BILL ANALYSIS �
AB 2520
Page 1
Date of Hearing: April 8, 2014
Counsel: Shaun Naidu
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2520 (Maienschein) - As Amended: April 1, 2014
SUMMARY : Requires an independent professional or the Board of
Parole Hearings (BPH), as applicable, to, at the request of a
prisoner who is found to be a mentally disordered offender (MDO)
or is serving an indeterminate sentence with the possibility of
parole, as specified, consult with the prisoner's primary mental
clinician before making a recommendation concerning that
prisoner or for purposes of determining parole suitability, as
applicable. Specifically, this bill :
1)Requires an independent professional appointed by BPH for
purposes of determining parole suitability of a MDO, at the
request of the prisoner, to consult with a prisoner's primary
mental clinician, if any, before making a recommendation
concerning that prisoner to BPH. Defines "primary mental
clinician," for purposes of this provision, to mean a licensed
psychiatrist, psychologist, or clinical social worker who
regularly treats the prisoner, including, but not limited to,
an employee of the State Department of State Hospitals or a
privately-hired person.
2)Requires BPH, at any hearing where BPH considers a
Psychological Risk Assessment, as specified, as part of its
determination of whether to set, postpone, or rescind a parole
release date of a prisoner under a life sentence, at the
request of the prisoner under a life sentence, also consult
with the prisoner's primary mental clinician if that person
exists. Defines "primary mental clinician," for purposes of
this provision, to mean a licensed psychiatrist, psychologist,
or clinical social worker who regularly treats the prisoner,
including, but not limited to, a state employee or a
privately-hired person.
EXISTING LAW :
1)States a legislative finding and declaration that the
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Department of Corrections (CDCR) should evaluate each prisoner
for severe mental disorders during the first year of the
prisoner's sentence, and that severely mentally disordered
prisoners should be provided with an appropriate level of
mental health treatment while in prison and when returned to
the community. (Pen. Code, � 2960.)
2)Requires, as a condition of parole, a prisoner who meets the
following criteria to be treated by the State Department of
State Hospitals (DSH) and DHS to provide the necessary
treatment:
a) The prisoner has a severe mental disorder, as defined,
that is not in remission, as defined, or cannot be kept in
remission without treatment;
b) The severe mental disorder was one of the causes of or
was an aggravating factor in the commission of a crime, as
specified, for which the prisoner was sentenced to prison;
c) The prisoner has been in treatment for the severe mental
disorder for 90 days or more within the year prior to the
prisoner's parole or release; and,
d) Prior to release on parole, the person in charge of
treating the prisoner and a practicing psychiatrist or
psychologist from the DSH or a chief psychiatrist of CDCR,
as applicable, have evaluated the prisoner at a CDCR
facility or state hospital, as applicable, and a chief
psychiatrist of CDCR has certified to BPH that the prisoner
meets the above criteria and that by reason of his or her
severe mental disorder the prisoner represents a
substantial danger of physical harm to others. (Pen. Code,
� 2962.)
3)Requires BPH to order a further examination by two independent
professionals, as specified, if the professionals doing the
evaluation described above do not concur that (i) the prisoner
has a severe mental disorder, (ii) that the disorder is not in
remission or cannot be kept in remission without treatment, or
(iii) that the severe mental disorder was a cause of, or
aggravated, the prisoner's criminal behavior, and a chief
psychiatrist has certified the prisoner to the BPH. Requires
the certification by a chief psychiatrist to stand if at least
one of the independent professionals who evaluate the prisoner
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concurs with the chief psychiatrist's certification. (Pen.
Code, � 2962, subd. (d)(2) & (3).)
4)Allows BPH, upon a showing of good cause, to order an inmate
to remain in custody for up to 45 days past the scheduled
release date for a full MDO evaluation. (Pen. Code, � 2963.)
5)Allows the prisoner to challenge the MDO determination both
administratively (at a hearing before the board) and
judicially (via a superior court jury trial). (Pen. Code, �
2966.)
6)Provides that if the MDO determination made by BPH is reversed
by a judge or jury, the court shall stay the execution of the
decision for five working days to allow for an orderly release
of the person. (Pen. Code, � 2966.)
