BILL ANALYSIS Ó
AB 1006
Page A
Date of Hearing: April 28, 2015
Counsel: David Billingsley
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Bill Quirk, Chair
AB
1006 (Levine) - As Amended April 21, 2015
SUMMARY: Where a defendant has been convicted of an offense that
will result in sentence to state prison sentence or county jail,
the defendant or the prosecutor may submit evidence that the
defendant suffers from a diagnosable mental illness that
contributed to the defendant's crime. The court may use that
evidence to order the defendant to serve part of his or her
sentence in a residential mental health treatment facility,
order the defendant placed in a mental health program in the
state prison or county jail, or order the detention facility to
prepare a post release mental health treatment plan.
Specifically, this bill:
1)Allows the defendant or the prosecutor to submit evidence that
the defendant suffers from a diagnosable mental illness that
was a substantial factor that contributed to the defendant's
criminal conduct, when a defendant has pled guilty or no
contest to, or been convicted of, an offense that will result
in a sentence to state prison or county jail.
2)Requires the evidence of diagnosable mental illness, be filed
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after the defendant's plea or conviction, but before his or
her sentencing.
3)Requires that the court consider evidence that the defendant
suffers from a diagnosable mental illness that was a
substantial factor that contributed to the defendant's
criminal conduct in conjunction with the defendant's
sentencing.
4)Allows the court upon consideration of the evidence of mental
illness, if the court determines that it is in the best
interests of public safety, the court to order one or more of
the following:
a) That the defendant serve, if the defendant agrees, all
or a part of his or her sentence in a residential mental
health treatment facility instead of in the state prison or
county jail, unless that placement would pose an
unreasonable risk of danger to public safety. This does not
apply to a defendant has a prior conviction for a serious
or violent felony;
b) The Department of Corrections and Rehabilitation or
county jail authority to the place the defendant in a
mental health program within the state prison or county
jail system, respectively, at a level of care determined to
be appropriate by the department's mental staff or county
mental health staff, within 30 s days, of the defendant's
placement in the state prison or county jail; and
c) The Department of Correction and Rehabilitation or the
county jail authority, as applicable, regardless of the
type of crime committed to prepare postrelease mental
health treatment plan six months prior to the defendant's
release to parole or postrelease community supervision. The
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treatment plan shall specify the manner in which the
defendant will receive mental health treatment services
following that release, and shall address, if applicable
and in the discretion of the court, medication management,
housing, and substance abuse treatment.
5)Allows the defendant or prosecutor to, at any time, petition
the court for approval to transfer the defendant from a
residential mental health treatment facility to a mental
health program within the state prison or county jail for the
remainder of the defendant's sentence.
6)Allows the defendant, prosecutor, or Department of Corrections
and Rehabilitation or county jail authority, as applicable, to
at any time, petition the court for permission to remove the
defendant from a mental health program within the state prison
or county jail authority.
7)Permits the defendant, prosecutor, or Department of
Corrections and Rehabilitation or county jail authority, as
applicable, to at any time, petition the court for dismissal
of the requirement that the Department of Corrections and
Rehabilitation or county jail authority, as applicable prepare
a postrelease mental health treatment plan.
8)Requires that the defendant have the right to counsel for all
proceedings under this section.
EXISTING LAW:
1)Finds and declares that the provision of probation services is
an essential element in the administration of criminal
justice. The safety of the public, which shall be a primary
goal through the enforcement of court-ordered conditions of
probation; the nature of the offense; the interests of
justice, including punishment, reintegration of the offender
into the community, and enforcement of conditions of
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probation; the loss to the victim; and the needs of the
defendant shall be the primary considerations in the granting
of probation. (Pen. Code, § 1202.7.)
