BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 1907
                                                                  Page  1

          Date of Hearing:   May 2, 2012

                        ASSEMBLY COMMITTEE ON APPROPRIATIONS
                                Felipe Fuentes, Chair

                  AB 1907 (Lowenthal) - As Amended:  April 9, 2012 

          Policy Committee:                              Public Safety 
          Vote:        5-0

          Urgency:     No                   State Mandated Local Program: 
          Yes    Reimbursable:              Yes

           SUMMARY  

          This bill makes a series of relatively minor procedural changes 
          to the existing process for involuntary administration of 
          psychiatric medication to state prison inmates, and applies the 
          entire process to inmates sentenced to county jail under 
          correctional realignment. 

          Changes to the existing California Department of Corrections and 
          Rehabilitation (CDCR) process:

          1)Clarify that if an inmate is involuntarily medicated on an 
            emergency basis, the inmate must receive an expedited hearing 
            and expedited access to counsel.  

          2)Delete the requirement that emergency involuntarily medication 
            last only five days unless an ALJ authorizes continuing 
            medication, and instead requires, if CDCR clinicians identify 
            a situation that jeopardizes the inmate's health and requires 
            continued emergency medication, CDCR must provide notice, as 
            specified, to the inmate and counsel of its intention to seek 
            an ex parte order to continue emergency medication pending the 
            full hearing.  

          3)Specify once CDCR has requested an ex parte order for 
            emergency involuntary medication of an inmate of CDCR, that 
            inmate and his or her counsel have two business days to 
            respond to the request and may present facts supported by an 
            affidavit in opposition to the request.

          4)Require an order to renew an existing involuntary medication 
            order be granted based on clear and convincing evidence the 








                                                                  AB 1907
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            inmate has a serious mental disorder that requires psychiatric 
            medication treatment.  

          5)Require, if CDCR wishes to add a basis to an existing order, 
            advance notice to inmate and counsel, specifying and 
            qualifying the basis. This additional basis must be proved by 
            clear and convincing evidence at hearing.  

          6)Require CDCR to adopt regulations to fully implement this 
            section.  

          7)Replace references to psychotropic medications with 
            psychiatric medications.  

           FISCAL EFFECT

           1)Unknown, likely minor net state costs/savings as a result of 
            procedural changes. 

          2)Unknown, potential moderate county jail savings as a result of 
            using the existing CDCR procedures. CDCR last year estimated 
            potential savings in the $2 million range from the chaptered 
            2011 bill (AB 1114, Lowenthal) that established this process 
            for CDCFR, primarily as a result of extending the renewal 
            interval for many involuntary medication cases from 180 days 
            to 365 days.  

          3)Though there is no known opposition to this bill by counties, 
            and though it may actually lead to a net savings, the bill 
            does create a state mandate, and could therefore lead to a 
            determination from the Commission on State Mandates requiring 
            the state to reimburse counties for this process - a process 
            many counties appear to be following in large part now. 

           COMMENTS  

           Rationale  . This bill extends the recently adopted process for 
          involuntary psychiatric medication of state inmates to county 
          jail inmates sentenced pursuant to county jail realignment. 

          This bill is a follow-up to the author's AB 1114 (Statutes of 
          2011), which created, as an alternative to the process specified 
          in 1986 by  Keyhea v. Rushen  ,  procedural requirements for 
          involuntary administration of psychotropic medication to state 
          prison inmates that eliminate the certification review hearing 








                                                                  AB 1907
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          under  Keyhea,  while safeguarding due process protections for 
          inmates contesting involuntary medication. 

          As noted in the Assembly Public Safety Committee analysis, the 
          Keyhea court held that equal protection required that prisoners 
          subject to involuntary psychotropic medication be afforded the 
          same rights as non-prisoners. At the time of the Keyhea 
          decision, however, there were no statutes defining the rights of 
          non-prisoners subject to involuntary medication. Therefore, the 
          court adopted procedures to be used when a court civilly commits 
          a person as gravely disabled or a danger to self or others. 
          These procedures include a stringent set of reviews and hearings 
          depending on the length of the commitment sought. 

          AB 1114 codified much of the Keyhea process with some 
          exceptions. The most significant differences are (a) the bill 
          shortens the process to ensure that an inmate has a hearing 
          before an ALJ to discontinue involuntary medication, (b) extends 
          the duration for involuntary medication to 365 days for all 
          orders, whereas under Keyhea, the authorization for an inmate 
          determined to be a threat to self or others is 180 days, and 365 
          days for an inmate considered gravely disabled. 

          For purposes of context, in 2010 CDCR sought 1,035 involuntary 
          medication renewals at six months for persons considered a 
          danger to self or others. Only 17 of these were not renewed for 
          a full year.  



           Analysis Prepared by  :    Geoff Long / APPR. / (916) 319-2081