BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
6
8
AB 68 (Maienschein)
As Amended April 11, 2013
Hearing date: May 14, 2013
Penal Code
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MEDICAL PAROLE: COUNTY NOTIFICATION
HISTORY
Source: County of San Diego & San Diego District Attorney's
Office
Prior Legislation: SB 1399 (Leno), Chap. 405, Stats. of 2010.
AB 1539 (Krekorian) Chap. 740, Stats. of 2007
AB 1946 (Steinberg) - 2003-2004; vetoed
AB 675 (Migden) - vetoed; 2001
AB 29 (Villaraigosa) -Chap. 751, Stats. 1997
Support: California District Attorneys Association; California
Parole, Probation and Correctional Officers
Association; California Police Chiefs Association;
California State Association of Counties; California
State Sheriffs' Association; Chief Probation Officers
of CA; Crime Victims Action Alliance; Crime Victims
United; Lassen County; Peace Officers Research
Association of CA; Rural County Representatives of CA;
San Bernardino County Sheriff's Department; Urban
Counties Caucus
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Opposition:California Attorneys for Criminal Justic; Justice
Now; Legal Services for
Prisoners with Children; Taxpayers for
Improving Public Safety
Assembly Floor Vote: Ayes 76 - Noes 0
KEY ISSUES
SHOULD THE DEPARTMENT OF CORRECTIONS AND REHABILITATION GIVE NOTICE
TO THE COUNTY OF COMMITMENT AND THE COUNTY OF PROPOSED RELEASE OF
ANY MEDICAL PAROLE HEARING, AS SPECIFIED, AND OF ANY MEDICAL PAROLE
RELEASE AS SPECIFIED?
SHOULD CDCR BE REQUIRED TO MAKE THAT NOTICE AT LEAST 30 DAYS PRIOR
TO THE TIME ANY MEDICAL PAROLE HEARING OR MEDICAL PAROLE RELEASE IS
SCHEDULED FOR AN INMATE RECEIVING MEDICAL PAROLE CONSIDERATION,
REGARDLESS OF WHETHER THE INMATE IS SENTENCED EITHER DETERMINATELY
OR INDETERMINATELY?
PURPOSE
The purpose of this bill is to require (1) that CDCR give notice
to the county of commitment, and the county of proposed release
of any medical parole hearing, as specified, and of any medical
parole release as specified and; (2) require that notice be made
at least 30 days prior to the time any medical parole hearing or
medical parole release is scheduled for an inmate receiving
medical parole consideration, regardless of whether the inmate
is sentenced either determinately or indeterminately.
Current law establishes the medical parole program whereby any
prisoner 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
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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 (BPH)
determines that the conditions under which the prisoner would be
released would not reasonably pose a threat to public safety.
(Penal Code § 3550(a).)
Current law states that medical parole shall not apply to any
prisoner sentenced to death or life in prison without
possibility of parole or to any inmate who is serving a sentence
for which medical parole is prohibited by any initiative
statute. (Penal Code § 3550(b).)
Current law provides that the medical parole law shall not be
construed to alter or diminish the rights conferred under the
Victim's Bill of Rights Act of 2008: Marsy's Law, including
notification of victims of parole proceedings. (Penal Code §
3550(b).)
Current law states that when a physician employed by CDCR who is
the primary care provider for an inmate identifies an inmate
that he or she believes meets the medical criteria for medical
parole, the primary care physician shall recommend to the head
physician of the institution where the prisoner is located that
the prisoner be referred to the BPH for consideration for
medical parole. Within 30 days of receiving that
recommendation, if the head physician of the institution concurs
in the recommendation of the primary care physician, he or she
shall refer the matter to BPH using a standardized form and
format developed by the department, and if the head physician of
the institution 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. (Penal
Code § 3550(c).)
Current law allows the prisoner or his or her family member or
designee to independently request consideration for medical
parole by contacting the head physician at the prison or CDCR.
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Within 30 days of receiving the request, the head physician of
the institution shall, in consultation with the prisoner's
primary care physician, make a determination regarding whether
the prisoner meets the criteria for medical parole as specified
and, if the head physician of the institution determines that
the prisoner satisfies the criteria, he or she shall refer the
matter to BPH using a standardized form and format developed by
CDCR. If the head physician of the institution 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. (Penal Code §
3550(d).)
Current law requires CDCR to complete parole plans for inmates
referred BPH for medical parole consideration. The parole plans
shall include, but not be limited to, the inmate's plan for
residency and medical care. (Penal Code § 3550(e).)
Current law provides, notwithstanding any other law, 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. Medical parole hearings may be heard in absentia.
(Penal Code § 3550(f).)
Current law requires BPH, upon receiving a recommendation from
the head physician of the institution where a prisoner is
located for the prisoner to be granted medical parole, to make
an independent judgment regarding whether the conditions under
which the inmate would be released pose a reasonable threat to
public safety, and make written findings related thereto.
