BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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3
9
SB 1399 (Leno) 9
As Amended April 14, 2010
Hearing date: April 20, 2010
Penal Code
SM:dl
MEDICAL PAROLE
HISTORY
Source:Federal Prison Health Care Receiver
Prior Legislation: AB 1539 (Krekorian) - Chap. 740, Stats. of
2007
AB 1946 (Steinberg) - vetoed; 2003-2004
AB 675 (Migden) - vetoed; 2001
AB 29 (Villaraigosa) - Ch. 751, Stats. of 1997
Support: California Catholic Conference; Crestwood Behavioral
Health, Inc.; Life
Support Alliance; Service International
Employee's Union, Local 1000
Opposition: California Hospital Association (unless amended);
Taxpayers for
Improving Public Safety; Crime Victims United
of California
KEY ISSUES
SHOULD A PRISONER, EXCEPT AS SPECIFIED, WHO THE BOARD OF PAROLE
(More)
HEARINGS (BPH) DETERMINES, BASED ON MEDICAL EVALUATIONS, MEETS
SPECIFIED MEDICAL CRITERIA AND COULD BE RELEASED WITHOUT
REASONABLY POSING A THREAT TO PUBLIC SAFETY BE GRANTED MEDICAL
PAROLE?
(CONTINUED)
SHOULD THE DIVISION OF ADULT PAROLE OPERATIONS HAVE THE
AUTHORITY TO IMPOSE ANY REASONABLE CONDITIONS OF PAROLE ON
PRISONERS ON MEDICAL PAROLE, AND TO REQUIRE THE PAROLEE TO
SUBMIT TO AN EXAMINATION BY A PHYSICIAN TO DIAGNOSE THEIR
CURRENT MEDICAL CONDITION, SUBMIT A REPORT TO BPH; AND IF BPH
DETERMINES THAT THE PAROLEE'S MEDICAL CONDITION HAS
SUBSTANTIALLY IMPROVED AND THAT THE PERSON POSES A THREAT TO
PUBLIC SAFETY, SHOULD BPH BE AUTHORIZED TO REVOKE THE PAROLE?
PURPOSE
The purpose of this bill is to establish a medical parole
program, as specified.
Existing law provides that if the Secretary of the Department of
Corrections and Rehabilitation or the Board of Parole Hearings
or both determine that a prisoner is either:
Terminally ill with an incurable condition caused by
an illness or disease that would produce death within six
months, as determined by a physician employed by the
department; or
The prisoner is permanently medically incapacitated
with a medical condition that renders him or her
permanently unable to perform activities of basic daily
living, and results in the prisoner requiring 24-hour
total care, including, but not limited to, coma,
persistent vegetative state, brain death,
ventilator-dependency, loss of control of muscular or
neurological function, and that incapacitation did not
exist at the time of the original sentencing;
And that the conditions under which the prisoner
would be released or receive treatment do not pose a
threat to public safety,
The secretary or the board may recommend to the court that the
prisoner's sentence be recalled and that the court shall have
the discretion to resentence or recall if the court finds that
the facts described above exist. (Penal Code section 1170(e)(1)
and (e)(2).)
Existing law provides that the Board of Parole Hearings shall
make findings, as specified, before making a recommendation for
resentencing or recall to the court. This subdivision does not
apply to a prisoner sentenced to death or a term of life without
the possibility of parole. (Penal Code section (e)(2).
Existing law provides that within 10 days of receipt of a
positive recommendation by the secretary or the board, the court
shall hold a hearing to consider whether the prisoner's sentence
should be recalled. (Penal Code section (e)(3).)
Existing law provides that any physician employed by the
department who determines that a prisoner has six months or less
to live shall notify the chief medical officer of the prognosis.
If the chief medical officer concurs with the prognosis, he or
she shall notify the warden. Within 48 hours of receiving
notification, the warden or the warden's representative shall
notify the prisoner of the recall and resentencing procedures,
and shall arrange for the prisoner to designate a family member
or other outside agent to be notified as to the prisoner's
medical condition and prognosis, and as to the recall and
resentencing procedures. If the inmate is deemed mentally
unfit, the warden or the warden's representative shall contact
the inmate's emergency contact and provide the information
described above, as specified. (Penal Code section (e)(4).)
