BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
1
2
8
SB 1281 (Blakeslee) 1
As Amended April 9, 2012
Hearing date: April 17, 2012
Penal Code
JM:dl
PSYCHIATRIC EVALUATIONS:
NOT GUILTY BY REASON OF INSANITY PLEAS
HISTORY
Source: California Association of Psychiatric Technicians
Prior Legislation: Proposition 8 of the June, 1982 Primary
Election
Support: California Statewide Law Enforcement Association
Opposition:California Attorneys for Criminal Justice
KEY ISSUE
SHOULD THE EVALUATION BY A COURT-APPOINTED PSYCHIATRIST OR
PSYCHOLOGIST OF A DEFENDANT WHO HAS PLEADED NOT GUILTY BY REASON OF
INSANITY INCLUDE A REVIEW OF THE POLICE REPORT AND THE DEFENDANT'S
DRUG ABUSE HISTORY AND DRUG USE ON THE DAY OF THE UNDERLYING
OFFENSE?
(More)
SB 1281 (Blakeslee)
PageB
PURPOSE
The purpose of this bill is to require that where a psychiatrist
or psychologist evaluates a defendant for purposes of a plea of
not guilty by reason of insanity, the evaluation report shall
include the following: the defendant's history of drug abuse,
his or her drug use on the day of offense, and a review of the
police report of the offense.
Existing decisional law explains: "It is fundamental �justice]
that a person cannot be convicted for acts performed while
insane. This �is part of the] . . . fundamental principle that
wrongful intent is an essential element of crime?" (People v.
Skinner (1985) 39 Cal.3d 765, 771-784.)
Existing law provides: "In any criminal �or juvenile
delinquency] proceeding ? �the] defense �of not guilty by reason
of insanity] shall be found ? only when the accused person
proves by a preponderance of the evidence that he or she was
incapable of knowing or understanding the nature and quality of
his or her act and of distinguishing right from wrong at the
time of the commission of the offense."<1> (Pen. Code � 25,
subd. (b).)
Existing decisional law provides that Section 25 must be read in
the alternative to be constitutional. That is, a defendant was
insane if he or she was either 1) incapable of knowing or
understanding the nature and quality of the act, or 2) incapable
of distinguishing right from wrong at the time of the offense.
(People v. Skinner, supra, 39 Cal.3d 765, 771-784.)
---------------------------
<1> This test of insanity - typically called the M'Naghten
standard - was developed in England in 1843.
(More)
SB 1281 (Blakeslee)
PageC
Existing law provides the following concerning voluntary
intoxication:
Voluntary intoxication is not a defense to a crime; but
Voluntary intoxication is admissible on whether a
defendant formed the criminal element of specific intent;
and
In a murder prosecution, voluntary intoxication is
admissible on the issue of whether the defendant
premeditated, deliberated or harbored express malice.
(Pen. Code � 22, subds. (a)-(c).)
Existing law provides that a finding of not guilty by reason of
insanity shall not be found "solely on the basis of a
personality or adjustment disorder, a seizure disorder, or an
addiction to, or abuse of, intoxicating substances." (Pen.
Code � 25.5.)
Existing law provides that where a defendant pleads not guilty
by reason of insanity, the court must appoint at least two, and
may appoint three, psychiatrists or psychologists, to evaluate
the defendant. An appointed psychologist must have a doctorate
and at least five years of experience in the diagnosis and
treatment of mental or emotional disorders. (Pen. Code � 1027,
subd. (a).)
Existing law provides that the report of the experts shall
include, but not be limited to, the following:
The psychological history of the defendant;
The facts surrounding the charged offense; and
The present psychiatric or psychological symptoms of the
defendant, if any. (Pen. Code � 1027, subd. (b).)
Existing law provides that either party in an NGI trial may
present expert evidence as to the mental status of the defendant
at the time of the charged offense. (Pen. Code � 1027, subds.
(c)-(d).)
