BILL ANALYSIS Ó
SB 955
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Date of Hearing: June 28, 2016
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
SB
955 (Beall) - As Amended June 23, 2016
SUMMARY: Establishes a compassionate release process for a
person who has been committed to, or is in the care of, the
Department of State Hospitals (DSH) but is now terminally ill,
or permanently medically incapacitated, as specified.
Specifically, this bill:
1)Specifies that the provisions in this bill apply to a person
who has been committed to DSH as a mentally disordered
offender (MDO) including a person who has been found not
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guilty by reason of insanity (NGI), or a person who is in the
care of DSH because he or she has been found incompetent to
stand trial or be adjudicated to punishment (IST).
2)Requires a physician employed by DSH to notify the medical
director and the patient advocate when a prognosis is made of
a patient being eligible for compassionate release, and if the
medical director concurs with the diagnosis, the Director of
DSH shall be notified.
3)Provides that within 72 hours of receiving notification, the
medical director or the medical director's designee shall
notify the patient of the discharge procedures pursuant to the
provisions in this bill and obtain the patient's consent for
discharge.
4)Requires the medical director or the medical director's
designee to arrange for the patient to designate a family
member or other outside agent to be notified as to the
patient's medical condition, prognosis, and release
procedures. If the patient is unable to designate a family
member or other outside agent, the medical director or the
medical director's designee shall contact any emergency
contact listed, or the patient advocate if no contact is
listed.
5)Requires the medical director or the medical director's
designee to provide the patient and his or her family member,
agent, emergency contact, or patient advocate with updated
information throughout the release process with regard to the
patient's medical condition and the status of the patient's
release proceedings, including the discharge plan.
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6)Prohibits the release of a patient unless the discharge plan
verifies placement for the patient upon release.
7)Allows the patient or his or her family member or designee to
contact the medical director or the executive director at the
state hospital where the patient is located or the Director of
DSH to request consideration for a recommendation to the court
that the patient's commitment be conditionally dismissed for
compassionate release and the patient released from the
department facility.
8)Provides upon notification or request as specified in this
bill, the Director of DSH may recommend to the court that the
patient's commitment be conditionally dismissed for
compassionate release and the patient released from the
department facility.
9)Gives the court discretion to conditionally dismiss the
commitment for compassionate release and release the patient
if the court finds either of the following and that the
conditions under which the patient would be released or
receive treatment do not pose a threat to public safety:
a) The patient is terminally ill with an incurable
condition caused by an illness or disease that would likely
produce death within six months, as determined by a
physician employed by DSH; or,
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b) The patient is permanently medically incapacitated with
a medical condition that renders him or her permanently
unable to perform activities of basic daily living, and
results in the patient 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
commitment and the medical director responsible for the
patient's care and the Director of DSH both certify that
the patient is incapable of receiving mental health
treatment.
10)Requires the court, within 10 days of receiving the
recommendation for release, to hold a noticed hearing to
consider whether the patient's commitment should be
conditionally dismissed and the patient released.
11)Specifies the parties that shall receive copies of the
medical records reviewed in developing the recommendation for
conditional dismissal.
12)Provides that the matter shall be heard before the same judge
that originally committed the patient, if possible, or if the
patient is an MDO on parole and was committed for treatment by
the Board of Parole Hearings (BPH), the matter shall be heard
by the court that committed the patient to the state prison
for the underlying conviction, if possible.
13)Requires the patient to be released within 72 hours of
receipt of the court's order for the patient's commitment to
be conditionally dismissed, unless a longer time period is
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requested by the Director of DSH and approved by the court.
14)States that the executive director of the state hospital or
his or her designee shall ensure that upon release, the
patient has each of the following in his or her possession, or
the possession of the patient's representative:
a) A discharge plan;
b) A discharge medical summary;
c) Medical records;
d) Identification;
e) All necessary medications; and,
f) Any property belonging to the patient.
15)Specifies that after discharge, any additional records shall
be sent to the patient's forwarding address.
16)Authorizes the Director of DSH to adopt regulations to
implement the provisions of this bill and exempts them from
the Administrative Procedure Act.
