BILL ANALYSIS
SENATE COMMITTEE ON CRIMINAL PROCEDURE
Senator Milton Marks, Chair
S
1995-96 Regular Session
B
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SB 1143 (Mountjoy)
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As introduced
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Hearing date: April 25, 1995
Penal/Welfare & Institutions Codes
LK:ll
CIVIL COMMITMENT: SEXUAL OFFENDERS
HISTORY
Source: City of Covina
Prior Legislation: SB 41X (1994) -- Failed, Assembly
Public Safety
Support: Attorney General; Committee on Moral Concerns;
Doris Tate Crime Victims Bureau; Protect Our Children; Cities
of Claremont, Duarte, La Habra Heights, and Monrovia; Los
Angeles County Police Chiefso Association; Police Chiefs of
Claremont, El Monte, Irwindale, Pomona, Redding, San Gabriel,
San Marino, South Pasadena, West Covina; and Whittier;
individuals
Opposition: American Civil Liberties Union; California
Attorneys for Criminal Justice
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KEY ISSUE
SHOULD SPECIFIED SEXUAL OFFENDERS WHO HAVE COMPLETED THEIR
SENTENCES BE SUBJECT TO INDETERMINATE CIVIL COMMITMENTS?
PURPOSE
Existing law provides for continued treatment of mentally
disordered prisoners when they are released to parole.
This bill would provide a civil commitment process for
sexually violent predators, as defined. It would provide
that at least 6 months prior to an inmate's scheduled release
date, the person may be referred for evaluation and may
request a petition for commitment in a civil action for
incarceration for an indeterminate period, up to life.
Initial review would be by a court or jury to determine
whether the person is a sexually violent predator. Upon such
a finding, the person would be housed in a prison facility,
until the Director of Mental Health finds that the person's
mental abnormality is so changed that he or she is not likely
to commit an act of sexual violence.
The purpose of this bill is to provide for indeterminate
civil commitment of sex offenders after completion of their
determinate prison sentences.
COMMENTS
1. Expressed purpose of the bill.
According to the author:
Under current law there is no legal authority to
detain and treat sexually violent offenders who are
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likely to commit new offenses because of their
mental abnormality and defects. There is no
procedure to prevent the release into unsuspecting
communities of sexually violent offenders who have
completed their prison sentences. SB 1143
establishes civil commitment procedures for the
placement and treatment of sexually violent
offenders in a secure mental health facility
following their release from prison.
2. Statement of legislative intent.
The bill provides the following statement of need:
The Legislature finds and declares that a small but
extremely dangerous group of sexually violent
predators that generally have personality disorders
can be identified while they are incarcerated.
These persons are not safe to be at large and if
released represent a danger to the health and safety
of others in that they are likely to engage in acts
of sexual violence. The Legislature further finds
and declares that it is in the interest of society
to identify these individuals prior to the
expiration of their terms of imprisonment. It is
the intent of the Legislature that once identified,
these individuals, if found to be likely to commit
acts of sexually violent criminal behavior by clear
and convincing evidence, be confined and treated
until such time that it can be determined that they
no longer present a threat to society.
The Legislature further finds and declares that the
treatment needs of this population are very long
term and the treatment modalities that are
appropriate for this population are substantially
different from those persons currently receiving
mental health treatment under the
Lanterman-Petris-Short Act (Part 1 (commencing with
Section 5000) of Division 5 of the Welfare and
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Institutions Code) and, accordingly, a new civil
commitment needs to be established to address the
treatment needs of this population.
3. History: Mentally Disordered Sex Offenders.
The Mentally Disordered Sex Offender Act (MDSO), Welfare &
Institutions Code Section 6300 et seq., was enacted in 1967
and repealed in 1981. That Act provided that upon
conviction, the court could order an examination of the
person by two to three psychologists. Upon a showing beyond
a reasonable doubt that there was a danger and that he or she
could benefit by treatment, the person would be moved to a
treatment facility. If the person was found not to be
amenable to treatment, he or she would be returned to the
regular sentencing process. The maximum term to be served in
the MDSO program would be the maximum term the person could
have served in prison.
A determination by the court that the person be sent to the
MDSO program was appealable to a jury, who would answer the
question: "Are you convinced to a moral certainty and beyond
a reasonable doubt that the defendant is a mentally
disordered sex offender?"
