BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
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SB1462 ( Leno) 2
As amended April 9, 2012
Hearing date: April 17, 2012
Penal Code
SM:dl
MEDICAL RELEASE OF COUNTY PRISONERS
HISTORY
Source: Los Angeles County Sheriff's Department; California
State Sheriffs' Association
Prior Legislation: SB 1399 (Leno) - Chapter 405, Statutes of
2010
AB 1539 (Krekorian) - Chapter 740, Statutes of 2007
AB 1946 (Steinberg) - Vetoed 2003-2004
AB 675 (Migden) - Vetoed; 2001
AB 29 (Villaraigosa) -.Ch. 751, Stats. 1997
Support: California Catholic Conference; Legal Services for
Prisoners with Children; California Public Defenders
Association; California Probation, Parole, and
Correctional Association
Opposition:Crime Victims United of California; California
District Attorneys Association
KEY ISSUES
SHOULD A SHERIFF HAVE THE AUTHORITY TO RELEASE ANY PRISONER
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DIAGNOSED BY THE JAIL PHYSICIAN AS TERMINAL WITH LESS THAN SIX
MONTHS TO LIVE IF THE SHERIFF DETERMINES THE PRISONER WOULD NOT
REASONABLY POSE A THREAT TO PUBLIC SAFETY?
SHOULD A COURT HAVE THE AUTHORITY, AT THE REQUEST OF THE SHERIFF, TO
GRANT MEDICAL PROBATION TO AN INMATE WHO THE JAIL PHYSICIAN
DIAGNOSES AS MEDICALLY INCAPACITATED, AS SPECIFIED?
PURPOSE
The purpose of this bill is to provide that (1) a sheriff, or
his or her designee, has the authority, after conferring with a
physician who has oversight for providing medical care at the
county jail, or that physician's designee, to release from a
county correctional facility, a prisoner sentenced to the county
jail if the sheriff determines that the prisoner would not
reasonably pose a threat to public safety and the prisoner, upon
diagnosis by the examining physician, is deemed to have a life
expectancy of six months or less; (2) prior to the release of
any prisoner, the sheriff would be required to notify the
presiding judge of the superior court of his or her intention to
release the prisoner and provide specified information; (3)
before releasing the prisoner the sheriff, or his or her
designee, shall secure a placement option for the prisoner in
the community and examine the prisoner's eligibility for federal
Medicaid benefits or other medical coverage, as specified; (4)
this authority may not be construed as authorizing the sheriff
to refuse to receive and incarcerate a defendant or sentenced
individual who is not in need of immediate medical care or who
has a terminal medical condition; (5) a sheriff, or his or her
designee, after conferring with the physician who has oversight
for providing medical care, or the physician's designee, may
request the court to grant medical probation or to resentence a
prisoner to medical probation in lieu of jail time for any
prisoner sentenced to the county jail if the prisoner is
medically incapacitated, as specified; and (6) during the time
on probation, the probation officer or court may, at any time,
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request a medical reexamination of the person by a physician who
has oversight for providing medical care to prisoners in the
county jail, or the physician's designee and the court may
return the person to the custody of the sheriff if it
determines, based on that medical examination, that the person's
medical condition has improved to the extent that the person no
longer qualifies for medical probation.
Existing law includes a form of "compassionate release" whereby,
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 §
1170(e)(1) and (e)(2).)
Existing law also includes "medical parole," whereby any state
prisoner other than those sentenced to death, life without
parole or who is otherwise barred by an initiative statute, who
the head physician of the institution where the prisoner is
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located determines 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 care, and that incapacitation did not
exist at the time of sentencing, shall be granted medical parole
if the Board of Parole Hearings determines that the conditions
under which the prisoner would be released would not reasonably
pose a threat to public safety. (Penal Code § 3550.)