Existing law provides that where a defendant pleads not guilty
(More)
SB 1281 (Blakeslee)
PageD
and NGI, the case shall be tried as though the defendant has
pleaded only not guilty. If the jury or court finds the
defendant guilty, the issue of whether the defendant was insane
at the time of the charged offense shall be promptly tried.
(Pen. Code � 1026, subd. (a).)
Existing law provides that where a defendant pleads only NGI,
the issue of the defendant's sanity alone shall be promptly
tried. (Pen. Code � 1026, subd. (a).)
Existing law provides that where the defendant is found to have
been sane at the time of the charged offense, the court shall
sentence the defendant according to the law. (Pen. Code � 1026,
subd. (a).)
Existing law provides that the court can dismiss a plea of NGI
where the defendant fails to present sufficient evidence from
which a jury could determine whether or not the defendant was
insane at the time of the offense. (People v. Ceja (2006) 106
Cal.App.4th 1071, 1089.)
Existing law provides that where the defendant was found to be
insane at the time of the offense, the court, unless it
determines that the defendant's sanity has been fully recovered,
shall direct that the defendant be confined in the state
hospital or private facility, as specified. The court may also
place the defendant on outpatient status. (Pen. Code � 1026,
subd. (a).)
This bill provides that the reports of the psychiatrist or
psychologists appointed to evaluate a person who has pleaded not
guilty by reason of insanity must include the following:
The defendant's history of drug use;
The defendant's drug use on the day of the offense,and
A review of the police report.
(More)
SB 1281 (Blakeslee)
PageE
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
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
(More)
SB 1281 (Blakeslee)
PageF
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.
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:
(More)
SB 1281 (Blakeslee)
PageG
The population in state hospitals has dramatically
changed in the past two decades. In the mid-1990's,
80 percent of the patients were civil commitments, and
only 20 percent had committed a crime. Today, 90
percent of patients have committed a crime and
assaults on staff are increasing. The dangers to
staff in were sadly epitomized by the murder of Donna
Gross, a psychiatric technician at Napa State Hospital
who was killed by Jess Willard Massey, who been
committed to Napa as not guilty by reason of insanity
(NGI).
SB 1281 seeks to improve hospital safety by preventing
improper NGI verdicts. A study of NGI patients
committed to Napa State Hospital found disturbing
trends in the court-ordered evaluations of NGI
defendants used to inform juries regarding the sanity
of defendants. In almost half of the cases (44%), the
evaluator failed to follow statutory standards.
Two-thirds of the time (66%) the evaluator failed to
consider drug or alcohol use at the time of the
offense. Thus, many NGI verdicts may have based on
inadequate and legally faulty evaluations.
SB 1281 will help protect patients and staff from
violent individuals whose only legitimate diagnosis is
personality disorder. Such persons should not have
been committed to a state hospital. At a time when
staff morale is low and fear high, SB 1281 will
improve the work environment for the professionals who
are forced to manage inappropriately committed
individuals. The true cost of these inappropriate
commitments is borne by the staff members who carry
bruises, broken bones, and scars - sometimes to their
grave - from assaults that occur because evaluators
erroneously applied the law.
This bill also will reduce state costs. The cost to
treat and house a patient at a state hospital averages
$200,000 annually; in comparison, a prisoner costs the
(More)
SB 1281 (Blakeslee)
PageH
state $50,000 approximately per year. Accurate
evaluations of defendants that result in fewer
inappropriate placements at state hospitals could save
the state money. Similarly, limited mental health
resources would be focused on patients with mental
illnesses.
2. Background on the Insanity Defense
A person cannot be convicted of a crime if he or she was insane
at the time of the charged offense.<2> A person who is not
guilty by reason of insanity (NGI) cannot be punished, but shall
be given mental health treatment. The determination of an
insanity issue is largely based on expert psychiatric
evaluations and testimony. (Pen. Code �� 1026 - 1026.6, 1601 et
seq.)
