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L.H. v. Schwarzenegger

May 24, 2009

L.H, ET AL., PLAINTIFFS,
v.
ARNOLD SCHWARZENEGGER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Chase Riveland Special Master

SECOND REPORT OF THE SPECIAL MASTER ON THE STATUS OF CONDITIONS OF THE STIPULATED ORDER

Background

The Plaintiffs in this case filed their Complaint with the Court on September 13, 2006. The Court certified this case as a class action by Order dated February 28, 2007. The Defendants are state agencies and state officials responsible for the policies, procedures, and practices by which California conducts juvenile parole revocation proceedings, to include: the Board of Parole Hearings, the Division of Juvenile Justice, the Juvenile Parole Board, and the California Department of Corrections and Rehabilitation.

On September 19, 2007, the Court granted partial summary judgment in favor of Plaintiffs, holding that California's juvenile parole revocation system, by failing to provide a timely probable cause hearing, violated the due process rights of the Plaintiff class as those rights were described in Morrissey v. Brewer. On January 29, 2008, the Court held that Defendants' failure to appoint counsel for all juvenile parolees violated the due process rights of the Plaintiff class, according to precedent set in Gagnon v. Scarpelli. In the same order, the Court also found that Defendants' policies and practices violated the Americans with Disabilities Act (ADA) and the Rehabilitation Act. The Court ordered the Defendants to:

(1) begin appointing counsel to represent juvenile parolees at parole revocation hearings no later than February 15, 2008, and to provide that counsel with access to confidential contact space and the necessary files sufficiently in advance of the hearing to allow adequate preparation,

(2) allow parolees to obtain counsel of their own choosing, who shall be able to represent clients under the same terms as appointed counsel, and Defendants are to notify the parolee's counsel of record or public defender when a hold is placed,

(3) ensure effective communication and provide necessary accommodations, and (4) develop sufficiently specific policies and procedures to ensure continuous compliance with all of the requirements of the American with Disabilities Act during revocation proceedings.

Chase Riveland and Virginia Morrison were appointed as Special Master and Deputy Special Master, respectively, on May 22, 2008. The parties, on June 13, 2008, submitted a Stipulated Motion for Preliminary Approval of Class Settlement. The Court granted the motion on June 17, 2008 and approved a Stipulation and Order for Permanent Injunctive Relief on October 7, 2008 (hereafter "Stipulated Injunction").

Special Master Activities

The Special Master continued to assist the parties in a variety of negotiations and dispute resolution. The team attended trainings for institutions and Board staff; observed Defendants' task force; and participated in all-parties' information update meetings. They met with the Farrell Special Master, and occasionally consulted with her, to gain a preliminary understanding of the remedies' intersection and impact on each other.

To monitor in the first quarter of 2009, the team observed hearings conducted by six hearing officers and observed on-the-job training for two additional hearing officers. This involved 16 probable cause hearings, three in-custody revocation hearings, three "not in custody" revocation hearings, a revocation extension hearing, and one exit interview. The team did not attempt to observe the service of notice on any parolees. These reviews took place at N.A. Chaderjian, Preston, and Heman G. Stark youth correctional facilities and San Francisco, Los Angeles, Marin, and Santa Rita county jails. In addition to the revocation hearings seen in person, the Mastership analyzed materials for another 20 hearings, most of which included recordings.

During the site visits, the team observed and interviewed six board coordinators and two institutions staff responsible for revocation extensions. The team also visited three parole units, interviewing eight parole agents and supervisors. They met with members of the attorney panel ("CalPAP"), interviewing two leaders, a staff attorney, and seven panel attorneys. The team also observed two "officers of the day" conducting their duties and read the manual for that position.

Scope and Approach

This report discusses observations and activities spanning October 2008 through April 2009, collectively referred to as "the Round." References to the Special Master's activities frequently include the actions of a member of his team.

Studies: For many of the requirements, the Special Master's team conducted a study based on revocation packets, hearing documents, and recordings provided in Defendants' monthly document productions, in combination with those same documents produced for the hearings observed during the team's site visits. Since these were not randomly chosen and are a snapshot of a relatively short time, there are limitations on the representativeness of this sample. However, at about 10% of the total hearings since February 2009, this presents one portion of the implementation picture.

CalPAP data captures some practices in the months of the Round preceding the February 2, 2009 implementation. During February, Defendants processed many cases initiated in previous months, applying the new procedures but recording them manually. At the same time, Defendants began processing cases with February hold dates and entering them in the data system. Since nearly all of those did not close until March, the Special Master's examination of data reports generally spans March 1 through April 15, 2009.

For certain questions, the team added, or substituted, revocation packets and hearing documents generated by running a revocation database report and identifying relevant cases by "drilling down" on that report. The length of the period captured varies according to data availability and questions examined. It is worth noting that, as with many new systems, there are various reasons to believe that data from the information system cannot yet be relied upon as fully accurate. Printouts and their analysis, therefore, contribute to the compliance picture but the figures should be considered approximate.