Existing law provides that the sheriff has the authority, after
conferring with a physician who is neither a county employee nor
under a preexisting contract with the county, to release from a
county correctional facility for transfer to a medical facility
or residential care facility, a prisoner whose physical
condition, in the opinion of the examining physician, is such
that he or she is rendered incapable of causing harm to others
upon or after release from custody. Prior to authorizing the
release, however, the sheriff shall first determine that all of
the following conditions exist:
The prisoner, upon diagnosis by the examining physician,
is deemed to be so severely physically incapacitated that
he or she poses no threat to the safety of others.
The examining physician has no reasonable expectation
that the prisoner's physical condition will improve to the
extent that he or she could pose a threat to the safety of
others.
The prisoner's medical needs would be better served in a
medical facility or residence other than a county
correctional facility.
Prior to the release of any prisoner pursuant to this section,
the sheriff shall notify the presiding judge of the superior
court of his or her intention to transfer a severely
incapacitated prisoner to a medical facility or residence for
the provision of medical care and other services. This
notification shall include:
The prisoner's name.
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The offense or offenses for which the prisoner was
incarcerated, if applicable, and the pending charges, if
applicable.
The date of sentence, if applicable.
The physician's diagnosis of the prisoner's condition.
The physician's prognosis for the prisoner's recovery.
Nothing in this section shall be construed as authorizing the
sheriff to refuse to receive and incarcerate a defendant or
sentenced individual who is not in need of immediate medical
care or who has a terminal medical condition. (Gov. Code §
26605.5.)
This bill would provide that the sheriff, or his or her
designee, has the authority, after conferring with a physician
who has oversight for providing medical care at the county jail,
or that physician's designee, to release from a county
correctional facility, a prisoner sentenced to the county jail
if the sheriff determines that the prisoner would not reasonably
pose a threat to public safety and the prisoner, upon diagnosis
by the examining physician, is deemed to have a life expectancy
of six months or less.
Prior to the release of any prisoner, the sheriff would be
required to notify the presiding judge of the superior court of
his or her intention to release the prisoner. This notification
shall include:
The prisoner's name.
The offense or offenses for which the prisoner was
incarcerated, if applicable, and the pending charges, if
applicable.
The date of sentence, if applicable.
The physician's diagnosis of the prisoner's condition.
The physician's prognosis for the prisoner's recovery.
The prisoner's address after release.
This bill provides that before a prisoner's compassionate
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release from a county jail pursuant to this section, the
sheriff, or his or her designee, shall secure a placement option
for the prisoner in the community and, in consultation with the
county welfare department or another applicable county agency,
examine the prisoner's eligibility for federal Medicaid benefits
or other medical coverage that might assist in funding the
prisoner's medical treatment while in the community.
This bill states that it may not be construed as authorizing the
sheriff to refuse to receive and incarcerate a defendant or
sentenced individual who is not in need of immediate medical
care or who has a terminal medical condition.
This bill would further provide that the sheriff, or his or her
designee, after conferring with the physician who has oversight
for providing medical care, or the physician's designee, may
request the court to grant medical probation or to resentence a
prisoner to medical probation in lieu of jail time for any
prisoner sentenced to the county jail under either of the
following circumstances:
The prisoner is physically incapacitated with a medical
condition that renders the prisoner permanently unable to
perform activities of basic daily living, which has
resulted in the prisoner requiring 24-hour care, if that
incapacitation did not exist at the time of sentencing.
The prisoner would require acute long-term inpatient
rehabilitation services.
This bill provides that during the time on probation, the
probation officer or court may, at any time, request a medical
reexamination of the person by a physician who has oversight for
providing medical care to prisoners in the county jail, or the
physician's designee. If the court determines, based on that
medical examination, that the person's medical condition has
improved to the extent that the person no longer qualifies for
medical probation, the court may return the person to the
custody of the sheriff.
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RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code section 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
ineligible for jail and therefore subject to state prison.