If the Director of Mental Health determined that the person
continued to present a substantial danger of bodily harm to
others, a trial would be set for no less than 30 days from
the release date and the person would be provided with full
criminal proceeding protections. The additional commitment
would be for up to two years.
An MDSO case could be held indefinitely but was entitled to a
hearing upon request every six months.
4. Existing law: Mentally Disordered Offenders.
Existing law provides for the disposition of mentally
disordered offenders (MDO) upon discharge. (Penal Code
Section 2960 et seq.) In the MDO program, the Department of
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Corrections is to begin treatment of disordered prisoners
during their first year of incarceration. As a condition of
parole, a person with a severe mental disorder that is not in
remission and cannot be kept in remission without treatment
may be placed in treatment. Those with personality or
adjustment disorders (the subjects of this bill) are
specifically excluded from the program.
Prerequisite findings by the Board of Prison Terms for
placement in the program include that the disorder was
related to the crime, that the prisoner has been in
treatment, that the person used force or violence or caused
serious bodily injury in committing the crime, that he or she
represents a substantial danger of physical harm to others,
and that the disorder cannot be kept in remission without
treatment.
The MDO patient may be treated either as an inpatient or
outpatient. The finding by the Board of Prison Terms is
appealable to the court, with the right to an attorney, proof
beyond a reasonable doubt, and a unanimous jury verdict.
A district attorney may petition the court for an extension
of one year.
A person who is gravely disabled within the meaning of the
Lanterman-Petris-Short Act may be committed civilly upon
release from custody of the Department of Corrections.
5. Definitions.
This bill is loosely patterned after Washington and Minnesota
statutes.
This bill would define "sexually violent predator" as "a
person who has been convicted of a sexually violent offense
and who has a mental abnormality or personality disorder that
makes the person a danger to the health and safety of others
in that it is likely that he or she will engage in sexually
violent criminal behavior upon release from state prison."
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The bill would specify that "danger to the health and safety
of others" does not require proof of a recent overt act.
A similar statute in Washington State was held to be
constitutional by the Washington Supreme Court. A petition
is currently pending in federal court.
The Washington Supreme Court held that, at least for persons
on parole, a recent overt act is required to show
dangerousness.
SHOULD A RECENT OVERT ACT BE REQUIRED TO SHOW THAT THE PERSON
IS A DANGER TO THE HEALTH AND SAFETY OF OTHERS?
The predecessor of this bill, SB 41X (Presley, 1994), as
introduced, also required that a sexually violent predator be
convicted of a sexually violent offense on two or more
occasions. That requirement was later deleted from the
definition.
SHOULD A SEXUALLY VIOLENT PREDATOR BY DEFINITION COMMIT MORE
THAN ONE CRIME?
This bill would define "sexually violent offense" to include
a felony violation of rape, spousal rape, sex crime in
concert, sodomy or oral copulation or foreign object
penetration offenses as listed below, lewd act on a child
under 14, continuous sexual abuse, or anal penetration by
undetermined means, when the violation is forcible or is
committed against a child under 14, when any of the following
is proved:
a. There is a previous conviction of forcible
rape, spousal rape, sex crime in concert, sodomy,
oral copulation, foreign object penetration,
copulation or foreign object penetration offenses
as listed above, continuous sexual abuse, or anal
penetration by undetermined means; or
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b. The defendant kidnapped the victim; or
c. The defendant inflicted great bodily injury on
the victim or another person during the offense;
or
d. The offense was committed during the commission
of a burglary; or
e. The defendant used a deadly or dangerous weapon
or used a deadly or dangerous weapon or firearm;
or
f. The defendant committed an offense against more
than one victim, committed more than one offense
against a victim under the age of 14, or committed
a felony act of lewd conduct against a child under
the age of 16.
Thus, the term would be applicable to a person with no prior
record who commits one count of lewd conduct contemporaneous
with one count of oral copulation, or a person who is
currently charged with continuous sexual abuse of a child
instead of two counts of lewd conduct. Thus, a single act
sex crime without force could result in a life sentence.
