BILL ANALYSIS �
AB 1065
Page 1
Date of Hearing: April 23, 2013
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1065 (Holden) - As Introduced: February 22, 2013
SUMMARY : Specifies that an inmate being released from state
prison is ineligible for Post Release Community Supervision
(PRCS) if that inmate had, under a previous sentence, been
deemed a mentally disordered offender (MDO). Specifically, this
bill :
1)Specifies that a person released from state prison, who has
served a prior prison term which required MDO treatment in a
state hospital as a condition of parole, is subject to parole
supervision by the California Department of Corrections and
Rehabilitation (CDCR).
2)States that the provisions of PRCS do not apply to any person
released from prison who has served a prior prison term and
was required to undergo MDO treatment in a state hospital as a
condition of parole.
3)Makes technical, non-substantive changes.
EXISTING LAW :
1)Requires all persons paroled before October 1, 2011 to remain
under the supervision of CDCR until jurisdiction is terminated
by operation of law or until parole is discharged. [Penal
Code Section 3000.09.]
2)Requires the following persons released from prison on or
after October 1, 2011, be subject to parole under the
supervision of CDCR:
a) A person who committed a serious felony listed in Penal
Code Section 1192.7(c);
b) A person who committed a violent felony listed in Penal
Code Section 667.5(c);
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c) A person serving a Three-Strikes sentence;
d) A high risk sex offender;
e) A mentally disordered offender;
f) A person required to register as a sex offender and
subject to a parole term exceeding three years at the time
of the commission of the offense for which he or she is
being released; and,
g) A person subject to lifetime parole at the time of the
commission of the offense for which he or she is being
released. [Penal Code Section 3000.08(a) and (c).]
3)Requires all other offenders released from prison on or after
October 1, 2011, to be placed on PRCS under the supervision of
a county agency, such as a probation department. [Penal Code
Section 3000.08(b).]
4)Limits the term for PRCS to three years. [Penal Code Section
3451(a).]
5)Provides for intermediate sanctions for violating the terms of
PRCS, including "flash incarceration" for up to 10 days.
(Penal Code Section 3454.)
6)Specifies that if PRCS is revoked, the offender may be
incarcerated in the county jail for a period not to exceed 180
days for each custodial sanction. [Penal Code Section
3455(d).]
7)Prohibits the return of an offender who violates conditions of
PRCS to prison. (Penal Code Section 3458.)
8)Specifies that a parolee held in custody for a pending parole
violation before October 1, 2011, may be returned to state
prison for the violation for period not to exceed 12 month.
[Penal Code Section 3057(a).]
9)Specifies that a parolee held in custody for a pending parole
violation on or after October 1, 2011 will be returned to
county jail, rather than state prison, for up to 180 days of
incarceration per revocation. [Penal Code Section 3056(a).]
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10)Requires prisoners who meet the following criteria to be
deemed an MDO and treated by the State Department of State
Hospitals (DSH) as a condition of parole:
a) The inmate has a severe mental disorder;
b) The inmate used force or violence in committing the
underlying offense;
c) The severe mental disorder was one of the causes or an
aggravating factor in the commission of the offense;
d) The disorder is not in remission or capable of being
kept in remission without treatment;
e) The inmate was treated for the disorder for at least 90
days in the year before the inmate's release; and,
f) By reason of the severe mental disorder, the inmate
poses a serious threat of physical harm to others. (Penal
Code Section 2962.)
11)Allows the Board of Parole Hearings (BPH), upon a showing of
good cause, to order the inmate to remain in custody for up to
45 days past the scheduled release date for a full MDO
evaluation. (Penal Code Section 2963.)
12)Allows the prisoner to challenge the MDO determination both
administratively (a hearing before the board) and judicially
(a superior court jury trial). (Penal Code Section 2966.)
13)Requires MDO treatment to be inpatient treatment unless there
is reasonable cause to believe that the parolee can be safely
and effectively treated on an outpatient basis. [Penal Code
Section 2964(a).] If the hospital does not place the parolee
on outpatient treatment within 60 days of receiving custody of
the parolee, he or she may request to hearing to determine
whether outpatient treatment is appropriate. [Penal Code
Section 2964(b).]