2)In any case in which it appears to the person in charge of a
county jail, city jail, or juvenile detention facility, or to
any judge of a court in the county in which the jail or
juvenile detention facility is located, that a person in
custody in that jail or juvenile detention facility may be
mentally disordered, he or she may cause the prisoner to be
taken to a facility for 72-hour treatment and evaluation
pursuant and he or she shall inform the facility in writing,
which shall be confidential, of the reasons that the person is
being taken to the facility. The local mental health director
or his or her designee may examine the prisoner prior to
transfer to a facility for treatment and evaluation. (Pen.
Code, § 4011.6.)
3)Where the court causes the prisoner to be transferred to a
72-hour facility, the court shall forthwith notify the local
mental health director or his or her designee, the prosecuting
attorney, and counsel for the prisoner in the criminal or
juvenile proceedings about that transfer. Where the person in
charge of the jail or juvenile detention facility causes the
transfer of the prisoner to a 72-hour facility the person
shall immediately notify the local mental health director or
his or her designee and each court within the county where the
prisoner has a pending proceeding about the transfer. Upon
notification by the person in charge of the jail or juvenile
detention facility the court shall forthwith notify counsel
for the prisoner and the prosecuting attorney in the criminal
or juvenile proceedings about that transfer. (Pen. Code, §
4011.6.)
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4)If a prisoner is detained in, or remanded to, a mental health
facility pursuant, the facility shall transmit a report, which
shall be confidential, to the person in charge of the jail or
juvenile detention facility or judge of the court who caused
the prisoner to be taken to the facility and to the local
mental health director or his or her designee, concerning the
condition of the prisoner. A new report shall be transmitted
at the end of each period of confinement as specified, upon
conversion to voluntary status, and upon filing of temporary
letters of conservatorship. (Pen. Code, § 4011.6.)
5)A prisoner who has been transferred to an inpatient facility
pursuant to this section may convert to voluntary inpatient
status without obtaining the consent of the court, the person
in charge of the jail or juvenile detention facility, or the
local mental health director. At the beginning of that
conversion to voluntary status, the person in charge of the
facility shall transmit a report to the person in charge of
the jail or juvenile detention facility or judge of the court
who caused the prisoner to be taken to the facility, counsel
for the prisoner, prosecuting attorney, and local mental
health director or his or her designee. (Pen. Code, § 4011.6.)
6)If the prisoner is detained in, or remanded to, a mental
health facility, the time passed in the facility shall count
as part of the prisoner's sentence. When the prisoner is
detained in, or remanded to, the facility, the person in
charge of the jail or juvenile detention facility shall advise
the professional person in charge of the facility of the
expiration date of the prisoner's sentence. If the prisoner is
to be released from the facility before the expiration date,
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the professional person in charge shall notify the local
mental health director or his or her designee, counsel for the
prisoner, the prosecuting attorney, and the person in charge
of the jail or juvenile detention facility, who shall send
for, take, and receive the prisoner back into the jail or
juvenile detention facility. (Pen. Code, § 4011.6.)
7)A defendant, either charged with or convicted of a criminal
offense, or a minor alleged to be within the jurisdiction of
the juvenile court, may be concurrently subject to mental
health detention as specified by law under the Welfare and
Institutions Code. (Pen. Code, § 4011.6.)
8)If a prisoner is detained in a mental health facility pursuant
to the Welfare and Institutions Code and if the person in
charge of the facility determines that arraignment or trial
would be detrimental to the well-being of the prisoner, the
time spent in the facility shall not be computed in any
statutory time requirements for arraignment or trial in any
pending criminal or juvenile proceedings. Otherwise, this
section shall not affect any statutory time requirements for
arraignment or trial in any pending criminal or juvenile
proceedings. (Pen. Code, § 4011.6.)
9)States that upon conviction of any felony in which the
defendant is sentenced to state prison, and the court makes
any of the findings listed below, a court shall, in addition
to any other terms of imprisonment, fine, and conditions,
recommend in writing that the defendant participate in a
counseling or education program having a substance abuse
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component while imprisoned:
a) That the defendant at the time of the commission of the
offense was under the influence of any alcoholic beverages;
(Pen. Code, § 1203.096, subd. (b)(1).)
b) That the defendant at the time of the commission of the
offense was under the influence of any controlled
substance; (Pen. Code, § 1203.096, subd. (b)(2).)
c) That the defendant has a demonstrated history of
substance abuse; and (Pen. Code, § 1203.096, subd. (b)(3).)
d) That the offense or offenses for which the defendant was
convicted are drug related. (Pen. Code, § 1203.096, subd.