Additionally, burglary involves the entry of designated
premises (including a room) with the intent to commit a
felony or theft therein. No trespass or non-consensual entry
is required to commit the offense. One may be convicted of
burglary, even if the person enters with consent, provided
that he or she does not have an unconditional possessory
right to enter. In re Andrew I., (1991) 230 Cal.App.3d 572,
577-579.
As drafted, this bill would make virtually any sex offense
committed indoors with a minor, forcible or not, subject to
the definition of "sexually violent offense", including a
15-year-old who enters his 13-year-old sister's room with
intent to play "doctor".
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Likewise, a person invited into a home would be subject to
the life sentence for he or she entered the home with intent
to commit a sex crime.
IS THIS DEFINITION TOO BROAD?
The prerequisite offenses listed in this bill are generally
adopted from SB 26X (Bergeson, Chapter 14X, Statutes of
1994), as that bill was introduced. However, this bill would
provide for a civil commitment for a single act of forcible
or non-forcible lewd conduct against a minor under age 16 or
a person who commits any two offenses against a minor and
contains other differences from SB 26X as chaptered.
SHOULD THE PROVISIONS OF THIS BILL BE CONFORMED TO THE
LANGUAGE OF SB 26X?
The bill would define omental abnormalityo as oa congenital
or acquired condition affecting the emotional or volitional
capacity that predisposes the person to the commission of
criminal sexual acts in a degree constituting the person a
menace to the health and safety of others.o
6. Procedure.
This bill would provide that a person under the jurisdiction
of the Department of Corrections, who may be a sexually
violent predator, be referred for evaluation within six
months prior to the individual's scheduled release date from
prison or termination of parole.
IF THE PURPOSE OF THIS BILL IS FOR TREATMENT, SHOULD NOT
THOSE ELIGIBLE PRISONERS BE IDENTIFIED BY THE COURT, AT THE
TIME OF SENTENCING, AS UNDER THE MDSO STATUTE, AND TREATED
FROM THE BEGINNING OF INCARCERATION?
The provisions of this bill are retroactive and the osix
montho provision need not be applied during the first year of
operation.
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ARE THE PROVISIONS OF THIS BILL PENAL IN NATURE?
SHOULD A PERSON WHO MAY COME UNDER THE PROVISIONS OF THIS
BILL BE PLACED ON NOTICE AT TIME OF THE CONVICTION?
SHOULD THIS BILL BE APPLIED RETROACTIVELY AND BE POTENTIALLY
APPLICABLE TO THE 17,000 PERSONS CURRENTLY UNDER THE
JURISDICTION OF THE DEPARTMENT OF CORRECTIONS?
Once identified, the person would be evaluated by two
psychiatrists or psychologists, who may be governmental
employees, designated by the Director of Mental Health. If
both concur that the person has a mental abnormality or
personality disorder such that he or she is likely to engage
in acts of sexual violence without appropriate treatment and
custody, the Director of Mental Health would forward a
request for a petition for commitment to the county where the
person was committed. If the evaluators do not agree, the
Director of Mental Health would arrange for a new
examination. The person would be told that the purpose of
the examination is not treatment but to determine if the
person meets certain criteria to be involuntarily committed
pursuant to this article. It would not be required that the
person appreciate or understand that information. A person
on parole could be placed in prison pending the examination.
A superior court judge would review the petition and would
determine whether there is probable cause to believe that the
person is likely to engage in sexually violent criminal
behavior upon his or her release. If the judge determines
that there is probable cause, the judge would order that a
trial be conducted to determine whether the person is, by
reason of mental abnormality or personality disorder, a
danger to the health and safety of others in that the person
is likely to engage in acts of sexual violence upon his or
her release from the jurisdiction of the Department of
Corrections.
A person subject to this procedure would be entitled to a
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court trial, the assistance of counsel, the right to retain
experts or professional persons to perform an examination on
his or her behalf, and have access to relevant medical and
psychological records and reports. In the case of a person
who is indigent, the court would appoint counsel and, upon
the person's request, assist the person in obtaining an
expert or professional person to perform an examination or
participate in the trial on the person's behalf.
