BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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AB 2190 (Maienschein) 0
As Amended May 23, 2014
Hearing date: June 24, 2014
Penal Code
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FORENSIC MENTAL HEALTH PATIENTS:
OUTPATIENT CARE
HISTORY
Source: Judicial Council
Prior Legislation: None directly on point
Support: Californians for Safety and Justice; Legal Services
for Prisoners with Children; National Association of
Social Workers, California Chapter
Opposition:None known
Assembly Floor Vote: Ayes 78 - Noes 0
KEY ISSUES
SHOULD COURTS BE ALLOWED TO PLACE MENTALLY DISORDERED OFFENDERS
CHARGED WITH SPECIFIED SERIOUS CRIMES INTO OUTPATIENT TREATMENT
IF THE PLACEMENT WOULD NOT THREATEN PUBLIC SAFETY?
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(CONTINUED)
SHOULD A COPY OF AN EVALUATION OF A PERSON'S MENTAL STATE MADE FOR A
CONSERVATORSHIP INVESTIGATION IN CONNECTION WITH A CRIMINAL ACTION
BE PROVIDED TO THE PERSON AND HIS OR HER ATTORNEY?
UPON THE REQUEST OF A CRIMINAL DEFENDANT, SHOULD A CONSERVATORSHIP
INVESTIGATION REPORT CONCERNING THE DEFENDANT BE PROVIDED TO THE
COURT, THE PROSECUTOR AND THE PROBATION DEPARTMENT, BUT OTHERWISE
KEPT CONFIDENTIAL?
PURPOSE
The purpose of this bill is to 1) allow a court to place a
mentally disordered criminal defendant charged with specified
serious crimes into an outpatient program if the program can
provide effective treatment and the public would not be
endangered; 2) require that a conservatorship investigation
report concerning a criminal defendant be provided to the
defendant and his or her attorney; and 3) authorize the
defendant to provide the report to the court, the prosecutor and
the probation department in order to assist the parties in
making appropriate and beneficial decisions about the
defendant's care and treatment.
Existing law prohibits any person charged with and found
incompetent on a charge of, convicted of, or found NGI of the
following felonies from being released on outpatient status
unless the person has been confined in a state hospital or other
treatment facility for at least 180 days:
Murder;
Mayhem;
Aggravated mayhem;
Kidnapping, kidnapping for ransom, or kidnapping during
the commission of a carjacking and the victim suffered the
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intentional infliction of great bodily injury (GBI);
Robbery or carjacking with a deadly or dangerous weapon
and the victim suffers GBI;
Arson that causes GBI or causes an inhabited structure
or property to burn. Rape accomplished by means of force
by giving the victim an intoxicating, anesthetic substance
or controlled substance or retaliation has been threatened
against the victim, as specified;
Rape of a spouse accomplished by means of force or
threat of retaliation;
Burglary of a residence;
Assault with intent to commit mayhem, rape, sodomy, oral
copulation rape in concert with another, lascivious acts
upon a child, or penetration of genitals or anus with a
foreign object which result in GBI to the victim;
Lewd and lascivious acts;
Carrying or placing an explosive or destructive devise
on a passenger vessel, aircraft, car, or other vehicle;
Possession of an explosive or destructive devise in
public places such as a theatre, hall, college, church,
hotel, other public building or in, on, or near specified
public transportation;
Wrongful possession of an explosive or destructive
devise with intent to injure or intimidate; or,
Any felony involving death, GBI, or an act which poses a
serious threat of bodily injury to another person. (Pen.
Code, � 1601, subd. (a).)
Existing law allows any person subject to the provision above to
be placed on outpatient status if all of the following
conditions are satisfied:
The director of the state hospital or other treatment
facility to which the person has been committed advises the
committing court and the prosecutor that the defendant
would no longer be a danger to the health and safety of
others, including himself or herself, while under
supervision and treatment in the community and will benefit
from that status;
The community program director advises the court that
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the defendant will benefit from that status and identifies
an appropriate program of supervision and treatment; and,
Existing law requires the prosecutor to provide notice of the
hearing date and pending release to the committing-offense
victim (or his or her next of kin) where a request for the
notice has been filed with the court, and after a hearing in
court, the court specifically approves the recommendation and
plan for outpatient status, as specified. (Pen. Code, � 1603.)
