BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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AB 1693 (Hagman) 3
As Amended March 26, 2012
Hearing date: July 3, 2012
Penal Code
JM:dl
MENTALLY INCOMPETENT DEFENDANTS:
PILOT PROGRAM FOR TREATMENT IN JAIL
HISTORY
Source: Author
Prior Legislation: AB 1470 (Committee on Budget) - Enrolled,
2012
AB 366 (Allen) - Ch. 654, Stats. 2011
SB 1794 (Perata) - Ch. 486, Stats. 2004
Support: California State Sheriffs' Association; County of Los
Angeles; Liberty Healthcare Corp.; San Bernardino
County Sheriff-Coroner; Los Angeles County Sheriff
Opposition:California Department of Finance; California Public
Defenders Association
Assembly Floor Vote: Ayes 76 - Noes 0
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KEY ISSUE
SHOULD A RESTORATION OF COMPETENCY PILOT PROJECT IN SAN
BERNARDINO COUNTY FOR PROVIDING TREATMENT IN COUNTY JAIL FOR
INMATES FOUND INCOMPETENT TO STAND TRIAL BE EXTENDED AND
EXPANDED?
PURPOSE
The purposes of this bill are to 1) authorize the Department of
State Hospitals<1> (DSH) to continue a pilot project in San
Bernardino County for providing treatment in jail for inmates
who are incompetent to stand trial; 2) expand the program to Los
Angeles County and Kern County; 3) require coordination between
DSH and county officials for determining eligibility for
inmates; and 4) set standards for competency restoration
projects that include objective assessments, individualized
treatment, education about the criminal justice system,
involuntary and consensual medication assessment and capacity
assessment.
Existing law states that a person cannot be tried or adjudged to
punishment while that person is mentally incompetent (IST -
incompetent to stand trial). (Pen. Code Section 1367, subd.
(a).)
Existing law provides that a defendant is incompetent to stand
trial (IST) where, as a result of mental disorder or
developmental disability, the defendant is unable to understand
the nature of the criminal proceedings or to assist counsel in
the conduct of a defense in a rational manner. (Pen. Code �
1367, subd. (a).)
Existing law states that if the court has a doubt as to whether
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<1> The Department of Mental Health has been renamed the
Department of State Hospitals as part of the 2012 Budget bill
package. (See, AB 1407 Committee on Budget.) This bill refers
to the Department of Mental Health.
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or not a defendant is IST, the court shall state that doubt on
the record and shall seek defense counsel's opinion as to the
defendant's competence. (Pen. Code � 1368, subd. (a).
Existing law states that if the defendant is found mentally
competent after expert examination and a trial, the criminal
process shall resume. (Pen. Code � 1370, subd. (a)(1)(A).)
Existing law states that if the defendant is found IST, the
matter shall be suspended until the person becomes mentally
competent. (Pen. Code � 1370, subd. (a)(1)(B).)
Existing law states that a defendant charged with a violent
felony, as specified, may not be delivered to a state hospital
or treatment facility unless that hospital or facility has a
secured perimeter or a locked and controlled treatment facility,
and the judge determines that the public safety will be
protected. (Pen. Code � 1370, subd. (a)(1)(D).)
Existing law provides that where a court finds a defendant
incompetent to stand trial (IST), the court shall make numerous
determinations concerning administration of psychiatric
medications to the defendant. If specified grounds are
established, the court may order the defendant to be
involuntarily medicated. (Pen. Code �1370, subd. (a)(2)(B)(i).)
Existing law sets out an involuntary medication certification
process for IST patients being treated in a state hospital. The
process applies if the defendant withdraws consent to be
medicated or where the grounds for involuntary medication arise
during hospitalization. (Pen. Code �1370, subd.
(a)(2)(C)-(D)(i).)
Provisions of the 2007 Budget Act state: "Of the amount
appropriated in this item �for support of state hospitals],
$4,280,000 is available only to provide appropriate treatment to
individuals found incompetent to stand trial and who have not
been committed to a state hospital." (SB 78 (Ducheny) Ch. 172,
Stats. 2007; Item 4440-011-0001, 8.)
This bill authorizes the Department of State Hospitals (DSH) to
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continue and expand a pilot program which provides treatment to
individuals found IST but not committed to a state hospital, to
Los Angeles and Kern Counties, and any other county that opts to
participate.
This bill requires Los Angeles County and Kern County to
cooperate with DSH if DSH expands the program.
This bill requires that admissions criteria for competency
restoration programs be coordinated through DSH, prioritizing
ISTs most likely to be restored to competency.