At the commitment hearing, the state could present as
evidence the facts of any proved or unproved crime committed
by the person. In the case of an unproved crime, proof would
be by preponderance of the evidence. The state could also
present as evidence the personos lack of remorse, denial or
failure to accept responsibility for the crime, antisocial
behavior, and acts of violence committed by the person. The
court would then determine whether, by clear and convincing
evidence, the person is a sexually violent predator.
Upon a finding that the person is a sexually violent
predator, he or she would be committed to the custody of the
State Department of Mental Health for appropriate treatment
and confinement in a prison facility until his or her mental
abnormality or personality disorder has so changed that he or
she is not likely to commit an act of sexual violence.
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A similar law in Minnesota requires that the person have an
utter lack of power to control his or her impulses.
SHOULD A FINDING THAT THE PERSON HAVE AN UTTER LACK OF POWER
TO CONTROL HIS OR HER IMPULSES BE REQUIRED?
A person found to be a sexual violent predator and committed
to the custody of the State Department of Mental Health would
have a current examination of his or her mental condition
made at least once every year. The person could retain or
have appointed an expert or professional person to examine
him or her, and the expert or professional person would have
access to all records concerning the person.
The director would provide the committed person with a
biennial written notice of his or her right to petition the
court for release, which would include a waiver of rights.
The director would forward the notice and waiver form to the
court with the report. If the person did not affirmatively
waive the right to petition, the court must set a "show
cause" hearing.
SHOULD A PERSON IN CUSTODY ON A CIVIL COMMITMENT BE ALLOWED
TO WAIVE THE RIGHT TO A HEARING?
At the show cause hearing, the burden would be on the
committed person to show that his or her condition has so
changed that he or she would not be a danger to the health
and safety of others if discharged. The person would have
the right to be present and have legal representation. If
the court finds that there is probable cause to believe that
the committed person's mental abnormality or personality
disorder has so changed that he or she is not a danger to the
health and safety of others and is not likely to engage in
sexually violent criminal behavior if discharged, a full
hearing must be set.
At the full hearing, the committed person has the right to be
evaluated by experts on his or her behalf. If indigent, one
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expert would be appointed by the court. The county's
attorney has the right to require that the person be examined
by experts chosen by the state.
SHOULD THE COMMITTED PERSON ALSO HAVE THE EXPLICIT RIGHT TO
DEMAND A JURY TRIAL?
The burden of proof at the full hearing is on the state to
prove by clear and convincing evidence that the committed
person's mental abnormality or personality disorder remains
such that he or she is a danger to the health and safety of
others and is likely to engage in sexually violent criminal
behavior if discharged.
This procedure presents the anomalous situation whereby the
committed person has the burden of proving at the preliminary
examination that he or she is not a danger. If that burden
is met, the government has the burden at the full hearing to
show that the person continues to be dangerous.
SHOULD THE BURDEN AT THE "SHOW CAUSE" HEARING BE ON THE
GOVERNMENT TO SHOW A LACK OF PROBABLE CAUSE TO BELIEVE THAT
THE PERSON IS NO LONGER DANGEROUS?
SHOULD THE BURDEN ON THE GOVERNMENT BE PROOF BEYOND A
REASONABLE DOUBT?
7. Treatment.
A person committed under this bill would be provided with
programming by the State Department of Mental Health which
shall afford the person with treatment for the underlying
causes of his or her mental abnormality or personality
disorder. However, amenability to treatment is not required
for a finding that any person is a sexually violent predator,
nor is it required for treatment of that person. Treatment
does not mean that the treatment be successful or potentially
successful, nor does it mean that the person must recognize
his or her problem and willingly participate in the treatment
program.
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SHOULD TREATMENT BE REQUIRED TO BE A PART OF THE PERSONS
PROGRAM?
SHOULD PERSONS NOT AMENABLE TO TREATMENT BE SUBJECT TO THIS
PROCEDURE?
The person could be returned to prison for the remainder of
his or her confinement.
SHOULD PLACEMENT IN A MENTAL HEALTH FACILITY BE MANDATED?
The expressed purpose of this bill is to confine and treat
prisoners until such time that they no longer present a
danger to society. Yet, treatment in correctional facilities
is difficult to obtain. On June 7, 1994, U.S. Magistrate
John Moulds found that the lack of adequate care for mentally
ill prisoners by the Department of Corrections constitutes
cruel and unusual punishment because of deliberate
indifference on the part of the Department of Corrections.
