BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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9
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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
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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
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<1> There has been only one female SVP patient.
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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
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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.
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"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
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<3> A declaration would appear to mean a statement made under
penalty of perjury.
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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:
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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
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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
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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
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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
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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
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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
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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
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<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.
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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
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<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.)
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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
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<6> The existing statute refers to the Director of DSH.
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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.)
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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
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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
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<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.
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<8>
http://dsh.ca.gov/AboutUs/docs/2013-14_Gov_Budget_Highlights.pdf.