Existing law authorizes a court to grant outpatient status,
prior to actual confinement in a state hospital or other
treatment facility, to any person charged with and found
incompetent on a charge of, or convicted of, any misdemeanor or
any non-specified felony or found NGI of any misdemeanor. (Pen.
Code, � 1601, subd. (b).)
Existing law allows any person subject to provision above to be
placed on outpatient status if all of the following conditions
are satisfied:
In the case of a person who is an inpatient, the
director of the state hospital or other treatment facility
to which the person has been committed advises the court
that the defendant will not be a danger to the health and
safety of others while on outpatient status and will
benefit from such outpatient status;
In all cases, the community program director or a
designee advises the court that the defendant will not be a
danger to the health and safety of others while on
outpatient status, will benefit from such status, and
identifies an appropriate program of supervision and
treatment; and,
After actual notice to the prosecutor and defense
attorney, and after a hearing in court, the court
specifically approves the recommendation and plan for
outpatient status. (Pen. Code, � 1602, subd. (a).)
Existing law provides that any person alleged, as a result of
mental disorder, to be a danger to himself or others or to be
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gravely disabled may be given an evaluation of his condition
under a superior court order, as specified. Requires that the
evaluation be carried out with the utmost consideration for the
privacy and dignity of the person for whom a court-ordered
evaluation is requested. (Welf. & Inst. Code, � 5200.)
Existing law provides that a conservator of the person, of the
estate, or of the person and the estate may be appointed for any
person who is gravely disabled as a result of mental disorder or
impairment by chronic alcoholism. (Welf. & Inst. Code, � 5350.)
Existing law requires the officer providing conservatorship
investigation to investigate all available alternatives to
conservatorship and to recommend conservatorship to the court
only if no suitable alternatives are available and to set forth
all alternatives available if he or she recommends against
conservatorship. Requires this officer, prior to the hearing,
to render to the court a comprehensive written report that
contains all relevant aspects of the person's medical,
psychological, financial, family, vocational and social
condition; information obtained from the person's family
members, close friends, social worker or principal therapist;
and all available information concerning the person's real and
personal property. Requires the facilities providing intensive
treatment or comprehensive evaluation to disclose any records or
information that may facilitate the investigation. (Welf. &
Inst. Code, � 5354.)
Existing law requires a copy of the officer's report to be
transmitted to the individual who originally recommended
conservatorship, to the person or agency, if any, recommended to
serve as conservator, and to the person recommended for
conservatorship. Allows the court that is determining
conservatorship to receive the report in evidence and to read
and consider its contents in rendering its judgment. (Welf. &
Inst. Code, � 5354.)
This bill allows outpatient status to a person, who under
existing law is required to be confined in a state hospital or
other treatment facility for 180 days or more for the commission
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of specified felonies, if the court finds a suitable placement,
including an outpatient placement program, that would provide
the person with more appropriate mental health treatment and the
court finds that the placement would not pose a danger to the
health or safety of others, including the victim and his or her
family.
This bill requires the officer providing a conservatorship
investigation in a case where a criminal orders an evaluation of
the person's mental condition, as specified, to serve a copy of
the report to the defendant or his or her attorney
This bill requires, upon prior written request of the defendant
or his or her attorney, the officer providing the
conservatorship investigation to submit a copy of the report to
the court hearing the criminal case, the district attorney, and
the county probation department. The conservatorship
investigation report shall be kept confidential and not
disclosed without the prior written consent of the defendant.
This bill requires the court to place all copies of the report
in a sealed file after disposition of the criminal case. The
defendant and defendant's attorney may retain their copies.