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17)Provides that the commitment order by the court is
conditionally dismissed but may be reinstated per regulations
adopted by the Director of DSH.
EXISTING LAW:
1)Provides if the Secretary of the Department of Corrections and
Rehabilitation (CDCR), BPH, or both determine that a prisoner
has six months or less to live or that the prisoner is
permanently medically incapacitated with a medical condition
that renders him or her permanently unable to perform
activities of basic daily living, and results in the prisoner
requiring 24-hour total care, and that the conditions under
which the prisoner would be released do not pose a threat to
public safety, the Secretary of CDCR or BPH may recommend to
the court that the prisoner's sentence be recalled
(compassionate release). (Pen. Code, § 1170, subd. (e)(1) &
(2).)
2)States that within 10 days of receipt of a positive
recommendation by the Secretary of CDCR or BPH, the court
shall hold a hearing to consider whether the prisoner's
sentence should be recalled. (Pen. Code, § 1170, subd.
(e)(3).)
3)Provides that any physician employed by CDCR who determines
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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. (Pen. Code, § 1170, subd. (e)(4).)
4)Requires the warden or the warden's representative to 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).)
5)Requires any recommendation for recall submitted to the court
by the CDCR Secretary or BPH to include one or more medical
evaluations, a postrelease plan, and findings of the
prisoner's eligibility. (Pen. Code, § 1170, subd. (e)(7).)
6)States if the court grants the recall and resentencing
application, the prisoner shall be released within 48 hours of
receipt of the court order, unless a longer time period is
agreed to by the inmate. (Pen. Code, § 1170, subd. (e)(9).)
FISCAL EFFECT: Unknown.
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COMMENTS:
1)Author's Statement: According to the author, "Current law
provides for a compassionate release program for state prison
inmates. The program allows inmates who have six months left
to live, including those receiving treatment in the Department
of State Hospitals (DSH), to be discharged to spend their
remaining time with family. However, other DSH patients - such
as those who are Not Guilty by Reason of Insanity or
Incompetent to Stand Trial - are not eligible for such
compassionate release. This creates a situation in which a
patient can be in a coma and unable to receive treatment, but
cannot be released to a more palliative care setting closer to
their loved ones.
"This situation also keeps state hospital beds from being used
to treat patients that could benefit from treatment.
Currently, the state hospitals have a waiting list of more
than 600 people. These individuals are languishing in county
jails, state prisons, and hospitals, while patients who are
unable to participate in treatment because they are terminally
ill or permanently incapacitated remain in state hospitals
because DSH has no compassionate release program.
"End-of-life care can be very expensive, and when a state
hospital patient requires such care, the department, and the
state General Fund, is responsible for 100 percent of the
costs. However, if they were to be compassionately released,
these patients would be eligible for federal matching funds
for their treatment. According to the Senate Appropriations
Committee, "to the extent even five DSH commitments are
released, SB 955 will result in potential future cost
savings?likely in the low millions of dollars (General Fund)
annually, given these patients likely require the most
intensive medical care."
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"SB 955 would create a compassionate release program for DSH
patients who are Not Guilty by Reason of Insanity, Incompetent
to Stand Trial, or Mentally Disordered Offenders. Patients
would be required to meet specific criteria, a discharge
treatment plan would need to be in place, and petitions for
compassionate release would be court-approved. SB 955 will
provide a humane, less restrictive environment for terminally
ill and medically incapacitated patients and free up
much-needed state hospital beds for patients who are currently
waiting for placement and could benefit from treatment.
"Under SB 955, in order to be eligible for compassionate
release, DSH would have to certify that the patient does not
pose a threat to public safety and can no longer benefit from
the mental health treatment provided at state hospitals. The
bill requires that, if possible, the petition shall be heard
before the same court that issued the original commitment
order for the patient.
"This bill would require the state hospital, in initiating the
petition process, to work with the hospital's patients' rights
advocate, available family members of the patient, and the
patient, to the extent possible, and to prepare a discharge
and post-release plan. The bill would also ensure that the
district attorney and public defender (or patient's attorney)
of the committing county are involved in the process by
requiring DSH to share all medical records reviewed in
developing the compassionate release recommendation with the
court and with both parties to the hearing."