Existing law provides that the warden or the warden's
representative shall provide the prisoner and his or her family
member, agent, or emergency contact, updated information
throughout the recall and resentencing process with regard to
the prisoner's medical condition and the status of the
prisoner's recall and resentencing proceedings. (Penal Code
section (e)(5).)
Existing law provides that the prisoner or his or her family
member or designee may independently request consideration for
recall and resentencing by contacting the chief medical officer
at the prison or the secretary. Upon receipt of the request,
the chief medical officer and the warden or the warden's
representative shall follow the procedures described above. If
the secretary determines that the prisoner satisfies the
criteria for sentencing recall described above, the secretary or
board may recommend to the court that the prisoner's sentence be
recalled. The secretary shall submit a recommendation for
release within 30 days in the case of inmates sentenced to
determinate terms and, in the case of inmates sentenced to
indeterminate terms, the secretary shall make a recommendation
to the Board of Parole Hearings with respect to the inmates who
have applied under this section. The board shall consider this
information and make an independent judgment of eligibility and
make findings related thereto before rejecting the request or
making a recommendation to the court. This action shall be
taken at the next lawfully noticed board meeting. (Penal Code
section (e)(6).)
Existing law provides that any recommendation for recall
submitted to the court by the secretary or the Board of Parole
Hearings shall include one or more medical evaluations, a
postrelease plan, and findings pursuant to paragraph (2).
(Penal Code section (e)(7).)
Existing law provides that, if possible, the matter shall be
heard before the same judge of the court who sentenced the
prisoner.
Existing law provides that if the court grants the recall and
resentencing application, the prisoner shall be released by the
department within 48 hours of receipt of the court's order,
unless a longer time period is agreed to by the inmate. At the
time of release, the warden or the warden's representative shall
ensure that the prisoner has each of the following in his or her
possession: a discharge medical summary, full medical records,
state identification, parole medications, and all property
belonging to the prisoner. After discharge, any additional
records shall be sent to the prisoner's forwarding address.
(Penal Code section (e)(9).)
Existing law provides that the secretary shall issue a directive
to medical and correctional staff employed by the department
that details the guidelines and procedures for initiating a
recall and resentencing procedure. The directive shall clearly
state that any prisoner who is given a prognosis of six months
or less to live is eligible for recall and resentencing
consideration, and that recall and resentencing procedures shall
be initiated upon that prognosis. (Penal Code section (e)(10).)
This bill would provide that, except as specified below, a
prisoner who the Board of Parole Hearings determines, based on
the results of the medical evaluations performed by the
Department of Corrections and Rehabilitation physicians,
suffers from a significant and permanent condition,
disease, or syndrome resulting in the prisoner being
physically or cognitively debilitated or incapacitated and
the conditions under which the prisoner would be
released would not reasonably pose a threat to public
safety shall be granted medical parole.
This bill would provide that this "medical parole" shall not
apply to:
any prisoner sentenced to death,
any prisoner sentenced to life in prison without
possibility of parole or
any inmate who is serving a sentence for which medical
parole is prohibited by any initiative statute.
This bill provides that medical parole placements and
revocations shall be made in accordance with the Victim's Bill
of Rights Act of 2008: Marsy's Law.
This bill provides that when a physician employed by the
Department of Corrections and Rehabilitation (CDCR) who is the
primary care provider for an inmate identifies an inmate that he
or she believes meets the criteria for medical parole, as
specified, the primary care physician shall recommend to the
chief medical officer of the institution where the prisoner is
located that the prisoner be referred to the Board of Parole
Hearings for consideration for medical parole. Within 30 days
of receiving that recommendation the chief medical officer shall
make a determination of the prisoner's eligibility for medical
parole and, if he or she concurs in the recommendation of the
primary care physician, refer the matter to the Board of Parole
Hearings. If the chief medical officer does not concur in the
recommendation, he or she shall provide the primary care
physician with a written explanation of the reasons for denying
the referral.
