BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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AB 2520 (Maienschein) 0
As Amended April 1, 2014
Hearing date: June 24, 2014
Penal Code
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PAROLE: PRIMARY MENTAL CLINICIANS
HISTORY
Source: AFSCME Local 2620
Prior Legislation: None
Support: National Association of Social Workers, California
Chapter; Legal Services for Prisoners with Children
Opposition:California Public Defenders Association; Taxpayers
for Improving Public Safety
Assembly Floor Vote: Ayes 77 - Noes 0
KEY ISSUES
SHOULD AN EXPERT EVALUATOR OF AN INMATE AS A POSSIBLE MENTALLY
DISORDERED OFFENDER BE REQUIRED, AT THE INMATE'S REQUEST, TO CONSULT
WITH THE INMATE'S PRIMARY MENTAL CLINICIAN?
SHOULD A PSYCHOLOGIST WHO PERFORMS A PSYCHOLOGICAL EVALUATION OF A
LIFE-TERM INMATE FOR PURPOSES OF A PAROLE CONSIDERATION HEARING, BE
REQUIRED, AT THE INMATE'S REQUEST, TO CONSULT WITH THE INMATE'S
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PRIMARY MENTAL CLINICIAN?
PURPOSE
The purpose of this bill is to 1) provide that where an inmate
pending release on parole is evaluated by experts to determine
if he or she should be treated on parole as a mentally
disordered offender, the evaluators shall consult with the
inmate's primary clinician, if the inmate so requests; and 2)
provide that where a psychologist performs an evaluation of an
inmate for purposes of parole consideration, the psychologist
shall consult with the inmate's primary clinician, if the inmate
so requests.
Existing law states a legislative finding and declaration that
the 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.)
Existing law 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:
The prisoner has a severe mental disorder, as defined,
that is not in remission, as defined, or cannot be kept in
remission without treatment;
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;
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,
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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.)
Existing law 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. It further
requires the certification by a chief psychiatrist to stand if
at least one of the independent professionals who evaluate the
prisoner concurs with the chief psychiatrist's certification.
(Pen. Code � 2962, subds. (d)(2)- (3).)
Existing law 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. (Penal Code �
2963.)
Existing law 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.)
Existing law 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
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orderly release of the person. (Pen. Code � 2966.)
Existing law 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.
Existing law 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).)
Existing law 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.)
Existing law allows the district attorney to file a petition in
the superior court seeking a one-year extension of the MDO
commitment. (Pen. Code � 2970.)
Existing law requires the following persons released from prison
on or after October 1, 2011, be subject to parole under the
supervision of CDCR:
A person who committed a serious felony, as specified;
A person who committed a violent felony, as specified;
A person serving a Three-Strikes sentence;
A high-risk sex offender;
A mentally disordered offender;
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,
A person subject to lifetime parole at the time of the
commission of the offense for which he or she is being
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released. (Pen. Code � 3000.08, subds. (a) & (c).)
Existing law 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).)
Existing law 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).)
Existing law 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. Existing
law 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. It further
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).)
Existing law 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 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
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discretion, determines a new assessment is appropriate under the
individual circumstances of the inmate's case. It 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).)
Existing law 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:
Commitment offense (The prisoner committed the offense
in an especially heinous, atrocious, or cruel manner.);
Previous record of violence;
Unstable social history;
Sadistic sexual offenses;
Psychological factors (The prisoner has a lengthy
history of severe mental problems related to the offense.);
and,
Institutional behavior. (Cal. Code Regs., tit. 15, �
2281, subds. (a) & (c).)
This bill 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. This bill 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.
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This bill 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.
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.
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
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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
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:
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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:
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
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1. Need for this Bill
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 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.)
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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
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.
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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.
An 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, raising the prospect that, despite the
completion of a prison sentence, the MDO may never be released.
3. Use of Psychological Evaluations in Parole Hearings and Parole
Decisions
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
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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. (Id. at p. 23.)
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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. Argument in Support
The American Federation of School, County and Municipal
Employees (AFSCME), Local 2620 states in support:
Currently, independent evaluators charged with
evaluating a prisoner prior to a lifer parole hearing
or release on parole from a determinate term review
the medical chart and interview the inmate.
Independent evaluators do not consult with the primary
clinician who has been treating the inmate, thus
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providing an incomplete assessment of the inmate's
progress or condition.
The purpose of this bill is not to influence
decisions, but to create a more accurate evaluation of
the inmate by providing the outside evaluator with the
assessment of the primary clinician, the profession
who knows the inmate better than the outside
evaluator. This will produce a better representation
of whether the inmate is suitable for parole or
release without mandatory treatment.
5. Argument in Opposition
The California Public Defenders Association states in
opposition:
AB 2520 requires that appointed independent mental
health expert appointed to evaluate an inmate as a
possible mentally disordered offender consult with the
inmate's treating therapist, psychologist or
psychiatrist. The legislation appears to ensure that
the treating therapist's viewpoint is unfairly
weighted so as to defeat the balanced scheme in
existing law that protects the public and the rights
of the inmate. The whole process begins when the
treating therapist opines that an inmate is an MDO.
Requiring independent evaluators consult with the
treating therapist undermines the independence of the
evaluators.
Specifically, under the terms of the governing law,
the treating psychologist - or even the chief
psychiatrist if he or she is the treating physician -
has already evaluated the inmate and rendered an
opinion that the inmate is an MDO. At that point, the
inmate is evaluated by the treating clinician at CDCR
and a DSH psychologist or psychiatrist. If one of the
evaluators finds that the inmate is an MDO, but the
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other does not, the vote of the chief psychiatrist at
CDCR - who may be the treating physician - breaks the
tie of the two initial evaluators. At the next step,
two independent evaluators are appointed. By
mandating that the independent evaluators consult the
treating therapist, psychologist or psychiatrist, but
not the other mental health evaluators who have opined
that the inmate is not an MDO, the bill would put
pressure on the independent evaluators to adopt the
treating professional's viewpoint. The treating
therapist must have opined that the inmate is an MDO,
or the chief psychiatrist would not have certified
that finding.
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