BILL ANALYSIS
SB 851
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Date of Hearing: August 22, 2007
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Mark Leno, Chair
SB 851 (Steinberg) - As Amended: August 20, 2007
Policy Committee: Public
SafetyVote:6-0
Urgency: No State Mandated Local Program:
Yes Reimbursable: Yes
SUMMARY
This bill, the Corrections Mental Health Act of 2007:
1)Provides state superior courts statutory authority to develop
and implement mental health courts (MHCs), as specified, which
may operate as a pre-guilty plea program, a deferred entry of
judgment program, a post-plea program, and/or a contract
program for state parolees.
2)Requires the Department of Corrections and Rehabilitation
(CDCR) to create a pilot program to provide comprehensive
mental health services to 100 parolees who have serious mental
illness (SMI) in each of three parole regions. The pilot
requires specified services for SMI parolees, pursuant to
criteria specified in current law, states that funding shall
be provided at sufficient levels, and authorizes CDCR to
contract with public or private service providers.
3)Specifies that former parolees and former county jail inmates
are the third priority for existing mental health system of
care funding (essentially Proposition 63 funding), behind
existing programs and counties with a high incidence of
homeless SMI persons, as specified.
FISCAL EFFECT
1)MHCs.
a) No direct state costs for MHCs, as the bill is
permissive and does not require specific actions.
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b) To the extent this bill results in additional MHCs
(currently 28 counties operate 39 MHCs), there could be
moderate GF costs in the range of one additional
personnel-year per court. (The Judicial Council estimates
an additional cost of $35,000 to $100,000 per court, while
the LAO estimates no additional cost, assuming a MHC will
result in marginally lower costs than the traditional court
process, as is the case with drug courts.)
c) To the extent MHCs result in fewer SMI offenders
sentenced to state prison, there would be significant
annual net GF savings, potentially in the low tens of
millions of dollars. Potential savings depend on how many
offenders participate, program success rates, and
recidivism rates. For example, assuming 3,500 SMI offender
annual admissions to state prison, if additional MHCs
reduced this number by 30%, the annual savings would be
about $45 million, partially offset by the cost of mental
health services provided to the diverted offenders.
Assuming per capita mental health services costs of
$15,000, the increased cost of services would be in the
range of $16 million.
Presumably Proposition 63 funds and local mental health
programs would bear the brunt of these costs. (Proposition
63, 2004, established a one percent tax on taxable personal
income above $1 million to fund expanded mental health
services.)
2)CDCR comprehensive mental health system of care pilot program .
a) Annual GF costs, in the range of $5 million, for
enhanced mental health services for SMI parolees, assuming
additional costs of $15,000 per parolee. Services could
include housing, therapy, substance abuse treatment,
medication coordination and vocational rehabilitation. The
cost of these services would be fully borne by the state,
as state inmates and parolees are not eligible for
Proposition 63-funded services.
b) To the extent the systems of care pilot results in fewer
parolees returning to state prison, there would be minor
annual GF savings. Potential savings depend on program
success rates, and recidivism rates. For example, assuming
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a current 70% recidivism rate within three years of release
from prison, if the pilot program reduces this rate to 35%,
the annualized savings would be in the range of $5 million.
SUMMARY CONTINUED
1)Re MHCs:
a) Specifies that MHC goals include creation of a dedicated
calendar or a locally developed collaborative
court-supervised mental health program to place as many
mentally ill offenders in community treatment as possible
and reduce recidivism.
b) Requires consent of the prosecutor and judge before an
offender may participate in a MHC.
c) Requires the MHC plan developed by the presiding judge
and specified local stakeholders to address: a) the method
by which the MHC will ensure the target population of
defendants will be identified and referred to MHC; b) the
method for assessing SMI defendants; c) eligibility
criteria; d) treatment and supervision program components;
e) program standards for participation and completion; f)
staff training; g) individualized treatment plans, based
on mental health and substance abuse assessment; h) the
right of a defendant to withdraw from a MHC.
d) Authorizes a MHC to operate a pre-guilty plea program,
wherein criminal proceedings are suspended without a guilty
plea. If the court finds a defendant is not performing
satisfactorily, is not benefiting from the program, or has
engaged in criminal conduct rendering him or her unsuitable
for the pre-guilty plea program, the court shall reinstate
the criminal charge or charges. If the defendant has
performed satisfactorily during the period of the
pre-guilty plea program, at the end of that period, the
criminal charge or charges shall be dismissed and relevant
provisions of the diversion statutes shall apply.
e) Allows a MHC to operate as a deferred entry of judgment
program. If the defendant is found eligible, the prosecutor
must file a declaration in writing or state for the record
the grounds upon which the determination is based and make
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this information available to the defendant. In lieu of
trail, the court may grant deferred entry of judgment
provided the defendant pleads guilty to each charge. Upon
the defendant's successful completion of a program, with
the positive recommendation of the program authority and
the motion of the prosecuting attorney, the court, or the
probation department, the court shall dismiss charges and
provisions of the diversion statutes shall apply. If the
defendant fails the program, the prosecuting attorney, the
probation department, or the court on its own may make a
motion to the court for entry of judgment and the court
shall render a finding of guilty to the charge or charges
and schedule a sentencing hearing.
f) Allows a MHC to operate as a post-guilty plea program
when the defendant has entered a guilty plea or has been
sentenced and is on probation. If the defendant programs
successfully, criminal charges shall be dismissed and
existing diversion statute applied.
g) Authorizes CDCR to contract with a superior court and
county to use MHCs as an alternative to custody for SMI
parolees who violate parole or receive new terms. The Board
of Parole Hearings may suspend parole revocation
proceedings pending a parolee's successful completion of a
MHC program. If a parolee fails the program, parole may be
revoked. Parolees who participate in a MHC remain under the
jurisdiction of CDCR.
