BILL ANALYSIS Ó SENATE COMMITTEE ON PUBLIC SAFETY Senator Loni Hancock, Chair S 2013-2014 Regular Session B 2 9 5 SB 295 (Emmerson) As Amended March 21, 2013 Hearing date: April 30, 2013 Welfare and Institutions Code JM:mc SEXUALLY VIOLENT PREDATORS PROGRAM: CONDITIONAL RELEASE HEARINGS HISTORY Source: San Joaquin County District Attorney; Riverside County District Attorney; San Bernardino County District Attorney Prior Legislation: Proposition 83, November 2006 General Election SB 1128 (Alquist) - Ch. 337, Statutes 2006 AB 893 (Horton) - Ch. 162, Stats. 2005 AB 2450 (Canciamilla) - Ch. 425, Stats. 2004 AB 493 (Salinas) - Ch. 222, Stats. 2004 SB 659 (Correa) - Ch. 248, Stats. 2001 AB 1142 (Runner) - Ch. 323, Stats. 2001 SB 2018 (Schiff) - Ch. 420, Stats. 2000 SB 451 (Schiff) - Ch. 41, Stats. 2000 AB 2849 (Havice) - Ch. 643, Stats. 2000 SB 746 (Schiff) - Ch. 995, Stats. 1999 SB 11 (Schiff) - Ch. 136, Stats. 1999 SB 1976 (Mountjoy) - Ch. 961, Stats. 1998 AB 888 (Rogan) - Ch. 763, Stats. 1995 SB 1143 (Mountjoy) - Ch. 764, Stats 1995 (More) SB 295 (Emmerson) PageB Support: California District Attorneys Association Opposition:California Public Defenders Association NOTE: THIS BILL IS ANALYZED AS PROPOSED TO BE AMENDED IN COMMITTEE. KEY ISSUES WHERE A SEXUALLY VIOLENT PREDATOR PATIENT, WITH THE RECOMMENDATION OF THE DEPARTMENT OF STATE HOSPITALS, FILES A PETITION FOR CONDITIONAL RELEASE, SHOULD THE STATE BEAR THE BURDEN OF PROOF BY A PREPONDERANCE OF THE EVIDENCE IN ANY CHALLENGE TO THE PETITION? WHERE AN SVP PATIENT HAS BEEN CONDITIONALLY RELEASED FOR AT LEAST A YEAR, SHOULD HE BE AUTHORIZED TO SEEK UNCONDITIONAL RELEASE IN A TRIAL WHERE THE STATE WOULD BEAR THE BURDEN TO PROVE BEYOND A REASONABLE DOUBT THAT HE REMAINS AN SVP? PURPOSE The purposes of this bill are to provide that where the Department of State Hospitals (DSH) recommends or finds that a person may be safely and conditionally released under treatment, the state shall have the burden of proving to the court by a preponderance of evidence that the person should not be released; 2) provide that the court shall not act on a petition for conditional release filed without the consent of the Director of DSH until the director makes its recommendation to the court; and 3) provide that after an SVP patient has been on conditional release for at least one year, he<1> can file a petition for unconditional release with or without the concurrence of DSH and shall be entitled to a jury trial in which the state would be required to prove beyond a reasonable --------------------------- <1> There has been only one female SVP patient. (More) SB 295 (Emmerson) PageC doubt that he is still an SVP. The SVP Law Generally, and Procedures for Indeterminate Commitment The Sexually Violent Predator (SVP) law provides for the indefinite civil commitment for psychiatric and psychological treatment of a prison inmate found to be a sexually violent predator after the person has served his or her prison commitment. (Welf. & Inst. Code § 6600, et seq.) Existing law defines a sexually violent predator as an inmate "who has been convicted of a sexually violent offense against one or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior." (Welf. & Inst. Code § 6600, subd. (a).) Existing law defines a "diagnosed mental disorder" as one that includes "a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to the commission of criminal sexual acts in a degree constituting the person a menace to the health and safety of others." (Welf. & Inst. Code § 6600, subd. (c).) Existing law provides that where the Department of Corrections and Rehabilitation determines that an inmate fits the criteria for evaluation as an SVP, the inmate shall be referred for evaluation to the Department of State Hospitals (DSH). (Welf. & Inst. Code § 6601, subd. (b).) Existing law provides that the inmate "shall be evaluated by two practicing psychiatrists or psychologists, or one practicing psychiatrist and one practicing psychologist, designated by the (More) SB 295 (Emmerson) PageD Director of the Department of State <2>Hospitals." If both evaluators concur that the person meets the criteria for SVP commitment, DSH shall request a prosecutor to file a commitment petition. (Welf. & Inst. Code § 6601, subd. (d).) Existing law provides that if the evaluators designated by DSH disagree, additional, independent evaluators are appointed. The second pair of evaluators must agree that the person meets the requirement for SVP commitment or the case cannot proceed. (Welf. & Inst. Code § 6601, subd. (c)-(e).) Existing law provides for a hearing procedure to determine whether there is probable cause to believe that a person who is the subject of a petition for civil commitment as an SVP is likely to engage in sexually violent predatory criminal behavior upon his or her release from prison. (Welf. Inst. Code § 6602.) Existing law requires a jury trial at the request of either party with a determination beyond a reasonable doubt that the person is an SVP. (Welf. & Inst. Code § 6603.) Required Annual Evaluation of an SVP Patient's Mental State and Authorized Petitions for Release Existing law (Welf. & Inst. Code § 6605, subds. (a)-(b)) provides that an SVP patient shall have a "current evaluation of his or her mental condition at least once a year." The following applies to the evaluation process and the report documenting the evaluation: The ? report ? shall ? [consider] whether [the SVP patient] currently meets the definition of an [SVP] and whether conditional release ? or an unconditional release is in the best interest of the person and conditions can be imposed that would adequately protect the community." -------------------------- <2> Not all relevant code sections have been amended to reflect that the former Department of Mental Health is now the Department of State Hospitals. This bill refers to DSH, including where the governing statute. (More) SB 295 (Emmerson) PageE "The report shall be in the form of a declaration<3> and shall be prepared by a professionally qualified person." DSH shall file the evaluation report with the court from which the SVP patient was committed for treatment. The committed SVP may hire an expert, or the court may appoint an expert for the patient if he is indigent. The expert shall have access to all relevant case records. If the report concludes either 1) that the patient is no longer an SVP, or 2) that release to a less restrictive alternative than the hospital setting is in his best interest and that conditions of release can be imposed so as to adequately protect the community, the DSH director shall authorize the SVP patient to petition for either of the following: o conditional release to a less restrictive setting; o unconditional release from commitment. Existing law provides that the court, upon filing of the petition, shall hold a "show cause" hearing to determine if there is probable cause that the committed person's condition has changed such that he would not engage in sexually violent behavior in the community or that release to less restrictive environment would benefit the SVP patient while keeping the community safe. (Welf. & Inst. Code § 6605, subds. (b)-(c).) Existing law provides that where the court finds probable cause that the person's condition has changed, the court shall set a hearing at which the following shall apply: The SVP patient shall have all the rights afforded him at the original commitment trial, including appointment of an expert. The prosecutor may have the patient evaluated by an expert chosen by the state. Either the SVP patient or the prosecutor may demand a jury trial. At the trial, the prosecution must prove beyond a -------------------------- <3> A declaration would appear to mean a statement made under penalty of perjury. (More) SB 295 (Emmerson) PageF reasonable doubt that the patient's mental disorder remains such that he would likely commit sexually violent offenses in the community if released. (Welf. & Inst. Code § 6605, subds. (c)-(d).) Petitions for Conditional Release Without the Concurrence of DSH Existing law provides that an SVP patient may be conditionally released into the community for treatment if he or she would not be a danger to others: The court can dismiss a frivolous petition, as specified. The SVP patient bears the burden of proof by a preponderance of the evidence. The court shall order release if it finds that it is not likely that the person will engage in sexually violent criminal behavior if placed under supervision and treatment in the community. The court retains jurisdiction over a conditionally released SVP. (Welf. & Inst. Code § 6608, subd. (a).) Existing law , despite a reference to "unconditional discharge" in subdivision (a) of Welfare and Institutions Code section 6608, includes no process where a court or a jury could find that an SVP patient should be unconditionally released. Section 6608 includes no standards for the court to determine if unconditional release should be granted. Section 6608 includes no cross-reference to section 6605, the section governing trials for unconditional release. (Welf. & Inst. Code § 6608, subd. (a).) This bill , as proposed to be amended in committee, provides that where DSH in the annual report on the mental status of an SVP patient finds that the conditional discharge would be in the best interests of the patient under conditions that would protect the public, the patient may only file a petition pursuant to the procedures in Welfare and Institutions Code Section 6608, as follows: (More) SB 295 (Emmerson) PageG The state shall have the burden of proof by a preponderance of the evidence that the SVP would be likely to commit sexually violent offenses if conditionally released. If the petition for conditional release is denied by court, the SVP may not file another petition for conditional release for one year. This bill provides that where an SVP patient files a petition or conditional release without the concurrence or recommendation of the director, the court may not act on the petition until the court obtains the written recommendation of the director. This bill provides that where a show cause hearing is held to consider a DSH determination that an SVP patient is no longer an SVP, the patient SVP has the burden to establish probable cause that he would not likely commit sexually violent offenses if unconditionally released. This bill provides that after at least a year on conditional release, the SVP patient may file a petition for unconditional release. If the court finds probable cause to support the petition, the state shall bear the burden to prove to a jury beyond a reasonable doubt that the person is still an SVP. 