7)Requires MDO treatment to be inpatient treatment unless there
is reasonable cause to believe that the parolee can be safely
and effectively treated on an outpatient basis. Allows a
parolee to request a hearing to determine whether outpatient
treatment is appropriate if the hospital does not place the
parolee on outpatient treatment within 60 days of receiving
custody of the parolee. (Pen. Code, � 2964, subds. (a) &
(b).)
8)Requires the director of the hospital to notify BPH and
discontinue treatment if the parolee's severe mental disorder
is put into remission during the parole period and can be kept
that way. (Pen. Code, � 2968.)
9)Allows the district attorney to file a petition in the
superior court seeking a one-year extension of the MDO
commitment. (Pen. Code, � 2970.)
10)Requires the following persons released from prison on or
after October 1, 2011, be subject to parole under the
supervision of CDCR:
a) A person who committed a serious felony, as specified;
b) A person who committed a violent felony, as specified;
c) A person serving a Three-Strikes sentence;
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d) A high-risk sex offender;
e) A mentally disordered offender;
f) A person required to register as a sex offender and
subject to a parole term exceeding three years at the time
of the commission of the offense for which he or she is
being released; and,
g) A person subject to lifetime parole at the time of the
commission of the offense for which he or she is being
released. (Pen. Code, � 3000.08, subds. (a) & (c).)
11)Requires all other offenders released from prison on or after
October 1, 2011 to be placed on postrelease community
supervision under the supervision of a county agency, such as
a probation department. (Pen. Code, � 3000.08, subd. (b).)
12)Provides that prior to a life inmate's initial parole
consideration hearing, a Comprehensive Risk Assessment will be
performed by a licensed psychologist employed by BPH, except
as specified. (Cal. Code Regs., tit. 15, � 2240, subd. (a).)
13)Provides that a Comprehensive Risk Assessment will be
completed every five years and will consist of both static and
dynamic factors which may assist a hearing panel or BPH in
determining whether the inmate is suitable for parole.
Provides that the assessment may include, but is not limited
to, an evaluation of the commitment offense, institutional
programming, the inmate's past and present mental state, and
risk factors from the prisoner's history and that the
assessment will provide the clinician's opinion, based on the
available data, of the inmate's potential for future violence.
Allows BPH psychologists to incorporate actuarially-derived
and structured professional judgment approaches to evaluate an
inmate's potential for future violence. (Cal. Code Regs.,
tit. 15, � 2240, subd. (b).)
14)States that in the 5-year period after a Comprehensive Risk
Assessment has been completed, life inmates who are due for a
regularly scheduled parole consideration hearing will have a
Subsequent Risk Assessment completed by a licensed
psychologist employed by BPH for use at the hearing; however,
this will not apply to documentation hearings, cases coming
before BPH en banc, progress hearings, 3-year reviews of a
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5-year denial, rescission hearings, postponed hearings, waived
hearings or hearings scheduled pursuant to court order, unless
the board's chief psychologist or designee, in his or her
discretion, determines a new assessment is appropriate under
the individual circumstances of the inmate's case. Provides
that the Subsequent Risk Assessment will address changes in
the circumstances of the inmate's case, such as new
programming, new disciplinary issues, changes in mental
status, or changes in parole plans since the completion of the
Comprehensive Risk Assessment but will not include an opinion
regarding the inmate's potential for future violence because
it supplements, but does not replace, the Comprehensive Risk
Assessment. (Cal. Code Regs., tit. 15, � 2240, subd. (c).)
15)Requires, regardless of the length of time served, a life
prisoner to be found unsuitable for and denied parole if in
the judgment of the BPH panel the prisoner will pose an
unreasonable risk of danger to society if released from
prison, with the following circumstances tending to indicate
unsuitability:
a) Commitment offense (The prisoner committed the offense
in an especially heinous, atrocious, or cruel manner.);
b) Previous record of violence;
c) Unstable social history;
d) Sadistic sexual offenses;
e) Psychological factors (The prisoner has a lengthy
history of severe mental problems related to the offense.);
and,
f) Institutional behavior. (Cal. Code Regs., tit. 15, �
2281, subds. (a) & (c).)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Existing law
allows a prisoner to request a hearing from the Board of
Parole Hearings to make the case of why they should be given
parole. The law requires that a prisoner who is being
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considered for parole within the California Department of
Corrections and Rehabilitation (CDCR), be evaluated by a
certified clinician prior to a parole hearing.