(b)(4).)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "Jails and prisons
have become California's de facto mental health facilities with
those who are mentally ill being far more likely to be
incarcerated than to be in a psychiatric hospital. Incarcerating
those with mental illness does not make sense from an outcomes
or a fiscal stand point. Studies have found that individuals who
participate in mental health courts reoffend one third of the
time than those who do not and that participant's show
significant improvement in quality of life. Furthermore, mental
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health courts have been demonstrated to save $7 in costs for
every $1 spent. It costs $51,000 a year to house an inmate, and
$20,412 to house and treat a person with mental illness. AB 1006
gives the court the ability to consider the presence of a mental
illness in criminal sentencing."
2)Prevalence of Mentally Ill Offenders: The Department of
Corrections and Rehabilitation's (CDCR) Council on Mentally Ill
Offenders (COMIO) regards the growing number of inmates
suffering from mental health issues as a pressing concern.<1>
Nationally, a 2009 American Psychiatric Association study "found
that 14.5% of male and 31.0% of female inmates recently admitted
to jail have a serious mental illness" which is three to six
times higher than rates found in the general population. "A
serious mental illness" included major depressive disorder,
depressive disorder not otherwise specified, schizophrenia
spectrum disorder, schizoaffective disorder, schizophreniform
disorder, brief psychotic disorder, delusional disorder, and
psychotic disorder not otherwise specified.<2>
In 2009, the Division of Correctional Health Care Services for
the CDCR estimated that 23 percent of California's prison
inmates have a serious mental illness.<3> According to the
Berkeley Center for Criminal Justice, an estimated "40 to 70
percent of youth in the California juvenile justice system have
some mental health disorder or illness," with 15 to 25 percent
considered severely mentally ill. Based on these numbers, youth
in California's juvenile justice system are two to four times
---------------------------
<1> http://www.cdcr.ca.gov/comio/Legislation.html
<2> Steadman, H., Osher, F. C., Robbins, P. C., Case, B., &
Samuels, S. (2009). Prevalence of serious mental illness among
jail inmates. Psychiatric Services, 60(6), 761-765.
.
<3> Administrative Office of the Courts, Center for Families,
Children & the Courts. (2011). Task Force for Criminal Justice
Collaboration on Mental Health Issues: Final Report.
.
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more likely to be in need of mental health care than California
youth generally.<4> The Bureau of Justice Statistics reported
in 2006 that 74 percent of mentally ill state prisoners and 76
percent of mentally ill local jail inmates also met the criteria
for substance dependence or abuse indicating a larger issue with
co-occurring disorders among mentally ill offenders.<5>
3)Increased Rates of Recidivism Among Mentally Ill Offenders: A
2012 review conducted by the Utah Criminal Justice Center found
that released inmates with serious mental illness experience
poorer outcomes overall as they are "twice as likely to have
their probation or parole revoked, are at an elevated risk for
rearrest, incarceration, and homelessness, lack skills to obtain
and sustain employment, and have higher rates of medical
problems." <6>
In 2009, the Council of State Governors Justice Center released
a report entitled Improving Outcomes for People with Mental
Illnesses under Community Corrections Supervision, which stated
that the reasons for increased recidivism among mental ill
offenders may be multifaceted:
Once people with mental illnesses are finally released, it
is often extremely difficult for them to successfully
-------------------------
<4> Berkeley Center for Criminal Justice. (2010). Juvenile
Justice Policy Brief Series: Mental Health Issues in
California's Juvenile Justice System.
<5> Treatment Advocacy Center & National Sheriffs' Association.
