BILL ANALYSIS
SB 1399
Page 1
Date of Hearing: June 29, 2010
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 1399 (Leno) - As Amended: June 23, 2010
SUMMARY : Establishes a medical parole program, as specified.
Specifically, this bill :
1)Provides that, except as to those prisoners specified, any
prisoner sentenced to state prison with a determinate term who
the chief medical officer (CMO) at the institution where the
prisoner is located determines suffers from a significant and
permanent condition, disease, or syndrome resulting in the
prisoner being physically or cognitively debilitated or
incapacitated shall be granted medical parole if the Board of
Parole Hearings (BPH) determines that the conditions under
which the prisoner would be released would not reasonably pose
a threat to public safety.
2)Specifies that medical parole shall not apply to any prisoner
sentenced to death or life in prison without possibility of
parole or to any inmate who is serving a sentence for which
parole is prohibited by any initiative statute. Parole
placements and revocations pursuant to medical parole shall be
made in accordance with the Victim's Bill of Rights Act of
2008: Marsy's Law.
3)States that when a physician employed by the California
Department of Corrections and Rehabilitation (CDCR) who is the
primary care provider for an inmate identifies an inmate that
he or she believes meets the medical criteria for medical
parole, the primary care physician shall recommend to the
chief medical officer of the institution where the prisoner is
located that the prisoner be referred to the BPH for
consideration for medical parole. Within 30 days of receiving
that recommendation, if the CMO concurs in the recommendation
of the primary care physician, he or she shall refer the
matter to the BPH, and if the CMO does not concur in the
recommendation, he or she shall provide the primary care
physician with a written explanation of the reasons for
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denying the referral.
4)States that the prisoner or his or her family member or
designee may independently request consideration for medical
parole by contacting the CMO at the prison or the CDCR
Secretary. Within 30 days of receiving the request, the CMO
shall, in consultation with the prisoner's primary care
physician, make a determination whether the prisoner meets the
criteria for medical parole and, if the CMO determines that
the prisoner satisfies the criteria set forth, he or she shall
refer the matter to the BPH. If the CMO does not concur in
the recommendation, he or she shall provide the prisoner or
his or her family member or designee with a written
explanation of the reasons for denying the application.
5)Mandates that CDCR complete parole plans for inmates referred
to the BPH for medical parole consideration. The parole plans
shall include, but not be limited to, the inmate's plan for
residency and medical care.
6)Provides that medical parole hearings shall be conducted by
two-person panels consisting of at least one commissioner. In
the event of a tie vote, the matter shall be referred to the
full BPH for a decision.
7)States that upon receiving a recommendation from a CMO of CDCR
for a prisoner to be granted medical parole, the BPH shall
make an independent judgment regarding whether the conditions
under which the inmate would be released pose a reasonable
threat to public safety, and make written findings related
thereto.
8)States that the Division of Adult Parole Operations shall have
the authority to impose any reasonable conditions on prisoners
subject to medical parole supervision, including, but not
limited to, the requirement that the parolee submit to
electronic monitoring. As a further condition of medical
parole, the parolee may be required to submit to an
examination by a physician for the purpose of diagnosing their
current medical condition. In the event such an examination
takes place, a report of the examination and diagnosis shall
be submitted to the board by the examining physician. If the
BPH determines that the person's medical condition has
substantially improved and that the person poses a threat to
public safety, the BPH may revoke the parole and return the
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person to the custody of the department.
9)Provides that a prisoner placed on medical parole supervision
prior to the earliest possible parole date that the prisoner
would otherwise have been released to parole under shall
remain on medical parole until that earliest possible parole
date; at which time, the parolee shall commence serving that
period of parole, and under all other applicable conditions
provisions of parole.
10)Provides that CDCR shall, at the time a prisoner is placed on
medical parole supervision ensure that the prisoner has
applied for any federal entitlement programs for which the
prisoner is eligible, and has in his or her possession a
discharge medical summary, full medical records, parole
medications, and all property belonging to the prisoner that
was under the control of the CDCR. Any additional records
shall be sent to the prisoner's forwarding address after
release to health care-related parole supervision.
