BILL ANALYSIS Ó
AB 618
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Date of Hearing: April 7, 2015
Chief Counsel: Gregory Pagan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Quirk, Chair
AB
618 (Maienschein) - As Introduced February 24, 2015
SUMMARY: Requires an independent professional appointed by the
Board of Parole Hearings (BPH), to, at the request of a
prisoner, who is appealing a designation as a mentally
disordered offender (MDO), or is serving an indeterminate
sentence with the possibility of parole, as specified, consult
with the prisoner's primary mental health clinician before
making a recommendation to the BPH concerning that prisoner's
status or parole suitability, as applicable. Specifically, this
bill:
1)Requires an independent professional appointed by BPH for
purposes of determining the designation as a MDO, at the
request of the prisoner, to consult with a prisoner's primary
mental clinician, if any, before making a recommendation
concerning that prisoner to BPH. Defines "primary mental
clinician," for purposes of this provision, to mean a licensed
psychiatrist, psychologist, or clinical social worker who
regularly treats the prisoner, including, but not limited to,
an employee of the State Department of State Hospitals or a
privately-hired person.
2)Requires BPH, at any hearing where BPH considers a
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Psychological Risk Assessment, as specified, as part of its
determination of whether to set, postpone, or rescind a parole
release date of a prisoner under a life sentence, at the
request of the prisoner under a life sentence, also consult
with the prisoner's primary mental clinician if that person
exists. Defines "primary mental clinician," for purposes of
this provision, to mean a licensed psychiatrist, psychologist,
or clinical social worker who regularly treats the prisoner,
including, but not limited to, a state employee or a
privately-hired person.
EXISTING LAW:
1)States a legislative finding and declaration that the
Department of Corrections (CDCR) should evaluate each prisoner
for severe mental disorders during the first year of the
prisoner's sentence, and that severely mentally disordered
prisoners should be provided with an appropriate level of
mental health treatment while in prison and when returned to
the community. (Pen. Code, § 2960.)
2)Requires, as a condition of parole, a prisoner who meets the
following criteria to be treated by the State Department of
State Hospitals (DSH) and DSH to provide the necessary
treatment:
a) The prisoner has a severe mental disorder, as defined,
that is not in remission, as defined, or cannot be kept in
remission without treatment;
b) The severe mental disorder was one of the causes of or
was an aggravating factor in the commission of a crime, as
specified, for which the prisoner was sentenced to prison;
c) The prisoner has been in treatment for the severe mental
disorder for 90 days or more within the year prior to the
prisoner's parole or release; and,
d) Prior to release on parole, the person in charge of
treating the prisoner and a practicing psychiatrist or
psychologist from the DSH or a chief psychiatrist of CDCR,
as applicable, have evaluated the prisoner at a CDCR
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facility or state hospital, as applicable, and a chief
psychiatrist of CDCR has certified to BPH that the prisoner
meets the above criteria and that by reason of his or her
severe mental disorder the prisoner represents a
substantial danger of physical harm to others. (Pen. Code,
§ 2962.)
3)Requires BPH to order a further examination by two independent
professionals, as specified, if the professionals doing the
evaluation described above do not concur that (i) the prisoner
has a severe mental disorder, (ii) that the disorder is not in
remission or cannot be kept in remission without treatment, or
(iii) that the severe mental disorder was a cause of, or
aggravated, the prisoner's criminal behavior, and a chief
psychiatrist has certified the prisoner to the BPH. Requires
the certification by a chief psychiatrist to stand if at least
one of the independent professionals who evaluate the prisoner
concurs with the chief psychiatrist's certification. (Pen.
Code, § 2962, subd. (d)(2) & (3).)
4)Allows BPH, upon a showing of good cause, to order an inmate
to remain in custody for up to 45 days past the scheduled
release date for a full MDO evaluation. (Pen. Code, § 2963.)
5)Allows the prisoner to challenge the MDO determination both
administratively (at a hearing before the board) and
judicially (via a superior court jury trial). (Pen. Code, §
2966.)