2)Background on the Mentally Disordered Offender Act (Pen. Code
§ 2960 et seq.): An MDO commitment is a post-prison civil
commitment. The MDO Act is designed to confine an 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
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supervision throughout the parole period. The MDO law
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 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
commitment.
The inmate may request a hearing before BPH to require proof
that he or she is an MDO. If BPH determines that the
defendant is an MDO, the inmate may file, in the superior
court of the county in which he or she is incarcerated or is
being treated, a petition for a jury trial on whether he or
she meets the MDO criteria. The jury must unanimously agree
beyond a reasonable doubt that the inmate is an MDO. If the
jury, or the court if a jury trial is waived, reverses the
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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. An 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. The trial for each one-year
commitment is done according to the same standards and rules
that apply to the initial trial.
3)Compassionate Release: To be eligible for compassionate
release, a prisoner must be "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 [CDCR]." (Pen. Code, § 1170, subd. (e)(2)(A).)
Compassionate release may also be available to a prisoner who
is permanently incapacitated by a medical condition and unable
to perform activities of daily living, requiring 24-hour care.
(Pen. Code, § 1170, subd. (e)(2)(C).) The court must also
make a finding that the conditions under which the prisoner
would be released or receive treatment do not pose a threat to
public safety. (Pen. Code, § 1170, subd. (e)(2)(B).)
If the secretary of CDCR determines that the prisoner
satisfies the criteria for recall of his or her sentence, the
secretary or BPH may recommend to the court that the sentence
be recalled. At its next lawfully noticed meeting, BPH must
consider this information and make an independent judgment and
related findings before rejecting the request or making a
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recommendation to the court. (Pen. Code, § 1170, subd.
(e)(6).) Any recommendation for recall of the inmate's
sentence submitted to the court shall include one or more
medical evaluations, a postrelease plan, and findings
regarding the prisoner's eligibility for release. (Pen. Code,
§ 1170, subd. (e)(7).) Within 10 days of receipt of a
positive recommendation, the court must hold a hearing to
consider whether recall is appropriate. (Pen. Code, § 1170,
subd. (e)(3).) If possible, the matter must be heard by the
judge who sentenced the prisoner. (Pen. Code, § 1170, subd.
(e)(8).) If the court grants recall of the prisoner's
sentence, the prisoner must be released within 48 hours of
receipt of the court's order, unless the inmate agrees to a
longer time period. (Pen. Code, § 1170, subd. (e)(9).)
Due to its stringent criteria and lengthy process, the number
of prisoners released on compassionate release is quite low.
From 2007 through the first ten months of 2013, CDCR received
488 requests for compassionate release, of which 99 were
approved. In 2012, 97 applications for compassionate release
were submitted to CDCR for review; 35 were approved and
advanced to the sentencing court; 13 sentences were recalled
by judges, clearing the way for release. 27 cases were never
completed due to withdrawal, death, or not meeting the
criteria. (McNichol, Final Requests (Jan. 2014) California
Lawyer, at pp. 18-21.)
According to statistics provided by CDCR, from 2014 through
2015, CDCR received 35 cases for review; 20 of those were
approved and referred to the court for recall and
resentencing; and 9 of those cases resulted in compassionate
release.
4)Argument in Support: According to the California Public
Defenders Association, "SB 955 would ensure that all state
hospitals patients are eligible for compassionate release.
This bill is a compassionate measure that ensures that all
patients are treated equally and allowed to spend their
remaining months with family in a less restrictive environment
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that a state hospital.
"Current law provides for a compassionate release program for
state prison inmates. The program allows inmates who have six
months left to live, including those receiving treatment in
the Department of State Hospitals (DSH), to be discharged to
spend their remaining time with family. However, other DSH
patients - such as those who are Not Guilty by Reason of
Insanity or Incompetent to Stand Trial - are not eligible for
such compassionate release.
"This creates a situation in which a patient can be in a coma
and unable to receive treatment, but cannot be released to a
more palliative care setting closer to their loved ones. These
patients also keep state hospital beds from being used to
treat patients that could benefit from treatment.