(2010). More Mentally Ill Persons Are in Jails and Prisons Than
Hospitals: A Survey of States.
<6> University of Utah, Utah Criminal Justice Center. (2012).
Treating Offenders with Mental Illness: A Review of the
Literature.
.
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transition from incarceration to the community. Their
mental illnesses may be linked to community corrections
supervision failure in a number of ways. Skeem and Loudon
have characterized these links as being direct, indirect,
or spurious.
First, mental illnesses may directly result in probation or
parole revocation. For example, an individual may not
access treatment, leading him or her to decompensate,
behave in a bizarre or dangerous manner in public, get
arrested for this behavior, and have his or her probation
revoked.
Second, mental illnesses may indirectly result in
revocation. For example, an individual with clinical
depression may have impaired functioning that prevents him
or her from maintaining employment and paying court ordered
fines, which are standard conditions of release. Notably,
many people with mental illnesses returning to the
community from jail or prison lack financial or social
supports. Some were receiving Medicaid and other forms of
public assistance at the time of their arrest, and these
benefits are typically terminated rather than suspended
during incarceration, and rarely reinstated immediately
upon release. In short, there is often no safety net to
compensate for functional impairments that may place
individuals with mental illnesses at risk for revocation.
Third, mental illnesses may not result in revocation.
Instead, the relationship between the two may be
spurious-that is, more apparent than real-because a third
variable associated with mental illness causes revocation.
For example, an individual with bipolar disorder may be at
risk of committing a new offense not because of his or her
mental illness, but because of criminogenic attitudes or
affiliation with antisocial peers. Alternatively, an
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individual with psychosis may be monitored exceptionally
closely and revoked readily by his or her probation
officer, given that traditional supervision strategies
often reflect misconceptions about (and stigma associated
with) mental illness.<7>
CDCR data shows higher rates of recidivism in inmates identified
with mental health issues when compared to those without. Upon
release, inmates exhibiting mental health problems are assigned
one of two mental health services designations: Enhanced
Outpatient Program (EOP) or Correctional Clinical Case
Management System (CCCMS). Inmates with severe mental illness
expected to experience difficulty transitioning out of
corrections are designated as EOP and receive treatment at a
level similar to day treatment services in the community, while
inmates receiving CCCMS services are housed within the general
population and participate on an outpatient basis. In the 2012
CDCR Outcome Evaluation Report, 76.7 percent of first-release
inmates with an EOP designation recidivated after three years,
compared to lower rates found in CCCMS designees (70.6 percent)
and those without a designation (62 percent).<8>
According to a 2005 CDCR report, mental health issues "comprised
the single most critical gap in juvenile justice services. ...
According to those surveyed, the number of at-risk youth and
youthful offenders with mental health problems continues to
increase as does the seriousness of their mental illnesses. The
only thing not increasing is the resources to treat and confine
these troubled and troubling youth." Even if juvenile offenders
receive assistance, absence of treatment after release may
contribute to a path of behavior that includes continued
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---------------------------
<7>
https://s3.amazonaws.com/static.nicic.gov/Library/023634.pdf.
<8>
http://www.cdcr.ca.gov/adult_research_branch/Research_Documents/A
RB_FY_0708_Recidivism_Report_10.23.12.pdf.
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delinquency and adult criminality.<9>
4)Under Existing Law, Judges Have Discretion to Impose Conditions
on Felony or Misdemeanor Cases When a Defendant is Placed on
Probation: Probation is the suspension of the imposition or
execution of a sentence and the conditional release of a
defendant into the community under the direction of a probation
officer. "Probation is generally reserved for convicted
criminals whose conditional release into society poses minimal
risk to public safety and promotes rehabilitation." People v.
Carbajal (1995) 10 Cal.4th 1114,1120. Probation can be
conditioned on serving a period of incarceration in county jail
and on conditions reasonably related to the offense. Certain
convicted felons are not eligible for probation. Other felons
are presumptively ineligible for probation, but may be granted
probation in an unusual case.
