BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 955 Hearing Date: April 19, 2016
-----------------------------------------------------------------
|Author: |Beall |
|-----------+-----------------------------------------------------|
|Version: |April 4, 2016 |
-----------------------------------------------------------------
-----------------------------------------------------------------
|Urgency: |No |Fiscal: |Yes |
-----------------------------------------------------------------
-----------------------------------------------------------------
|Consultant:|JM |
| | |
-----------------------------------------------------------------
Subject: State Hospital Commitment: Compassionate Release
HISTORY
Source: Union of American Physicians and Dentists
Prior Legislation:SB 1399 (Leno) Ch. 495, Stats. 2010
AB 29 (Villaraigosa) Ch. 751, Stats. 1997
Support: American Federation of State, County, and Municipal
Employees, AFL-CIO;
American Federation of State, County, and Municipal
Employees Local 2620;
American Civil Liberties Union; California Association
of Psychiatric Technicians; California Public
Defenders Association; California Psychiatric
Association; California Attorneys for Criminal
Justice; Disability Rights California; National
Association of Social Workers, California Chapter;
Legal Services for Prisoners with Children
Opposition:California District Attorneys Association; California
State Sheriffs' Association
SB 955 (Beall ) PageB
of?
PURPOSE
The purpose of this bill is to enact a process for compassionate
release from the Department of State Hospitals (DSH) for a
person who has been involuntarily committed to DSH but becomes
now terminally ill, permanently medically incapacitated, not
dangerous and not likely to live more than six months, as
specified.
Existing law includes a number of "forensic" civil commitment
schemes for persons who have been in the criminal justice
system, have a mental disorder that caused or contributed to the
persons' criminal conduct and are involuntarily committed to the
Department of State Hospitals for treatment. These include
persons who are incompetent to stand trial (IST), not guilty by
reason of insanity (NGI), mentally disordered offender-parolees
(MDO) and sexually violent predators (SVP). The maximum period
of confinement for treatment varies with the category of
forensic patient, but generally lasts for the length of time
necessary to treat the person's condition, with limits
determined by the maximum criminal sentence for the underlying
conduct in the case of an IST or NGI patient. MDO and SVP
patients are subject to recommitment hearings, as specified.
(Pen. Code §§ 1026, 1367, 2980; Welf. & Inst. Code § 6600 .)
Existing law allows a state prison inmate to be treated in a DSH
facility. California Department of Corrections and
Rehabilitation (CDCR) can recommend that a mentally ill prisoner
be transferred to DMH if recovery can be expedited by treatment
at a DMH hospital. DMH must determine if the inmate would
benefit from treatment. DMH shall keep the inmate until the
inmate will not benefit from further treatment. (Pen. Code §
2684.)
Existing law provides that if the Secretary of the Department of
Corrections and Rehabilitation or the Board of Parole Hearings
or both determine that a prisoner is either:
Terminally ill with an incurable condition caused by an
illness or disease that would produce death within six
months, as determined by a physician employed by the
department; or
The prisoner is permanently medically incapacitated with
a medical condition that renders him or her permanently
SB 955 (Beall ) PageC
of?
unable to perform activities of basic daily living, and
results in the prisoner requiring 24-hour total care,
including, but not limited to, coma, persistent vegetative
state, brain death, ventilator-dependency, loss of control
of muscular or neurological function, and that
incapacitation did not exist at the time of the original
sentencing;
And that the conditions under which the prisoner would
be released or receive treatment do not pose a threat to
public safety;
The secretary or the board may recommend to the court
that the prisoner's sentence be recalled and that the court
shall have the discretion to resentence or recall if the
court finds that the facts described above exist. (Pen.
Code §§ 1170, subd. (e)(1) and (e)(2).)
Existing law provides that any physician employed by the
department who determines that a prisoner has six months or less
to live shall notify the chief medical officer of the prognosis.
If the chief medical officer concurs with the prognosis, he or
she shall notify the warden. Within 48 hours of receiving
notification, the warden or the warden's representative shall
notify the prisoner of the recall and resentencing procedures,
and shall arrange for the prisoner to designate a family member
or other outside agent to be notified as to the prisoner's
medical condition and prognosis, and as to the recall and
resentencing procedures. If the inmate is deemed mentally
unfit, the warden or the warden's representative shall contact
the inmate's emergency contact and provide the information
described above, as specified. (Pen. Code §1170, subd. (e)(4).)