Additionally, patients released from DSH facilities are
eligible for Medi-Cal, allowing the state to pursue federal
matching funds for their treatment.
"SB 955 would create a compassionate release program for all
DSH patients regardless of commitment reason. Patients would
be required to meet specific criteria, including no longer
posing a risk to society, and petitions for compassionate
release would be approved by the court of commitment."
5)Argument in Opposition: According to the California State
Sheriffs' Association, "SB 955 creates a mechanism to release
persons found to be incompetent to stand trial, not guilty by
reason of insanity, or mentally disordered offenders from DSH
care because they are terminally ill or are permanently,
medically incapacitated and do not pose a threat to public
safety. People who are committed to the state hospital from
the criminal justice system are dangerous and in need of
significant treatment. The desire to see such a person enjoy
a 'compassionate' release because he or she is near the end of
life or meets a definition regarding his or her medical
condition should not trump the reason the person was committed
for treatment. Mechanisms exist to release patients who no
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longer need care - this bill goes beyond that notion."
6)Related Legislation:
a) SB 6 (Galgiani) exempts from medical parole and
compassionate release eligibility a prisoner who was
convicted of the murder of a peace officer, as provided,
and applies the provisions of this bill retroactively. SB
6 is pending hearing by the Committee on Appropriations.
b) SB 1295 (Nielsen) authorizes the use of documentary
evidence for purposes of satisfying the criteria used to
evaluate whether a prisoner released on parole is required
to be treated by DSH as an MDO. SB 1295 is pending hearing
by the Committee on Appropriations.
7)Prior Legislation:
a) AB 1156 (Brown), Chapter 378, Statutes of 2015, among
other provisions, extended compassionate release to
eligible inmates sentenced to county jail under the 2011
Realignment Act.
b) SB 1399 (Leno), Chapter 405, Statutes of 2010,
established California's medical parole law which allows a
prisoner who is determined to be medically incapacitated
with a medical condition that renders the prisoner
permanently unable to perform activities of basic daily
living, and results in the prisoner requiring 24-hour care
to be granted medical parole if BPH determines that the
conditions under which the prisoner would be released would
not reasonably pose a threat to public safety.
c) AB 1539 (Krekorian), Chapter 740, Statutes of 2007,
established criteria and procedure for which a state
prisoner may have his or her sentence recalled and be
re-sentenced if he or she is diagnosed with a disease that
would produce death within six months or is permanently
medically incapacitated and whose release is deemed not to
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threaten public safety.
d) SB 1547 (Romero), of the 2005-06 Legislative Session,
would have required CDCR to establish programs that would
parole geriatric and medically incapacitated inmates who no
longer pose a threat to the public safety. SB 1547 failed
passage on the Assembly floor.
e) AB 1946 (Steinberg), of the 2003-04 Legislative Session,
would have provided that terminally ill or medically
incapacitated prisoners, as specified, are eligible to
apply to have their sentences recalled and to be
re-sentenced; and made legislative findings that programs
should be available for inmates that are designed to
prepare nonviolent felony offenders for successful reentry
into the community. AB 1946 was vetoed by the Governor.
f) AB 29 (Villaraigosa), Chapter 751, Statutes of 1997,
established a procedure whereby a court may have the
discretion to re-sentence or recall a sentence if a
prisoner is terminally ill with an incurable condition
caused by an illness or disease that would produce death
within six months
REGISTERED SUPPORT / OPPOSITION:
Support
Union of American Physicians and Dentists (Sponsor)
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American Federation of State, County and Municipal Employees,
AFL-CIO
American Federation of State, County and Municipal Employees,
Local 2620
California Association of Psychiatric Technicians
California Attorneys for Criminal Justice
California Psychiatric Association
California Public Defenders Association
Disability Rights California
Legal Services for Prisoners with Children
National Association of Social Workers, California Chapter
Opposition
California District Attorneys Association
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California State Sheriffs Association
Analysis Prepared by:Stella Choe / PUB. S. / (916)
319-3744