State Must Appoint Counsel for Juvenile Parolees, Judge Rules

January 31, 2008

By Linda Rapattoni  |  Daily Journal  —  

SACRAMENTO – Attorneys for 3,000 juvenile offenders who sued the state for refusing them counsel said Wednesday they could not understand why state officials stalled on the matter until forced to act by a judge's order.

Ruling in a class action, U.S. District Judge Lawrence K. Karlton of Sacramento issued a preliminary injunction Tuesday requiring the state, as of Feb. 15, to appoint counsel for each juvenile offender facing a parole revocation hearing. L.H. v. Schwarzenegger, 06-2042.

Sue Burrell, of the Youth Law Center of San Francisco and one of the attorneys representing the plaintiffs, said lawyers have been trying to get the state to provide counsel and greater due process rights for three years. Adult parolees won many of those rights years ago in a separate case, Valdivia v. Davis, 94-0671 (2002).

"Looking at all of the protections extended to the 170,000 adult prisoners in this state, it is really difficult to understand the foot-dragging with respect to juveniles," Burrell said. She called the costs of the additional benefits due the 3,000 young offenders "small potatoes" compared with the expense of providing them for adults.

California faces an estimated $14.5 billion deficit beginning in July. In anticipation of Karlton's ruling, Gov. Arnold Schwarzenegger's budget proposal released earlier this month provided $2 million in the current fiscal year and another $2.9 million next year for additional parole and due process benefits for juveniles.

George Kostyrko, a spokesman for the state Division of Juvenile Justice, said following Karlton's ruling that the state was taking steps to implement the court order.

A juvenile offender "bill of rights" previously signed by Schwarzenegger "already provides for the due process components in the court order," Kostyrko said. He said the division had agreed to assign attorneys "to youth going through due process hearings for parole violations."

Karlton's order, however, sets hard-and-fast deadlines to meet those goals.

Burrell said appointing lawyers more quickly could save the state money. For instance, some juvenile offenders might admit to parole violations earlier, getting them in and out of incarceration more quickly, she said. Lawyers could raise alternatives to jail time, especially for technical violations, Burrell said.

Last September, Karlton ordered the state to submit a plan within 30 days to ensure due process rights and counsel for the juvenile offenders facing parole revocation. After the plan was submitted, he said he found it to be inadequate and he ordered the two sides to meet and devise a better plan.

Still unresolved, Burrell said, were what procedures the state would follow to determine probable cause for revoking parole, as well as timelines and guidelines for appointing attorneys.

Current California court rules require attorneys who have been appointed to represent juvenile delinquents to continue representing them until relieved by a judge, Burrell said. That means many of the juveniles facing parole revocation, and who are now due to be assigned lawyers, might elect to have their original counsel represent them in their parole hearings, she said.

Karlton ordered the state to submit policies and procedures by March 15 to address the particular problems of juveniles with disabilities, to comply with the Americans with Disabilities Act.

Burrell said parole revocations of minors often resulted in the denial of their right to have witnesses testify on their behalf, to present evidence to mitigate the charges and to have language translators, hearing aids and other accommodations.

A lead plaintiff in the class action, identified only as L.H., had served time for robbery and assault. Authorities threatened to revoke his parole for drinking alcohol at a substance abuse treatment center where he was living, according to court papers.

Although L.H. was married and working in an office, he was detained for more than a month without a preliminary hearing and a mix-up in his file postponed the matter for another three weeks, when he was forced to represent himself without counsel. He was then sentenced to several more months in custody.

The state has been holding juvenile offenders an average of 60 days before granting them a parole hearing, Burrell said. That costs about $36,000 per individual, she said.

Mary Swanson, head of California Parole Advocacy Program, which has responsibility for appointing counsel for paroles, said attorneys get $185 per case.

The L.H. case originally involved more than 4,000 juveniles, but many of those have since left the juvenile justice system. Recent statistics contained in state budget documents indicate about 3,000 would be affected by Karlton's order.

The plaintiffs sought permission from the court to amend their complaint to include the due process rights of juvenile offenders outside the parole system. Karlton, however, rejected that request as too late.

Instead, the plaintiffs may file a new, separate lawsuit covering those minors, Burrell said.

Plaintiffs earlier in the case had sought an injunction requiring the state to hold a parole revocation hearing within 10 days of a juvenile's arrest, similar to what is required for adults, but Karlton denied their request. He ruled the remedies for juveniles did not need to match those for adults that had been secured in the Valdivia case.
      
An earlier version of this story appeared on dailyjournal.com.
     
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