BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                      



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          |SENATE RULES COMMITTEE            |                  SB 1462|
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                              UNFINISHED BUSINESS


          Bill No:  SB 1462
          Author:   Leno (D)
          Amended:  8/24/12
          Vote:     21

           
           SENATE PUBLIC SAFETY COMMITTEE  :  5-2, 4/17/12
          AYES:  Hancock, Calderon, Liu, Price, Steinberg
          NOES:  Anderson, Harman

           SENATE APPROPRIATIONS COMMITTEE  :  5-2, 5/24/12
          AYES:  Kehoe, Alquist, Lieu, Price, Steinberg
          NOES:  Walters, Dutton

           SENATE FLOOR  :  23-15, 5/30/12
          AYES:  Alquist, Calderon, Corbett, De León, DeSaulnier, 
            Evans, Hancock, Hernandez, Kehoe, Leno, Lieu, Liu, 
            Lowenthal, Negrete McLeod, Padilla, Price, Rubio, 
            Simitian, Steinberg, Vargas, Wolk, Wright, Yee
          NOES:  Anderson, Berryhill, Blakeslee, Cannella, Correa, 
            Dutton, Emmerson, Fuller, Gaines, Harman, Huff, La Malfa, 
            Pavley, Walters, Wyland
          NO VOTE RECORDED:  Runner, Strickland

           ASSEMBLY FLOOR  :  Not available


           SUBJECT  :    County sheriffs:  release of prisoners:  
          medical release

           SOURCE  :     Los Angeles County Sheriffs Department
                      California State Sheriffs Association

                                                           CONTINUED





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           DIGEST  :    This bill authorizes a sheriff to release a 
          prisoner from a county jail after conferring with a jail 
          physician if the sheriff determines the prisoner would not 
          reasonably pose a threat to public safety and the prisoner 
          is deemed to have a life expectancy of six months or less.  
          This bill also authorizes the court, at the request of a 
          sheriff, to grant medical probation to any prisoner 
          sentenced to a county jail who is physically incapacitated, 
          as specified, if that incapacitation did not exist at the 
          time of sentencing, or to a prisoner who would require 
          acute long-term inpatient rehabilitation services. Before a 
          prisoner's compassionate release or release to medical 
          probation, the sheriff would be required to secure a 
          placement option for the prisoner, as specified. 

           Assembly Amendments  (1) require the county board of 
          supervisors to adopt a process to find the nonfederal share 
          of Medi-Cal cost for a prisoner who would otherwise be 
          incarcerated and (2) make other clarifying changes.

           ANALYSIS  :    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 







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          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 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.








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          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.

           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 provides 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.

          Before 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 







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            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 
          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 further provides that for any prisoner released 
          pursuant to the provisions of this bill who is eligible for 
          Medi-Cal, the county shall continue to pay the nonfederal 
          share of the prisoner's Medi-Cal costs for the period of 
          time that the offender would have otherwise been 
          incarcerated.

          This bill specifies that before implementing Sections 
          26605.6 and 26605.7, the county board of supervisors shall 
          adopt a process to fund the nonfederal share of Medi-Cal 
          costs for the period of time that a prisoner would have 
          otherwise been incarcerated or for the period of time that 
          a probationer is on medical probation.  The county board of 
          supervisors shall notify the State Department of Health 
          Care Services of the process.

          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 further provides that the sheriff, or his or her 







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          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.

           Prior Legislation
           
          SB 1399 (Leno), Chapter 405, Statutes of 2010, which passed 
            the Senate (22-15) on August 31, 2010.
          AB 1539 (Krekorian), Chapter 740, Statutes of 2007.
          AB 1946 (Steinberg), 2004, Vetoed.
          AB 675 (Migden), 2001, Vetoed.
          AB 29 (Villaraigosa), Chapter 751, Statutes of 1997.

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  No   
          Local:  No

          According to the Senate Appropriations Committee:

           No state costs.  Increased annual costs to provide 
            long-term care services of $1.5 million federal 
            statewide, to the extent 30 prisoners are granted medical 
            probation and determined eligible for Medi-Cal.  







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            Estimated costs are based on an average annual cost of 
            $100,000 per individual. Statewide costs could be higher 
            or lower commensurate with the actual number of prisoners 
            granted medical probation and the medical costs specific 
            to each individual.

           Major annual savings in the millions of dollars to local 
            jails as a result of eliminating costly security and 
            medical costs for these prisoners.  In Los Angeles County 
            alone, annual savings of $7.3 million is estimated for 
            ten individuals identified as potentially eligible for 
            medical probation (based on an average daily 
            security/base medical rate of $2,000 per prisoner).  

           SUPPORT  :   (Verified  8/28/12)

          Los Angeles County Sheriff's Department (co-source) 
          California State Sheriffs' Association (co-source) 
          California Catholic Conference
          California Probation, Parole, and Correctional Association
          California Public Defenders Association
          Legal Services for Prisoners with Children

           OPPOSITION  :    (Verified  8/28/12)

          California District Attorneys Association
          Crime Victims Action Alliance
          Crime Victims United of California

           ARGUMENTS 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, 







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               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.

           ARGUMENTS IN OPPOSITION  :    Crime Victims United of 
          California (CVUC) 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.

               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).
           
           RJG:n   8/28/12   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

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