The ruling affects about 28,000 mentally ill prisoners of the
system's 123,000 inmates. The Magistrate ruled that the
plaintiffs had "clearly shown, and defendants have
effectively acknowledged, that the delivery of mental health
care within the California Department of Corrections is, and
for many years, has been, grossly inadequate." The ruling
stated that for years the department had "ignored the
considered advice of their own experts about the woeful
deficiencies in their system....[M]entally ill inmates who do
receive some forms of treatment suffer needless, extended
delays in access to necessary psychiatric care."
Recommendations include developing adequate staffing ratios
between employees and mentally ill inmates; filling all
mental health staff positions now authorized in the budget;
recruiting mental health professionals to work in prisons;
training prison staff to recognize signs of mental illness;
developing a policy governing the lockup of mentally ill
prisoners in solitary confinement; and developing a plan to
guarantee prompt access to psychiatric hospitalizations.
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That case is scheduled to be reviewed before U.S. District
Judge Lawrence Karlton for consideration.
SHOULD PRISONERS CURRENTLY IN THE CORRECTIONAL SYSTEM BE
AFFORDED ADEQUATE MENTAL HEALTH TREATMENT BEFORE POLICIES
THAT WOULD EXPAND TREATMENT NEEDS BE EFFECTED?
8. Release.
If the Director of Mental Health determines that the person's
mental abnormality or personality disorder has so changed
that the person is not likely to commit acts of sexual
violence while under supervision and treatment in the
community, the director would forward to the county attorney
a request for the attorney to petition the court for
conditional release.
The committee could also petition the court for conditional
release and subsequent unconditional discharge without the
recommendation or concurrence of the Director of Mental
Health. If the person has previously filed a petition for
conditional release without the concurrence of the director,
and the court, upon review of the petition or following a
hearing, determined that the petition was frivolous or that
the condition of the petitioner had not so changed that he or
she would not be a danger to others if placed under
supervision and treatment in the community, the court would
deny the subsequent petition unless it sets forth facts upon
which a court could find that the condition of the petitioner
had so changed that a hearing was warranted.
SHOULD THE BURDEN BE ON THE PEOPLE TO SHOW DANGEROUSNESS
RATHER THAN ON THE PETITIONER TO SHOW THAT HE OR SHE IS NO
LONGER A DANGER?
HOW DOES A PERSON IN CUSTODY SHOW THAT HE OR SHE IS NOT A
DANGER?
A person could not be unconditionally released from
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commitment until he or she had been placed in the community
under supervision and observation for at least one year and
no hearing could be held until the person had been in the
program for at least one year.
The purpose of the hearing would be to determine whether the
person petitioning for conditional release would be a danger
to the health and safety of others due to his or her mental
abnormality or personality disorder if under supervision and
treatment in the community. If the court at the hearing
determined that the petitioner would not be a danger to
others due to his or her mental abnormality or personality
disorder while under supervision and treatment in the
community, the court would order placement with an
appropriate forensic conditional release program operated by
the state, which would include outpatient supervision and
treatment, for one year. The court would retain jurisdiction
of the person throughout the course of the program. At the
end of one year, the court would hold a hearing to determine
if the person should be unconditionally released from
commitment on the basis that, by reason of a mental
abnormality or personality disorder, he or she is not a
danger to the health and safety of others.
If the court ruled against the petitioner at the trial for
unconditional release from commitment, the court could place
him or her on outpatient status.
If the court denied the petition to place the person in an
appropriate forensic conditional release program, or if the
petition for unconditional discharge was denied, the person
could not file a new application for another year.
In any of these hearings, the petitioner would have the
burden of proof by a preponderance of the evidence.
The Minnesota law requires that the burden be on the people
by the standard of clear and convincing evidence.
SHOULD THE PEOPLE HAVE THE BURDEN OF PROOF? BY WHAT
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STANDARD?
According to the bill, time spent in a conditional release
program would not count toward the term of commitment unless
the person was confined in a locked facility during a portion
of the conditional release program.
Since the "term of commitment" is indeterminate, it is
unclear what this provision addresses.