(Penal Code § 3550(g).)
Current law authorizes the board or the Division of Adult Parole
Operations 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
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by a physician selected by the board for the purpose of
diagnosing the parolee's 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, based on that
medical examination, that the person's medical condition has
improved to the extent that the person no longer qualifies for
medical parole, the board shall return the person to the custody
of the department. (Penal Code § 3550(h).)
Current law requires CDCR, at the time a prisoner is placed on
medical parole supervision, 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. (Penal Code §
3550(i).)
Current law requires CDCR to reimburse the counties for the
costs of medical parolees placed in their counties.
Specifically, CDCR is required to
Seek to enter into memoranda of understanding with
federal, state, or county entities necessary to facilitate
prerelease agreements to help inmates initiate benefits
claims.
Pay the state share of Medi-Cal costs for medical
parolees and to assume responsibility for medical parolees
not eligible for public insurance.
Directly provide, or provide reimbursement for, services
associated with conservatorship or public guardianship.
(Penal Code § 2065.)
Current law requires, at least 30 days before the board meets to
review or consider the parole suitability or the setting of a
parole date for any prisoner sentenced to a life sentence, the
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board to send written notice thereof to each of the following
persons: the judge of the superior court before whom the
prisoner was tried and convicted, the attorney who represented
the defendant at trial, the district attorney of the county in
which the offense was committed, the law enforcement agency that
investigated the case, and where the prisoner was convicted of
the murder of a peace officer, the law enforcement agency which
had employed that peace officer at the time of the murder.
(Penal Code § 3042(a).)
Current law states that upon request to CDCR and verification of
the identity of the requester, notice of any hearing to review
or consider the parole suitability or the setting of parole date
for any prisoner shall be given by BPH at least 90 days before
the hearing to any victim of any crime committed by the
prisoner, or the next of kin of the victim if the victim has
died. (Penal Code § 3043(a).)
Current law provides that an inmate who is released on parole or
postrelease supervision shall be returned to the county that was
the last legal resident of the inmate prior to his or her
incarceration, except as provided. For purposes of this
subdivision, "last legal residence" shall not be construed to
mean the county wherein the inmate committed an offense while
confined in state prison or a local jail facility or while
confined for treatment in a state hospital. (Penal Code §
3003(a).)
Current law states that notwithstanding the above provision, an
inmate may be returned to another county if that would be in the
best interests of the public, and provides specified factors for
the paroling authority to consider when making the decision to
release an inmate to a county other than his or her last legal
residence. The factors give the most weight to the protection
of the victim and the safety of the community. (Penal Code §
3003(b).)
Current law requires CDCR to release the following information,
if available, to local law enforcement agencies regarding a
paroled inmate or inmate placed on postrelease supervision who
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is released in their jurisdictions (Penal Code § 3003(e)(1)):
Last, first, and middle name.
Birthdate.
Sex, race, height, weight, and hair and eye color.
Date of parole and discharge.
Registration status, if the inmate is required to
register as a result of a controlled substance, sex or
arson offense.
California Criminal Information Number, FBI Number,
social security number, and driver's license number.
County of commitment.
A description of scars, marks, and tattoos on the
inmate.
Offense or offenses for which the inmate was convicted
that resulted in parole in this instance.
Address, as specified.
Contact officer and unit, as specified.
A digitized image of the photograph and at least s
single digit fingerprint of the parolee.
A geographic coordinate for the parolee's residence
location for use with a Geographical Information System or
comparable computer program.
Current law states that whenever any person confined to state
prison is serving a term for the conviction of a violent felony,
BPH or CDCR shall notify the sheriff or chief of police, or
both, and the district attorney, who has jurisdiction over the
community in which the person was convicted and, in addition,
the sheriff or chief of police, or both, and the district
attorney, having jurisdiction over the community in which the
person is scheduled to be released on parole or rereleased
following a period of confinement pursuant to a parole
revocation without a new commitment. (Penal Code § 3058.6(a).)
Current law requires that the notification be made by mail at
least 60 days prior to the scheduled release date, except as
provided. In all cases, the notification shall include the name
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of the person who is scheduled to be released, whether or not
the person is required to register with the local law
enforcement, and the community in which the person will reside.
The notification shall specify the office within CDCR with the
authority to make final determinations and adjustments regarding
parole location decisions. (Penal Code § 3058.6(b)(1).)
Current law states that when notice cannot be provided at least
60 days prior to release due to circumstances as specified, CDCR
shall provide notification as soon as practicable, but in no
case shall CDCR delay making the notification more than 24 hours
from the time the final decision is made regarding where the
parolee will be released. (Penal Code § 3058.6(b)(3).)