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 (More) SB 295 (Emmerson) PageH 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. 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 (More) SB 295 (Emmerson) PageI 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 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 Welfare and Institutions Code Sections 6605 and 6608 currently describe procedures whereby a person committed to the Department of State Hospitals (DSH) as a sexually violent predator (SVP) can seek release from commitment. These statutes attempt to describe the procedures whereby an SVP can seek conditional release to a less restrictive alternative or an unconditional discharge. Unfortunately, these statutes are confusing, poorly drafted, and incomplete. Section 6605 provides that an SVP may seek conditional release when DSH deems the person safe to be released to a less restrictive setting, or unconditional discharge when the person no longer qualifies as an SVP. While Section 6605 describes the procedure to be used by a court to determine whether an SVP should be (More) SB 295 (Emmerson) PageJ unconditionally discharged, it fails to provide the procedure that the court must use to determine whether an SVP should be granted conditional release. Strangely enough, these guidelines exist in Section 6608. Additionally, Section 6608, which relates to release from SVP commitment when DSH does not agree that the SVP is no longer a risk to the public or believes the SVP still meets the criteria of an SVP, is less than clear as it relates to an SVP seeking unconditional discharge. The intent of the SVP Act, and subsequent case law interpreting the same, is that an SVP may only seek unconditional discharge when DSH concurs with such premise (pursuant to Section 6605) or after at least one year of conditional release (Section 6608). (See People v. Cheek (2001) 25 Cal.4th 894, 902; People v. McKee (2012) 207 Cal.App.4th 1325, 1334.) Further, Section 6608 allows an SVP to petition for unconditional discharge even when DSH still believes the SVP meets the criteria to qualify as an SVP, but fails to describe any procedures to be used by a court to determine if an SVP should be unconditionally discharged. This supports the notion that unconditional discharge under Section 6608 may only come after a period of conditional release. 2. Petitions for Conditional Release Based on the DSH Recommendation - Due Process and Related Issues Civil Commitment Generally The United States and California Supreme Courts have consistently held that involuntary confinement for mental health treatment is a severe curtailment of liberty. Civil commitment schemes must be justified by compelling state interests. (Foucha v. Louisiana (1992) 504 U.S. 71, 77; People v. McKee, supra, 47 Cal.4th at p. 1193.) Propositions 83 in 2006 - Indeterminate Commitment of SVPs (More) SB 295 (Emmerson) PageK instead of Two-Year Commitment In 2006, Proposition 83 (Jessica's Law) provided that a person found to be a sexually violent predator (SVP) in a jury trial was to be civilly committed to the Department of State Hospitals for an indefinite period of time. Prior to enactment of Proposition 83, the SVP was entitled to a full jury trial every two years at which the prosecution had to prove again the person's status as an SVP. The indefinite commitment provision in Proposition 83 has been challenged in the California Court of Appeal and the California Supreme Court on the grounds that it violates the constitutional guarantees of due process and equal protection of the laws. Due Process Concerns from Indefinite Commitments and Alternative Methods of Seeking Release As to due process: SVP patients argued that the change from a recommitment trial every two years to an indefinite commitment violated due process of the law by unreasonably restricting or eliminating any reasonable chance for freedom. The California Supreme Court rejected the claim that an indefinite commitment violates due process. The Supreme Court noted that DSH must annually evaluate an SVP patient's mental state. If DSH finds either that the person is no longer an SVP, or that he may be conditionally released into the community under supervision that would protect public safety, the SVP patient may file a petition for unconditional or conditional release. Where the patient files a petition for conditional or unconditional release, the state bears the burden of proving that the person's involuntary treatment must continue. (People v. McKee, supra, 47 Cal.4th at p. 1185-1188.) In upholding the constitutionality of an indefinite commitment, the Supreme Court in McKee stressed that due process requires that an SVP have a reasonable opportunity to seek and obtain