BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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AB 2186 (Lowenthal) 6
As Amended April 21, 2014
Hearing date: June 10, 2014
Penal Code
JM:mc
PERSONS INCOMPETENT TO STAND TRIAL OR FACE JUDGMENT
HISTORY
Source: Department of State Hospitals
Prior Legislation: AB 1907 (Lowenthal) - Ch. 814, Stats. 2012
366 (Allen) - Ch. 654, Stats. 2011
SB 1794 (Perata) - Ch. 486, Stats. 2004
Support: California Association of Psychiatric Technicians;
Judicial Council of California;
Los Angeles County Sheriff's Department; California
State Sheriffs' Association; Taxpayers for Improving
Public Safety
Opposition:None known
Assembly Floor Vote: Ayes 74 - Noes 0
KEY ISSUES
SHOULD A COURT ORDER FOR INVOLUNTARY ADMINISTRATION OF
ANTIPSYCHOTIC MEDICATION TO AN INCOMPETENT DEFENDANT, AS
PRESCRIBED BY THE TREATING PSYCHIATRIST, BE VALID AT ANY
FACILITY WHERE THE DEFENDANT IS HOUSED?
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(CONTINUED)
SHOULD A DISTRICT ATTORNEY, COUNTY COUNSEL OR REPRESENTATIVE OF THE
FACILITY OF COMMITMENT BE AUTHORIZED TO SEEK AN ORDER FOR
INVOLUNTARY MEDICATION OF AN INCOMPETENT DEFENDANT, AND SHOULD THE
ORDER BE SUBJECT TO RENEWAL WITHIN 60 DAYS OF EXPIRATION?
WHERE AN ADMINISTRATIVE LAW JUDGE HAS UPHELD THE TREATING
PSYCHIATRIST'S CERTIFICATION THAT GROUNDS EXIST FOR INVOLUNTARY
MEDICATION OF AN INCOMPETENT DEFENDANT FOR 21 DAYS, SHOULD THE COURT
HAVE AUTHORITY TO EXTEND THE AUTHORIZATION AND GRANT A CONTINUANCE
OF 14 DAYS FOR A FULL HEARING IF GOOD CAUSE IS SHOWN OR THE PARTIES
STIPULATE?
PURPOSE
The purpose of this bill is to 1) direct the court, when
considering an order for involuntary medication of a defendant
found to be incompetent to stand trial or face punishment, to
consider the experts' reports on competency, per se; 2) provide
that a court order for involuntary administration of
antipsychotic medication is valid in any facility in which the
incompetent defendant is housed for purposes of return to
competence and resumption of criminal proceedings, if the
medication is prescribed by the treating psychiatrist; 3)
provide that where an administrative law judge (ALJ) confirms a
certification by the treating psychiatrist that an incompetent
defendant can be involuntarily medicated for 21 days, the court
can continue the ALJ's order for 14 days, pending a full court
hearing on the medication issue; and 4) provide that the
prosecutor, county counsel or facility where the defendant is
committed can seek a court order for involuntary medication of
an incompetent defendant and seek renewal of the order within 60
days of expiration.
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Existing law states that a person cannot be tried or adjudged to
punishment while he or she is mentally incompetent (IST -
incompetent to stand trial). (Pen. Code § 1367, subd. (a).)
Existing law provides that a defendant is incompetent to stand
trial where he or she has a mental disorder or developmental
disability that renders him or her unable to understand the
nature of the criminal proceedings or assist counsel in his or
her defense. (Pen. Code § 1367, subd. (a).)
Existing law states that if the court has a doubt as to whether
or not a defendant is IST, the court shall state that doubt on
the record and shall seek defense counsel's opinion as to the
defendant's competence. (Pen. Code § 1368, subd. (a).)
Existing law provides the following hearing procedures to
determine whether the defendant is mentally competent or not:
The court shall appoint a psychiatrist or psychologist
to examine the defendant. If the defendant is not seeking
a finding of mental incompetence, the court shall appoint
two psychiatrists or psychologists. The examining expert
shall evaluate the nature of the defendant's mental
disorder; his or her ability to understand the proceedings
or assist counsel in the conduct of a defense; and whether
or not treatment with medications is medically appropriate
and likely to restore the defendant to competency.
The counsel for the defendant shall offer evidence in
support of the allegation of mental incompetence.
The prosecution shall present its case regarding the
issue of the defendant's present mental competence.
Each party may present rebutting testimony, unless the
court, for good reason in furtherance of justice, also
permits other evidence in support of the original
contention. (Pen. Code § 1369.)