11)Specifies that CDCR shall complete all of the following tasks
associated with inmates granted medical parole:
a) CDCR shall enter into memoranda of understanding with
the Social Security Administration and the State Department
of Health Care Services to facilitate prerelease agreements
to help inmates initiate benefits claims.
b) CDCR shall pay the state share of Medi-Cal costs for
inmates that have been granted medical parole.
c) The State shall assume responsibility as the payer of
last resort for inmates who are granted medical parole who
are not eligible for public insurance and who do not have
independent means to pay privately. As the payer of last
resort, the State shall reimburse providers for the medical
treatment and long-term care costs of these medical
parolees at rates no lower than the Medi-Cal rate until
such time that these parolees are eligible for public
insurance or have independent means to pay privately.
d) CDCR shall reimburse counties for the costs associated
with providing an inmate granted medical parole with a
public guardian.
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EXISTING LAW :
1)Provides that if the CDCR Secretary or the BH or both
determine that a prisoner is either [Penal Code Sections
1170(e)(1) and (e)(2)]:
a) 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,
b) 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,
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.
2)Provides that the BPH shall make findings, as specified,
before making a recommendation for resentencing or recall to
the court. This subdivision does not apply to a prisoner
sentenced to death or a term of life without the possibility
of parole. [Penal Code Section 1170(e)(2).]
3)Provides that within 10 days of receipt of a positive
recommendation by the CDCR Secretary or the BPH, the court
shall hold a hearing to consider whether the prisoner's
sentence should be recalled. [Penal Code Section 1170(e)(3).]
4)Provides that any physician employed by CDCR who determines
that a prisoner has six months or less to live shall notify
the chief medical officer of the prognosis. If the CMO
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
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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. [Penal Code Section 1170(e)(4).]
5)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. [Penal Code Section 1170(e)(5).]
6)Provides that the prisoner or his or her family member or
designee may independently request consideration for recall
and resentencing by contacting the CMO at the prison or the
CDCR Secretary. Upon receipt of the request, the chief
medical officer and the warden or the warden's representative
shall follow the procedures described above. If the CDCR
Secretary determines that the prisoner satisfies the criteria
for sentencing recall described above, the Secretary or BPH
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 BPH with respect to the inmates who have applied under
this section. The BPH 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 BPH meeting. [Penal Code Section
1170(e)(6).]
7)Provides that any recommendation for recall submitted to the
court by the CDCR Secretary or the BPH shall include one or
more medical evaluations, a postrelease plan, and findings.
[Penal Code Section 1170(e)(7).]
8)Provides that if the court grants the recall and resentencing
application, the prisoner shall be released by the CDCR 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,
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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.
[Penal Code Section 1170(e)(9).]
9)Provides that the CDCR Secretary shall issue a directive to
medical and correctional staff employed by the CDCR 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
consideration, and that recall and resentencing procedures
shall be initiated upon that prognosis. [Penal Code Section
1170(e)(10).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Does it make
sense for the state to pay for two correctional officers to
guard an inmate 24-hours-a-day as the inmate lies comatose or
in a permanent vegetative state in a hospital bed? Does it
make sense for CDCR to become a long-term care facility for
inmates with, for example, end-stage Alzheimer's disease,
whose dementia is so severe they no longer understand that
they are in prison? California is paying tens of millions of
dollars every year to incarcerate these very high-cost
inmates. These offenders were sent to prison to protect
society and to punish them for their crimes. Because of their
medical condition, however, they are no longer a threat and
the ones being punished are the taxpayers.
"California is not alone in facing this problem. Across the
country 36 states have implemented some form of medical
release to relieve them of the crushing financial burden of
keeping inmates in prison whose medical condition has rendered
their incarceration no longer necessary. In 1997, California
first authorized the Secretary of CDCR or the BPH to recommend
to the sentencing judge that an inmate's sentence be recalled
due to terminal illness. Ten years later that authority was
extended to cover cases of medical incapacitation. However,
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last year only two such releases were approved and we continue
to incarcerate inmates who could, by any rational standard, be
released without posing a threat to the public.
"SB 1399 addresses some of the issues that have been identified
as problematic in the current law. Rather than requiring a
sentence recall it creates an alternative procedure that
permits these inmates to be placed on parole supervision under
conditions determined by the parole board, and allows the
parole to be revoked if for any reason the parolee's condition
changes and creates a danger to the public.
"This medical parole, will place public safety paramount and
stop needlessly punishing the taxpayers.