Permits the probation department to retain a copy for the
purpose of supervision until probation is terminated, at which
time the department is required to return its copy to the court
for placement in the sealed file.
This bill makes findings and declarations relative to a
conservatee's confidentiality rights.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
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Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy, known as "ROCA"
(which stands for "Receivership/ Overcrowding Crisis
Aggravation"), the Committee held measures that created a new
felony, expanded the scope or penalty of an existing felony, or
otherwise increased the application of a felony in a manner
which could exacerbate the prison overcrowding crisis. Under
these principles, ROCA was applied as a content-neutral,
provisional measure necessary to ensure that the Legislature did
not erode progress towards reducing prison overcrowding by
passing legislation, which would increase the prison population.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
submitted that the, ". . . population in the State's 33 prisons
has been reduced by over 24,000 inmates since October 2011 when
public safety realignment went into effect, by more than 36,000
inmates compared to the 2008 population . . . , and by nearly
42,000 inmates since 2006 . . . ." Plaintiffs opposed the
state's motion, arguing that, "California prisons, which
currently average 150% of capacity, and reach as high as 185% of
capacity at one prison, continue to deliver health care that is
constitutionally deficient." In an order dated January 29,
2013, the federal court granted the state a six-month extension
to achieve the 137.5 % inmate population cap by December 31,
2013.
The Three-Judge Court then ordered, on April 11, 2013, the state
of California to "immediately take all steps necessary to comply
with this Court's . . . Order . . . requiring defendants to
reduce overall prison population to 137.5% design capacity by
December 31, 2013." On September 16, 2013, the State asked the
Court to extend that deadline to December 31, 2016. In
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response, the Court extended the deadline first to January 27,
2014 and then February 24, 2014, and ordered the parties to
enter into a meet-and-confer process to "explore how defendants
can comply with this Court's June 20, 2013 Order, including
means and dates by which such compliance can be expedited or
accomplished and how this Court can ensure a durable solution to
the prison crowding problem."
The parties were not able to reach an agreement during the
meet-and-confer process. As a result, the Court ordered
briefing on the State's requested extension and, on February 10,
2014, issued an order extending the deadline to reduce the
in-state adult institution population to 137.5% design capacity
to February 28, 2016. The order requires the state to meet the
following interim and final population reduction benchmarks:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and
137.5% of design bed capacity by February 28, 2016.
If a benchmark is missed the Compliance Officer (a position
created by the February 10, 2016 order) can order the release of
inmates to bring the State into compliance with that benchmark.
In a status report to the Court dated May 15, 2014, the state
reported that as of May 14, 2014, 116,428 inmates were housed in
the State's 34 adult institutions, which amounts to 140.8% of
design bed capacity, and 8,650 inmates were housed in
out-of-state facilities.
The ongoing prison overcrowding litigation indicates that prison
capacity and related issues concerning conditions of confinement
remain unresolved. While real gains in reducing the prison
population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore,
the Committee's consideration of ROCA bills -bills that may
impact the prison population - will be informed by the following
questions:
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Whether a measure erodes realignment and impacts the
prison population;
Whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a bill corrects a constitutional infirmity or
legislative drafting error;
Whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and,
Whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Need for this Bill
According to the author, by permitting courts to place certain
mentally disordered offenders in outpatient settings, the bill
both permits courts to make placements that are most appropriate
for an individual defendant and results in cost savings. Also
by permitting defendants to authorize release of conservatorship
reports to criminal courts, the bill increases the options
available to criminal courts when handling cases involving
mentally disordered offenders, and improves coordination between
conservatorship courts and the criminal courts.