9. Retroactive application.
This bill defines a osexually violent offenseo as specified
acts committed on, before or after the effective date of this
bill (See Section 6600(b).) This bill has elements which
make it appear to be punitive in nature, such as provisions
which authorize treatment of persons who are not amenable to
treatment, and placement in a prison facility. That question
is currently being litigated in similar legislation in
Washington. If the proposed statute attaches additional
jeopardy to a person, ex post facto application would be
prohibited under the United States and California
constitutions. If this bill is civil rather than criminal in
nature, it survives this challenge, as did the Washington
statute when before the Washington Supreme Court, In re
Young, 857 P.2d 989 (1993). The major issue is whether the
personos prior act is being used to increase his or her
punishment.
ARE THE PROVISIONS OF THIS BILL ESSENTIALLY PENAL IN NATURE?
SHOULD THIS BILL BE LIMITED TO PROSPECTIVE APPLICATION ONLY?
SHOULD A PERSON WHO MAY COME UNDER THE PROVISIONS OF THIS
BILL BE PLACED ON NOTICE AT THE TIME OF SENTENCING?
10. Comparison to SB 41X.
This bill is patterned after SB 41X (Presley, 1994). Changes
from the bill as supported by the Department of Mental Health
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and as amended June 23, 1994, include the following:
a. The standard of proof at the initial and annual
commitment hearings in SB 41X was proof beyond
reasonable doubt. The standard in this bill is by
clear and convincing evidence. The sponsor notes
that Addington v. Texas, 441 U.S. 425, 432-433,
minimally requires clear and convincing evidence
in civil commitment proceedings as the basis of
proof of insanity and dangerousness.
b. SB 41X allowed the defendant to trial by jury
at the initial and annual hearings. This bill is
limited to court trials.
c. SB 41X required annual evaluations and an
annual hearing unless waived. This bill requires
biennial evaluations and reviews.
d. This bill additionally specifies that the state
may present as evidence at the hearing the facts
of any proved or unproved prior crime. If
unproved, proof would be by clear and convincing
evidence.
e. This bill additionally specifies that the state
may present as evidence the personos lack of
remorse, denial or failure to accept
responsibility for the crime, and antisocial
behavior and acts of violence.
f. SB 41X specified that the evaluating
psychologists or psychiatrists not be state
government employees. This bill removes that
requirement.
ARE THESE CHANGES FROM SB 41X NECESSARY OR SUFFICIENT FOR
ADEQUATE ADMINISTRATION OF THE CIVIL COMMITMENT PROCEDURE?
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11. Opposition.
This bill is opposed by the American Civil Liberties Union on
both policy and constitutional grounds:
This wide sweeping legislation permits the state to
indefinitely confine in mental facilities
individuals who have committed sexually motivated
crimes based on perceived fears that these persons
will commit future crimes. SB 1143 is essentially a
preventive detention scheme based on allegations of
future dangerousness, and as such violates
substantive due process of law.
Pursuant to the U.S. Supreme Court's recent decision
in Foucha v. Louisiana, the state must prove an
individual is both mentally ill and dangerous before
the person can be involuntarily committed. SB 1143
fails to meet this minimal requirement in that a
"sexually violent predator" as defined in the
statute does not apply to a group of persons who are
mentally ill. As the Supreme Court noted in Foucha:
The State asserts that because Foucha once committed
a criminal act and now has an antisocial personality
that sometimes leads to aggressive conduct, a
disorder for which there is no effective treatment,
he may be held indefinitely. This rationale would
permit the State to hold indefinitely any other
insanity acquittee not mentally ill who could be
shown to have a personality disorder that may lead
to criminal conduct. The same would be true of any
convicted criminal, even though he has completed his
prison term."
Moreover, the bill not only applies to persons who
are not in custody, but also does not require a
recent overt act to hold someone indefinitely.
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In opposing SB 41X last year, the California Psychiatric
Association stated:
This bill suggests that "sexually violent predators"
can be accurately identified, that treatments exist
to "cure" such individuals, and the bill mandates
that they be remanded until cured. CPA has grave
concerns with the premise of SB 1143. Since there
are no guaranteed cures for such individuals which
would reasonably ensure that they could safely
return to society, it appears that this bill is
simply a means to create a legal process for keeping
convicted individuals incarcerated.