Current law allows those agencies receiving this notice to
provide written comment within 45 days prior to the inmate's
scheduled release to BPH or CDCR. Those comments shall be
considered by BPH or CDCR which may, based on those comments,
modify its decision regarding the community in which the person
is scheduled to be released. CDCR shall respond in writing not
less than 15 days prior to the scheduled release with a final
determination as to whether to adjust the parole location and
documenting the basis for its decision. The comments shall
become a part of the inmate's file. (Penal Code §
3058.6(b)(4).)
Current law states that if a court orders the immediate release
of an inmate, CDCR shall notify the sheriff or chief of police,
or both, and the district attorney, having jurisdiction over the
community in which the person was convicted and, in addition,
the sheriff or chief of police, or both, and the district
attorney, having jurisdiction over the community in which the
person is scheduled to be released on parole at the time of
release. (Penal Code § 3058.6(c).)
Current law provides whenever any sheriff or chief of police is
notified of the pending release of a convicted violent felon, as
specified, that sheriff or chief of police may notify any person
designated by the sheriff or chief of police as an appropriate
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recipient of this notice. (Penal Code § 3058.7(a).)
This bill would require that, notwithstanding any other
provision of law, CDCR give notice to the county of commitment,
and the county of proposed release of any medical parole
hearing, as specified, and of any medical parole release as
specified.
This bill would require that notice be made at least 30 days
prior to the time any medical parole hearing or medical parole
release is scheduled for an inmate receiving medical parole
consideration, regardless of whether the inmate is sentenced
either determinately or indeterminately.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy known as "ROCA" (which
stands for "Receivership/ Overcrowding Crisis Aggravation"), the
Committee held measures which created a new felony, expanded the
scope or penalty of an existing felony, or otherwise increased
the application of a felony in a manner which could exacerbate
the prison overcrowding crisis. Under these principles, ROCA
was applied as a content-neutral, provisional measure necessary
to ensure that the Legislature did not erode progress towards
reducing prison overcrowding by passing legislation which would
increase the prison population. ROCA necessitated many hard and
difficult decisions for the Committee.
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In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order issued by the Three-Judge Court three years
earlier to reduce the state's prison population to 137.5 percent
of design capacity. The State submitted in part that the, ". .
. population in the State's 33 prisons has been reduced by over
24,000 inmates since October 2011 when public safety realignment
went into effect, by more than 36,000 inmates compared to the
2008 population . . . , and by nearly 42,000 inmates since 2006
. . . ." Plaintiffs, who opposed the state's motion, argue in
part that, "California prisons, which currently average 150% of
capacity, and reach as high as 185% of capacity at one prison,
continue to deliver health care that is constitutionally
deficient." In an order dated January 29, 2013, the federal
court granted the state a six-month extension to achieve the
137.5 % prisoner population cap by December 31st of this year.
In an order dated April 11, 2013, the Three-Judge Court denied
the state's motions, and ordered the state of California to
"immediately take all steps necessary to comply with this
Court's . . . Order . . . requiring defendants to reduce overall
prison population to 137.5% design capacity by December 31,
2013."
The ongoing litigation indicates that prison capacity and
related issues concerning conditions of confinement remain
unresolved. However, in light of the real gains in reducing the
prison population that have been made, although even greater
reductions are required by the court, the Committee will review
each ROCA bill with more flexible consideration. The following
questions will inform this consideration:
whether a measure erodes realignment;
whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
whether a bill corrects a constitutional infirmity or
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legislative drafting error;
whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and
whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Need for the bill
According to the author:
There currently is a lack of communication between
state and local agencies as it relates to the medical
parole of prisoners. Current law only requires that a
medical parole notification be provided to the county
where the inmate was convicted and not to the counties
to which those inmates will be paroled. Because San
Diego County has highly specialized skilled nursing
home facilities that some prisoners require, some
prisoners have been medically paroled without any
notice to County officials. This legislation attempts
to close that communication gap.
In the spring of 2011, the San Diego County District
Attorney's office successfully argued against the
release of an inmate convicted of kidnapping, beating
and raping a woman in San Diego in 1998. Despite the
fact that the inmate was a quadriplegic, he verbally
abused and threatened the medical staff at the prison
and was capable of verbally ordering crimes be
committed.
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In late 2011, an inmate medically paroled to San Diego
made indecent gestures to female nurses in the skilled
nursing facility providing his care. Before these
inmates have the opportunity to commit additional
crimes, the County of
San Diego would like the chance to review the
information on these individuals and weigh in on their
release before they return to our community.
2. Background on Medical Parole
SB 1399 (Leno) (Chapter 405, Statutes of 2010) resulted in the
enactment of medical parole, which became operative in January
of 2011. (Penal Code § 3550.) The law provides that medical
parole shall be granted where (1) an inmate has been found by
the head physician in the institute where they are housed to be
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 (2) the Board of Parole Hearings also makes a
determination that the conditions under which the prisoner would
be released would not reasonably pose a threat to public safety.
