Los Angeles County Juvenile Defense | Law Offices of Jerod Gunsberg

Sunday’s New York Times ran an editorial entitled, “Some Good News From California’s Justice System.” It praises Governor Brown’s plan to close state-run facilities operated by the Department of Juvenile Justice and transfer juveniles to county-based facilities.

The editorial does a decent job of laying out the terrible record that DJJ facilities have had. It also acknowledges that critics of the Governor’s plan are concerned that it will cause more juvenile cases to be filed needlessly in adult court.  The editorial tacitly acknowledges that this is a valid concern, but argues that this can be addressed by appropriate legislative action and monitoring.

The Legislature can prevent this by monitoring and penalizing counties that over-prosecute young people and by allowing for extended custody in local facilities of juveniles who commit more serious crimes.

Unfortunately, there are at least 125,000 reasons why the solutions proposed by the Times’ will likely fall short.  Simply put, once more juvenile cases are under the jurisdiction of the counties, there will be a strong financial incentive for counties to shift juvenile cases to the state court system.  A brief review of the recent legislative history in California shows why.

In June of 2011, the California legislature passed SB 92 which, in relevant part, said that if the state’s revenues fall short of projections for 2011, “tier 1 trigger cuts” would go into effect on January 1, 2012.  One of these trigger cuts was the shifting of the costs of DJJ commitments from the state to the counties.  Specifically, $125,000 is shifted to the county each year for every juvenile a county sends or had previously sent that is still in the custody of DJJ.  Approximately three months later, California’s collected revenues fell short of the legislative projections, and Governor Brown announced that the Tier 1 trigger cuts go into effect.

So what do the counties do when faced with the prospect of taking on the financial responsibility for handling juveniles that are currently on the books of the state?

Predictably, on December 7, the California State Association of Counties, the California District Attorneys’ Association, and the Chief Probation Officers of California wrote a letter to Governor Brown in which they explicitly indicated that shifting the financial burden will likely cause more juvenile cases to be filed in the adult system.

“. . . we write to express our gravest concerns regarding the trigger cut provision in SB 92 . . . that would require, beginning January 1, 2012, that counties pay $125,000 annually for every youthful offender committed to a department of Juvenile Justice (DJJ) facility, irrespective of commitment date.”

. . .

We see several potential consequences to the system that might follow.  First, by making a DJJ commitment prohibitively expensive, the state could likely see an increase in adult court proceedings for youthful offenders, reflecting the fact that a local option either may not exist or may not be viewed as inappropriate given the severity of the crime. . .“

It doesn’t take a rocket scientist to see that the counties had every incentive to avoid the $125,000 annual per-inmate cost.  The Governor’s January 2012 response strongly suggests that he didn’t think that the counties were bluffing.  He announced that collection of payments from county would be delayed.  As reported by the San Francisco Chronicle, the Governor is now proposing that the DJJ be scrapped entirely and, as of January 2012, that no new juveniles would be sent to DJJ.  Kids who are currently in DJJ facilities would serve out their sentences).  The Governor’s plan also calls on counties to determine how to house their most serious juvenile offenders, and the state will provide $10 million to each county to help set up their new systems.  This is just a plan and there is no guarantee that it will ever become reality.

The fact that the New York Times editorial has its shortcomings doesn’t mean that I am in favor of the existing system.  The DJJ is far too often a disaster, and while some improvements have been made over the past few years, it is still dreadful. It’s only useful in cases where a juvenile is likely to lose at the fitness hearing.  In that circumstance, it may make sense to reach a plea agreement with the prosecutors because the DJJ is still better for juveniles than adult court, and the corresponding potential state prison sentences.

In theory, this could be an opportunity for us to reinvent the juvenile justice system in California so that it provides real community-level services and supervision that is tailored to local populations.  There are several reasons why the shift to a more county-based system may not have the results projected by the editorial’s authors.  First, counties are already dealing with an influx of adult state prisoners from the criminal justice realignment plan (non “strike” offenders now do their time in county jails).  It is anticipated that criminal justice resources at the county level are going to be stretched thin and county jails will be overcrowded.

