BILL ANALYSIS Ó
SB 1462
Page 1
Date of Hearing: June 26, 2012
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 1462 (Leno) - As Amended: May 25, 2012
SUMMARY : Provides authority for sheriffs, with specified
limitations, to release persons from county jail who have a
terminal illness with a life expectancy of less than six months
and who do not pose a threat to the community. Additionally,
this bill provides authority for sheriffs to grant medical
parole for inmates who are incapacitated. Specifically, this
bill :
1)Provides that a sheriff has the authority, after conferring
with a physician who has oversight for providing medical care
at a county jail to release from a county correctional
facility, a prisoner sentenced to a 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)Specifies that before 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 release the
prisoner. This notification shall include:
a) The prisoner's name.
b) The offense or offenses for which the prisoner was
incarcerated, if applicable, and the pending charges, if
applicable.
c) The date of sentence, if applicable.
d) The physician's diagnosis of the prisoner's condition.
e) The physician's prognosis for the prisoner's recovery.
f) The prisoner's address after release.
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3)States that before a prisoner's compassionate release from a
county jail pursuant to this section, the sheriff 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.
4)Specifies that for any prisoner released pursuant to this
section who is eligible for Medi-Cal, the county shall
continue to pay the nonfederal share of the prisoner's
Medi-Cal costs.
5)Provides that this section shall 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.
6)Provides that a sheriff, after conferring with the physician
who has oversight for providing medical care, 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 a county jail under either of the following
circumstances:
a) 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.
b) The prisoner would require acute long-term inpatient
rehabilitation services.
7)States that before a prisoner's release to medical probation a
sheriff, 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.
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8)Provides that during the time on probation pursuant to this
section, the probation officer or court may, at any time,
request a medical reexamination of the probationer by a
physician who has oversight for providing medical care to
prisoners in a county jail, or the physician's designee. If
the court determines, based on that medical examination, that
the probationer's medical condition has improved to the extent
that the probationer no longer qualifies for medical
probation, the court may return the probationer to the custody
of the sheriff.
9)Specifies that for any probationer granted medical probation
pursuant to this section who is eligible for Medi-Cal, the
county shall continue to pay the nonfederal share of the
probationer's Medi-Cal costs. After a probationer is released
from medical probation, the county shall no longer be required
to pay the nonfederal share of the Medi-Cal costs.
10)Provides that for any probationer granted medical probation
pursuant to this section who is ineligible for Medi-Cal, the
county shall consider whether the probationer has private
medical insurance or sufficient income or assets to provide
for his or her own medical care. If the county determines that
the probationer can provide for his or her own medical care,
the county shall not be required to provide the probationer
with medical care.
EXISTING LAW :
1)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:
a) 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
b) 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
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of muscular or neurological function, and that
incapacitation did not exist at the time of the original
sentencing; and
c) 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.
ÝPenal Code Section 1170(e)(1) and (e)(2).]
2)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 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 Section 3550.)
3)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 (California Government Code
Section 26605.5.):
a) 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.
b) 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
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others.
c) The prisoner's medical needs would be better served in a
medical facility or residence other than a county
correctional facility.
d) 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:
i) The prisoner's name.
ii) The offense or offenses for which the prisoner was
incarcerated, if applicable, and the pending charges, if
applicable.
iii) The date of sentence, if applicable.
iv) The physician's diagnosis of the prisoner's
condition.
v) 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.
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "SB 1462 will
ensure that a small number of high-cost inmates sentenced to
extended periods in county jail do not overwhelm a county's
financial resources.
"By mirroring the authority granted to the State, this bill
will provide sheriffs with the flexibility to implement
realignment without risking public safety. If at any time, a
probationer's physical or medical condition should improve,
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the bill authorizes the court or probation 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.
"SB 1462 will also provide financial relief to counties in
terms of lower medical costs. As it stands now, nearly every
county in the state must contract with outside hospitals to
house and treat inmates with acute medical needs.