The primary considerations in granting probation are: (1)
Public safety; (2) the nature of the offense; (3) the interests
of justice; (4) the victim's loss; and (5) the defendant's
needs. (Pen. Code, § 1202.7.)
Courts have broad general discretion to fashion and impose
additional probation conditions that are particularized to the
defendants. People v. Smith (2007) 152. Cal.App.4th 1245, 1249.
Courts may impose any "reasonable" conditions necessary to
secure justice and assist the rehabilitation of the probationer.
Under existing law, a judge can impose a condition of probation
that a defendant spend a certain amount of time in a residential
mental health facility in conjunction with a jail sentence, or
as an alternative to a jail sentence. In imposing probation
conditions related to mental health, the court is not limited to
ordering residential mental health treatment. The court can
order outpatient mental health treatment, or other mental health
directives the court finds appropriate. When a defendant is
placed on probation the court retains jurisdiction over the case
to ensure the defendant complies with probation. The court has
---------------------------
<9> California Department of Corrections and Rehabilitation.
(2005). Status Report on Juvenile Justice Reform.
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the power to impose further punishment if the defendant does not
comply with probation.
5)California's Current Sentencing Scheme Does Not Provide an
Option for a Judge to Impose a Split Prison Sentence: Under
California's sentencing scheme, if a person is sent to state
prison, they are sentenced for a determinate amount of time.
Once an individual is sentenced to State Prison they are
committed to the custody of CDCR. Once CDCR has custody of a
defendant, CDCR, not the court, decides where and in what type
of custodial setting the defendant serves their state prison
term.
When a court sentences a defendant to state prison, the court
loses jurisdiction over the individual.
"If the judgment is for imprisonment, 'the defendant must
forthwith be committed to the custody of the proper officer
and by him or her detained until the judgment is complied
with.' The sheriff, upon receipt of the certified abstract of
judgment "or minute order thereof," is required to deliver the
defendant to the warden of the state prison together with the
certified abstract of judgment or minute order. 'It is clear
then that at least upon the receipt of the abstract of the
judgment by the sheriff, the execution of the judgment is in
progress.'
"Thus, for example, in People v. Banks, we considered the
effect of a stay of execution in the context of the trial
court's authority to grant probation for certain offenses. We
observed that upon entry of a guilty plea, if the trial court
chooses to retain jurisdiction under the statutes dealing with
probation, it may pronounce judgment and suspend its execution
by refraining from issuing a commitment of the defendant to
the prison authority. We stated: "The critical requirement
for control over the defendant and the res of the action is
that the court shall not have surrendered its jurisdiction in
the premises by committing and delivering the defendant to the
prison authority." People v. Karaman, (1992) 4 Cal.4th 335,345
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(citation omitted)(italics added.)
Because the court loses jurisdiction over a defendant when they
are sentenced to state prison, it is unclear who would have the
authority to enforce transfer of a defendant from a mental
health facility to a state prison if treatment in a residential
mental health treatment was ordered for a portion of the
defendant's sentence at the beginning of the sentence. The same
problem would exist if the court sentenced the defendant to
begin their term with state prison, but directed the later part
of the state prison term to be served in a mental health
facility.
For the same jurisdictional reasons, it is unclear what remedies
would be available if a defendant left a residential mental
health treatment facility after being sentenced to such a
facility for a portion of, or all of, a state prison sentence.
6)Logistical Difficulties of Post Sentencing Procedures to
Petition the Court to Change the Defendant's Status Regarding
Their Mental Health Treatment: The proposed legislation allows
for the defendant or prosecutor to petition the court to
transfer the defendant from a residential mental health facility
to a state prison or county jail, and provides that defendants
have a right to counsel for those proceedings. From a practical
standpoint, appointing counsel for an individual who is in a
residential mental health treatment facility presents challenges
for a system where most of the defendants are represented by
Public Defender Offices. Public Defender Offices are
accustomed to visiting and representing clients in custody at
the local county jail. To see and represent clients placed in a
variety of mental health facilities that can be in disparate
geographic regions would present substantial obstacles to such
representation. The same obstacles are present if a defendant
in state prison required representation, in the sentencing
court, on a petition to remove the defendant from a mental
health program in the state prison.