"If it is determined that the prisoner should receive a parole
hearing, existing law requires that the clinician in charge of
treating the prisoner and an independent evaluator from within
the California Department of Corrections and Rehabilitation
(CDCR), evaluate the prisoner. The law also requires the Board
of Parole Hearings to appoint two independent professionals to
conduct an additional review in certain circumstances.
"However, these independent evaluators are not required to
consult with a prisoner's primary clinician before making a
recommendation to the board. The findings of these evaluators
may be incomplete or lack context since they may not know the
unique circumstances facing the prisoner.
"My bill would require the independent evaluator from CDCR to
consult with the prisoner's primary clinician before making a
recommendation to the Board of Parole Hearings. This would
help ensure public safety and the well-being of the prisoner
by improving communication between the prisoner's health team
and independent evaluators."
2)The Mentally Disordered Offender Act (Penal Code section 2960
et seq.) : A MDO commitment is a post-prison civil commitment.
The MDO Act is designed to confine as mentally ill an inmate
who is about to be released on parole when it is deemed that
he or she has a mental illness which contributed to the
commission of a violent crime. Rather than release the inmate
to the community, CDCR paroles the inmate to the supervision
of the state hospital, and the individual remains under
hospital supervision throughout the parole period. The act
actually addresses treatment in three contexts - first, as a
condition of parole (Pen. Code, � 2962); then, as continued
treatment for one year upon termination of parole (Pen. Code,
� 2970); and, finally, as an additional year of treatment
after expiration of the original, or previous, one-year
commitment (Pen. Code, � 2972). (People v. Cobb (2010) 48
Cal.4th 243, 251.)
Penal Code section 2962 lists six criteria that must be proven
for an initial MDO certification, namely, whether: (1) the
inmate has a severe mental disorder; (2) the inmate used force
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or violence in committing the underlying offense; (3) the
severe mental disorder was one of the causes or an aggravating
factor in the commission of the offense; (4) the disorder is
not in remission or capable of being kept in remission without
treatment; (5) the inmate was treated for the disorder for at
least 90 days in the year before the inmate's release; and (6)
by reason of the severe mental disorder, the inmate poses a
serious threat of physical harm to others. (Pen. Code, � 2962,
subds. (a)-(d); People v. Cobb, supra, 48 Cal.4th at p.
251-252.)
The initial determination that the inmate meets the MDO criteria
is made administratively. The person in charge of treating
the prisoner and a practicing psychiatrist or psychologist
from the DSH will evaluate the inmate. If it appears that the
inmate qualifies, the chief psychiatrist then will certify to
BPH that the prisoner meets the criteria for an MDO.
The inmate may request a hearing before BPH to require proof
that he or she is an MDO. If BPH determines that the
defendant meets the criteria of an MDO, the inmate may file,
in the superior court of the county in which he or she is
incarcerated or is being treated, a petition for a hearing on
whether he or she, as of the date of the board hearing, meets
the criteria of a MDO. By statute, the defendant is entitled
to a jury trial, which can be waived. The jury must
unanimously agree it was proven beyond a reasonable doubt that
the allegations of the petition were proven. If the superior
court or jury reverses the determination of BPH, the court is
required to stay the execution of the decision for five
working days to allow for an orderly release of the prisoner.
MDO treatment must be on an inpatient basis, unless there is
reasonable cause to believe that the parolee can be safely and
effectively treated on an outpatient basis. But if the
parolee can no longer be safely and effectively treated in an
outpatient program, he or she may be taken into custody and
placed in a secure mental health facility.
A MDO commitment is for one year; however, the commitment can
be extended. (Pen. Code, � 2972, subd. (c).) When the
individual is due to be released from parole, the state can
petition to extend the MDO commitment for another year. The
state can file successive petitions for further extensions,
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raising the prospect that, despite the completion of a prison
sentence, the MDO may never be released.
3)Effect of Psychological Evaluation at Parole Hearings : In
2011, the Stanford Criminal Justice Center studied the parole
process and outcomes of California prison inmates sentenced to
life with the possibility of parole. In examining the results
of parole determinations, the researchers found that the
psychological evaluations used to assess an inmate's
psychological stability and risk potential played an
influential role in whether parole was granted or denied.