This bill specifies that competency-restoration programs shall
include at least:
Objective competency assessment upon admission;
Individualized treatment programs;
Multimodal, experiential competency education
experiences;
Education addressing the criminal justice system;
Education for individuals with lacking specific
knowledge;
Periodic reassessment of competency;
Medication treatment; and,
Capacity and involuntary treatment assessment.
This bill declares that a special law is needed because of the
historically long waiting lists of ISTs in the three specified
counties, which expose the State to potential future court
involvement from delays in the treatment of ISTs held in county
jail longer than recommended by the courts.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
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overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment)
which may be punishable in jail and not prison (Penal Code
section 1170(h)) would be subject to ROCA because an offender's
criminal record could make the offender ineligible for jail and
therefore subject to state prison. Under these principles, ROCA
has been applied as a content-neutral, provisional measure
necessary to ensure that the Legislature does not erode progress
towards reducing prison overcrowding by passing legislation
which could increase the prison population. ROCA will continue
until prison overcrowding is resolved.
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
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On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
than the following:
167 percent of design capacity by December 27, 2011
(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
COMMENTS
1. Need for This Bill
According to the author:
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Under the current system county jails are required to
house those who are found to be IST until they may be
transferred to a state hospital; on average this takes
68 days, double the recommended time. During this time
the county spends around $98 a day to house an IST,
once transferred the hospital system, the state spends
roughly $450 per day per patient.
While awaiting transport to a state mental hospital
IST's do not receive treatment to restore competency.
Currently, there are backlogs in the system which
prevent many defendants from receiving treatment to
restore competency, and are they are left waiting in
the county jail.
The Department of Mental Health (DMH) received a $ 4.3
million appropriation in 2007-08 to begin pilot
programs to examine alternative approaches to
addressing the IST waitlist problem. The department,
working with a private vendor, established a pilot
program in San Bernardino County to treat ISTs in the
county jail instead of at a state hospital. The pilot
program provides less incentive for potential
malingerers, has greater flexibility to hold down
costs, and is able to restore ISTs to competency in a
shorter amount of time than the state hospitals.
This legislation will allow counties to contract with
a private mental healthcare provider to provide
restoration of competency services in the county jail,
rather than a state hospital. This will allow
defendants to be treated immediately after an IST is
determined by a judge, resulting in quicker
restoration of competency and decreasing the backlog
awaiting transfer to the state hospital system.
In addition, this system provides significant savings
to the state. Under the pilot program state pays $278
to a private provider to deliver the same services the
state hospital system would, but in the county jail. A
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private provider, in turn, passes $68 a day per IST to
the county for food, housing, and medication (which
they can get cheaper as a private entity). The pilot
program has saved approximately $70,000 per commitment
since its launch. Many IST's were successfully
restored to competency by the program so there was no
need to transfer them to a state hospital, providing
further savings to the state
2. Contrast Between This Bill and AB 1470 (Committee on
Budget) Authorizing Counties to Determine that an IST
Inmate will be Treated in Jail by the Department of State
Hospitals
This bill authorizes DSH to continue a relatively limited
pilot program for treating IST defendants in county jails.
However, AB 1470 (Committee on Budget), the Budget trailer
bill on mental health, includes a number of provisions
concerning treatment of IST defendants in jail treatment
facilities, not a state hospital.
Most important to the consideration of this bill, AB 1470
authorizes a county mental health-IST program director to
determination that an IST inmate shall be treated in jail.
If the county official decides to treat the IST defendant
in jail, DSH shall provide the treatment and reimburse the
county for the cost of housing the defendant-IST patient.
According to department representatives, DSH would likely
contract with a private entity such as Liberty Healthcare
to provide the treatment in a jail. Liberty<2> has
provided the treatment in the pilot project addressed by
this bill.
The relevant provisions in AB 1470 follow:
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<2> Liberty also contracts with DSH to supervise and treat
conditionally released sexually violent predator patients.
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The court shall order the community program director
or a designee to evaluate the defendant and to submit
to the court ? a written recommendation as to whether
the defendant should be required to undergo outpatient
treatment, or committed to a state hospital or to any
other treatment facility. ?The community program
director or designee shall evaluate the appropriate
placement for the defendant between a state hospital
or a local county jail treatment facility based upon
guidelines provided by the State Department of State
Hospitals. If a local county jail treatment facility
is selected, the State Department of State Hospitals
shall provide treatment at the county jail treatment
facility and reimburse the county jail treatment
facility for the reasonable costs of the bed during
the treatment. The six-month limitation in Section
1369.1 shall not apply to individuals deemed
incompetent to stand trial who are being treated to
restore competency within a county jail treatment
facility pursuant to this section.