Plaintiffs' objections: in their objections to this report, Plaintiffs frequently asked the Mastership to emphasize that each element of the Stipulated Injunction is a requirement, that it is important to remedy each area not yet in compliance, and that each deficiency harms parolees. The Mastership declines to adopt this stance in this report. It is inarguable that each Stipulated Injunction component is important and that Defendants must demonstrate compliance with each to be granted relief from this Court's oversight; this need not be repeated throughout the document. Defendants also demonstrate an appreciation of these principles.

Notable Developments

It is extraordinary that, in just over one year, the Defendants have implemented a system with the following features:

· Provides notice of the charges against the parolee and his rights in the proceedings, and has halted the practice of taking waivers and written admissions without counsel

· Ceased use of temporary detentions and rescinded the related regulation

· Conducts supervisory review of probable cause and the charges, and parole staff have gained more responsibility to resolve lower level violations

· Appoints attorneys in all revocation actions proceeding to hearing, and provides them materials necessary to prepare a defense and in time to meet with the client at least two days ahead of hearings, as well as private conditions in which to meet

· Calculates a return to custody assessment, which includes a probable cause assessment, and which serves as an offer of disposition a parolee and attorney can consider and accept without requiring a full revocation hearing

· Holds probable cause hearings and revocation hearings with more legally sound violation reports, more evidentiary protections, structured decisionmaking for penalties up to a maximum of one year, and a written record

· Applies a remedy for revocation hearings held beyond the required date and provides an appeal system and a grievance procedure for ADA concerns

· Converted the terms of revoked parolees in-custody to a date certain

· Initiated a system of hearings for parolees' in-custody misconduct with a similar due process structure

· Practices intended to identify and accommodate those with disabilities or effective communication needs

· Posted and distributed notice of the material terms of the settlement

· Initiated an extensive, complex information system

The Stipulated Injunction required full implementation "no later than 180 days of the signing of this Stipulation, and no later than December 15, 2008."*fn1 As early as October 2008, Defendants informed Plaintiffs that they would not be able to fully implement by December, and requested an extension of the deadline to February 2, 2009. They stated that the extension would allow them to complete more policy and labor negotiations and to roll out new procedures in a coordinated fashion. After further negotiations with Plaintiffs, Defendants agreed to implement some specific aspects of the Stipulated Injunction by December 15, 2008, notwithstanding their proposed delays. Defendants phased in some practices throughout 2008, and they commenced implementation of all systemic reforms by February 2, 2009, with the exception of training some Parole staff during early February. A great majority of the remedy's features are now in place, although the execution of some components remains challenging.

Policies and Regulations

The parties agreed that within 90 days of the parties signing the Stipulated Injunction, and no later than September 15, 2008, the Defendants were to develop sufficiently specific draft policies, procedures, and plans to:

· ensure that revocation proceedings are in continuous compliance with all of the requirements of the Constitution and applicable statutes,

· address a method for accurately tracking the timeliness of hearings and other steps in the parole revocation process,

· include the timely provision of accommodations for juvenile parolees' disabilities and effective communication needs,

· cover not in custody hearings, dual commitments, and parole exit meetings; and

· address such disputed issues as telephonic probable cause hearings, circumstances constituting good cause for delayed hearings, and remedies for untimely hearings.

Policies and procedures were not completed by the deadline, but the parties had worked diligently through that time to formulate and negotiate these documents. During the current Round, work continued along two tracks. Much of what is necessary has been captured and is in practice, but more remains to reach agreement, to generate sufficient detail, and to finalize the documents. The pace slowed as compared with earlier times, but it was adequate. Plaintiffs vehemently contest this assessment, pointing to several delays and the potential for parolees being treated differently if staff do not have a consistent understanding of policies.

On one track, Defendants' divisions considered and moved through approval processes the policies and procedures as formulated in November 2008.*fn2 Three of them -- revocation extension, exit interviews, and attorney standards -- reportedly were finalized and distributed in April 2009.*fn3 The great majority of the policies and procedures are found in a comprehensive revocation process document, one for each of the two divisions principally involved. Those documents remain in negotiation internal to Defendants. In the meantime, Defendants are expecting staff to use most or all of the features of these draft documents and 2008 interim procedures governing reasonable accommodations and effective communication. While official policies are not in place, Defendants have endeavored to put the components in place through memoranda, trainings, conference calls, and other communication methods.

The policies and procedures presently in use were implemented over Plaintiffs' objection to some components. The parties intend to continue to negotiate those aspects, and they reached agreement on a significant number of changes in December 2008. Plaintiffs drafted a stipulation capturing those agreements and it remains to be finalized. A relatively small number of disputes remain, though they concern important aspects of the Stipulated Injunction's terms. Parties' efforts continued through the Round to identify those issues, advance negotiations, and specify resolution processes for the issues seen as being at impasse.