2)Re a system of care pilot project for 300 SMI parolees :
a) States that a comprehensive system of care for SMI
parolees results in the highest benefit to the client and
society, while ensuring the public sector meets its legal
responsibility and fiscal liability at the lowest possible
cost.
b) States that by using the guidelines and principles of
the existing adult mental health system of care model, it
is the intent of the Legislature to encourage CDCR to
implement a similar system for delivery of mental health
services to SMI parolees.
c) Requires CDCR, in consultation with the Department of
Mental Health (DMH), to establish prescriptive standards to
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ensure SMI inmates are identified, and provided services,
as specified.
d) Requires specified services for SMI parolees who meet
the eligibility criteria specified in existing law, and
states that sufficient funding shall be provided.
e) Requires CDCR to establish an advisory committee, as
specified, regarding the development of program performance
measures and evaluation. Requires CDCR to report to the
Legislature every year in which additional funding is
provided, regarding the effectiveness of the systems of
care in reducing homelessness, recidivism, involvement with
local law enforcement, and other measures as specified.
COMMENTS
1)Rationale . The author's intent is to provide statutory
structure and encouragement for the formation of additional
MHCs (currently 39 MHCs operate in 28 counties) and to apply
the adult mental health systems of care model to SMI state
parolees, (who are not eligible for services funded via
Proposition 63), via a 300-parolee pilot project.
According to the author, "The missing element of corrections
reform is mental health care. This bill looks at the continuum
of an offender's experience from pre-booking to post-parole
and provides for mental health needs when appropriate. The
proposed remedies are based on importing the Systems of Care
approach, which has been proven effective by objective
evaluation and solid performance measures. The solution in
this bill is in routing mentally ill offenders into services
as early as possible, thereby treating their needs,
stabilizing their illness, increasing their ability to fully
incorporate into the living situation around them, and
reducing the likelihood that they will re-offend."
2)Concerns.
a) The value of providing statutory authority for MHCs is
not readily apparent . As superior courts can, and do,
operate MHCs, it is not clear that adding permissive
statutory language will encourage the formation of
additional courts or enhance the operation of those in
existence now.
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b) Contracting with a court to use the court as something
other than a court creates a quandary . Authorizing CDCR to
contract with MHCs to deal with parolees who may have
committed administrative parole violations, but not new
crimes, puts the court in the strange position of serving
as a sort of administrative law judge to the Board of
Prison Hearings, who would retain ultimate authority over
the parolees before the court.
Preliminary discussions with judicial representatives
indicate that while many judges clearly support mental
health courts and the rationale behind SB 851, there are
considerable jurisdictional concerns that have yet to be
adequately resolved.
Under SB 851, the Board of Parole Hearings (BPH) retains
sole jurisdiction over the parolee. This results in the
trial judge serving as a parole agent, or an administrative
hearing officer, performing duties subservient to another
branch of government. This appears to be an inappropriate
role for a judge, leaving the judge without the tools
necessary for a successful collaborative court model. The
reason trial court judges are an effective part of
collaborative justice treatment programs is their ability
to use the coercive power of the criminal justice system to
encourage compliance with treatment regimens. Without
statutory jurisdiction, that coercive power cannot be
exercised. A trial court judge should not oversee treatment
progress under these circumstances.
Though SB 851 provides no transfer of jurisdiction or
authority from the BPH to a MHC, any effort to do so may prove
unconstitutional, as long as the BPH retains jurisdiction. Such
a role appears inconsistent with Article VI of the California
Constitution, the doctrine of separation of powers, and the
principle of the independence of the judiciary.
Given the jurisdictional complexities regarding SMI
parole violators who have not
committed a new crime, it may be preferable to deal with these
individuals through
alternative sanctions that can be developed and administered
by CDCR. SMI parolees
accused of a new crime could be diverted to a MHC under
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current law and/or this bill.
c) The duration and scope of the proposed pilot project
should be clarified . A four-year sunset may be appropriate,
in addition to clarifying whether the intent is a program
total of 300 parolees, including those who may be revoked,
or a rolling 300.
d) Why classify former parolees and former jail inmates as
tier-three mental health priorities ? Specifying that SMI
individuals who are no longer on parole or have been
discharged from county jails are the third priority for
existing mental health systems of care funding (essentially
Proposition 63 funding), behind existing programs and
counties with a high incidence of homeless SMI persons, as
specified, raises the issue of why former parolees or
former jail inmates need to be prioritized in this manner.
Presumably they are also part of the existing priority
tiers.
Analysis Prepared by : Geoff Long / APPR. / (916) 319-2081