release. The court noted that civil commitment ? is constitutional so long as it is accompanied by appropriate (More) SB 295 (Emmerson) PageL constitutional protections. (Id, at p.1188.) The court also then noted: "[The annual examination [of the SVP patient's mental status] occurs [to determine] whether involuntary commitment is still required, or whether the SVP has sufficiently changed as result of treatment to be released." (Id, at pp. 1192-1193.) Further, the court stated that making it overly burdensome for an SVP to petition for release without the concurrence of DSH - for example, by not appointing experts to assist the patient - would violate due process. (People v. McKee, supra, 47 Cal.4th at pp. 1192-1193.) Ambiguity in the Statute Authorizing Petitions for Conditional Release with DSH Recommendation: Court Ruling that an SVP Patient is Entitled to a Jury Trial upon Proof Beyond a Reasonable Doubt The Court of Appeal in People v. Smith (2013) 212 Cal.App.4th 1398, 1405 and People v. Landau (2011) 199 Cal.App.4th 31, 35-40 held that where DSH in the annual examination authorizes an SVP patient to petition for conditional release, any challenge by the state must be made in a jury trial pursuant to Section 6605 where the state has the burden of proving beyond a reasonable doubt that the patient is not safe for release. The court in Smith held that while Section 6605 is ambiguous because it requires an annual report and authorizes a petition for unconditional or conditional release in two subdivisions, but only refers to a trial on the issue of unconditional release in the rest of the section. That is, Section 6605 grants a patient with a recommendation for conditional release to file a petition for such release, but effectively provides no procedures for doing so. (People v. Smith, supra, 212 Cal.App.4th 1398, 1405.) The court then essentially found that due process and the purposes for the annual report process requires that the SVP patient who has been recommended for conditional release be given a jury at which the state must prove beyond a reasonable doubt that he is not safe for conditional release, just as the state must do on the issue of (More) SB 295 (Emmerson) PageM unconditional release. (Id, at pp. 1402-1403.)<4> This Bill would Explicitly Create Procedures for a Conditional Release Trial where the State Bears the Burden of Proof by a Preponderance of the Evidence The sponsors and author of this bill argue that the SVP statute should be amended to direct the court to use the procedures in Section 6608 for a trial concerning conditional release. Since the enactment of the SVP law, Section 6608 has set the procedures and standards for petitions filed by the patient for conditional release without the concurrence of DSH. This bill, places the burden on the state to prove by a preponderance of the evidence that an SVP patient who has been recommended for release in the annual DSH report should not be conditionally. Except for the burden of proof being placed on the state, the conditional release trial following a positive recommendation in the annual examination would follow the standards and procedures in Section 6608. These include that the trial would be before a judge and that the standard of proof would be a preponderance of the evidence. Due Process Issues Concerning a Court Trial and Preponderance of the Evidence Standard for Conditional Release Trials Using a court trial process and a preponderance of the evidence standard for conditional release trials could be challenged as denying due process. That argument would be based on the fact that a trial concerning unconditional release requires the state to prove beyond a reasonable doubt that the person is an SVP. The justification for specifying that a conditional release trial should be to a judge would appear to be that the --------------------------- <4> As with so much about the SVP statute and the decisions interpreting the law as it has been amended around a dozen times, the basis for the ruling in Smith is not as clear as it could be. The decision refers to constitutional protections and voter intent without much distinction as to how those considerations affect the ruling. (More) SB 295 (Emmerson) PageN conditional release program (CONREP) involves monitoring by the court. The conditional release decision involves a projection of how well the SVP patient will perform on CONREP. At the end of at least a year on CONREP, the court must determine if the SVP patient should be unconditionally released, kept on conditional release with perhaps new conditions or returned to in-patient status. Arguably, these are equivalent to sentencing decisions, and sentencing is an inherently judicial function. The finder of fact does not simply find that the person is or is not an SVP. As to the burden of proof: Where DSH recommends an SVP patient for conditional release by DSH, DSH necessarily has concluded that the patient is still an SVP. DSH has essentially recommended that the patient be placed on a higher level in the treatment process. A conditionally released person can be returned to secure confinement and treatment for any violation of the conditions of release. It appears that proof of a violation of the conditions of release would be by a preponderance of the evidence. 