Existing law provides that the warden or the warden's
representative shall provide the prisoner and his or her family
member, agent, or emergency contact, updated information
throughout the recall and resentencing process with regard to
the prisoner's medical condition and the status of the
prisoner's recall and resentencing proceedings. (Pen. Code §
1170, subd. (e)(5).)
Existing law provides that the prisoner or his or her family
member or designee may independently request consideration for
recall and resentencing by contacting the chief medical officer
at the prison or the secretary. Upon receipt of the request,
the chief medical officer and the warden or the warden's
SB 955 (Beall ) PageD
of?
representative shall follow the procedures described above. If
the secretary determines that the prisoner satisfies the
criteria for sentencing recall described above, the secretary or
board may recommend to the court that the prisoner's sentence be
recalled. The secretary shall submit a recommendation for
release within 30 days in the case of inmates sentenced to
determinate terms and, in the case of inmates sentenced to
indeterminate terms, the secretary shall make a recommendation
to the Board of Parole Hearings with respect to the inmates who
have applied under this section. The board shall consider this
information and make an independent judgment of eligibility and
make findings related thereto before rejecting the request or
making a recommendation to the court. This action shall be
taken at the next lawfully noticed board meeting. (Pen. Code
§1170, subd. (e)(6).)
Existing law provides that any recommendation for recall
submitted to the court by the secretary or the Board of Parole
Hearings shall include one or more medical evaluations, a
postrelease plan, and findings pursuant to paragraph (2). (Pen.
Code §1170 (e)(7).)
Existing law provides that, if possible, the matter shall be
heard before the same judge of the court who sentenced the
prisoner. (Pen. Code §1170, subd. (e)(8).)
Existing law provides that if the court grants the recall and
resentencing application, the prisoner shall be released by the
department within 48 hours of receipt of the court's order,
unless a longer time period is agreed to by the inmate. At the
time of release, the warden or the warden's representative shall
ensure that the prisoner has each of the following in his or her
possession: a discharge medical summary, full medical records,
state identification, parole medications, and all property
belonging to the prisoner. After discharge, any additional
records shall be sent to the prisoner's forwarding address.
(Pen. Code §1170, subd. (e)(9).)
Existing law provides that the secretary shall issue a directive
to medical and correctional staff employed by the department
that details the guidelines and procedures for initiating a
recall and resentencing procedure. The directive shall clearly
state that any prisoner who is given a prognosis of six months
or less to live is eligible for recall and resentencing
SB 955 (Beall ) PageE
of?
consideration, and that recall and resentencing procedures shall
be initiated upon that prognosis. (Pen. Code § 1170, subd.
(e)(10).)
This bill gives the court that committed the person to DSH the
sole discretion to dismiss a DSH patient's commitment for
compassionate release when specified criteria are met.
This bill specifically extends compassionate release to DSH
patients committed as NGI.
This bill provides that where an MDO patient meets the
requirements for compassionate release, DSH shall inform the
Board of Parole Hearings and DSH shall stop treating the
patient.
This bill does not include specific references to patients in
any other categories of commitment other than the MDO and NGI
programs.
This bill requires a physician employed by DSH to notify the DSH
medical director and the patient advocate when a prognosis is
made of a patient being eligible for compassionate release.
This bill does not limit the categories of patients that
physicians and medical directors shall review to determine if
patients meet the criteria for compassionate release.
This bill requires the medical director to notify the DSH
Director if he or she concurs with the prognosis that a patient
meets the criteria for compassionate release. The DSH Director
or a designee shall to notify the patient of the discharge
procedures and to obtain the patient's consent.
This bill requires the DSH Director or a designee to arrange for
a patient to designate a family member, outside agent, emergency
contact, or the patient advocate to be notified of the patient's
medical condition, prognosis, and release procedures, and to
provide those individuals with updated information throughout
the process.
This bill allows a patient or his or her family member or
designee to contact the DSH medical director or director of the
state hospital where the patient is located, or the DSH
SB 955 (Beall ) PageF
of?
Director, to request consideration for a recommendation from the
DSH Director to the court that the patient's commitment be
dismissed for compassionate release.
This bill requires the court to hold a hearing within 10 days of
receiving a recommendation from DSH for compassionate release.
The hearing shall be held before the same court that originally
committed the patient, if possible. The court shall determine
whether the patient's release would pose a threat to public
safety.
This bill requires that a recommendation to the court shall
include at least the following:
A medical evaluation;
Discharge plan; and
Post-release plan for the relocation and treatment of
the patient.
