time taken to generate placement lists in the field and send them to headquarters, and results in faster transfers of parolees to ICDTP programs.*fn23

Transportation issues are often complex and thorny. The Defendants are attempting to understand the problem and to devise solutions. Given the different nature of local jails, it is quite possible that there is no one policy change that will solve this problem. It is likely, as was seen in the Humboldt County Jail that ...

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