Incarcerated inmates, regardless of their medical condition,
are not eligible to receive any federally funded medical care.
"Under SB 1462, prisoners granted medical probation will no
longer be prohibited from accessing federally funded medical
benefits."
2)The Difference Between this Bill and Existing Law : 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. (California Government Code Section 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
created recently for state prison inmates. (See, Penal Code
Section 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
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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.
3)Background : According to the background submitted by the
author, "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).
"Under the bill, inmates that have been deemed by the sheriff
not to pose a threat to public safety and have been diagnosed
by the prisoner's attending physician as having a life
expectancy of 6 months or less would be eligible for medical
release. The sheriff would be required to notify the
presiding judge of the superior court of his or her intention
to release the prisoner.
"The bill would also allow the sheriff to request that the
court re-sentence an inmate to medical probation, in lieu of
jail time, in cases where a prisoner is deemed to no longer
pose a threat to public safety, is permanently unable to
perform activities of daily living, and requires 24-hour care
- or - the patient requires acute long-term inpatient
rehabilitation services.
"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.
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"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.
"Surprisingly, only one county in the state, Los Angeles, has
a licensed hospital associated with the jail facility. In Los
Angeles County there are three options available to seriously
ill inmates while in custody. There is an acute care hospital
that is operated by the sheriff. If the inmate requires urgent
care, the county hospital is then utilized. And finally, if
the inmate is in the north part of the county and unable to be
transported, the sheriff has a direct contract with a private
hospital.
"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 care regardless of
their medical condition.
"Data on the costs of these private hospital beds is
forthcoming, along with specific cases which demonstrate the
necessity to provide some avenue for financial relief should
the medical costs of a prisoner who no longer poses a threat
to public safety become more than the county can bear.
"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
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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.
4)Medical Parole for 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 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
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inmate with HIV at $100,000 or more annually depending on the
inmate's condition.
5)Argument in Support : According to Legal Services for
Prisoners with Children , "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: According to the California District
Attorneys Association , "SB 1462 creates new processes with an
untenable conflict built into them because the doctor
rendering the opinion about inmates to be potentially released
is a county jail employee or contractor, and is therefore
presumably beholden to the county that employs him or her.
Existing law does not suffer from this conflict because the
doctor cannot be a county employee or under contract with the
county.
"Regarding medical probation if a defendant no longer
qualifies, the court can keep him or her out of custody. An
offender who no longer qualifies for the relief contemplated
by this bill should cease to enjoy it. While we understand
the sheriffs' desire and need to be able to effectively
manages their populations, we are concerned that bills of this
nature limiting custody time are becoming the weapon of choice
to deal with the obvious outcroppings of the policies espoused
by realignment. At some point, there have to be consequences
for criminality and this bill diminishes that notion."
7)Prior Legislation :
a) SB 1399 (Leno),Chapter 405, Statutes of 2010,
established medical parole on the state level.
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b) AB 1539 (Krekorian), Chapter 740, Statutes of 2007,
established criteria and procedure for which a state
prisoner may have his/her sentence recalled and be
re-sentenced if he/she is diagnosed with a disease that
would produce death within six months or is permanently
medically incapacitated and whose release is deemed not to
threaten public safety.
c) AB 1946 (Steinberg), of the 2003-04 Legislative session,
would have provided that terminally ill or medically
incapacitated prisoners, as specified, are eligible to
apply to have their sentences recalled and to be
re-sentenced; and made legislative findings that programs
should be available for inmates that are designed to
prepare nonviolent felony offenders for successful reentry
into the community. AB 1946 was vetoed by the Governor.
REGISTERED SUPPORT / OPPOSITION :
Support
California Attorneys for Criminal Justice
California Catholic Conference
California Probation, Parole, and Correctional Association
California Public Defenders Association
California State Sheriffs' Association
Chief Probation Officers of California
Crestwood Behavioral Health
Legal Services for Prisoners with Children
Los Angeles County Sheriff's Department
Opposition
California District Attorneys Association
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744
SB 1462
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