2)Background : According to the background submitted by the
author, "California's prison spending is out of control. The
total CDCR budget for incarcerating the state's prisoners has
risen to a whopping $9.6 billion in 2009, the year for which
we have the most complete fiscal data. This spending has been
increasing at an average rate of eight percent each year and
it is the taxpayers of the State that must bear the burden of
these costs.
"One of the most dramatic increases in CDCR spending can be
attributed to the rising costs for providing constitutionally
mandated inmate medical care. In 2005-06, total spending on
inmate health care was $1.2 billion or about 16 percent of the
total CDCR budget. In 2008-09, total spending on inmate
health care was $2.5 billion or about 26 percent of the total
CDCR budget. That's not even including the custody costs of
transporting inmates to and from their health care
appointments.
"As the costs of healthcare in general have increased at an
annual rate of 4.4 percent, so too has the burden on the
general fund to cover the costs of this constitutionally
mandated care. Nevertheless, prison spending has outpaced
other medical spending dramatically, with an average annual
increase of 27%. For 2009-10, it is projected that the state
will be spending nearly $2 billion from the General Fund for
adult inmate medical operations. This is up 32 percent or
$424 million from less than a year ago. There is simply no
doubt that the state cannot maintain this disturbing trend.
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"Last year, the state spent an average of just over $16,000 per
inmate on various healthcare services. This is up
considerably from 2005, when we spent less than half at $7,663
per inmate. Surprisingly, these are some of the least
expensive, 'low-cost' inmates in the system. The largest
portion of California's prison healthcare budget is spent on
outside specialty care for contract medical care services and
transportation that are provided outside of the prison
facility. A tiny fraction of the inmates receiving this type
of care who would likely be candidates for medical parole, are
responsible for nearly one-third of this spending. In fact,
in recent years, these contract medical costs have more than
doubled - increasing from $394 million in 2005 to a staggering
$845 million just last year. And, it is fair to assume that
as California's prison population continues to age, these
costs will only increase further.
"SB 1399 will medically parole, the sickest of the sick. And
although this would only apply to a handful of inmates, these
inmates are by far the most costly in the system. The average
cost for an inmate placed in a correctional treatment center
bed is $10,604. When you add the costs of medical guarding
and transportation to that (patients in this setting normally
average one to three outside medical visits with hospital
transportation and two correctional officers at the hourly
rate, plus benefits) the figure rises to $114,395 dollars per
inmate. The Federal Receiver has identified 11 inmates as
extremely incapacitated and housed within the prison system in
correctional treatment center beds with medical bills
averaging over $114,000 each per year.
"An additional 21 inmates are housed at an even higher rate to
the taxpayer in nursing facilities or hospitals outside of the
prison facility. These type of beds average a cost of $3,500
per day. When you add the guarding costs to that (two
correctional officers per shift, three shifts per day,
straight time plus benefits) the number jumps to $5,406 a day.
So the total cost for a single inmate in this type of
treatment setting is nearly $2 million - $1,973,252. This
means that the state has paid a total of $41.4 million a year
for just 21 individuals who would most likely qualify as
medical parole candidates under this legislation due to their
severe medical condition as evidenced by the exorbitant costs
of their medical care.
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"Finally, there is one more type of bed, the hospice bed. For
inmates dying in this type of medical setting, the costs of a
physician assistant, registered nurse, office assistant, and
clinical social worker total nearly $2 million per hospice bed
- $1,868,232. CDCR has 17 hospice beds currently within the
system at a price of $31,759,944 - nearly $32 million dollars
a year.
"By eliminating the requirement for 24-hour guard care at health
facilities, a medical parole program could save the state
millions just in custody and transportation costs alone.
According to the State Auditor, between 2003 and 2008, medical
guard time accounted for 24% of the prison system's total
guard overtime. Spending for guard costs has increased by $66
million since 2003. The price for two correctional officers
to guard a single inmate at an outside nursing facility has
been reported to be $2,317 a day. The guard price for the
inmate during a six-month period was $410,000. That's nearly
equal to actual cost of medical care provided to the inmate
during the same timeframe which totaled an additional
$421,000. We can assume that for every inmate we send out
into the community for special treatment, we are nearly
doubling the taxpayer burden for the cost of their
incarceration.
"Incarcerated inmates, regardless of their medical condition,
are not eligible to receive any federally funded medical care.