3. Requirement that an SVP Patient Establish Probable Cause for Unconditional Release Before a Hearing can be Held Under existing law, where DSH, pursuant to an evaluation by a professionally qualified person, authorizes an SVP patient to file a petition for unconditional release,<5> the court is directed to hold a probable cause hearing. If the court finds that probable cause that the person would not likely commit sexually violent offenses, the court shall order a trial at which the state, in order to block release, would have to prove beyond a reasonable doubt that the person is still an SVP. This bill requires the SVP patient to establish probable cause before a full trial can be set. This assignment of a burden of --------------------------- <5> As discussed above, because of ambiguities in the law, this process has been held to also apply to petitions for conditional release. (People v. Smith, supra, 212 Cal.App.4th 1398, 1402-1405.) (More) SB 295 (Emmerson) PageO proof to the SVP patient arguably violates due process. The probable cause hearing for unconditional release only occurs after a qualified expert at DSH has recommended that the SVP patient be unconditionally released. As the treating entity no longer believes that the person must be committed, placing significant burdens on the SVP patient's efforts to obtain release could well violate due process. (People v. McKee, supra, 47 Cal.4th at pp. 1192-1193.) For example, the Supreme Court in McKee state that not appointing experts to assist an indigent SVP patient in seeking conditional release without the concurrence of DSH would violate due process.) The bill provides that an SVP patient may petition for unconditional release after at least a year on conditional release. The trial process would be the same as the original commitment trial: The state must prove beyond a reasonable doubt (to a jury if demanded by either side) that the conditionally released patient is still an SVP, This bill also, however, requires the SVP patient to establish probable cause for unconditional release. To avoid due process problems, it is suggested that where DSH concurs with the recommendation for release, the state shall have the burden to show lack of probable cause. Where DSH does not concur, the SVP patient should bear that burden. WHERE DSH FINDS THAT A PERSON IS NO LONGER AN SVP AND RECOMMENDS RELEASE, SHOULD THE STATE BEAR THE BURDEN TO NEGATE PROBABLE CAUSE FOR RELEASE? WHERE DSH DOES NOT CONCUR THAT A CONDITIONALLY RELEASED SVP SHOULD BE UNCONDITIONALLY RELEASED, SHOULE THE SVP PATIENT BEAR THE BURDEN TO ESTABLISH PROBABLE CAUSE FOR RELEASE? 4. Procedures for Petitions for Conditional Release Filed Without the Concurrence of DSH Section 6608 authorizes an SVP to file a petition for conditional release without the concurrence of DSH.<6> At the hearing on the petition, the SVP patient has the burden of proof --------------------------- <6> The existing statute refers to the Director of DSH. (More) SB 295 (Emmerson) PageP by a preponderance of the evidence to establish that he can be safely released under supervision and treatment. Prior to Propositions 83 (Jessica's Law) in 2006, the statute stated that the petition was for conditional release and "subsequent" discharge. Proposition 83 struck the word "subsequent," creating a significant ambiguity. There are no procedures in Section 6608 for a hearing on unconditional discharge. The procedures for unconditional discharge are found in Section 6605, which concerns circumstances where DSH recommends release in the annual review. Prior to enactment of Proposition 83, the court would determine after at least a year on conditional release whether or not an SVP patient should be unconditionally released. This bill would provide that after at least a year on conditional release, the SVP patient may file a petition for unconditional discharge. If the court finds probable cause to support the petition, the state shall have the burden of proving to a jury beyond a reasonable doubt that the person is still an SVP. 5. Requirement that the DSH Director make a Recommendation concerning Conditional Release before a Court may Act on a Petition Filed without the Concurrence of DSH This bill provides that where the petition for conditional releases is done "without the consent of the Director of State Hospitals, no action shall be taken on the petition by the court without first obtaining the written recommendation of the [director]." The bill does not provide that the court can only act if the director recommends release. Existing law provides that the court shall not act on the petition until the court receives the "written recommendation of the director of the treatment facility." (Welf. & Inst. Code § 6608, subd. (j), italics added.) (More) SB 295 (Emmerson) PageQ (More) The California Public Defenders Association (CPDA) objects to the requirement that the Director of the Department of State Hospitals, not the director of the treatment facility, makes his or