Existing law states that if the defendant is found mentally
competent, the criminal process shall resume. (Pen. Code §
1370, subd. (a)(1)(A).)
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Existing law states that if the defendant is found IST, the
matter shall be suspended until the person becomes mentally
competent. (Pen. Code § 1370, subd. (a)(1)(B).)
Existing law states that an incompetent defendant charged with a
violent felony (Pen. Code
§ 667.5, subd. (c)) may not be delivered to a state hospital or
treatment entity that does not have a secured perimeter or a
locked and controlled treatment facility. The court must
determine that public safety will be protected. (Pen. Code §
1370, subd. (a)(1)(D).)
Existing law states that prior to committing an IST defendant
for treatment, the court shall determine whether the defendant
consents to the administration of antipsychotic medications.
(Pen. Code § 1370, subd. (a)(2)(B).)
If the defendant consents, the commitment order shall
confirm that medication may be given to the defendant.
If the defendant does not consent to the administration
of medication, the court shall hear and determine whether
any of the following is true:
o The defendant lacks capacity to make decisions
regarding medication, the defendant's mental disorder
requires treatment with medication, and, if the
defendant's mental disorder is not so treated, it is
probable that serious harm to the physical or mental
health of the patient will result. Probability of
serious harm is shown by evidence that the defendant is
presently suffering adverse effects to his or her
physical or mental health, or has previously suffered
these effects as a result of a mental disorder and his or
her condition is substantially deteriorating;
o The defendant is a danger to others, in that he or
she has inflicted, attempted to inflict, or made a
serious threat of inflicting substantial physical injury
on another while in custody, or the defendant had
inflicted, attempted to inflict, or made a serious threat
of inflicting such harm on another, for which the
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defendant was taken into custody, and he or she presents,
as a result of mental disorder or mental defect, a
demonstrated danger of inflicting such harm on others.
Demonstrated danger may be based on the defendant's
present mental condition, including a consideration of
behavior within six years of the time the defendant
attempted to inflict, inflicted, or threatened to inflict
substantial physical harm on another, and other relevant
evidence;
o The defendant has been charged with a serious crime
against a person or property; involuntary administration
of anti-psychotic medication is substantially likely to
render the defendant competent; the medication is
unlikely to have side effects that interfere with the
defendant's ability to understand the criminal
proceedings or to assist counsel in the conduct of a
defense; less intrusive treatments are unlikely to have
substantially the same results; and anti-psychotic
medication is in the patient's best medical interest in
light of his or her medical condition. (Pen. Code §
1370, subd. (a)(2)(B)(ii)(I)-(III).); or,
o If the court finds any of these grounds to be true,
the court shall authorize the treatment facility to
involuntarily administer anti-psychotic medication to the
defendant when and as prescribed by the defendant's
treating psychiatrist. (Pen. Code § 1370, subd.
(a)(2)(B)(iii).)
Existing law includes detailed procedures for review of orders
for involuntary antipsychotic medication and to determine
whether a person committed as IST without a medication order
should be medicated. (Pen. Code § 1370, subd. (a)- (h).)
Existing law provides that where an IST in treatment withdraws
consent for administration of antipsychotic medication, or if
involuntary medication was not ordered upon commitment, and the
treating psychiatrist believes that grounds for involuntary
medication exist, the following shall occur:
The treating psychiatrist may issue a certificate for
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administration of medication for up to 21 days, until a
hearing before a court can be held.
The IST defendant shall have the right to a medication
review hearing before an administrative law judge (ALJ)
within 72 hours.
If the ALJ agrees that grounds for involuntary
administration of medication exist, the involuntary
medication may continue until a court hearing on the issue
can be held.
If the ALJ finds that grounds for involuntary
administration of medication have not been established,
medication may not be involuntarily administered until a
court decides the issue. (Pen. Code § 1370, subd.
(a)(2)(C)-(D).)
Existing law provides that if the ALJ upholds the certification
by the treating psychiatrist for involuntary medication of the
defendant for 21 days, the psychiatrist shall file with the
court a copy of the certification and a petition for an order
authorizing involuntary medications:
The court shall provide notice to the prosecutor and
counsel for the defendant of the pending hearing.
The court shall hold the hearing within 18 days of the
issuance of the certification and determine if a formal
order for involuntary medication should be made.
The court shall issue its decision within three calendar
days, but no later than the expiration of the 21-day
certification period. (Pen. Code § 1370, subd. (a)(2)(D).)