California follows the M'Naghten test of insanity. Under the
M'Naghten test, a person was insane at the time of the charged
offense if he or she, because of a mental disease or disorder,
did not understand the nature and quality of the act or did not
know the act was wrong. (Witkin and Epstein, 1 Cal. Crim. Law,
Defenses, � 12.) The M'Naghten standard or test was developed
in England in 1843. The test was followed in California until
1978 when a model test - the American Law Institute (ALI) test -
was adopted. Under the ALI test, a person was insane at the
time of the commission of an offense if he or she, because of a
mental disease or defect, lacked "substantial capacity" to
---------------------------
<2> As a procedural matter, the jury or court first determines,
without reference to the insanity issue, whether or not the
defendant is guilty of the charged crime. The jury or court
then determines if the defendant was insane, and thus not guilty
because of that insanity, at the time of the commission of the
offense. The crime of which the defendant was found guilty in
the original verdict determines the amount of time the defendant
can be kept under involuntary psychiatric care. The NGI
defendant can be civilly committed in a separate proceeding at
the end of the maximum confinement time if he or she remains a
danger because of a mental disorder. (Pen. Code �� 1026 and
1026.5.)
(More)
SB 1281 (Blakeslee)
PageI
either appreciate the wrongfulness of his or her conduct or to
conform his or her conduct to the requirements of the law.
The court in People v. Drew (1978) 22 Cal.3d 333 found that the
M'Naghten test was outmoded<3> and replaced it with the ALI
test. The Drew court accepted criticism that the M'Naghten test
only considered the defendant's cognitive ability to understand
the nature or the wrongfulness of his or conduct. The Drew
court found that insanity - lack of criminal responsibility -
should be found where the defendant "may have understood his
action, but was incapable of controlling his behavior." (Id,
at 341.)
Proposition 8 in 1982 reinstated the M'Naghten test for insanity
in California. The proposition included a number of sweeping
changes to California criminal law, including specific
abolishment of the defense of diminished capacity. (Pen. Code �
25.)
3. Intoxication and the Insanity Defense
Penal Code Section 25.5 provides that the defense of not guilty
by reason of insanity "shall not be found by the trier of fact
solely on the basis of a personality or adjustment disorder, a
seizure disorder, or an addiction to, or abuse of, intoxicating
substances." (Italics added.) Penal Code Section 25.5 thus
allows a defendant to present evidence that his use abuse of
drugs contributed to his or her insanity, as long as other
causes or factors supported a verdict of NGI.
There are few appellate cases interpreting and applying Penal
---------------------------
<3> The court in Drew summarized the M'Naghten matter: "In 1843
Daniel M'Naghten, afflicted with paranoia, attempted to
assassinate the Prime Minister? and �did kill his] ? secretary.
M'Naghten's �insanity] acquittal? so disturbed Queen Victoria
that she summoned the House of Lords to obtain the opinion of
the judges on the law of insanity. The 15 judges of the common
law courts were called in an extraordinary session, under a not
subtle atmosphere of pressure" to address the inanity standard.
(Id at p.341, quotation marks and citation omitted.)
(More)
SB 1281 (Blakeslee)
PageJ
Code Section 25.5. That may be partly explained by the fact
that the prosecution cannot appeal a verdict that a defendant is
not guilty by reason of insanity. (Pen. Code � 1238.) An appeal
of a not-guilty verdict would violate the constitutional ban on
double jeopardy. Two cases that have applied Section 25.5 are
discussed below:
The court in People v. Cabonce ( 2009) 169 Cal.App.4th 1421,
1433-1434 stated the rule:
Section 25 �establishes] an absolute bar �to] use of
one's voluntary ingestion of intoxicants as the sole
basis for an insanity defense, regardless whether the
substances caused organic damage or a settled mental
defect or disorder which persists after the immediate
effects of the intoxicant have worn off. Thus, there
can be no insanity defense when the inability to tell
right from wrong derived (1) solely from an addiction
or abuse of intoxicating substances, or (2) from a
mental defect or disorder that itself was caused
solely by such addiction or abuse. (Citations and
internal quotes omitted; italics in original.)