her recommendation to the court. CPDA notes that the Director of DSH has never supported a petition for conditional release. This provision does raise issues about whether considerations other than the progress of an SVP patient in treatment could influence the recommendation of the director. The director would not likely have been involved in evaluating or monitoring the SVP patient's course of treatment. The director need not have any expertise in the treatment of sex offenders. The Court of Appeal in People v. Landau, supra, 199 Cal.App.4th 31, 35-40, has clearly held that where the evaluator in an annual examination of an SVP patient's mental state finds that the patient is no longer an SVP or can be conditionally released safely, the department director must authorize the patient to file a petition for unconditional or conditional release, depending on the finding of the evaluator. The director cannot simply overrule the evaluation or recommendation. The court relied on provisions concerning the original commitment trial, which require the director to request that the district attorney file a petition for commitment if two experts find that the person is likely an SVP. The court ruled as a matter of statutory construction; it did not consider a due process claim. The court remanded the matter to the trial court with directions that the court set a jury trial on the conditional release issue. (Id, at pp. 39-40.) The SVP law directs the department to conduct evaluations "pursuant to a standardized assessment protocol. The standardized assessment protocol shall require assessment of diagnosable mental disorders, as well as various factors known to be associated with the risk of reoffense among sex offenders. Risk factors to be considered shall include criminal and psychosexual history, type, degree, and duration of sexual deviance, and severity of mental disorder." (Welf. & Inst. Code § 6601, subd. (c).) This provision clearly contemplates that (More) SB 295 (Emmerson) PageS DSH evaluations and assessments must be guided by accepted scientific, psychiatric and psychological principles. The director is appointed by the Governor, creating the possibility that the bases for recommendations could change with changes in administrations. These changes could benefit or harm the chances that a person would be granted conditional release, depending on the director or person who advises the director. In this regard, it should be noted that the Clinical Director of Evaluation Services has recently rejected evaluations by experienced experts that a person is an SVP, apparently challenging the evaluation standards and methods that have been previously used. The history of the SVP law establishes that the treatment and releases of sex offenders is highly controversial and sensitive. DSH directors face tremendous political and public pressure in these cases. It is recommended that the bill be amended to require the court in a trial for conditional release without the consent of the director of the treatment facility to obtain the facility director's recommendation before acting on the petition. SHOULD THE BILL BE AMENDED TO PROVIDE THAT THE COURT SHALL NOT ACT ON A PETITION FOR CONDITIONAL RELEASE UNTIL THE DIRECTOR OF THE TREATMENT FACILITY MAKES HIS OR HER RECOMMENDATION TO THE COURT? 6. Expansion of Eligibility for SVP Evaluation in 2006 have Strained the Ability of DMH to Perform SVP Commitment Evaluations Proposition 83 of the 2006 General Election (Jessica's Law) changed the basic criteria for evaluation of an inmates as an SVP. Previously, a person could be evaluated as an SVP if he<7> committed predatory sexual crimes against more than one victim. Pursuant to the changes made by Proposition 83, an inmate may be evaluated as a possible SVP if he committed a predatory sexual offense against one person. A predatory offense is one --------------------------- <7> Virtually all SVPs are men. SB 295 (Emmerson) PageT committed against a stranger or a person with whom the perpetrator cultivated a relationship for purposes of abuse. CDCR must examine prison records to find any inmate who has been convicted of a qualifying sex crime (most sex crimes qualify) against a non-family member. Such inmates are then referred to DMH for full evaluation. After an initial evaluation by trained screeners, these inmates are referred to expert psychiatrists or psychologists for full evaluation. The changes in criteria for evaluation of potential SVPs have increased the number of evaluations performed by DMH experts 10 fold, from approximately 50 to 500 per month. DMH, or any agency, would be hard-pressed to meet such a challenge. DSH no longer publishes data about the number of patients in the SVP program, the number of persons evaluate and the cost of treatment. The Governor's 2013/2014 Budget<8> projects an SVP patient population of 857 in that fiscal year. The annual cost per SVP patient has recently been described as being approximately $180,000. Evaluation costs are in the tens of millions of dollars. *************** --------------------------- <8> http://dsh.ca.gov/AboutUs/docs/2013-14_Gov_Budget_Highlights.pdf.