Second, it is hard to see how the juvenile system won’t continue to be an afterthought in the criminal justice system.  The $10 million payout from the state is nice and all, but that’ll be gone quickly and then what?  DA’s will resort to direct filing in adult court rather than leaving the decision to the juvenile court, why?  Because of under realignment, the types of cases that get direct filed are generally not eligible for county jail sentences. This means that most courts would send a kid off to state prison – this keeps him off the county books in either a juvenile court or adult court scenario.

While juvenile cases in adult court may be politically unpopular in some communities (and I think unethical and immoral), nobody has ever lost an election being “tough on crime.”  Moreover, voters and would rather pay for playgrounds and after school programs rather than find a rehabilitation solution for a 16 year-old convicted armed robber.  Given that the more violent juvenile cases tend to be in the DJJ system, I would be surprised if, beyond the financial incentives, counties showed much appetite for taking on additional serious cases.  It is heartening that the New York Times editorial board has chosen to focus on the state of the Juvenile criminal justice system in California.  I do welcome the attention that such an editorial brings. But no amount of “monitoring” is going cause counties to file fewer juvenile cases in state court.  This is a problem that will require amending the underlying statutory framework.  Given the current political and budgetary environment in Sacramento, that unfortunately is a long shot.

If your child is in trouble in Los Angeles or anywhere in California, and you have begun to interview criminal defense attorneys you are likely left with a dizzying array of facts, predictions, and consequences about your child’s situation.  It is important to hire the lawyer you think will do the best job for your child, but how do you make that assessment?

DO NOT HIRE A LAWYER WHO TRIES TO SCARE YOU

I frequently get calls from parents who have already spoken with one or two other lawyers before calling me.  By the time I talk to them, they’re convinced their child is going to be removed from the home and sent to a Los Angeles County probation camp even when their child has never been in trouble before, does well in school and is facing a relatively minor petty theft or drug offense.  Of course, for more serious offenses and repeat offenders there can be serious consequences.  But no matter what the charges are, listen carefully when interviewing a lawyer.  Is the lawyer just telling you all the horrific consequences for your child or your family and then talking about how he or she is the only one that can save your child, or is the attorney actually giving you specifics about how he or she would approach the case?  Is the attorney able to clearly explain how juvenile court operates and at least give the beginnings of a coherent case strategy?  Is the attorney asking you questions about your child and your family or is the attorney just talking about himself or herself?  Listen carefully and don’t fall for the fear.

DOES THE LAWYER HAVE RECENT JUVENILE DEFENSE EXPERIENCE?

Most criminal lawyers do not handle all that many juvenile cases, and while many of these attorneys are very fine lawyers, they are not always up to date on the latest changes in the law or techniques that can be used to achieve the best results.  It is essential that your child’s lawyer is up to date on all the latest juvenile statutory and case law.  Factors such as your child’s educational history, mental history and physical health can all have an impact on the outcome of the case.  This is much different from adult court.  Your child’s lawyer needs to be aware of how to address these issues.

DOES YOUR LAWYER HAVE A PLAN?

If your child has a good case to take to trial, then by all means it should go to trial.  But if you are going to go to trial, your lawyer better have done some research about the bench officer who will decide your child’s fate.   Remember, there are no juries in juvenile court.  The judge (or bench officer with similar duties to a judge) will decide your child’s guilt or innocence.  If the case is not going to trial, does the lawyer have a solid plan to negotiate a disposition with the prosecutor?  Is the lawyer going to do a thorough review of your child’s background and present all the appropriate information to the DA or the court?  Remember, this is not adult court.  The court wants to feel comfortable that your child is not going to re-offend and is “under control”; your lawyer needs to have a plan to do that.

DOES YOUR CHILD TRUST THE ATTORNEY?

Maybe you think this does not matter, but your child needs to have some rapport with the lawyer.  After all, your child is the client, not you (that’s the law).  Your child is much more likely to be cooperative and helpful if he or she trusts the lawyer and feels like he or she can talk to him.  While you, as the parent, will be an integral part of the process, the lawyer is required to speak with your child without you or anyone else in the room and must not disclose anything your child does not want disclosed.  Some parents do not like this, but this level of trust is important in getting the best result for your child, which is exactly what you want.

Jerod Gunsberg is a Los Angeles Criminal Defense Attorney.  If you want to find out if I practice what I preach, call me for a free consultation at 310-210-0744.