This bill requires the court to order the DSH medical director
to send copies of all medical records reviewed in developing the
recommendation to the district attorney of the county from which
the patient was committed and to the public defender of the
county of commitment or the patient's private attorney.
This bill requires the DSH Director to release a patient from
DSH confinement where the court finds that the patient meets the
following criteria:
The patient is terminally ill with an incurable
condition caused by an illness or disease that would likely
produce death within six months;
The patient is permanently medically incapacitated and
requires 24-hour total care, and the medical director
responsible for the patient's care and the DSH Director
both certify that the patient is incapable of receiving
mental health treatment; or
The release conditions do not pose a threat to public
safety.
This bill requires DSH to release a patient within 72 hours of
receipt of the court's order for release unless a longer time
period is requested by the director and approved by the court.
SB 955 (Beall ) PageG
of?
This bill requires the DSH Director or a designee to ensure that
upon release the patient or the patient's representative has the
following in his or her possession: a discharge plan, discharge
medical summary, medical records, identification, all necessary
medications, and any property belonging to the patient.
This bill requires any additional records to be sent to the
patient's forwarding address after discharge.
This bill provides that these provisions do not preclude a
patient who is granted compassionate release from being
committed to a state hospital under the same commitment or
another commitment.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past several years this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In December of 2015 the administration reported that as "of
December 9, 2015, 112,510 inmates were housed in the State's 34
adult institutions, which amounts to 136.0% of design bed
capacity, and 5,264 inmates were housed in out-of-state
facilities. The current population is 1,212 inmates below the
final court-ordered population benchmark of 137.5% of design bed
capacity, and has been under that benchmark since February
2015." (Defendants' December 2015 Status Report in Response to
SB 955 (Beall ) PageH
of?
February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge
Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One
year ago, 115,826 inmates were housed in the State's 34 adult
institutions, which amounted to 140.0% of design bed capacity,
and 8,864 inmates were housed in out-of-state facilities.
(Defendants' December 2014 Status Report in Response to February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).)
While significant gains have been made in reducing the prison
population, the state must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1.Need for This Bill
SB 955 (Beall ) PageI
of?
According to the author:
Currently, the state's compassionate release program
only covers DSH patients who are committed from state
prison. First, this creates an inequity for other DSH
patients who would like to spend the last months of
their lives with their families and loved ones, but
are not able to apply for the program. Second, it also
creates unnecessary costs. End-of-life care can be
very expensive, and when a state hospital patient
requires such care, the department is responsible for
100 percent of the costs. If these patients were
instead receiving medical care in the community, they
would be eligible for a variety of federal matching
programs (such as Medi-Cal, Medicare, and Social
Security). Third, these patients are often unable to
benefit from treatment because of their medical
condition (for example, a coma), but are occupying
beds in the state hospitals that could otherwise be
used to provide treatment to patients who are awaiting
transfer to a state hospital (the state hospitals
consistently have a waiting list for treatment).
This bill creates a compassionate release program for
all state hospital patients who are not covered by the
current compassionate release program. SB 955 would
authorize the DSH to petition for the compassionate
release of state hospital patients. Specifically, this
bill would authorize DSH to petition a patient's
committing court to release the patient from his or
her commitment if the patient is terminally ill and
likely to die within six months or permanently
incapacitated.
2.Forensic Commitments of Persons From the Criminal Justice
System to DSH
Existing law includes procedures and substantive rules for
involuntary commitment to DSH of a person from the criminal
justice system of a defendant who has a mental disorder that
renders him or her incompetent to stand trial or too dangerous
to release without treatment. The major categories of forensic
patients are described below.
SB 955 (Beall ) PageJ
of?
Incompetent to Stand Trial: A criminal defendant who, because
of a mental disorder, can neither understand the court process
nor assist his attorney in conducting his defense is
incompetent to stand trial or face punishment. An IST
defendant is returned to court upon restoration of competency.
(Pen Code § 1367 et seq.)
Not Guilty by Reason of Insanity (NGI): One is NGI if he or
she has a mental disorder rendering him or her incapable of
knowing or understanding the nature and quality of the charged
act, or he or she could not distinguish right from wrong at
the time of the offense. (Pen. Code §§ 25 and 1026 et seq.)
o An NGI defendant is committed to a state hospital for
treatment. He or she can be held as long as the sentence
for crime for which the not guilty by reason of insanity
verdict was rendered.
o An NGI defendant can petition for release on the grounds
that his or her sanity has been restored. The NGI
defendant has the burden of proof in a hearing in the
superior court in which the defendant was tried. (Pen.