2. Background -Mentally Ill Persons in the Criminal Justice
System
In an April 2011 report, "Recommendations for Changing the
Paradigm for Persons with Mental Illness in the Criminal Justice
System," the Task Force for Criminal Justice Collaboration on
Mental Health Issues stated that courts, in collaboration with
state hospitals and local mental health treatment facilities,
should create and employ methods that prevent prolonged delays
in case processing and ensure timely access to restoration
programs for defendants found incompetent to stand trial. The
Task Force recommended that state hospitals and mental health
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outpatient programs be adequately funded to ensure effective and
timely restoration of competency; increase community placement
options through the Forensic Conditional Release Program and
other community-based programs for IST defendants charged with
nonviolent offenses; and modify existing law to provide courts
hearing competency matters more alternative procedural and
disposition tools, including the jurisdiction to conditionally
release a defendant found IST to the community, where
appropriate, rather than in a custodial or hospital setting, to
receive mental health treatment with supervision until
competency is restored. The Task Force also recognized that
some criminal defendants with mental illness may be conserved or
may be involved in conservatorship proceedings at the same time
that their criminal case is being processed. Because these
cases are currently heard by different judicial officers on
different calendars, judicial officers hearing either the civil
or criminal case often do not have all applicable information,
which can result in conflicting orders and other complications
for the defendant.
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3. Confidentiality of Mental Health Records
According to the Disability Rights California Web site, all
information about mental health services that one receives,
whether received voluntarily or involuntarily, is confidential
and cannot be released without authorization. However, there
are situations when records can be released without
authorization. In some cases, limited information must be
released to law enforcement when a person is an involuntary
patient or under a Penal Code commitment in a facility and being
moved, is under criminal investigation, or escapes from a state
hospital. Information about a person's mental health care can
also be released if one is an involuntary patient and gravely
disabled and the person disappears from a facility or is
transferred between state hospitals. Generally, in order for
mental health records to be shared, a form must be signed by the
person (or a person's conservator) each time the information is
shared, and it must contain specific information to be shared,
the name of the agency or individual with whom information is
shared, the name of the agency or person authorized to release
the information and the purpose, and a valid expiration date.
Statements must also be provided informing a person about his or
her right to revoke authorization to share information, as well
as a person's right to a copy of the authorization. A person has
the right to receive copies of the form, which must be placed in
the person's medical record.
4. Related Legislation
AB 2186 (Lowenthal) seeks to change the process of the
involuntary administration of antipsychotic mediation of
individuals who are found to be incompetent to stand trial. AB
2186 bill was heard in this Committee on June 10, 2014, and
passed with a vote of 6-0.
AB 2625 (Achadjian), would require the return to court, as
specified, of a defendant who was confined to a state hospital
for treatment to regain competency if the treating facility
reports that there is no substantial likelihood that the
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defendant will regain competence in the foreseeable future. AB
2625 bill was heard in the Senate Public Safety Committee on
June 10, 2014, and passed with a vote of 6-0.
5. Recent Budget Actions and State Hospital Related
Legislation
DSH now almost exclusively treats forensic patients - those
committed from the criminal justice system. Most DSH facilities
were not designed to house and treat that volume or proportion
of patients. There have been growing concerns about the great
increase in assaults against staff and other patients by
particularly dangerous patients. AB 1340 (Achadjian) - set for
hearing in this Committee with this bill - would establish
"enhanced treatment programs" (ETP) for dangerous inmates. The
ETP proposal is controversial because it includes placing
patients in single rooms that can be locked from outside.
AB 1468 (Committee on Budget), the public safety trailer bill
that passed on June 15, 2014, contains a number of provisions
concerning safety in state hospitals, including the development
of training protocols, policies and procedures for peace
officers in state hospitals, and a requirement that the Health
and Human Services Agency develop recommendations to improve the
quality and stability of law enforcement and investigative
functions in state hospitals, as specified.
This bill appears to be part of a process to reduce the
population in DSH facilities by treating forensic patients who
pose the least danger to others in local facilities and
outpatient programs. It appears that treatment of mentally ill
offenders should be done in a comprehensive manner in order to
avoid the cycling of these persons through the system. Robust
local treatment programs would be essential to a successful
treatment system.
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