The parties have not collectively determined whether all necessary policies are in process or completed, though Defendants have identified only telephonic probable cause hearings as an outstanding issue requiring a policy.*fn4

Notice of terms: Defendants reportedly posted initial and final notices on their website and in areas accessible to parolees. The Special Master observed that the practice of providing a handout to parolees facing revocation is also beginning.

Regulations: In August 2008, Defendants indicated they had undertaken the mandated review of regulations and had identified nearly 100 requiring change.*fn5 Since that time, they have indicated in monthly document productions that a list has not yet been prepared. Defendants have not begun to generate new regulations as of yet.*fn6 The parties have agreed to commence negotiations regarding this issue.

Stipulated Injunction Requirements

A number of the requirements consist both of substantive due process and of procedural due process, including an element of timeliness. With tracking available through the attorney panel administration and Defendants' newly implemented information system, some measurements are possible.*fn7 However, as with all new systems, the accuracy and consistency of data entry is limited in this early period, so figures should be viewed as approximate.

Parole Agent and Supervising Parole Agent conference within two business days (¶ 27):

Defendants' revocation database shows that 89% of these interactions -- or about 123 of 139 cases -- have been timely.*fn8 The Special Master did not learn anything further about this practice.

Notice of charges and rights within three business days (¶ 28):

Early in the Round, Board Coordinating Parole Agents served the parolees; in recent months, this became the responsibility of the agent of record. One agent reported easy access to parolees in the three counties in which he works; others encountered multiple barriers when attempting to serve in Los Angeles County Jail. The Special Master did not observe any service as it took place.

To satisfy due process, the notice must contain a summary of the conduct underlying the charges sufficient for the parolee to prepare a defense. In the notices the Special Master reviewed, the summary ranged from reasonable to very good in about two-thirds of the cases. The remaining one-third did not describe the conduct.*fn9 In a similar vein, two parolees filed appeals alleging that incomplete notice of the charges made them unable to defend against their charges.*fn10 It will be important for Defendants to improve this practice.

In the Special Master's review, the service documents were all present in all but one case, suggesting that the parolees received the charges, with the limitations noted supra, and a description of their rights. The third form memorializes efforts to identify disabilities; these were more problematic, but will be discussed infra.

It appears that a large majority of notices were served timely. Both a study by CalPAP*fn11 and the Special Master's analysis of revocation database reports found about an 80% success rate.*fn12 A different study of individuals indicated a slightly higher compliance rate.*fn13

The late service in two of these studies occurred only one to two business days beyond the requirement.

In yet another examination, the Special Master found that fewer genuinely were late, so the success rate may be higher still. The review narrowed the number of late cases to four parolees who were served late or were overdue for service -- ranging from 2 days to 21/2 weeks as of the time of analysis -- and another three may not have been served.*fn14

These few failed cases are of a troubling nature. Two things are important to note about this analysis: while it indicates that actual practice could be as high as 93 to 96%, in most circumstances, Defendants would not get credit for this because they did not demonstrate it. By not documenting their actions, Defendants create the misimpression of deficiencies. More consistent use of the tracking system will move them toward resolution of this lawsuit much more quickly. .

Non-acceptance of written admissions to a violation of parole, or waivers of hearing rights or the right to counsel, made prior to the juvenile parolee meeting with counsel (¶ 17, 31):

Defendants report that they issued staff instruction on these points in April 2008 and there is evidence of this being reinforced toward the end of the first Round. Defendants believe these practices have ended.*fn15

On the other hand, the parolee's parole agent serves notice of the violation, investigates, and produces the violation report. This can occur before counsel is appointed,*fn16 and the reports include parolee statements, if made. The parties disagree as to whether this practice is permissible under the Stipulated Injunction. This is an issue that should be examined further during the coming Rounds.

Requirements Concerning Attorney Representation

Provision of counsel during revocation proceedings (¶ 15): Defendants report that attorneys have consistently been appointed for all parolees taken into custody on a new parole hold since February 2008. There is no system to detect whether any appointments are overlooked. CalPAP administered the attorney panel in 2008. The contract was subsequently put out to bid and awarded to CalPAP.

Timely appointment of counsel (¶ 16):

There is poor timeliness in DJJ providing the information necessary to appoint attorneys. Printouts and a sample both showed only 60% of packets were provided in time for the requirement.*fn17 .

Both CalPAP and Plaintiffs are concerned that this compresses the time available for administrative duties and for attorney preparation. They note that CalPAP must redact and otherwise prepare the revocation packet, secure an attorney, and schedule an attorney-client interview. Plaintiffs and CalPAP are concerned that the reduced time left to the attorney poses risks to completing the tasks necessary to preparing a defense and to the possibility of an expedited hearing if it is appropriate.

In the cases examined, the delay typically was one to two days, with a handful delayed by three days and one not sent for a month. Attorneys told the Special Master they typically receive documents several days before the probable cause hearing and meet with clients two to three business days ahead. All appeared to know their cases well; several discussed having multiple contacts with their clients and telephoning witnesses, parole agents, and public defenders. When ...


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