This bill requires the court, when determining if grounds exist
for ordering involuntary administration of antipsychotic
medication to an IST defendant, to consider the reports prepared
by the psychiatrist or psychologist who examined the defendant
for mental competency purposes, per se, if those reports are
applicable to the involuntary medication issue.
This bill provides that an order for involuntary medication
shall remain valid at any facility housing the defendant for
purposes of return to competency and resumption of criminal
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proceedings, if the medication is prescribed by the defendant's
treating psychiatrist.
This bill provides that if an administrative law judge upholds
the 21-day certification by the treating psychiatrist that
antipsychotic medication has become medically necessary and
appropriate while the defendant is being treated, the court may
extend the certification and continue the hearing for no more
than 14 days, upon a showing of good cause or the stipulation of
the parties.
This bill allows the district attorney, county counsel, or
representative of any facility where a defendant found
incompetent to stand trial is committed to petition the court
for an order, reviewable as specified, to administer involuntary
medication pursuant to specified criteria.
This bill requires the court to review the order to administer
involuntary medication at the time of the review of the initial
competency report by the medical director of the treatment
facility and at review of the six-month progress reports.
This bill allows the district attorney, county counsel, or
representative of any facility where a defendant found
incompetent to stand trial is committed, within 60 days before
the expiration of the one-year involuntary medication order, to
petition the committing court for a renewal of the order,
subject to the specified conditions and requirements.
The petition shall include the basis for involuntary
medication, as specified, and requires notice of the
petition to be provided to the defendant, the defendant's
attorney, and the district attorney.
The court shall hear and determine if the defendant
continues to meet the required criteria for involuntary
medication and that the hearing be conducted before the
expiration of the current order.
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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 that 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.
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 requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
submitted 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 opposed the
state's motion, arguing 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
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constitutionally deficient." In an order dated January 29,
2013, the federal court granted the state a six-month extension
to achieve the 137.5 % inmate population cap by December 31,
2013.
The Three-Judge Court then ordered, on April 11, 2013, 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." On September 16, 2013, the State asked the
Court to extend that deadline to December 31, 2016. In
response, the Court extended the deadline first to January 27,
2014, and then February 24, 2014, and ordered the parties to
enter into a meet-and-confer process to "explore how defendants
can comply with this Court's June 20, 2013, Order, including
means and dates by which such compliance can be expedited or
accomplished and how this Court can ensure a durable solution to
the prison crowding problem."
The parties were not able to reach an agreement during the
meet-and-confer process. As a result, the Court ordered
briefing on the State's requested extension and, on February 10,
2014, issued an order extending the deadline to reduce the
in-state adult institution population to 137.5% design capacity
to February 28, 2016. The order requires the state to meet the
following interim and final population reduction benchmarks:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
If a benchmark is missed the Compliance Officer (a position
created by the February 10, 2016 order) can order the release of
inmates to bring the State into compliance with that benchmark.
In a status report to the Court dated May 15, 2014, the state
reported that as of May 14, 2014, 116,428 inmates were housed in
the State's 34 adult institutions, which amounts to 140.8% of
design bed capacity, and 8,650 inmates were housed in
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out-of-state facilities.
The ongoing prison overcrowding litigation indicates that prison
capacity and related issues concerning conditions of confinement
remain unresolved. While real gains in reducing the prison
population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore,
the Committee's consideration of ROCA bills -bills that may
impact the prison population - will be informed by the following
questions:
Whether a measure erodes realignment and impacts the
prison population;
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
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 this Bill
According to the author:
Under current law, when a defendant's competency to
stand trial is in doubt, he or she is evaluated by a
court-appointed mental health expert and a hearing is
held on the issue. If the defendant is found
incompetent to stand trial (IST), he or she is
typically transferred to a state hospital for
treatment to restore competency.
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IST defendants are usually held in the county jail
pending the transfer to a state hospital. While the
Department of State Hospitals (DSH) has increased
treatment capacity, the demand is greater than the
supply of beds, with a waiting list of between 300 to
350 defendants. The wait for admission can vary from
a couple of weeks to six months. To address the
shortage of treatment beds, DSH has initiated projects
for treatment of mentally-ill offenders and IST
defendants in county jails, streamlined programs and
better aligned reporting requirements.
One barrier to lasting competency is the disconnect
between a state hospital and county jail systems.