The court in People v. Robinson (1999 ) 72 Cal.App.4th 421 held
that a trial court should not instruct the jury that
intoxication or drug use cannot be the sole basis for an NGI
verdict if the defendant did not solely rely on intoxication or
drug abuse as establishing his or her insanity. The court
explained:
�It is error to �instruct] the jury on abstract
principles of law not pertinent to the issues in the
case. ? Defendant did not present any evidence
showing that his alleged insanity arose solely from
his ingestion of intoxicants and he did not rely on
this defense below. �The experts] based their
opinion of insanity on numerous factors. Neither
expert relied exclusively on defendant's drug
addiction. ?. The People did not argue that defendant
should not be found insane because his insanity was
(More)
SB 1281 (Blakeslee)
PageK
caused by use of intoxicants. ?Hence, section 25.5 is
inapplicable to the instant case and instruction
thereon should have been refused for this reason.
(Id, at p. 428.)
4. Analysis and Report on Evaluations by Court Appointed Experts
of Defendants in Not Guilty by Reason of Insanity Cases
According to the author, this bill is largely based on a study
and report by Dr. Charles L. Scott, M.D., Chief of the Division
of Psychiatry and the Law at the UC Davis Health System. The
report, "An Archival Review of Substance Abuse Use in Not Guilty
by Reason of Insanity Acquittees," was published in 2005.
(Hereinafter, "NGI Study.")
From 1997 through 2002 Scott, working as a consultant at Napa
State Hospital, found a number of cases in which the patient did
not appear to meet the criteria for being found NGI. In
particular, some patients had been intoxicated during the crime
but appeared to not have a mental illness. In other cases, it
appeared that the defendants had predatory or larcenous motives.
Scott and his team focused on whether or not the appointed
experts had competently prepared the reports and complied with
the law. (NGI Study, pp. 2-3.)
Scott's research team analyzed records in 458<4> cases, with a
total of 930 individual reports. The reports were written by
psychiatrists (57%) and psychologists (39%).<5> (NGI Study, pp.
3-4.) The material reviewed included the following:
Reports by court-appointed evaluators;
Police reports and witness statements;
Criminal records ("rap sheets");
Hospital records, and
Probation reports.
The reports were scored by reference to the following subjects:
---------------------------
<4> The research team selected 500 cases, but 42 had
insufficient records for inclusion in the study.
<5> The professional qualifications of the other evaluators was
not recorded.
(More)
SB 1281 (Blakeslee)
PageL
-----------------------------------------------------------------
|Subject or Issue in Report |Frequency of Inclusion or |
| |Discussion |
|--------------------------------+--------------------------------|
|Diagnosis |90% of examiners recorded a |
| |diagnosis |
|--------------------------------+--------------------------------|
|Police reports |66% reviewed the police report |
| | |
|--------------------------------+--------------------------------|
|Prior drug use |76% noted drug use history |
| | |
|--------------------------------+--------------------------------|
|Drug use at the time of the |33% noted whether drug use (or |
|crime |lack of use) on day of incident |
| |noted |
|--------------------------------+--------------------------------|
|Application of correct legal |56% used the correct |
|standard. |standard/statute; 44% used |
| |wrong legal standard, an |
| |incomplete standard, or no |
| |standard |
-----------------------------------------------------------------
Detail on Use of Correct Legal Standard in Report
-----------------------------------------------------------------
|Standard/Statute and |Frequency of Occurrence |
|Application | |
|--------------------------------+--------------------------------|
|Incorrect standard/statute |10% |
|--------------------------------+--------------------------------|
|No standard of statute |11% |
|specified | |
|--------------------------------+--------------------------------|
|Standard misapplied or altered |12% |
|--------------------------------+--------------------------------|
| Correctly application of only |7% |
(More)
SB 1281 (Blakeslee)
PageM
|one "prong" of alternative | |
|insanity standard. 1) | |
|Defendant did not understand | |
|the nature of the act. 2) | |
|Defendant could not distinguish | |
|right from wrong | |
|--------------------------------+--------------------------------|
|Correct application of both |56% |
|alternative prongs of the | |
|standard | |
-----------------------------------------------------------------
The report also concluded that about 41% of the defendants may
have acted with criminal intent - such as theft to buy drugs,
revenge, anger or retribution. While these defendants may have
been suffering from a mental illness, it appeared that they
understood their actions and were able to distinguish between
right and wrong. The defendants thus did not act from a
"psychotic motive" that would establish insanity. (Study, pp.