(Weisberg, et al., Life in Limbo: An Examination of Parole
Release for Prisoners Serving Life Sentences with the
Possibility of Parole in California, Stanford Criminal Justice
Center (Sept. 2011) p. 23-24.) Specifically, the report
stated the following:
Virtually all inmates who appear at parole hearings
have undergone psychological evaluations. Parole
commissioners always receive and often review the
results of these evaluations carefully.
The two most common types of clinical opinions in our
sample are the Axis V Global Assessment of Functioning
Scale and the Clinician Generic Risk assessment. The
Axis V GAF measures a patient's overall level of
psychological, social, and occupational functioning on
a 100-point continuum, with higher scores indicating
higher functioning. The Clinician Generic Risk, by
contrast, assigns inmates a simple
risk-of-recidivating score: low, low-moderate,
moderate, moderate-high, and high.
?
Both the Clinician Generic Risk and the Axis V-GAF are
significantly correlated with grant rate. This is
especially true of the Clinician Generic Risk
assessment, which is statistically significant at the
.001 level. ? [I]nmates who receive an average score
or higher virtually never receive parole release.
Similarly, none of the inmates in our sample who
received below 75 on the Axis V-GAF enjoyed favorable
release outcomes.
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(Id. at p. 23.)
This bill would require BPH to consult with an inmate's
primary mental clinician as part of its determination of
whether to set, postpone, or rescind a parole release date of
an inmate serving a life sentence with the possibility of
parole, if the inmate so requests. Additionally, this bill
would require an independent mental health evaluator to
consult with a MDO inmate's primary mental clinician, at the
request of the inmate, in making a recommendation to BPH about
the inmate's psychological state. Some stakeholders express
concern that requiring consultation with the primary mental
clinician might pressure the independent evaluator to adopt
the clinician's diagnoses or findings of the inmate's mental
condition or unfairly prejudice the prisoner from obtaining
what otherwise might be a grant of parole. Considering,
however, that this bill requires consultation with the primary
mental clinician only at the request of the inmate, and that
an inmate would request the consultation likely only when it
would be favorable to the inmate and not when it would reveal
disadvantageous information, this bill could result in BPH
receiving more favorable information about an inmate than the
board otherwise would have in making a parole determination.
Moreover, given the greater familiarity a primary treating
clinician has with the mental health of an inmate and the
strong correlation an inmate's psychological evaluation has
with parole determinations, the consultation required by this
bill may provide BPH with a more thorough evaluation of the
inmate.
4)Arguments in Support :
a) The American Federation of School, County and Municipal
Employees, Local 2620 states, "The purpose of this bill is
not to influence decisions; but to assist in creating a
more accurate evaluation of the prisoner or patient by
providing the outside evaluator with the assessment of the
primary clinician, who has been treating that person for
mental health issues, and who knows that prisoner or
patient better than the outside evaluator. In this way,
conclusions drawn by these outside evaluators should be
more accurate and present a better representation of that
prisoner or patient's current psychological state for the
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purpose of determining whether or not that prisoner or
patient is suitable for parole or release."
b) According to Taxpayers for Improving Public Safety , "The
bill as amended, allows the inmate to obtain all
information which would provide evidence of rehabilitation.
? [] Individuals that successfully rehabilitate deserve
the opportunity to be released from custody and presents
the only reward available to ensure participation in
rehabilitation programming. No information which would
aide in reaching the conclusion should be omitted."
5)Argument in Opposition : The California Public Defenders
Association argues that "This proposed legislation seems
designed to insure that the treating therapist's viewpoint on
whether the prisoner should be certified as a mentally
disordered offender is unfairly weighted and to defeat the
current Mentally Disordered Offender Act's carefully balanced
scheme to protect both the safety of the community and the
rights of the prisoner. (People v. Gibson (1988) 204 Cal App
3d 1425 found an earlier version of the Mentally Disorder Act
which required mentally ill prisoners to be paroled to
inpatient treatment without a finding of dangerousness
unconstitutional.) ? [] Finally there is no research or
study showing that the current Mentally Disordered Offender
Act is not working and that dangerous severely mentally ill
offenders are being released from prison into the community."
REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of School, County and Municipal Employees,
Local 2620 (Sponsor)
Taxpayers for Improving Public Safety
Opposition
California Public Defenders Association
Analysis Prepared by : Shaun Naidu / PUB. S. / (916) 319-3744
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