Under these principles, ROCA has been applied as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress towards reducing prison
overcrowding by passing legislation which could increase the
prison population. ROCA will continue until prison overcrowding
is resolved.
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
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federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
than the following:
167 percent of design capacity by December 27, 2011
(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
COMMENTS
1. Need for This Bill
According to the author:
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SB 1462 provides sheriffs with an additional tool to
help them more effectively manage the high costs of
their medically incapacitated inmate population by
extending to county jail facilities a similar
authority to compassionate release and medical parole
that is currently granted to the California Department
of Corrections and Rehabilitation (CDCR).
Prior to the implementation of AB 109, inmates
sentenced to county jail typically served misdemeanor
sentences of 1 year or less in custody. The average
time served for a misdemeanor in Los Angeles County
was as little as 26 days behind bars.
Under realignment, however, inmates can now serve
considerably longer sentences at the local level
leaving county sheriffs with the very real possibility
that a single long-term medical illness suffered by a
prisoner may overwhelm facility resources and the
ability of the sheriff to provide the constitutionally
mandated level of medical care required under
California law.
According to the LA Sheriff, the cost for treatment in
the medical facility operated by the county jail is
about $1,971 dollars a day, without any surgeries.
Aside from LA, no other county has its own hospital
designated for jail inmates. Many counties do not
even have a county hospital with a jail ward. As it
stands now, nearly every county in the state must
contract with outside hospitals to house and treat
inmates with acute medical needs. For these prisoners,
hospital beds are treated as jail beds. This triggers
the need for 24-hour guarding. Not only must these
prisoners be supervised at their medical facility as a
result of their custodial status, they are also
prohibited from receiving any federally funded medical
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care regardless of their medical condition.
The bill will act as a preventative measure, in
response to the realities of Realignment, which will
help to ensure that a small number of high-cost
inmates sentenced to extended periods under local
supervision do not overwhelm a county's financial
resources. Under SB 1462, medical guarding costs will
be reduced and prisoners granted medical probation
will no longer be prohibited from accessing federally
funded medical benefits. If at any time, a
probationer's medical condition should improve, the
bill authorizes the court or probation officer to
request a medical reevaluation of the probationer.
Should the court determine that the inmate's condition
no longer qualifies for medical probation, the inmate
may be returned directly to the custody of the
sheriff.
2. What This Bill Would Do
Existing law allows a sheriff to release an inmate for transfer
to a medical facility or residential care facility where a
physician who is neither a county employee or under contract
with the county finds the inmate's physical condition is such
that he or she is rendered incapable of causing harm to others
upon release and doesn't reasonably expect the prisoner's
condition to improve to the extent that he or she could pose a
threat to the safety of others, and the sheriff determines that
the prisoner's medical needs would be better served in a medical
facility or residence other than a county correctional facility.
(Gov. Code § 26605.5.) This bill would permit a sheriff to
release an inmate who the physician with oversight over the
county jail determines is terminal with six months or less to
live and who the sheriff determines would pose no threat to
public safety if released.
This bill would also create a program of medical probation at
the county level that is similar to the medical parole program
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created recently for state prison inmates. (See, Penal Code §
3550.) This program addresses county jail prisoners who: (1)
are physically incapacitated with a medical condition (which did
not exist at the time of sentencing) that renders him or her
unable to perform activities of basic daily living, and results
in the prisoner needing 24-hour care, or (2) would require acute
long term inpatient rehabilitation services. After conferring
with the jail physician, the sheriff could request that the
court place the inmate on medical probation.
One significant difference between the existing law allowing for
release of medically incapacitated inmates and this proposal is
that, under the current law the examining physician must be a
private doctor, not under contract with the county. However,
county jail inmates are not under the care of private physicians
while in custody so the utility of the current law is extremely
limited. The Los Angeles Sheriff's Department has informed
Committee staff that it has never utilized the current law to
release a medically incapacitated inmate.
