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L.H. v. Schwarzenegger

July 23, 2010

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



FOURTH 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.

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") which, among other requirements, incorporated the terms of the September 2007 and January 2008 orders.

On April 2, 2009, the parties filed a Stipulation and Order Re: Plaintiffs' Motion to Monitor Defendants' Compliance with the Stipulated Order for Permanent Injunctive Relief.

The Court entered a Stipulation and Order Requiring Defendants to Take Immediate Steps to Identify and Track Juvenile Parolees with Disabilities and Effective Communication Needs, dated July 7, 2009. The parties also negotiated stipulations modifying several aspects of policies and procedures, and the revocation extension penalty matrix, which this Court signed on September 10, 2009 and February 12, 2010, respectively.

Special Master Activities

The Special Master observed the Defendants' task force and trainings for CalPAP attorneys, hearing officers, hearings staff, and institutions staff. He participated in a simulation using videoconferencing equipment, worked with Defendants' staff to improve information systems, and assisted the parties' negotiations concerning a variety of topics. The Mastership conducted interviews and 39 file reviews at the Bakersfield, Covina, Inland, San Fernando Valley, and San Jose parole units and the Ventura Youth Correctional Facility.

The team observed hearings at Heman G. Stark and Preston youth correctional facilities; Southern Youth Correctional Reception Center and Clinic; and Los Angeles, Sacramento, Lerdo, and Sonoma county jails. Those proceedings were conducted by five hearing officers and consisted of 12 probable cause hearings, two revocation hearings, and one not in custody hearing. The team did not attempt to observe the service of notice on any parolees or return to custody assessments.

In addition to the proceedings seen in person, the Mastership analyzed recorded and written materials for another 21 revocation hearings, three not in custody hearings, and one revocation extension hearing, equally distributed among the five hearing officers who conduct them.

Scope and Approach

This report discusses observations and activities spanning October 2009 through March 2010, collectively referred to as "the Round." References to the Special Master's activities frequently include the actions of a member of his team.

A number of mandates consist both of procedural due process requirements and due process in how they are conducted; all aspects are included in the Special Master's assessment. The term "mainstream cases" refers to those revocation actions that follow the normal course; it excludes cases with special circumstances, such as not in custody hearings, extradition, parolee time waivers, optional waivers, and postponements.

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. For other requirements, the team studied records selected from the relevant population as identified by electronic reports. Since these samples were not randomly chosen, there are limitations on their representativeness. In other instances, the team relied on reports generated by Defendants' revocation database, Plaintiffs' monitoring reports and analyses, reports or studies conducted by the CalPAP attorney panel administration, and sometimes documents underlying these sources.

Overview of Actions

During the Round, approximately 507 revocation actions were handled.*fn1 These actions were concluded in the following way:

% of total

Open 74 15% Decisions to handle the alleged violation through a 122 24% corrective action plan, dismiss the violation charge, or otherwise conclude it at or in proximity to the Parole Agent-Supervisor conference Decisions to conclude the action during investigation 24 5% Decisions to conclude the action during Supervising 2 <1% parole="" agent="" review="" decisions="" to="" conclude="" the="" action="" during="" return="" to="" 15="" 3%="" custody="" assessment="" actions="" concluded="" at="" probable="" cause="" hearing,="" either="" 112="" 22%="" through="" an="" accepted="" return="" to="" custody,="" dismissal,="" or="" decision="" to="" continue="" on="" parole="" actions="" concluded="" by="" parolee="" invoking="" optional="" waiver="">*fn2 8% and provisionally accepting return to custody time (right to hearing not reactivated during the Round)

Actions concluded at Optional Waiver Review 15 3% Actions concluded at Revocation Hearing 100 20%

Between probable cause hearings, optional waiver reviews, postponed hearings, revocation extensions, and revocation hearings, Defendants held at least 449 revocation-related hearings during the Round.*fn3

Substantial Compliance and Other Indicators of Success

In this action, the central objective of all parties and the Court is for the Defendants to operate a sustainable system that provides fair, timely, just procedures to juveniles accused of parole violations. It is beyond doubt that Defendants have established important components of the remedy, much of the infrastructure critical to institutionalizing and sustaining the needed revocation system. It is extraordinary that they have accomplished this in an exceptionally short time -- only 18 months since the entry of the Stipulated Injunction.

The Special Master agrees with the parties that those accomplishments deserve recognition. To the extent that an Injunction requirement has been conducted well for a sustained period, he will consider that requirement to be in substantial compliance. In some institutional litigation, "substantial compliance" has been used as an umbrella term for ultimate success. The LH Defendants argue that it should be the standard for relief from judgment in this case; Plaintiffs strongly contest that substantial compliance should serve as that standard.

As used in this report, substantial compliance indicates a sustained period of meeting a high standard. Substantially compliant items will remain within the Stipulated Injunction, but the Special Master and Plaintiffs will discontinue review of such items unless and until a significant decline in performance surfaces. Defendants are expected, and have made plans, to continue to review these items at regular intervals to prevent such a decline.

Substantial Compliance

The Special Master considers the following requirements to be in substantial compliance, as described supra. The bases for reaching these conclusions are detailed in the Stipulated Injunction Requirements section, infra.