CPA also has concerns with the SB 1143 definition of
a "sexually violent predator". The definition
implies that a person with a mental disorder has
some type of congenital or acquired condition that
would predispose such individuals to commit criminal
sexual acts. This is inaccurate, inappropriate, and
may stigmatize persons with a diagnosis of a
personality disorder.
Under SB 1143, individuals so labeled would be
referred to the Department of Mental Health's penal
system for "treatment" which would require limited
staff resources be used in an attempt to "cure" such
persons. The intent of SB 1143 appears to be simply
to keep such individuals incarcerated. To confuse
the issue with the idea that such individuals can be
guaranteed a cure, and only then returned to
society, is nonproductive and inappropriately
engages clinical staff in endless paperwork without
any assurance of a positive outcome.
12. Recent legislation.
a. Personality disorders
SB 40X (Bergeson, Chapter 10, Statutes of 1994),
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sponsored by the Department of Mental Health, bars
the defense of onot guilty by reason of insanityo
when based on a personality or adjustment
disorder, a seizure disorder, or an addiction to
or abuse of intoxicating substances.
According to the Department of Mental Health, that
bill is needed because persons with personality
disorders are not out of touch with reality. They
have difficulty adjusting to societal constructs
and are persons who are easily angered and have
irresponsible behavior patterns. They are not
generally amenable to therapeutic support.
SB 40X appears to be in policy conflict with this
bill, in that this bill attempts to treat the
group that SB 40X has removed from the mental
health process.
IS THIS BILL NOT IN CONFLICT WITH SB 40X?
SHOULD THIS BILL BE LIMITED TO TREATMENT OF
PERSONS WITH MENTAL DISORDERS?
b. Sexual offenders
This bill is structured after SB 41X (Presley,
1994). However, since SB 41X was introduced, a
number of other statutes directed at sexual
offenders were
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enacted last year which would have an impact on
the policy envisioned by this bill:
1) SB 26X (Bergeson, Chapter 14X), the oOne
Strikeo bill, among other provisions, provides
an additional consecutive term of 25 years to
life for commission of a sex crime when the
defendant kidnapped the victim, inflicted great
bodily injury, committed the offense during the
commission of a burglary, used a deadly or
dangerous weapon or firearm, committed the
offense against more than one victim, or had a
prior conviction for a sex offense.
2) AB 2261 (Peace, Chapter 446), among other
provisions, includes kidnapping with intent to
commit a sex crime within the definition of
ohabitual sexual offendero and requires a
minimum of 25 calendar years in custody before
parole may be considered for any habitual
sexual offender.
3) AB 1029 (Epple, Chapter 447), among other
provisions, provides a life sentence for using
a firearm or deadly weapon or committing great
bodily injury during the commission of a sex
offense which involved either a kidnap or
burglary.
4) AB 3707 (Boland, Chapter 878), provides a
life sentence for committing a forcible sex
offense on a minor under 14 when the defendant
is at least 10 years older than the minor.
Additionally, the maximum amount of time credit available to
violent felons was reduced last year from 50% to 15% under AB
2716 (Katz, Chapter 713).
Finally, AB 971 (Jones/Costa, Chapter 12) and Proposition
184, the oThree Strikes Youore Outo law require a life
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SB 1143 (Mountjoy)
Page w
sentence for any person convicted of any felony offense with
two violent or serious felony priors and requires double the
sentence for any person with one violent or serious prior.
Therefore, the problem of lack of control over sexual
offenders may have been lessened by enactment of these six
measures, which will result in life sentences or
significantly increased terms for sexual predators.
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WITH THE ENACTMENT OF RECENT LEGISLATION, IS THERE STILL AN
IMMEDIATE NEED FOR THIS BILL?
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SB 1143 (Mountjoy)
Page y
13. Related legislation.
SB 34 (Peace) would expand the crimes for which a person may
be committed to the MDO program. That author indicates that
he is examining possible improvement of mental health
treatment in the state prison system in order to improve
treatment modalities and expand the MDO program.
AB 614 (Aguiar) and AB 888 (Rogan) are also patterned after
SB 41X of last year. AB 888 is sponsored by the Governor and
is being modified to alleviate some of the due process
concerns raised during the discussion of SB 41X.
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