6)Provides that if the MDO determination made by BPH is reversed
by a judge or jury, the court shall stay the execution of the
decision for five working days to allow for an orderly release
of the person. (Pen. Code, § 2966.)
7)Requires MDO treatment to be inpatient treatment unless there
is reasonable cause to believe that the parolee can be safely
and effectively treated on an outpatient basis. Allows a
parolee to request a hearing to determine whether outpatient
treatment is appropriate if the hospital does not place the
parolee on outpatient treatment within 60 days of receiving
custody of the parolee. (Pen. Code, § 2964, subds. (a) &
(b).)
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8)Requires the director of the hospital to notify BPH and
discontinue treatment if the parolee's severe mental disorder
is put into remission during the parole period and can be kept
that way. (Pen. Code, § 2968.)
9)Allows the district attorney to file a petition in the
superior court seeking a one-year extension of the MDO
commitment. (Pen. Code, § 2970.)
10)Requires the following persons released from prison on or
after October 1, 2011, be subject to parole under the
supervision of CDCR:
a) A person who committed a serious felony, as specified;
b) A person who committed a violent felony, as specified;
c) A person serving a Three-Strikes sentence;
d) A high-risk sex offender;
e) A mentally disordered offender;
f) A person required to register as a sex offender and
subject to a parole term exceeding three years at the time
of the commission of the offense for which he or she is
being released; and,
g) A person subject to lifetime parole at the time of the
commission of the offense for which he or she is being
released. (Pen. Code, § 3000.08, subds. (a) & (c).)
11)Requires all other offenders released from prison on or after
October 1, 2011 to be placed on postrelease community
supervision under the supervision of a county agency, such as
a probation department. (Pen. Code, § 3000.08, subd. (b).)
12)Provides that prior to a life inmate's initial parole
consideration hearing, a Comprehensive Risk Assessment will be
performed by a licensed psychologist employed by BPH, except
as specified. (Cal. Code Regs., tit. 15, § 2240, subd. (a).)
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13)Provides that a Comprehensive Risk Assessment will be
completed every five years and will consist of both static and
dynamic factors which may assist a hearing panel or BPH in
determining whether the inmate is suitable for parole.
Provides that the assessment may include, but is not limited
to, an evaluation of the commitment offense, institutional
programming, the inmate's past and present mental state, and
risk factors from the prisoner's history and that the
assessment will provide the clinician's opinion, based on the
available data, of the inmate's potential for future violence.
Allows BPH psychologists to incorporate actuarially-derived
and structured professional judgment approaches to evaluate an
inmate's potential for future violence. (Cal. Code Regs.,
tit. 15, § 2240, subd. (b).)
14)States that in the 5-year period after a Comprehensive Risk
Assessment has been completed, life inmates who are due for a
regularly scheduled parole consideration hearing will have a
Subsequent Risk Assessment completed by a licensed
psychologist employed by BPH for use at the hearing; however,
this will not apply to documentation hearings, cases coming
before BPH en banc, progress hearings, 3-year reviews of a
5-year denial, rescission hearings, postponed hearings, waived
hearings or hearings scheduled pursuant to court order, unless
the board's chief psychologist or designee, in his or her
discretion, determines a new assessment is appropriate under
the individual circumstances of the inmate's case. Provides
that the Subsequent Risk Assessment will address changes in
the circumstances of the inmate's case, such as new
programming, new disciplinary issues, changes in mental
status, or changes in parole plans since the completion of the
Comprehensive Risk Assessment but will not include an opinion
regarding the inmate's potential for future violence because
it supplements, but does not replace, the Comprehensive Risk
Assessment. (Cal. Code Regs., tit. 15, § 2240, subd. (c).)