This bill would provide that the prisoner or his or her family
member or designee may independently request consideration for
medical parole by contacting the chief medical officer at the
prison or the secretary. Within 30 days of receiving the
request, the chief medical officer shall, in consultation with
the prisoner's primary care physician, make a determination
whether the prisoner meets the criteria for medical parole as
specified, and, if the chief medical officer determines that the
prisoner does satisfy the specified criteria he or she shall
refer the matter to the Board of Parole Hearings. If the chief
medical officer does not concur in the recommendation, he or she
shall provide the prisoner or his or her family member or
designee with a written explanation of the reasons for denying
the application.
This bill provides that upon receiving a recommendation from a
chief medical officer of the department for a prisoner to be
granted medical parole, the board, as specified, shall make an
independent judgment and make findings related thereto.
This bill provides that medical parole hearings shall be
conducted by two-person panels consisting of at least one
commissioner. In the event of a tie vote, the matter shall be
referred to the full board for a decision.
This bill provides that the Division of Adult Parole Operations
shall have the authority to impose any reasonable conditions on
prisoners subject to medical parole supervision, including, but
not limited to, the requirement that the parolee submit to
electronic monitoring. As a further condition of medical parole
the parolee may be required to submit to an examination by a
physician for the purpose of diagnosing their current medical
condition. In the event such an examination takes place, a
report of the examination and diagnosis shall be submitted to
the board by the examining physician. If the board determines
that the person's medical condition has substantially improved
and that the person poses a threat to public safety, the board
may revoke the parole and return the person to the custody of
the department.
This bill would provide that a prisoner placed on medical parole
supervision prior to the earliest possible parole date that the
prisoner would otherwise have been released to parole under,
shall remain on medical parole, until that earliest possible
parole date, at which time the parolee shall commence serving
the normal period of parole that they would otherwise have been
subject to.
This bill requires the warden or warden's representative, along
with the appropriate medical or mental health care
representatives, at the time a prisoner is placed on medical
parole, to ensure that the prisoner has applied for any federal
entitlement programs for which the prisoner is eligible, and has
in his or her possession a discharge medical summary, full
medical records, parole medications, and all property belonging
to the prisoner that was under the control of the department.
Any additional records shall be sent to the prisoner's
forwarding address after release to health care-related parole
supervision.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
The severe prison overcrowding problem California has
experienced for the last several years has not been solved. In
December of 2006 plaintiffs in two federal lawsuits against the
Department of Corrections and Rehabilitation sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
federal three-judge panel issued an order requiring the state to
reduce its inmate population to 137.5 percent of design capacity
-- a reduction of roughly 40,000 inmates -- within two years.
In a prior, related 184-page Opinion and Order dated August 4,
2009, that court stated in part:
"California's correctional system is in a tailspin,"
the state's independent oversight agency has reported.
. . . (Jan. 2007 Little Hoover Commission Report,
"Solving California's Corrections Crisis: Time Is
Running Out"). Tough-on-crime politics have increased
the population of California's prisons dramatically
while making necessary reforms impossible. . . . As a
result, the state's prisons have become places "of
extreme peril to the safety of persons" they house, .
. . (Governor Schwarzenegger's Oct. 4, 2006 Prison
Overcrowding State of Emergency Declaration), while
contributing little to the safety of California's
residents, . . . . California "spends more on
corrections than most countries in the world," but the
state "reaps fewer public safety benefits." . . . .
Although California's existing prison system serves
neither the public nor the inmates well, the state has
for years been unable or unwilling to implement the
reforms necessary to reverse its continuing
deterioration. (Some citations omitted.)
. . .