IS THE CURRENT AUTHORITY GRANTED TO SHERIFFS TO RELEASE
MEDICALLY INCAPACITATED INMATES ADEQUATE?
Another major difference between this proposed medical probation
and the sheriff's existing authority to release medically
incapacitated inmates, as described above, is that, the under
this proposal, the inmate would continue to be under the court's
jurisdiction and could be returned to jail if their condition
were to improve.
These differences with the existing law are particularly
significant in light of the changing populations at county jails
around the state. The recently enacted Public Safety
Realignment has re-directed lower-level felons previously
sentenced to state prison to instead serve their sentences in
county jail. (AB 109 (Committee on Budget) - Chapter 15,
Statutes of 2011.) Previously, inmates sentenced to county jail
typically served misdemeanor sentences of one year or less in
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custody. Under realignment low-level felons will now be serving
sentences of several years in county jails. The so-called
compassionate release portion of this bill, which relates to
end-stage terminal inmates, is substantially similar to the
existing authority given to sheriffs, except that it addresses
the private physician problem by allowing the physician with
oversight over the jail to make the diagnosis. The medical
probation provision proposed here, addressing medically
incapacitated but not terminal inmates, unlike the existing law,
would require a judge's approval and would result in the inmate
being placed on supervised probation as opposed to being
released outright.
SHOULD THE SHERIFF HAVE THIS AUTHORITY?
WOULD REQUIRING MEDICALLY INCAPACITATED INMATES RELEASED DUE TO
THEIR CONDITION TO BE PLACED ON SUPERVISED PROBATION BE
APPROPRIATE, GIVEN THE CHANGES IN COUNTY JAIL POPULATIONS?
3. Medically Incapacitated Inmates in County Jails
This bill addresses the small number of county jail inmates who
become medically incapacitated after the time of their
sentencing. Specifically, inmates who are either terminal with
less than six months to live or whose medical condition is so
severe that they require that require 24-hour care and cannot
perform basic activities of daily living such as feeding,
bathing and using the toilet.
Los Angeles County is the only county that has its own licensed
acute-care hospital associated with its jail facilities and run
by the sheriff. This means such medically incapacitated inmates
become long-term, acute care patients at the sheriff's jail
hospital. In other counties, the sheriff's department contracts
with the county or private hospitals, incurring both the medical
costs as well as the cost of guarding the inmates
24-hours-a-day. In Los Angeles, the Sheriff's Department has
identified 10 inmates who currently would qualify for medical
probation. These are felons sentenced to county jail since
October 2011 as a result of realignment. Each has become
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medically incapacitated since the time of sentencing. The
Sheriff's Department states that the cost of the bed alone at
their jail hospital is approximately $2,000 per day. The
department estimates the cost so far of caring for these 10
inmates, at the time of this writing, at $908,315. The cost of
caring for medically incapacitated inmates in other counties
would also include added security costs.
San Bernardino Sheriff's Department estimates the cost of
hospitalizing an inmate alone at $1,500 per day in that county
and the cost of clinical services would increase that amount
substantially. They estimate the additional cost of treating an
inmate with Hepatitis C at another $60,000 annually and an
inmate with HIV at $100,000 or more annually depending on the
inmate's condition.
This bill requires that the sheriff identify a secure a
placement option for the inmates before their release and
examine the inmate's eligibility for federal Medicaid benefits
or other medical coverage that might assist in funding the
inmate's treatment upon release on probation.
WOULD PERMITTING MEDICALLY INCAPACITATED INMATES TO BE RELEASED
ON MEDICAL PROBATION OR COMPASSIONATE RELEASE BE A MORE
EFFICIENT USE OF PUBLIC SAFETY FUNDS?
4. Proposition 9 - Victims' Rights Requirements
In November 2008, California voters approved by ballot
initiative, Proposition 9, the "Victims Bill of Rights Act of
2008: Marcy's Law." That initiative, among other things,
amended the California Constitution to give crime victims and
their families various enumerated rights vis-à-vis criminal
defendants. These include:
To be reasonably protected from the defendant and
persons acting on behalf of the defendant.
