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?