The massive 750% increase in the California prison
population since the mid-1970s is the result of
political decisions made over three decades, including
the shift to inflexible determinate sentencing and the
passage of harsh mandatory minimum and three-strikes
laws, as well as the state's counterproductive parole
system. Unfortunately, as California's prison
population has grown, California's political
decision-makers have failed to provide the resources
and facilities required to meet the additional need
for space and for other necessities of prison
existence. Likewise, although state-appointed experts
have repeatedly provided numerous methods by which the
state could safely reduce its prison population, their
recommendations have been ignored, underfunded, or
postponed indefinitely. The convergence of
tough-on-crime policies and an unwillingness to expend
the necessary funds to support the population growth
has brought California's prisons to the breaking
point. The state of emergency declared by Governor
Schwarzenegger almost three years ago continues to
this day, California's prisons remain severely
overcrowded, and inmates in the California prison
system continue to languish without constitutionally
adequate medical and mental health care.<1>
The court stayed implementation of its January 12, 2010 ruling
pending the state's appeal of the decision to the U.S. Supreme
Court. That appeal, and the final outcome of this litigation,
is not anticipated until later this year or 2011.
This bill does not appear to aggravate the prison overcrowding
---------------------------
<1> Three Judge Court Opinion and Order, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (August 4, 2009).
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
Does it make sense for the state to pay for two
correctional officers to guard an inmate
24-hours-a-day as the inmate lies comatose or in a
permanent vegetative state in a hospital bed? Does it
make sense for CDCR to become a long-term care
facility for inmates with, for example, end-stage
Alzheimer's disease, whose dementia is so severe they
no longer understand that they are in prison?
California is paying tens of millions of dollars every
year to incarcerate these very high-cost inmates.
These offenders were sent to prison to protect society
and to punish them for their crimes. Because of their
medical condition, however, they are no longer a
threat and the ones being punished are the taxpayers.
California is not alone in facing this problem.
Across the country 36 states have implemented some
form of medical release to relieve them of the
crushing financial burden of keeping inmates in prison
whose medical condition has rendered their
incarceration no longer necessary. In 1997,
California first authorized the Secretary of CDCR or
the Parole Board to recommend to the sentencing judge
that an inmate's sentence be recalled due to terminal
illness. Ten years later that authority was extended
to cover cases of medical incapacitation. However,
last year only two such releases were approved and we
continue to incarcerate inmates who could, by any
rational standard, be released without posing a threat
to the public.
SB 1399 addresses some of the issues that have been
identified as problematic in the current law. Rather
than requiring a sentence recall it creates an
alternative procedure that permits these inmates to be
placed on parole supervision under conditions
determined by the parole board, and allows the parole
to be revoked if for any reason the parolee's
condition changes and creates a danger to the public.
This medical parole will place public safety paramount
and stop needlessly punishing the taxpayers.
2. California's Most Expensive Inmates
In February 2006, the federal court in the Plata v.
Schwarzenegger case pertaining to inmate medical care, found
that California's delivery of health care to prison inmates
violates the U.S. Constitution and, as a result appointed a
Receiver to take over the direct management and operation of the
state's prison medical health care delivery system from the
CDCR.
Since the appointment of the Receiver, corrections health care
costs have risen sharply. The Legislative analyst's office
reports that actual state spending on adult correctional health
care services grew from $1.2 billion in 2005-06 to $2.5 billion
in 2008-09, an average annual increase of 27 percent.
( http://www.lao.ca.gov/handouts/crimjust/2010/Correctional_health
_care_03_18_10.pdf )
While there are undoubtedly many reasons for this, one large
cost driver is a relatively small number of high cost inmates
who require extensive medical treatment. According to the
Receiver's office, 750 of California's sickest inmates have
annual medical bills ranging from $100,000 to $2.5 million each.
Of those 750, eliminating those inmates sentenced to death,
life without the possibility of parole, and those sentenced
under the Three Strikes law, leaves 429 of these most expensive
inmates. The Receiver states that, of inmates requiring total
care for conditions such as total parenteral nutrition (fed
entirely through tubes), encephalophy-(brain swelling [fluid]),
malignant neoplasm-(cancer), ventilator dependent requiring
total care:
21 inmates are currently in outside hospitals at an
annual average cost of $1,973,252 million each. Total
annual cost for these inmates is $41,438,292.
11 inmates are within the CDCR system in a Correctional
Treatment Center bed at an annual average cost of $114,395
each. Total annual cost for these inmates is $1,258,345
The total cost for these 32 inmates alone is $42,696,637
million annually.