15)Requires, regardless of the length of time served, a life
prisoner to be found unsuitable for and denied parole if in
the judgment of the BPH panel the prisoner will pose an
unreasonable risk of danger to society if released from
prison, with the following circumstances tending to indicate
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unsuitability:
a) Commitment offense (The prisoner committed the offense
in an especially heinous, atrocious, or cruel manner.);
b) Previous record of violence;
c) Unstable social history;
d) Sadistic sexual offenses;
e) Psychological factors (The prisoner has a lengthy
history of severe mental problems related to the offense.);
and,
f) Institutional behavior. (Cal. Code Regs., tit. 15, §
2281, subds. (a) & (c).)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "If it is
determined that the prisoner is fit to receive a parole
hearing, current law requires that the clinician in charge of
treating the prisoner and an independent evaluator from within
the CDCR evaluate the prisoner. The law also requires the
Board of Parole Hearings to appoint two independent
professionals to conduct an additional review in certain
circumstances.
"However, these independent evaluators are not required to
consult with a prisoner's primary clinician before making a
recommendation to the board. The findings of these evaluators
may be incomplete or lack context since they may not know the
unique circumstances facing the prisoner.
"AB 2520 would require the independent evaluator from CDCR to
consult with the prisoner's primary clinician before making a
recommendation to the BPH. This would help ensure public
safety and the well-being of the prisoner by improving
communication between the prisoner's health team and
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independent evaluators.
2)The Mentally Disordered Offender Act: A MDO commitment is a
post-prison civil commitment. The MDO Act is designed to
confine a mentally ill inmate who is about to be released on
parole when it is deemed that he or she has a mental illness
which contributed to the commission of a violent crime.
Rather than release the inmate to the community, CDCR paroles
the inmate to the supervision of the state hospital, and the
individual remains under hospital supervision throughout the
parole period. The act actually addresses treatment in three
contexts - first, as a condition of parole (Pen. Code, §
2962); then, as continued treatment for one year upon
termination of parole (Pen. Code, § 2970); and, finally, as an
additional year of treatment after expiration of the original,
or previous, one-year commitment (Pen. Code, § 2972). (People
v. Cobb (2010) 48 Cal.4th 243, 251.)
Penal Code section 2962 lists six criteria that must be proven
for an initial MDO certification, namely, whether: (1) the
inmate has a severe mental disorder; (2) the inmate used force
or violence in committing the underlying offense; (3) the
severe mental disorder was one of the causes or an aggravating
factor in the commission of the offense; (4) the disorder is
not in remission or capable of being kept in remission without
treatment; (5) the inmate was treated for the disorder for at
least 90 days in the year before the inmate's release; and (6)
by reason of the severe mental disorder, the inmate poses a
serious threat of physical harm to others. (Pen. Code, § 2962,
subds. (a)-(d); People v. Cobb, supra, 48 Cal.4th at p.
251-252.)
The initial determination that the inmate meets the MDO criteria
is made administratively. The person in charge of treating
the prisoner and a practicing psychiatrist or psychologist
from the DSH will evaluate the inmate. If it appears that the
inmate qualifies, the chief psychiatrist then will certify to
BPH that the prisoner meets the criteria for an MDO.
The inmate may request a hearing before BPH to require proof
that he or she is an MDO. If BPH determines that the
defendant meets the criteria of an MDO, the inmate may file,
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in the superior court of the county in which he or she is
incarcerated or is being treated, a petition for a hearing on
whether he or she, as of the date of the board hearing, meets
the criteria of a MDO. By statute, the defendant is entitled
to a jury trial, which can be waived. The jury must
unanimously agree it was proven beyond a reasonable doubt that
the allegations of the petition were proven. If the superior
court or jury reverses the determination of BPH, the court is
required to stay the execution of the decision for five
working days to allow for an orderly release of the prisoner.
MDO treatment must be on an inpatient basis, unless there is
reasonable cause to believe that the parolee can be safely and
effectively treated on an outpatient basis. But if the
parolee can no longer be safely and effectively treated in an
outpatient program, he or she may be taken into custody and
placed in a secure mental health facility.
A MDO commitment is for one year; however, the commitment can be
extended. (Pen. Code, § 2972, subd. (c).) When the
individual is due to be released from parole, the state can
petition to extend the MDO commitment for another year. The
state can file successive petitions for further extensions,
raising the prospect that, despite the completion of a prison
sentence, the MDO may never be released.