To have the safety of the victim and the victim's family
considered in fixing the amount of bail and release
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conditions for the defendant.
To reasonable notice of all public proceedings,
including delinquency proceedings, upon request, at which
the defendant and the prosecutor are entitled to be present
and of all parole or other post-conviction release
proceedings, and to be present at all such proceedings.
To be heard, upon request, at any proceeding, including
any delinquency proceeding, involving a post-arrest release
decision, plea, sentencing, post-conviction release
decision, or any proceeding in which a right of the victim
is at issue.
To a speedy trial and a prompt and final conclusion of
the case and any related post-judgment proceedings.
To provide information to a probation department
official conducting a pre-sentence investigation concerning
the impact of the offense on the victim and the victim's
family and any sentencing recommendations before the
sentencing of the defendant.
To receive, upon request, the pre-sentence report when
available to the defendant, except for those portions made
confidential by law.
To be informed, upon request, of the conviction,
sentence, place and time of incarceration, or other
disposition of the defendant, the scheduled release date of
the defendant, and the release of or the escape by the
defendant from custody.
(Cal. Const., Art. I § 28(b).)
The provisions of this bill establishing medical probation
would appear to be in compliance with the requirements of
Marsy's Law in that the decision to grant medical probation
would be made by a judge in a public hearing and it would simply
be a matter of the moving party, the sheriff, providing adequate
notice to all required parties of the date and time of the
hearing.
Whether the provisions of the bill establishing compassionate
release comply with the requirements of Marsy's Law is less
clear. This may turn on the question of whether the sheriff's
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determination to release a prisoner who is found by the jail
physician to have a terminal condition and less than 6 months to
live is a "proceeding." The determination by the sheriff, as
provided in this bill, would not take place at a hearing at
which the defense and prosecution attorneys would have a right
to appear, and therefore this may or may not be considered a
"proceeding." However, a court might determine that the
language of the initiative is ambiguous in this respect and that
the intent of the voters in passing Proposition 9 was that
victims and their families have a right to notice and an
opportunity to be heard in the event of any decision to release
an inmate prior to the full completion of their sentence whether
or not that decision took place at a "proceeding."
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DOES THE BILL COMPLY WITH MARCY'S LAW?
5. Argument in Support
Legal Services for Prisoners with Children states:
Our organization has long advocated for compassionate
and medical release of people in our state prisons.
This bill mirrors the process for people who will now
be held in California's county jails as the result of
criminal justice realignment. For all of the reasons
we have always supported this type of early release,
we support it now. In addition, people being held in
county jails have, by definition, been convicted of
non-serious, non-violent, non-registerable sex
offenses. There is absolutely no reason to keep
incapacitated or dying prisoners in county jails.
These prisoners are very difficult to care for,
extremely expensive to house and unlikely to commit a
new offense. There is no public safety reason to keep
them behind bars and every reason to allow them to
stay in the community in an atmosphere of dignity and
safety.
6. Argument in Opposition
Crime Victims United of California states:
As you well know, CVUC is opposed to establishing
programs that would provide medical parole for
offenders. The push to continually reduce sentences
is unfair to victims and the broader public who expect
accountability for an offender's actions. Current law
already provides for a variety of sentence reduction
credits that allow many inmates to serve only 50% of
their sentences. Victims, their families, and the
broader public should be able to feel a sense of
justice that offenders will serve their time and be
held accountable for their crimes.
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As it relates specifically to the provisions of SB
1462, CVUC is also concerned about the ability for
victims to be heard relative to the decision regarding
release of their offender. The language within the
bill provides no clear opportunity for victims to be
heard relative to the decision regarding release of
their offender. The language within the bill provides
no clear opportunity for victims to be heard as is
their right under Marsy's Law (Prop.9).
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