IS THIS BILL DUPLICATIVE OF AB 1470 (COMMITTEE ON BUDGET),
WHICH PROVIDES THAT A COUNTY MENTAL HEALTH PROGRAM DIRECTOR
CAN DETERMINE THAT A DEFENDANT WILL BE TREATED IN THE
COUNTY JAIL AND THAT THE DEPARTMENT OF STATE HOSPITALS WILL
PROVIDE THE TREATMENT?
3. The Challenges and Costs of Restoring Defendants to Mental
Competency
According to the Legislative Analyst's Office (LAO),
California's state hospitals have an average daily population of
1,000 ISTs at a cost of about $450 per day per patient, or about
$170 million annually. The three counties covered by this bill -
Los Angeles, Kern and San Bernardino - usually send IST
defendants to Patton State Hospital in San Bernardino County.
On average, IST defendants in state hospitals are returned to
competency after about six to seven months. (An Alternative
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Approach: Treating the Incompetent to Stand Trial. LAO (Jan. 3,
2012).) <3>
State law requires that state hospitals report within 90 days on
the progress made in restoring a defendant to competency.
Shortages of beds and staffs have resulted in long waits for IST
defendants to be admitted to state hospitals. In 2009-10, IST
defendants waited an average of 87 days for transfer from county
jail to Patton, almost three times the court-recommended 30 to
35 days. In 2009-10, counties spent at least $2.5 million
housing inmates waiting to be transferred to Patton due to its
waitlist, much more than Atascadero or Napa State Hospital. An
IST defendant who receives no treatment while waiting to be
admitted to a state hospital can deteriorate, exacerbating the
person's mental illness and making the return to competency more
difficult. (Ibid.)
An appellate court decision has held that an IST defendant must
be transferred from jail to a state hospital within a reasonable
amount of time to allow the hospital to report to the court.
(In re Freddy Mille (2010) 182 Cal.App.4th 635, 649-651.) In
the Mille matter, 84 days was found to be unreasonable. (Ibid.)
LAO noted that after the decision in Mille was published,
courts have recommended that IST inmates be held in jail no more
than 30 to 35 days before transfer to a state hospital. (An
Alternative Approach: Treating the Incompetent to Stand Trial,
LAO, p. 7 (Jan. 3, 2012).)
4. The Restoration of Competence Program Considered by this Bill
In the ROC (restoration of competence) program authorized by the
2007 Budget Act, DSH entered into a $300,000 contract with
Liberty Healthcare for 20 beds at the San Bernardino County
jail. Of 42 IST defendants admitted in the first nine months of
the program, 19 were fully restored to competency and 10 were
transferred to Patton. Treatment began and was completed more
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<3>
.
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quickly in the pilot, and perhaps most important, the
county-level treatment was more effective. Finally, the
county's total IST referrals decreased. The county saved about
$200,000 and the state about $1.2 million, for total savings of
approximately $1.4 million, or over $70,000 per IST. (Id, at
pp. 10-12.)
5. Ability of Counties to Provide Adequate Treatment of
Incompetent Defendants
While it appears that the San Bernardino ROC program was
effective for those who completed the program, about 1/3 of the
defendants admitted to the program were transferred to a state
hospital. It has been noted that jails could not likely provide
treatment to inmates who are especially violent severely
mentally ill. The November 2011 DSH Transition Team Report<4>
included a description by the Patton State Hospital medical
director of the kinds of patients that likely must be treated in
a state hospital: "A large majority of patients in state
hospitals ? have been found to be too complex or dangerous to be
managed by their counties ? or are deemed by courts and
clinicians to be too unstable and/or dangerous to be discharged
into �the] community? These<5> are not the type of patients
that researchers include in clinical trials and the literature
guiding their treatment is very thin ? A high percentage have
been given most of the treatments found on published algorithms
and remain unstable and/or dangerous, leading to the use of
higher doses and medication combinations."
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<4> ." �Transition Team Report: California Department of Mental
Health (November 28, 2011); <
http://www.dmh.ca.gov/News/docs/Transition_Plan/
DMH_TransitionTeam_Report_11-28-2011%28final_sec6%29ch.pdf>.]
<5> These patients included true civil commitments under the
Lanterman Petris Short (LPS) Act and different classes of
"forensic" patients from the criminal justice system, including
violent mentally disordered offenders and defendants found not
guilty by reason of insanity.
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6. Suggested Amendment to Reflect That the Department of Mental
Health is now the Department of State Hospitals
As noted above, the 2012 Budget legislation included provisions
that change the name of the Department of Mental Health to the
Department of State Hospitals. This change reflects that fact
that the great majority of patients treated by the department
have been committed for treatment from the criminal justice
system. It is suggested that the bill be amended to reflect
that name change of the department.
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