Currently, an order for involuntary medication is only
valid at a DSH facility and becomes invalid upon
return of the defendant to county jail following the
restoration of competency. The defendant may not
receive any medication unless local authorities seek a
new order from the superior court. Court congestion
can delay new treatment orders or extension of
existing orders. Any gap in medication can result in
the defendant decompensating to the point of
incompetency once again, necessitating DSH
recommitment. Delays in treatment put the defendant's
mental health at risk and result in unnecessary costs
to the state for additional DSH treatment.
In addition, reporting requirements for the
defendant's progress and involuntary treatment orders
often result in overlapping reporting timelines.
Existing law currently requires a report and review of
the involuntary treatment orders six months after the
order was first issued. Progress reports for a
defendant's competency restoration are also on a
six-month timeline. However, because the two
timetables for the two different reports are not
synched, reports can be made within days or weeks of
each other when they could be aligned. This bill
aligns the reports, providing the court with a
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complete analysis.
2. Basic Constitutional Issues in Mental Health Commitments
Commitment to a mental hospital involves a "massive curtailment
of liberty" and creates severe social stigma. As such, due
process is required and proof must be by clear and convincing
evidence. (Humphrey v. Cady (1972) 405 U.S. 504, 509; Addington
v. Texas (1978) 441 U.S. 418, 425-433.) However, "consistent
with 'substantive' due process ? the state may involuntarily
commit persons who, as the result of mental impairment, are
unable to care for themselves or are dangerous to others. Under
these circumstances, the state's interest in providing treatment
and protecting the public prevails over the individual's
interest in being free from compulsory confinement." (Hubbart
v. Superior Court (1999) 19 Cal.4th 1138, 1151, citing Addington
and other cases.)
3. Prohibition on Trial or Punishment of Incompetent Persons -
Principles and Issues
The principles underlying the law concerning IST defendants are
different from, but related to, the due process interests at
stake in involuntary mental health treatment, per se. A person
is IST if a mental disorder renders him or her incapable of
understanding the charges or assisting in his
or her defense. (Pen. Code § 1367, subd. (a).) Convicting or
adjudging to punishment a person who is IST violates due process
and must be reversed or vacated. (Drope v. Missouri (1975) 420
U.S. 160, 179-183; Pate v. Robinson (1966) 383 U.S. 375,
383-386.) Proceeding or findings in any critical portion of a
criminal case are invalid if the defendant was incompetent,
including preliminary hearing and imposition of sentence.
(People v. Humphrey (1975) 45 Cal.App.3d 32, 36, 38 People v.
Duncan (2000) 78 Cal.App.4th 765, 772.)
4. United States Supreme Court Decision Setting Constitutional
Requirements in Cases of Involuntary Administration of
Anti-psychotic Medication to Prison Inmates
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In Washington v. Harper (1990) 494 U.S. 210, the U.S. Supreme
Court held that involuntary administration of anti-psychotic
medication to a prison inmate must be consistent with Fourteenth
Amendment due process, including the following: 1) If a
psychiatrist determines that the inmate needs anti-psychotic
medication, but the inmate does not consent, the state may
involuntary medicate the inmate only if he or she has a mental
disorder, and is gravely disabled or poses a danger to self or
others; 2) the inmate is entitled to a hearing before a
committee of health professionals not involved in his or her
treatment to determine if the required ground for involuntary
medication exists; 3) the inmate is entitled to an explanation
of why the medication is necessary; and 4) the inmate is
entitled to present evidence and cross-examine staff witnesses
and the assistance of a knowledgeable lay advisor who has not
been involved in the inmate's case. (Ibid.) Fourth, there must
be periodic review of the order. (Id., at pp. 215-216.)
5. Sell v. United States - 2003 United States Supreme Court Case
on Involuntary Medication of IST Defendants
Sell concerned Charles Sell, a dentist with a history of mental
illness. Sell was charged with insurance fraud, found to be
competent and released on bail. Bail was revoked when Sell
threatened a witness. When he was charged with attempted
murder, Sell moved for reconsideration of the finding that he
was competent and was found IST. After two months he refused
anti-psychotic medication and hospital staff sought judicial
authorization to medicate him. It appears that Sell, unlike
many mentally ill defendants, had capacity to make medical
decisions. The court found that Sell was not currently
dangerous and could not be involuntarily medicated on that
basis.
SB 1794 (Perata) Ch. 486, Stats. 2004 adapted the Sell standards
to the California IST law. Involuntary administration of
anti-psychotic medication to IST defendants is allowed if one of
the following is shown:
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The defendant is a danger to self or others.
The defendant is gravely disabled.