3)Effect of Pychological Evluations at Parole Hearings: In
2011, the Stanford Criminal Justice Center studied the
parole process and outcomes of California prison inmates
sentenced to life with the possibility of parole. In
examining the results of parole determinations, the
researchers found that the psychological evaluations used
to assess an inmate's psychological stability and risk
potential played an influential role in whether parole
was granted or denied. (Weisberg, et al., Life in Limbo:
An Examination of Parole Release for Prisoners Serving
Life Sentences with the Possibility of Parole in
California, Stanford Criminal Justice Center (Sept. 2011)
p. 23-24.) Specifically, the report stated the
following:
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Virtually all inmates who appear at parole hearings have
undergone psychological evaluations. Parole commissioners
always receive and often review the results of these
evaluations carefully.
The two most common types of clinical opinions in our
sample are the Axis V Global Assessment of Functioning
Scale and the Clinician Generic Risk assessment. The Axis
V GAF measures a patient's overall level of
psychological, social, and occupational functioning on a
100-point continuum, with higher scores indicating higher
functioning. The Clinician Generic Risk, by contrast,
assigns inmates a simple risk-of-recidivating score: low,
low-moderate, moderate, moderate-high, and high.
Both the Clinician Generic Risk and the Axis V-GAF are
significantly correlated with grant rate. This is
especially true of the Clinician Generic Risk assessment,
which is statistically significant at the .001 level. ?
[I]nmates who receive an average score or higher
virtually never receive parole release. Similarly, none
of the inmates in our sample who received below 75 on the
Axis V-GAF enjoyed favorable release outcomes.
(Id. at p. 23.)
This bill would require BPH to consult with an inmate's
primary mental clinician as part of its determination of
whether to set, postpone, or rescind a parole release
date of an inmate serving a life sentence with the
possibility of parole, if the inmate so requests.
Additionally, this bill would require an independent
mental health evaluator to consult with a MDO inmate's
primary mental clinician, at the request of the inmate,
in making a recommendation to BPH about the inmate's
psychological state. Some stakeholders express concern
that requiring consultation with the primary mental
clinician might pressure the independent evaluator to
adopt the clinician's diagnoses or findings of the
inmate's mental condition or unfairly prejudice the
prisoner from obtaining what otherwise might be a grant
of parole. Considering, however, that this bill requires
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consultation with the primary mental clinician only at
the request of the inmate, and that an inmate would
request the consultation likely only when it would be
favorable to the inmate and not when it would reveal
disadvantageous information, this bill could result in
BPH receiving more favorable information about an inmate
than the board otherwise would have in making a parole
determination. Moreover, given the greater familiarity a
primary treating clinician has with the mental health of
an inmate and the strong correlation an inmate's
psychological evaluation has with parole determinations,
the consultation required by this bill may provide BPH
with a more thorough evaluation of the inmate.
4)"Governor's Veto Message of AB 2520 (Maienschien): AB
2520 Maienschien) of the 2014 Legislative Session was
identical to this bill in that it required an independent
professional appointed by the BPH, to, at the request of
a prisoner, who is appealing an MDO determination, or is
serving an indeterminate sentence with the possibility of
parole, as specified, consult with the prisoner's primary
mental health clinician before making a recommendation to
the BPH concerning that prisoner or for purposes of
determining parole suitability. Governor Brown vetoed
this measure and stated in his veto message, "I am
returning AB 2520 without my signature.
"AB 2520 requires mental health evaluators appointed by the
BPH to consult directly with a prison inmate's primary
mental health treatment clinician when considering parole
suitability or MDO status.
The BPH evaluators have access to the inmate's mental
health treatment records and can directly consult with
clinicians if needed."
5)Prior Legislation: AB 2520 (Maienschein), of the 2013-14
Legislative Session, was identical to this bill. AB 2520
was vetoed by the Governor.
REGISTERED SUPPORT / OPPOSITION:
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Support
American Federation of School, County, and Municipal Employees,
Local 2620
National association of Social Workers
Legal Services for Prisoners with Children
Taxpayers for Improving Public Safety
Opposition
California Public Defenders Association
Analysis Prepared
by: Gregory Pagan / PUB. S. / (916) 319-3744