The Receiver has provided the following examples of these high
cost inmates:
Male in his 60's with diabetes, urinary tract
infections, hypertension, seizures, dementia, paralyzed
right side, with stroke. Requires total 24 hour around the
clock nursing care, incapable of independent movement,
speech, bladder control. Has been institutionalized for
more than 2 years in a long term care acute setting, since
CDCR has no unit that can deliver the acuity of nursing and
medical care he needs, at a cost of $350, 000 per year,
independent of guarding costs. He has no capacity for
independent action.
Male in his 50's, with end stage lung disease, on a
ventilator, unable to exist off the ventilator. He needs
24 hour nursing care at the long term acute hospital level
and has accrued over $500,000 in costs in the last 18
months. Incapable of talking, swallowing, moving, bladder
control, eating, very little apparent cognitive function.
Male in his 60's, with end stage cardiac disease,
diabetes, hypertension, gangrenous legs, poor circulation,
multiple cardiac arrests, very long lengths of stay in
hospitals, too weak to exist outside of a skilled nursing
setting, has accrued over $1,000,000 per year, and a total
cost of close to $1.8 million dollars. Could be paroled to
a skilled nursing facility, not capable of independent
activity, movement, very cognitively impaired.
In addition to the costs of medical care for the sickest inmates
who are cared for in outside hospitals, the cost of keeping them
in prison includes the cost of providing two correctional
officers to guard them 24-hours a day.
On April 7, 2010, the Sacramento Bee reported:
Guard care costly
Eliminating 24-hour guard care at health facilities
outside prisons also could potentially save millions.
A state audit last year found that between 2003 and
2008, medical guard time accounted for 24 percent of
the prison system's guard overtime - an increase of
nearly $66 million.
In 2008, prison records showed that one inmate in Kern
County left in a vegetative state after being
assaulted in prison was guarded by two round-the-clock
correctional officers at an outside nursing facility
at a rate of $2,317 a day.
The job of watching over inmate Jackson Phaysaleum,
24, was considered overtime because it was not
budgeted for guards, officials said in 2008.
The guards' time added up to more than $410,000 during
a period of less than six months through May 2008 -
almost as much as the $421,000 in medical care
Phaysaleum received during that time frame.
Phaysaleum is still alive and is six years into a
46-years-to-life sentence for killing two men in a
drug-turf dispute. However, he was transferred back to
Kern Valley State Prison's health center in late 2008,
an official there said.
( http://www.sacbee.com/2010/03/28/2638467/watchdog-proposes-medic
al-parole.html#ixzz0kRWTOe9R )
DOES CONTINUING TO INCARCERATE THESE INMATES SERVE ANY
LEGITIMATE PENALOGICAL PURPOSE?
WOULD ALLOWING THESE INMATES TO BE PLACED ON MEDICAL PAROLE
RESULT IN SUBSTANTIAL SAVINGS FOR THE STATE?
WOULD ALLOWING THESE INMATES TO BE PLACED ON MEDICAL PAROLE OPEN
UP HEALTH CARE RESOURCES FOR THOSE INMATES WHO DO NEED TO BE
INCARCERATED?
3. Previous Attempts to Address This Issue
California is not alone in facing the cost burden of inmates
requiring extensive medical treatment. In 2008, USA Today
reported that 36 states have some form of medical release
program. (36 States Release Ill Or Dying Inmates, Marty Roney,
USA TODAY, August 14, 2008,
http://www.usatoday.com/news/nation/2008-08-13-furloughs_N.htm )
Nor is this the first time California has attempted to address
this issue. In 2007, AB 1539 (Krekorian) was enacted (Chap.
740, Stats. of 2007), which is now found at section 1170(e) of
the Penal Code. That statute establishes a procedure for
inmates who are "permanently medically incapacitated," as
defined, to seek a recommendation from the CDCR secretary or
from the Board of Parole Hearings to seek a sentencing recall
from the original sentencing judge, based on the inmate's
medical condition. In the years following the enactment of AB
1539, releases on medical grounds have not increased. Last
year, two inmates had their sentences recalled pursuant to the
procedure established in AB 1539.