14)Specifies that if the parolee's severe mental disorder is put
into remission during the parole period and can be kept that
way, the director of the hospital shall notify the BPH and
shall discontinue treatment. (Penal Code Section 2968.)
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15)Allows the district attorney to file a petition with the
superior court seeking a one-year extension of the MDO
commitment. (Penal Code Section 2970.)
16)Specifies that the cost of treatment for an MDO, whether
inpatient or outpatient, is a state expense while the person
is under the jurisdiction of either CDCR or the state
hospital. (Penal Code Section 2976.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Currently,
counties are required to provide intensive supervision on
small caseloads and acute treatment services in order to
monitor and rehabilitate the formally certified Mentally
Disordered Offenders (MDO). These individuals have long,
violent criminal histories and often become difficult for
Probation to supervise, house and ensure compliance with
medication and treatment upon release. Thus, these offenders
deserve the best mental health services and treatment, a level
of supervision most appropriately provided by the State."
2)The MDO Act (Penal Code section 2962 et seq.) : A MDO
commitment is a post-prison civil commitment. The MDO Act is
designed to confine as mentally ill an inmate who is about to
be released on parole when it is deemed that he or she has a
mental illness which contributed to the commission of a
violent crime. Rather than release the inmate to the
community, CDCR paroles the inmate to the supervision of the
state hospital, and the individual remains under hospital
supervision throughout the parole period. The act actually
addresses treatment in three contexts - first, as a condition
of parole (Penal Code Section 2962); then, as continued
treatment for one year upon termination of parole (Penal Code
Section 2970); and, finally, as an additional year of
treatment after expiration of the original, or previous,
one-year commitment (Penal Code Section 2972). [People v. Cobb
(2010) 48 Cal.4th 243, 251.]
Penal Code Section 2962 lists six criteria that must be proven
for an initial MDO certification, namely, whether: (1) the
inmate has a severe mental disorder; (2) the inmate used force
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or violence in committing the underlying offense; (3) the
severe mental disorder was one of the causes or an aggravating
factor in the commission of the offense; (4) the disorder is
not in remission or capable of being kept in remission without
treatment; (5) the inmate was treated for the disorder for at
least 90 days in the year before the inmate's release; and (6)
by reason of the severe mental disorder, the inmate poses a
serious threat of physical harm to others. [Penal Code Section
2962(a)-(d); People v. Cobb, supra, 48 Cal.4th at pp.
251-252.]
The initial determination that the inmate meets the MDO criteria
is made administratively. The person in charge of treating
the prisoner and a practicing psychiatrist or psychologist
from the DSH will evaluate the inmate. If it appears that the
inmate qualifies, the chief psychiatrist then will certify to
the BPH that the he or she meets the criteria for an MDO.
The inmate may request a hearing before the BPH to require proof
that he or she is an MDO. If the BPH determines that the
defendant meets the criteria of an MDO, the inmate may file,
in the superior court of the county in which he or she is
incarcerated or is being treated, a petition for a hearing on
whether he or she, as of the date of the board hearing, meets
the criteria of a MDO. By statute, the defendant is entitled
to a jury trial, which can be waived. The jury must
unanimously agree it was proven beyond a reasonable doubt that
the allegations of the petition were proven. If the superior
court or jury reverses the determination of the BPH, the court
is required to stay the execution of the decision for five
working days to allow for an orderly release of the prisoner.
MDO treatment must be on an inpatient basis, unless there is
reasonable cause to believe that the parolee can be safely and
effectively treated on an outpatient basis. But if the
parolee can no longer be safely and effectively treated in an
outpatient program, he or she may be taken into custody and
placed in a secure mental health facility.
A MDO commitment is for one year; however, the commitment can
be extended. [Penal Code Section 2972(c).] When the
individual is due to be released from parole, the state can
petition to extend the MDO commitment for another year. The
state can file successive petitions for further extensions,
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raising the prospect that, despite the completion of a prison
sentence, the MDO may never be released.