However, these restrictions do not apply to persons on
parole, meaning that SB 1399 would allow the State to receive
federal reimbursement for a significant portion of the costs
associated with inmates eligible to be placed on medical
parole.
"Currently, prisoners who are suffering from severe medical
incapacitation are treated in correctional treatment center
beds, outside hospital patient beds, or hospice beds; the
price tag for which starts at nearly $115,000 a year for the
lowest level treatment setting of the three options. Now,
taking that into account, imagine the savings that could be
realized given that the average annual cost of Medi-Cal
fee-for-service skilled nursing care is only about $60,000. Of
course, the cost of skilled nursing varies significantly
depending on the acuity level of patients and it's likely that
terminally ill patients on average would have greater care
needs and thus have a higher average cost; nevertheless, the
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Medi-Cal cost share is 50-percent state and 50-percent federal
meaning the state would only pay half one-the costs of caring
for a parolee being treated in the community if he or she
qualified for Medi-Cal. Further, it is conceivable that many
of these inmates will qualify for Medicare which is entirely
funded by the federal government.
"Other states have already, and continue, to move in the
direction of medical parole in order to realize just such
federal benefits previously mentioned. According to a recent
USA Today review of state correctional policies, 36 states
have implemented some sort of medical parole program. A few
of these states include some unlikely candidates including
Alabama, Wyoming, Montana, and perhaps the most active and
successful medical parole program of all is run by the State
of Texas which, every year, medically paroles between 100 to
170 sick inmates.
"The inmates identified in SB 1399 as eligible for medical
parole are only those medically recommended by their CMO to
the BPH as having a significant, and permanent condition,
disease or syndrome, that has resulted in the prisoner being
so cognitively or physically debilitated or incapacitated that
the conditions under which the prisoner would be released
would not pose a threat to public safety. These are the
sickest of the sick; the individuals that we must take a hard
look at to determine whether this is the best use of our
precious few state resources given that they are medically
unable to pose any further danger to society. As legislators,
we know all too well that a dollar we can save in the prison
health care system is a dollar that can be spent on other
important priorities for the state such as education. While
the governor continues to decimate the state's social safety
net and prison costs now accounting for 11 percent of our
general fund spending, this is one area where the Legislature
can act to save significant state funds without endangering
public safety. This is a commonsense, cost-saving measure
which will relieve the state of the financial burden of
housing severely incapacitated inmates who pose no danger to
society."
3)Prison Overcrowding : The California Policy Research Center
(CPRC) issued a report on the status of California's prisons.
The report stated, "California has the largest prison
population of any state in the nation, with more than 171,000
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inmates in 33 adult prisons, and the state's annual
correctional spending, including jails and probation, amounts
to $8.92 billion. Despite the high cost of corrections, fewer
California prisoners participate in relevant treatment
programs than comparable states, and its inmate-to-officer
ratio is considerably higher. While the nation's prisons
average one correctional officer to every 4.5 inmates, the
average California officer is responsible for 6.5 inmates.
Although officer salaries are higher than average, their ranks
are spread dangerously thin and there is a severe vacancy
rate." (Petersilia, Understanding California Corrections,
CPRC, May 2006.) California's prison population will likely
exceed 180,000 by 2010.
According to the Little Hoover Commission, "Lawsuits filed in
three federal courts alleging that the current level of
overcrowding constitutes cruel and unusual punishment ask that
the courts appoint a panel of federal judges to manage
California's prison population. United States District Judge
Lawrence Karlton, the first judge to hear the motion, gave the
State until June 2007 to show progress in solving the
overpopulation crisis. Judge Karlton clearly would prefer not
to manage California's prison population. At a December 2006
hearing, Judge Karlton told lawyers representing the
Schwarzenegger administration that he is not inclined 'to
spend forever running the state prison system.' However, he
also warned the attorneys, 'You tell your client June 4 may be
the end of the line. It may really be the end of the line.'
"Despite the rhetoric, thirty years of 'tough on crime' politics
has not made the state safer. Quite the opposite: today
thousands of hardened, violent criminals are released without
regard to the danger they present to an unsuspecting public.
Years of political posturing have taken a good idea -
determinate sentencing - and warped it beyond recognition with
a series of laws passed with no thought to their cumulative
impact. And these laws stripped away incentive s for
offenders to change or improve themselves while incarcerated.