7)Michigan: The state of Michigan passed Senate Bill 558 in 2014.
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That law requires county law enforcement and community mental
health service programs, in coordination with courts and other
key local partners, to create policies and practices that would
provide mental health treatment and assistance to individuals
with mental illness. Specifically, the policies and practices
created would focus on individuals who are considered at risk of
entering the criminal justice system; who not receiving needed
mental health services during incarceration in a county jail or
state prison; and who are not receiving needed mental health
treatment services upon release or discharge from a county jail.
http://michigan.gov/snyder/0,4668,7-277-57577-323279--,00.html
8)Argument in Support: According to David Mills (Chairman) and
Michael Romano(Director), of the Stanford Law School Three
Strikes and Justice Advocacy Project, "The Mental Health Justice
Act (AB 1006) is the embodiment of the first reform proposed in
our report. The bill is critically important because it
will-for the first time-empower Superior Court Judges
discretionary authority to order psychiatric treatment for
criminal offenders who commit crimes as a result of mental
illness. The bill does not require courts to do anything and
protects public safety by forbidding judges from departing from
traditional sentencing if doing so would endanger the public.
Involving the courts in the identification and treatment of
mentally ill offenders is a crucial step in addressing the
massive problem of mental ill offenders in the justice system.
We believe the measure will also save tax dollars and reduce
recidivism by providing earlier interruption in the cycle of
mental illness and incarceration.
"According to a recent report from the national Sheriff's
Association and Treatment Advocacy Center, ten times as many
mentally ill people are in prison and jail in the United States
than there are in mental health treatment facilities. In
California, 45% of the state's prison population is estimated to
be mentally ill. In the last fifteen years the number of
mentally ill people in prison has almost doubled.
"Furthermore, there are five times the numbers of seriously
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mental ill prisoners confined in state prison than there are
patients in psychiatric hospitals, making the California
Department of Corrections and Rehabilitation the de facto mental
health treatment provider in the state.
"This bill will reform the way California sentences the mentally
ill by allowing a court do determine if the mental illness is a
substantial factor in the crime and give the court the ability
to order treatment for that illness."
9)Prior Legislation:
a) SB 1054 (Steinberg), Chapter 436, Statutes of 2014,
clarifies that mental health grants be divided equally
between adult and juvenile mentally ill offender crime
reduction grants and streamline the grant process.
b) SB 1323 (Cedillo), of the 2005-06 Legislative Session,
would have appropriated $350,000 from the General Fund to
the department for allocation, over 5 years, to the County
of Los Angeles, at the consent of the county, for the
purpose of funding one position to work, in conjunction
with the Los Angeles County Superior Court, on a 5-year
Prototype Court Pilot Program for nonviolent felony
offenders in the state who have been identified as having
both serious mental health and substance abuse problems.
SB 1323 was held in the Senate Appropriations Committee.
c) SB 643 (Ortiz), of the 2001-02 Legislative Session,
would have enacted the Mental Health Enhancement and Crime
Prevention Act of 2001, which would require the board to
reimburse counties meeting specified requirements for the
excess cost of providing more effective psychotropic
medications to inmates in county correctional facilities
during their incarceration and after release. SB 643 was
held in the Assembly Appropriations Committee.
REGISTERED SUPPORT / OPPOSITION:
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Support
Steinberg Institute (Sponsor)
California Council of Community Mental Health Agencies
Mental Health America of California
Chairman and Director of the Stanford Law School Three Strikes
and Justice Advocacy Project
Legal Services for Prisoners with Children
Opposition
California District Attorneys Association
Analysis Prepared
by: David Billingsley / PUB. S. / (916) 319-3744