3)Mentally Disordered Sex Offenders (MDSO) : The Mentally
Disordered Sex Offender (MDSO) commitment in the Welfare and
Institutions Code was created in Statutes of 1939. However,
this category of commitment was repealed in 1981.
4)Changes to Parole As a Result of Criminal Justice Realignment :
Prior to realignment, individuals released from prison were
placed on parole and supervised in the community by parole
agents of CDCR. If it was alleged that a parolee had violated
a condition of parole, he or she would have a revocation
proceeding before the BPH. If parole was revoked, the
offender would be returned to state prison for violating
parole.
Realignment shifted the supervision of some released prison
inmates from CDCR parole agents to local probation
departments. Parole under the jurisdiction of CDCR for
inmates released from prison on or after October 1, 2011 is
limited to those defendants whose term was for a serious or
violent felony; were serving a Three-Strikes sentence; are
classified as high-risk sex offenders; who are required to
undergo treatment as mentally disordered offenders; or who,
while on certain paroles, commit new offenses. [Penal Code
Sections 3000.08(a) and (c), and 3451(b).] All other inmates
released from prison are subject to up to three years of PRCS
under local supervision. [Penal Code Sections 3000.08(b) and
3451(a).]
Realignment also changed where an offender is incarcerated for
violating parole or PRCS. Most individuals can no longer be
returned to state prison for violating a term of supervision;
offenders serve the revocation term in county jail. [Penal
Code Sections 3056(a) and 3458.] There is a 180-day limit to
incarceration. [Penal Code Sections 3056(a) and 3455(c).]
The only offenders who are eligible for return to prison for
violating parole are life-term inmates paroled pursuant to
Penal Code section 3000.1 (e.g., murderers, specific life term
sex offenses).
Additionally, realignment changed the process for revocation
hearings, but this change is being implemented in phases.
Until July 1, 2013, individuals supervised on parole by state
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agents continue to have revocation hearings before the BPH.
After July 1, 2013, the trial courts will assume
responsibility for holding all revocation hearings for those
individuals who remain under the jurisdiction of CDCR. In
contrast, since the inception of realignment, individuals
placed on PRCS stopped appearing before the BPH for revocation
hearings. Their revocation hearings are handled by the trial
court. PRCS currently provides for lesser or "intermediate"
sanctions before PRCS is revoked for a violation. This
includes "flash incarceration" for up to 10 days. (Penal Code
Section 3454.) Intermediate sanctions, including flash
incarceration, will also be available for state parolees after
July 1, 2013. [Penal Code Section 3000.08(d), effective July
1, 2013.]
5)Practical Considerations : For purposes of parole supervision,
this bill seeks to treat as a current MDO, a person who
received MDO treatment after serving a sentence on a prior
conviction. As noted above, once a person is committed to the
state hospital for MDO treatments, the State can file
successive petitions on a yearly basis to extend the MDO
commitment. This process could theoretically result in
indefinite commitment.
The DSH Web site explains: "Treatment for MDO patients begins
in a state hospital. When [the Conditional Release Program]
CONREP and the hospital treatment team believe a patient can
be safely and effectively treated on an outpatient basis, DSH
will recommend transfer to outpatient treatment in CONREP.
The patient's parole and treatment by DSH will be reviewed by
the BPT every year. The patient may remain in the MDO
treatment program, either in the hospital or in CONREP,
throughout his time on parole, depending on his progress.
Parolees are generally required to remain on parole for three
years. However, up to another 12 months can be added when
parole violations result in parole revocations. At the end of
parole, the patient may be civilly committed to further
periods of DSH treatment, if the court finds that the
patient's mental disorder still meets certain criteria."
(.)
So, in order for an MDO to be released, the hospital treatment
team must deem the patient should no longer be treated as an
MDO. Is it fair to continue to treat a person as a MDO even
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though medical professionals no longer classify that person as
such?