In conversations with numerous CDCR employees, Committee staff
has learned that there are likely several reasons for this. One
difficulty with the existing law is the definition of who
qualifies. In addition to finding that the conditions under
which the prisoner would be released or receive treatment do not
pose a threat to public safety under the current law, the CDCR
or the Board or both have to find the prisoner is either
terminally ill with less than six months to live or
permanently medically incapacitated
with a medical condition that renders him or her
permanently unable to perform activities of basic daily
living, and
results in the prisoner requiring 24-hour total care,
including, but not limited to, coma, persistent vegetative
state, brain death, ventilator-dependency, loss of control
(More)
of muscular or neurological function, and
that incapacitation did not exist at the time of the
original sentencing.
(More)
Physicians report that this definition is very difficult to
apply. For example, it is not clear how many activities of
daily living the inmate needs to be unable to perform or whether
certain activities are more significant than others. When a
CDCR primary care physician does find that a prisoner appears to
qualify under these provisions, that evaluation is then
subjected to several layers of administrative review before it
is even submitted to the secretary for his or her approval. At
each layer of administrative review the application may be
denied without explanation, leaving those who have previously
approved the application in doubt as to how to properly review
the next application. Any application that does gain approval
from CDCR is then turned over to the Board of Parole Hearings
for a second review of whether the inmate's release would pose a
threat to public safety. If the application survives this far,
the secretary then, in turn, must submit the matter to the
sentencing judge to consider recalling the inmate's sentence and
imposing a new sentence.
The end result, in the event a case is approved, is that the
inmate will be resentenced and will therefore be completely
released from CDCR's control. While some inmates may remain on
parole for a period of time following resentencing (were the
court to, e.g., resentence the inmate to a determinate term of
however much time they have served to date), that parole would
eventually terminate and there would be no way to return the
inmate to prison if their condition were to improve. While it
is extremely unlikely that an inmate that qualifies for
sentencing recall under section 1170(e) would recover, neither
physicians, CDCR administrators, or judges want to be in a
position to say this could never happen. This creates another
significant inhibiting factor even in the most egregious cases.
This very fact was cited as grounds for a veto the first time
this approach was proposed (AB 1946 (Steinberg), of the 2003-04
Legislative session) and would appear to act as an inhibiting
factor for the numerous decision-makers all the way through the
application process.
(More)
Under this bill medical parole would be granted where an inmate:
suffers from a significant and permanent condition,
disease, or syndrome resulting in the prisoner being
physically or cognitively debilitated or incapacitated and
the conditions under which the prisoner would be
released would not pose a threat to public safety
The initial medical evaluation would be made by the inmate's
primary care physician, and that evaluation would need to be
concurred in by the chief medical officer for the prison. The
application would then be sent to the BPH for its determination
as to whether the inmate could be released without reasonably
posing a threat to public safety. The Board would be required
to meet all the provisions of Marsy's Law in relation to the
rights of victims in the parole process.
One significant difference between this bill and the current law
is that the end result would be that the inmate remains on
parole and would be subject to whatever conditions of parole the
parole board feels are appropriate to monitor the parolee,
including, for example, electronic monitoring. This bill also
would permit the parole board require the parolee to submit to
an examination by a physician for the purpose of diagnosing
their current medical condition. The examining physician would
then send a report of the examination and diagnosis to the
board. If the board determines that the person's medical
condition has substantially improved and that the person poses a
threat to public safety, the board may revoke the parole and
return the person to the custody of the department.
SHOULD INMATES WHOSE MEDICAL CONDITION HAS RENDERED THEM
HARMLESS TO THE PUBLIC BE PAROLED TO RECEIVE THEIR MEDICAL CARE
OUTSIDE OF PRISON?
WHAT ARE THE OBSTACLES THAT HAVE PREVENTED THESE INMATES FROM
BEING RELEASED IN THE PAST?
(More)
WILL MORE OF THESE INMATES BE PAROLED UNDER A SYSTEM WHERE THERE
IS A MECHANISM TO CONTINUE TO MONITOR THE PAROLEE'S CONDITION
AND RETURN THEM TO PRISON IF THEY WERE EVER TO BECOME A RISK TO
PUBLIC SAFETY?
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