According to the Receiver's office, there have been 51 inmates
granted medical parole since its inception in 2011.
3) The Role of CDCR in Parole
CDCR has "exclusive jurisdiction and full discretion to
determine a parolee's placement." (Penal Code Section 3003;
City of Susanville v. Department of Corrections and
Rehabilitation (2012) 204 Cal.App.4th 377, 382 (138 Cal. Rptr.
3d 721); In re Roberts (2005) 36 Cal.4th 575, 588 (31 Cal. Rptr.
3d 458, 115 P.3d 1121); People v. Stevens (2001) 89 Cal.App.4th
585, 588 (107 Cal. Rptr. 2d 305).) Penal Code Section 3003
provides that, whenever possible, an inmate who is released on
parole shall be returned to the county that was the last
residence of the inmate prior to his or her incarceration. If
CDCR determines that the inmate cannot be returned to the county
of his or her last residence, CDCR may return the inmate to
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another county, if that would be in the best interests of the
public. Although CDCR has the discretion to decide where to
return the inmate, Penal Code Section 3003 provides the
following factors that CDCR must consider when making this
decision:
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the need to protect the life or safety of a victim, the
parolee, a witness, or any other person;
public concern that would reduce the chance that the
inmate's parole would be successfully completed;
the verified existence of a work offer, or an
educational or vocational training program;
the existence of family in another county with whom the
inmate has maintained strong ties and whose support would
increase the chance that the inmate's parole would be
successfully completed; and
the lack of necessary outpatient treatment programs for
parolees receiving treatment. Penal Code Section 3003 also
specifies that the greatest weight shall be given to the
protection of the victim and the safety of the community.
In a recent case, a city and county filed a petition for a writ
of mandamus to change the placement of a parolee in their
county. CDCR first attempted to place the inmate in the county
of his last residence but because of statutory restrictions on a
parolee's placement near a witness or victim, CDCR looked at
other counties, including his sister's residence, and finally
decided on the plaintiff county. In ruling that neither the
city, the county, nor the trial court could interfere with
CDCR's exclusive discretion to determine a parole placement
according to the statutory criteria and notice requirements set
forth in the Penal Code, the court reasoned that "[u]ndoubtedly,
counties throughout the state would object to the placement of a
parolee in their jurisdictions. But the Department has the
unwelcome task of choosing one of those communities, and absent
an abuse of discretion, the Department's decision must stand."
(City of Susanville v. Department of Corrections and
Rehabilitation, supra, 204 Cal.App.4th at p. 386.)
Under current law, CDCR is required to provide notification to
specified parties of parole hearings, pending release of
inmates, and release of inmates. Victims or victim next-of-kin
who are registered to receive notification will receive
information regarding the date and location of the hearing, and
have the right to attend and participate in the medical parole
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hearing. In the case of parole for an inmate serving a life
sentence, CDCR must provide notice to the judge of the superior
court before whom the prisoner was tried and convicted, the
attorney who represented the defendant at trial, the district
attorney of the county in which the offense was committed, the
law enforcement agency that investigated the case, and where the
prisoner was convicted of the murder of a peace officer, the law
enforcement agency which had employed that peace officer at the
time of the murder. (Penal Code § 3042(a).) Generally, when an
inmate is paroled, CDCR must provide certain information to
local law enforcement agencies regarding a paroled inmate or an
inmate placed on postrelease supervision who is released in
their jurisdictions. (Penal Code § 3003(e)(1).) When an inmate
serving a sentence for a violent felony conviction is being
paroled, CDCR must notify the sheriff or chief of police, or
both, and the district attorney, who has jurisdiction over the
community in which the person was convicted and, in addition,
the sheriff or chief of police, or both, and the district
attorney, having jurisdiction over the community in which the
person is scheduled to be released on parole. The notification
must be made by mail at least 60 days prior to the scheduled
release, or as soon as practicable. (Penal Code §
3058.6(a)-(b).)
Existing law also provides that "whenever any sheriff or chief
of police is notified of the pending release of a convicted
violent felon, that sheriff or chief of police may notify any
person designated by the sheriff or chief of police as an
appropriate recipient of this notice." (Penal Code §
3058.7(a).)
The Board of Parole Hearings applies the above-stated
notification requirements to all parole hearings including
medical parole hearings.
This bill would require that, notwithstanding any other
provision of law, CDCR give notice to the county of commitment
as well as the county of proposed release, if that is different
than the county of commitment, of any medical parole hearing and
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of any decision to grant medical parole. That notice would be
required to be made at least 30 days prior to the time any
medical parole hearing or medical parole release is scheduled
for an inmate receiving medical parole consideration, regardless
of whether the inmate is sentenced either determinately or
indeterminately.
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