4-6.)
5. Beyond Expert Evaluations in NGI Cases: Legal Motions before
Trial, Evidence and Testimony, Arguments of Counsel, Jury
Instructions and Questions
The evaluations of experts in a NGI case are only one part of
the process. Whether the defendant was insane at the time of
the offense is only determined after a full trial. The
defendant must prove by a preponderance of the evidence that he
or she was insane at the time of the charged offense. (People
v. Ferris (2005) 130 Cal.App.4th 773, 776-778; Pen. Code �1026,
subd. (a).) The trial court can direct a verdict that the
defendant was sane where the court determines that the defendant
has not presented sufficient evidence to support a verdict of
NGI. (People v. Ceja, supra, 106 Cal.App.4th 1071, 1089.)
(More)
The law "does not presume that �an appointed expert] can
determine whether a defendant was sane or insane at the time of
the alleged offense." The evaluators may, or may not, be called
to testify by the court, the prosecution or defense. The
appointed experts can be challenged for competence and bias.
Either party may call their own expert witnesses to rebut or
support the evaluations of the court-appointed evaluators.
(Pen. Code � 1027, subds. (c)-(e).)
The research team apparently did not review motions by the
attorneys, trial transcripts, jury instructions, arguments of
counsel, and questions from the jury to the court during
deliberations. This material would likely indicate whether or
not the prosecutor, the court or the jury raised concerns about
the contents of the reports. The trial material would disclose
whether the court considered directing the jury to find the
defendant sane because the defendant relied solely on
intoxication, drug abuse or a personality disorder to establish
that he was NGI.
Without a full review of trial transcripts<6> it cannot be
determined whether or not NGI verdicts were based solely on
evidence of intoxication or drug abuse, rather than being based
on a combination of drug use effects and other causes or
factors. That is, in some cases the verdicts could have been
based on a proper application of the law to the evidence, even
where the experts' reports were faulty. Nevertheless, improper
reports could certainly affect an NGI verdict by overstating the
importance of intoxication or drug use, even where the jury
properly applied the law
6. Requirement in the Bill that an Appointed Expert Review the
Police Report in Evaluating a Defendant's Claim of Insanity
---------------------------
<6> The record of trial would include the experts' reports,
motions filed by the attorneys, testimony, jury instructions,
arguments of counsel to the jury, questions from the jury about
the law and the answers provided by the court.
(More)
SB 1281 (Blakeslee)
PageO
The bill specifically requires an appointed psychiatrist or
psychologist in an NGI case to review the police report of the
underlying offense. Existing law directs an appointed evaluator
to review "the facts surrounding the commission of the acts
forming the basis for the ? charge?" (Pen. Code �1027, subd.
(b).)
While it would be expected that an evaluator would review the
police reports, other sources could provide relevant and
credible information about the offense. Further, information in
the police report could be incomplete or inaccurate. The bill
could be interpreted to limit evaluators to review of the police
report. If the police report is inaccurate or incomplete either
the report could be biased against the defendant or the
prosecution.
It is suggested that the bill be amended to provide that the
evaluator shall review relevant and credible information about
the facts of the charged incident, including the police report
and other relevant sources.
SHOULD THE BILL BE AMENDED TO PROVIDE THAT AN APPOINTED
EVALUATOR SHALL REVIEW RELEVANT AND CREDIBLE INFORMATION ABOUT
THE FACTS OF THE CHARGED INCIDENT, INCLUDING THE POLICE REPORT
AND OTHER RELEVANT SOURCES?
***************