* Provision of counsel during revocation proceedings (¶ 15)*fn4

* At the time of attorney appointment, provision of date, time, and location of the hearing (¶ 16)

* Defendants shall take all reasonable steps to allow counsel to meet with client at least 24 hours prior to the probable cause hearing (¶ 16)

* State-appointed counsel for juvenile parolees shall be appropriately compensated for hearings and appeals (¶ 24)

* Defendants shall develop standards, guidelines, and training for effective assistance of state-appointed counsel (¶ 21)

* Parole revocation hearings to be held within a 50-mile radius of the alleged violation (¶ 36)

Well-Established Infrastructure

Defendants concentrated initially on designing and institutionalizing systems to ensure information flow and timely execution of the steps in the revocation procedure. Many of these have been successful. The parties have agreed provisionally that Defendants will also assume responsibility for self-monitoring the timeliness of the items listed below, with Plaintiffs' input into review methods, and Plaintiffs will refrain from that monitoring.*fn5 With the data system problems that will be described infra, it will be important for Defendants to supplement data reports with case sampling and other review mechanisms, which they plan to do. The Defendants will assume responsibility for monitoring timeliness concerning:

* Parole agent and Supervising Parole Agent conference within two business days

* Notice of charges and rights within three business days

* Violation report by the sixth business day after the parole hold*fn6

* Supervisor review of revocation packet within seven business days after the parole hold

* Timely appointment of counsel

* Return to custody assessment within nine business days

* Attorney will be informed of Return to Custody Assessment by the 10th business day after the hold

* Probable cause hearing within 13 business days of the parole hold

* Revocation hearing within 35 days of the parole hold

* Not in custody hearing within 60 days after notice service

* Appeals decided within 10 days of receipt by the Juvenile Parole Board, and decisions provided to the parolee within five business days after their issuance

Timeliness is an important aspect of meeting any given Stipulated Injunction requirement. The parties and the Special Master will continue to monitor and develop the more qualitative aspects of these requirements.

Keys to Success

Several components have made Defendants' successes possible. These will be important to maintain as they continue to work toward satisfying the Court's orders. Procedurally, these include:

* setting up systems so that good practice is sustainable and not as vulnerable as when it is individual-dependent

* whenever Defendants identify problem practices, or when these are brought to their attention, there is quick, detailed follow-up to distribute better information and guidance and to address obstacles to good practice

* flexible, can-do attitudes among a broad variety of staff

* multidivision communication mechanisms, problem-solving, and joint training Substantively, the lynchpins of effective practice to date are:

* scanning of documents to make them quickly accessible to all parties needing them in changing circumstances

* attorney representation

* effective attention to ongoing information system problems

* remedies given for revocation hearings held late without good cause, providing for justice in the usual course and for the rare failures.

Policies and Regulations

(Stipulated Injunction)

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,

* provide for 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.

After intensive negotiation among many DJJ divisions affected and Plaintiffs, Defendants have distributed extensive policies and procedures with the purpose of satisfying the requirements above. These serve as one of key features of an infrastructure necessary for a sustainable, well-functioning system.

Policies and procedures have been signed and disseminated concerning revocation extension, attorney standards, revocation proceedings for the Board, the revocation process for the Division of Juvenile Parole Operations, ADA and effective communication, and exit interviews.

The parties negotiated during the Round concerning compliance standards, decision review, mentally ill parolees, revocation penalties and charge definitions, dual supervision parolees, McPherson parolees, videoconferencing, and alternatives to incarceration. The parties are currently reviewing the policies and procedures to identify disputed items and further policies or clarifications needed. The parties have committed to prioritizing and addressing these issues in 2010.

Notice of terms: During 2008, Defendants reported detailed methods used to provide posters and notices to Division of Juvenile Justice, CDCR, and county jail facilities. They have demonstrated continued follow-up, periodically sending reminders to staff about posting, and responding when Plaintiffs occasionally note missing posters during site visits.*fn7

Regulations: The parties continue to work through the lengthy, complex revision and approval process on many regulations affected by the LH remedy, with Plaintiffs among those contributing comments.*fn8 Plaintiffs object to the protracted process required to adopt or revise regulations.

Stipulated Injunction Requirements

In analyzing compliance data, the parties and the Mastership face several challenges. The principal method available for demonstrating compliance is Defendants' revocation database, which tracks individual cases through the course of a revocation proceeding, and produces reports meant to show the volume and timeliness of different steps. While the information system serves many purposes well, there are limits on the utility and accuracy of several key reports. The net result is that no firm conclusions can be reached concerning many of the needed aggregate numbers, including overall compliance percentages of any given step.

The information system under-counts or over-counts some populations. Some are unfairly measured by shorter timeframes than apply, while reports apply too generous a standard for some others.*fn9 Significant subsets do not yet appear in reports.*fn10 A small number of cases may move into, or disappear from, a report on different days.*fn11

The great majority of cases are reflected accurately and consistently in reports, and compliance percentages for them are high. But, when taken together, the small groups that are unknown, inaccurate, or variable amount to too large of a group to be unexamined. To demonstrate compliance, Defendants must work to reduce these uncertainties in the reports. In the meantime, the analysis that follows must defer assigning overall compliance numbers.

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

Defendants' revocation database reports show a large portion of the conferences, but the cases not shown make it impossible to reach overarching conclusions about timeliness compliance. The cases that can be seen in Defendants' tracking system indicate that the vast majority of cases are timely at this step and improvement was evident over the prior Rounds..

Among the very few known late cases, the majority were completed the following day and the longest time ...


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