6)Argument in Support : The County of Los Angeles writes,
"[T]his bill seeks to improve outcomes for Mentally Disordered
Offenders (MDO) by ensuring that this population receives
consistent treatment upon release from state prison. The MDO
law applies only to a small population of offenders who meet
six specific MDO criteria and, upon meeting those criteria,
are to be treated by the SDSN, as a condition of parole.
"This treatment for MDO patients generally occurs in a state
hospital, but may occur on an outpatient basis when the
hospital treatment team believes that such treatment can be
administered safely and effectively. The process of both
identifying and treating MDO patients is well established for
the purpose of ensuring the best possible treatment.
"The 2011 Realignment Legislation (AB 109) was intended to
transfer supervision of 'non-violent, nonsexual, non-serious'
offenders to counties. Although this bill did not change how
existing MDOs were treated, there are some individuals who had
been classified as MDO and previously treated by SDSH who are
now being re-classified prior to release from prison and who
are being referred to Post Release Community Supervision
programs in the counties. Therefore, county probation
departments are now faced with providing services for mentally
disordered offenders who have recently been decertified as
MDOs. Decertified MDOs may not have committed a 'serious'
offense, as defined by AB 109, however, MDOs are a population
of inmates that should be treated with consistent and
continuous care. AB 1065 seeks to improve the care provided
to MDOs by establishing a clear policy of how all MDOs, both
past and present, shall be treated. Though the population
throughout the State is small, this change in the law will
result in improved outcomes for MDOs and ultimately, safer
communities."
7)Argument in Opposition : The California Public Defenders
Association states, "This bill further stigmatizes the
mentally ill. Unlike the other categories of prisoners who
are ineligible for community supervision, this bill reserves
harsher supervision based on the status of being mentally ill.
"The bill fails to acknowledge that mental illness is a chronic
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health problem which may wax and wane over the course of an
individual's life. This bill ignores the fact that mental
illness is a public health problem and mandates that parole
agents, who are both more expensive and ill-equipped to deal
with the mentally ill, supervise individuals who would benefit
from the services of mental health professionals and social
workers. If the counties contend that they do not have
sufficient funding to provide services for this population,
the solution is to provide the counties with more money. The
counties are in the best position to help these individuals
find the mental health treatment, suitable housing and
government assistance. Many of the formerly mentally
disordered offenders would qualify for social security
disability income (SSI) or other federally funded government
assistance if they were assisted by social workers. Such
assistance would help protect the community and the mentally
ill, while using scarce resources in an efficient manner.
"Mentally ill prisoners are screened by the Department of
Corrections and Rehabilitation to determine whether they meet
the criteria for Mentally Disordered Offender certification.
Penal Code sections 2960 et. seq. sets out the laws governing
the Disposition of Mentally Disordered Prisoners Upon
Discharge. Penal Code section 2962 states that "(A)s a
condition of parole, a prisoner who meets the following
criteria shall be required to be treated by the State
Department of State Hospitals, and the State Department of
State Hospitals shall provide the necessary treatment: 1) the
prisoner has a severe mental disorder; 2) the prisoner used
force or violence in committing the underlying offense; 3) the
severe mental disorder was one of the causes or an aggravating
factor in the commission of the offense; 4) the disorder is
not in remission or capable of being kept in remission without
treatment; 5) the prisoner was treated for the disorder for at
least 90 days in the year before his release; and 6) by reason
of his severe mental disorder, the prisoner poses a serious
threat of physical harm to others. (�2962, subds.
(a)-(d)(1).) " (People v. Francis (2002) 98 Cal.App.4th
873,876-877, People v. Merfield (2007) 147 Cal.App.4th 1071,
1075, fn. 2; People v. Hannibal (2006) 143 Cal.App.4th 1087,
1094.)
"Two psychologists or psychiatrists must evaluate the prisoner
and must concur that the prisoner meets the Penal Code section
2962 criteria in order for a chief psychiatrist from the
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California Department of Corrections and Rehabilitation to
certify the prisoner to the Board of Prison Terms.