Code §§ 1026, subd. (b), 1026.2 )
o An NGI patient can be confined for as long as the
maximum sentence for the underlying offense. At the
expiration of the normal maximum confinement time, the
commitment can be extended if the person's mental disorder
makes him or her a danger of substantial harm to others.
(Pen. Code § 1026.5, subd. (b).)
Mentally Disordered Offenders (MDO
An MDO is an inmate who committed a specified violent crime that
was caused or exacerbated by his or her mental disorder and who
cannot be safely released into society. An MDO is involuntary
committed for treatment during parole. The commitment can be
extended without limitation in one-year increments. (Pen. Code
§ 2960 et seq.
Sexually Violent Predators
An SVP is a person who has committed a specified sex crime and
has a mental disorder that renders him likely to violent sex
crimes if released. At the time an SVP would otherwise be
released on parole, he is indeterminately committed for
SB 955 (Beall ) PageK
of?
treatment in a state hospital. Annual evaluations are performed
to assess the person's status as an SVP.
1.Unclear Provisions About Which Patients are Eligible for
Compassionate Release and the Process for Release of MDO
Patients
This bill appears to apply to patients who were found not guilty
by reason of insanity or were determined during incarceration to
be mentally disordered offenders. However, the classes or
categories of patients eligible for compassionate release are
not entirely clear.
The provisions directing DSH physicians to review patients for
compassionate release eligibility appear to apply to all
patients, regardless of commitment category. However, the bill
amends two sections of the Penal Code governing commitments of
NGI defendants and MDO parolees. The bill does not similarly
amend the operative statutes concerning patients in any other
DSH commitment programs, including the SVPs, IST defendants and
non-forensic (LPS)<1> commitments.
The provisions concerning NGI patients specifically give the
court that committed an NGI defendant the authority to release
him or her on compassionate release. As to MDO patients, the
bill specifically directs the Board of Parole Hearings and DSH
discontinue treatment of an MDO "prisoner" who meets the
criteria for compassionate release. However, it would appear
that after an MDO is retained in treatment upon expiration of
parole, BPH would not be involved in the matter. Prior to
expiration of parole, an MDO patient could have been committed
by BPH or the court. The initial order for treatment is made by
BPH, but an inmate pending parole has a right to a jury trial on
the issue.
The bill does specifically provide that the court that committed
the patient to DSH shall rule on the petition or request for
compassionate release. The bill also provides that notice must
be given to the district attorney in the county of commitment,
indicating that the bill would not apply to LPS patients.
In its current form, the bill would likely be difficult to
---------------------------
<1> Lanterman-Petris-Short Act. (Welf. & Inst. Code § 5000 et
seq.)
SB 955 (Beall ) PageL
of?
implement. Courts asked to review a petition or request for
compassionate release would face a difficult task in
interpreting and applying the bill. It is recommended that the
bill be amended to clarify the patients to whom it applies and
the procedures applicable to MDO patients.
SHOULD THE BILL BE AMENDED TO CLARIFY THE PATIENTS TO WHOM IT
APPLIES AND CLARIFY THE PROCESS APPLICABLE TO MDO PATIENTS?
4.Relatively few Recommendations for Compassionate are Made by
CDCR; Courts Reject Approximately One-third of CDCR
Recommendations
Between 1991 and 2006, 833 compassionate release cases were
considered by CDCR. CDCR referred 411 cases to the court with a
recommendation for sentence recall (53%). Courts recalled 275
sentences for compassionate release. Those actually released
constituted 33% of the total considered and 67% of those
recommended by CDCR to the court. (Assembly Appropriations
Committee analysis of AB 1539 (Krekorian), 2007.)
5.Likely Limited Use of This Bill
DSH housed and treated approximately 9,400 patients in 2014.
According to the April 4, 2016 weekly census there were
approximately 6,730 patients in DSH, excluding those on leave.
Of the total, 1,200 were MDO patients and 1,381 were NGI
patients<2>
During the 15-year period from 1991 through 2006 when CDCR
referred 833 inmates for compassionate release CDCR populations
ranged from approximately 99,000 in December of 1991 to
approximately 171,000 in December of 2006. If the proportion of
DSH patients granted compassionate release if this bill is
enacted are similar to those granted to CDCR inmates, very few
DSH patients would be granted compassionate release.
-- END -
---------------------------
<2> There are also 1,444 IST patients and 896 SVP patients,
apparently including those pending trial, in DSH as of April 4,
2016
SB 955 (Beall ) PageM
of?