The defendant faces trial for a serious offense against
a person or property. (Pen. Code.
§ 1370, subd. (a)(2)(B)(ii)(I)-(III).)
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For each of these grounds, the court must also find that the
medication is necessary and appropriate and that less intrusive
means or treatment are not effective. Where the medication is
given to render a person competent for trial on a serious
offense, the court must find that the
medication is unlikely to have side effects that would interfere
with the defendant's ability to understand the criminal
proceedings and assist counsel. (Pen. Code § 1370, subd.
(a)(2)(B)(ii)(III).)
6. Related Pending Bills: SB 1412 (Nielsen) and AB 2625
(Achadjian)
There are currently two other related bills that make
significant changes to the law governing persons who are
incompetent to stand trial or adjudged to punishment. These
include AB 2526 (Achadjian) and SB 1412 (Nielsen). SB 1412 is
pending in the Assembly and AB 2526 is set for hearing on June
10, 2014, in this Committee with this bill.
SB 1412 is sponsored by the California District Attorneys
Association, which consulted with the Judicial Council to craft
and amend the bill. SB 1412 applies IST laws to cases involving
persons on supervision under realignment, including those on
mandatory supervision after serving the custody portion of a
split sentence, former prison inmates on post release community
supervision, and parolees supervised by state parole agents, but
subject to revocation of parole by courts. The bill also
formally extends IST laws to persons on probation, many of whom
have been convicted of a crime but not yet adjudged to
punishment because the sentencing court stayed imposition of
judgment and sentence. There are thousands of persons on these
forms of supervision, but there is no law that specifically
governs IST procedures for them. However, subjecting an
incompetent person on supervision to a revocation hearing and
imposing penalties for a violation of the conditions of release
violates the federal constitution.
AB 2625 concerns IST defendants in treatment who are not likely
to regain competence. The bill requires that an IST defendant
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be returned from the treating facility to the committing court
within 10 days of a receipt by the court of a report concluding
that he or she is not likely to regain competence in the time
authorized by statute. The bill also requires the treatment
facility director to notify the sheriff that the defendant needs
transportation to court and notify the prosecutor and defense
counsel of the report. Finally, AB 2625 requires that an IST
defendant be returned to court no later than 90 days prior to
expiration of the time authorized for treatment. It appears
that the bill is largely intended to increase capacity in DSH
facilities and eliminate the unnecessary cost of futile
treatment. The bill would also likely expedite the
consideration by the court of the need for establishing a
conservatorship for an IST defendant who is gravely disabled or
a danger to self or others.
7. Suggested Amendment to Provision Concerning Administration of
Medication by Treating Psychiatrist in any Facility in which
the Defendant is Housed
Under existing law, an involuntary medication order is valid
only at the facility where the incompetent defendant has been
committed for treatment. Thus, it is understood that the order
is invalid upon the defendant's return to the county of
commitment for resumption of criminal proceedings, where he or
she will typically be housed in the jail. A major goal of this
bill is to provide that the medication order shall remain in
effect when the defendant is returned to court. Where
medication is stopped abruptly, the defendant can suffer
difficult withdrawal symptoms. He or she may also decompensate,
reversing the progress made in treatment over months or even
years. The entire process may need to be redone. Medication
may not be fully effective in a second round of treatment.
The bill provides that the court's medication order shall remain
in effect when the medication is prescribed by the defendant's
treating psychiatrist at any facility where the defendant is
housed for "purposes of this section."<1> That can be
interpreted as meaning only commitment for treatment, including
---------------------------
<1> Penal Code Section 1370.
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involuntary administration of medication where specified grounds
are established. Arguably, once a defendant has been returned
to the county of commitment for resumption of criminal
proceedings, the defendant is no longer being treated for
restoration of competence. The defendant is being held for
trial or sentencing. Section 1372 specifically concerns the
court process that applies where the defendant is returned to
competence. Other relevant sections and provisions may apply.
It is suggested that the phrase for "purposes of this section"
be amended to state "for purposes of this chapter." The chapter
includes the entire IST process, including evaluation, trial,
commitment, treatment, transfer from one facility to another and
return to court.
SHOULD THE BILL BE AMENDED TO PROVIDE THAT AN INVOLUNTARY
MEDICATION ORDER SHALL REMAIN IN EFFECT WHERE THE MEDICATION IS
PRESCRIBED BY HIS OR HER TREATING PSYCHIATRIST AT ANY FACILITY
WHERE THE DEFENDANT IS HELD FOR "PURPOSES OF THIS CHAPTER?"
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