"Inmates, who are willing to improve their education, learn a
job skill or kick a drug habit find that programs are few and
far between, a result of budget choices and overcrowding.
Consequently, offenders are released into California
communities with the criminal tendencies and addictions that
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first led to their incarceration. They are ill-prepared to do
more than commit new crimes and create new victims . . . . "
[Little Hoover Commission Report, Solving California's
Corrections Crisis: Time is Running Out, pg. 1, 2 (2007).]
On January 12, 2010, the Three Judge Panel issued its final
ruling ordering the State of California to reduce its prison
population by approximately 50,000 inmates in the next two
years. [Coleman/Plata vs. Schwarzenegger (2010) No. Civ
S-90-0520 LKK JFM P/NO. C01-1351 THE.] Although this order is
stayed pending appeal to the United States Supreme Court,
careful consideration must be given to any proposal that
exacerbates prison overcrowding. The Legislative Analyst's
Office predicts incarceration costs per inmate at $49,000 per
year.
4)Argument in Support : According to the California State
Sheriffs' Association , "SB 1399 would establish a process to
allow the state to medically parole its sickest inmates. CDCR
and our partners in law enforcement continue to have interest
in working on process and definitions contained in SB 1399.
We do support the concepts outlined in SB 1399 and will be
asking members to vote yes as work continues on the bill.
"Medical parole allows for inmates to remain on parole and under
the supervision of CDCR while freeing bed space and reducing
costs. These inmates will be medically recommended by their
Chief Medical Officer to the Board of Parole Hearing as having
a significant and permanent condition, disease or syndrome.
"In light of the rising costs of providing inmate health care
and the associated costs of incarceration, medical parole
offers a supervised alternative to incarceration as these
inmates are still subject to the terms of their parole,
including GPS. Further, inmates sentenced to death, life
without the possibility of parole, or those sentenced under
the three strikes law are not eligible."
5)Argument in Opposition: According to Crime Victims United of
California (CVUC), "CVUC is opposed to establishing programs
that would provide medical parole for offenders who 'suffer
from a significant and permanent condition, disease, or
syndrome resulting in the prisoner being physically or
cognitively debilitated or incapacitated.' This criterion is
incredibly broad and would apply for illnesses that are not
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life threatening. Many individuals live for years with
illnesses that would apply based on this criterion such as
high blood pressure, diabetes, rheumatoid arthritis and more -
many of which may be addressed and aided with medication.
CVUC does not agree that such illnesses should be a basis for
early release regardless whether it is considered release to
some form of parole. Furthermore, the bill provides for the
ability of the BPH to revoke the parole if the person's
condition improves and the person poses a public safety risk.
The fact that this provision is included raises concern about
what offenders would be eligible is there is the opportunity
for their condition to improve. Additionally, it is not
mandatory that BPH revoke parole when an offender's condition
improves, it is discretionary.
"Under current law, offenders who are deemed terminally ill
and permanently medically incapacitated can already have their
sentences recalled. Penal Code Section 1170 currently
provides the BPH and CDCR in conjunction with the courts
discretion to resentence of recall permanently medically
incapacitated and terminally ill offenders. Additionally,
family member may also request/petition for the
resentencing/recall of the incapacitated offender. While CVUC
is not entirely supportive of this policy, it is current law
nonetheless and is perhaps not being utilized as vastly as the
law may allow. CVUC argues that these provisions in current
law should be utilized prior to expanding the parameters of
such a policy as provided for under SB 1399.
"Finally, the push to continually reduce sentenced persons is
unfair to victims. Current law already provides for a variety
of sentence reduction credits that allow many inmates to serve
only 50% of the sentences. Victims and their families should
be able to feel a sense of justice that the time served by an
inmate for his or her crime(s) is not only reflective of the
sentence imposed but of the crime committed."
6)Prior Legislation :
a) AB 1539 (Krekorian), Chapter 740, Statutes of 2007,
established a criteria and procedure for which a state
prisoner may have his/her sentence recalled and be
re-sentenced if he/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.
b) 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. AB 1946 would have 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.
REGISTERED SUPPORT / OPPOSITION :
Support
California Catholic Conference
California State Sheriffs' Association
Chief Probation Officers of California
Crestwood Behavioral Health, Inc.
Life Support Alliance
Service Employees International Union, Local 1000
Opposition
Crime Victims United of California
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744