"The prisoner is entitled to a formal hearing before the Board
of Prison Terms on all six criteria pursuant to Section
2966(a) of the Penal Code. (See Penal Code section 2966(a) to
contest the conclusions of the mental professionals. In
addition, "a prisoner who disagrees with the determination of
the Board of Prison Terms that he or she meets the criteria of
Section 2962, may file in the superior court of the county in
which he or she is incarcerated or is being treated a petition
for a hearing on whether he or she, as of the date of the
Board of Prison Terms hearing, met the criteria of Section
2962." (See Penal Code �2966 (b).) In the superior court,
the prisoner has the right to a jury trial and the standard of
proof is beyond a reasonable doubt. (Id., subd.(b)). If the
fact finder affirms the finding of the Board of Prison Terms,
the prisoner is placed in the state mental hospital as a
condition of parole. If the fact finder does not find that
the individual is a mentally disordered offender, the
individual is released on parole."
8)Related Legislation :
a) AB 2 (Morrell) requires a person who violates the
conditions of parole or of PRCS by failing to fulfill
sex-offender registration requirements to serve time for
the violation in prison rather than in the county jail. AB
2 failed passage in this Committee and reconsideration was
granted.
b) AB 601 (Eggman) authorizes a court upon revocation of
parole to commit the person to state prison for one year.
AB 601 will be heard by this Committee today.
c) AB 605 (Linder) provides that a defendant who is
released on parole or PRCS, who has suffered a prior or
current felony requiring registration as a sex offender,
and who violates parole or PRCS shall serve any period of
incarceration ordered for that violation in the state
prison. AB 605 failed passage in this Committee and
reconsideration was granted.
d) AB 1334 (Conway) requires all offenders released from
prison who have a current or prior conviction for an
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offense requiring sex-offender registration, or a juvenile
adjudication requiring sex-offender registration, be
subject to parole supervision by CDCR. AB 1334 is pending
hearing by this Committee.
e) SB 57 (Lieu) states legislative intent to enact
legislation that addresses the removal and disablement of
global positioning system monitoring devices by parolees
and probationers. SB 57 is pending hearing by the Senate
Public Safety Committee.
f) SB 287 (Walters) makes the provisions for PRCS
inapplicable to any person released from prison who has a
prior conviction for a serious or violent felony, or a
prior or current crime requiring sex-offender registration.
SB 287 is pending hearing by the Senate Public Safety
Committee.
g) SB 710 (Nielsen) makes the provisions of PRCS applicable
only to persons released from prison prior to January 1,
2014, and requires all offenders released from prison on or
after that to be subject to parole supervision by CDCR for
a minimum period of three years. SB 710 is pending hearing
by the Senate Public Safety Committee.
h) SB 226 (Emmerson) requires a court having reason to
believe a defendant has a severe mental disorder to suspend
the imposition of the sentence and send the defendant to
CDCR for evaluation as an MDO. If the initial evaluation
determines the defendant is an MDO, the court shall impose
a state prison sentence followed by parole. If the initial
evaluation determines the defendant is not an MDO, the
defendant is returned to court for sentencing to
imprisonment in a county jail. SB 226 is pending hearing
by the Senate Public Safety Committee.
9)Prior Legislation : AB 109 (Committee on Budget), Chapter 15,
Statutes of 2011, created the PRCS Act, which provides, among
other things, that inmates released from prison who are not
required to be on parole are subject to up to three years of
local supervision.
REGISTERED SUPPORT / OPPOSITION :
Support
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Los Angeles County Board of Supervisors (Sponsor)
California District Attorneys Association
California Mental Health Directors Association
California State Association of Counties
California State Sheriffs' Association
California Police Chiefs Association
Chief Probation Officers of California
Crime Victims United
Golden State Bail Agents Association
Los Angeles County Department of Mental Health
Los Angeles County Probation Department
San Bernardino County Sheriff's Office
State Association of Public Administrators, Public Guardians,
and Public Conservators
Taxpayers for Improving Public Safety
Urban Counties Caucus
Opposition
California Attorneys for Criminal Justice
California Public Defenders Association
Legal Services for Prisoners with Children
Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744