BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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SB 1284 (Galgiani)
As Introduced February 21, 2014
Hearing date: April 22, 2014
Penal Code
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PAROLE: MEDICAL PAROLE:
COMPASSIONATE RELEASE
HISTORY
Source: California Narcotic Officers Association
Prior Legislation: AB 68 (Maienschein) Ch. 764, Stats. 2013
SB 1399 (Leno), Ch. 405, Stats. of 2010
AB 1539 (Krekorkian) Ch. 740, Stats 2007
AB 1946 (Steinberg) - 2003-2004; vetoed
AB 675 (Migden) - 2001; vetoed
AB 29 (Villagraigosa) -Ch. 751, Stats. 1997
Support: Association for Los Angeles Deputy Sheriffs; California
Correction Supervisors; California District Attorneys
Association; California Police Chiefs Association;
California Probation, Parole and Correctional
Association; California State Sheriffs' Association;
Los Angeles Police Protective League; Peace Officers
Research Association of California (PORAC); Riverside
Sheriffs' Association; a number of individuals
Opposition:California Attorneys for Criminal Justice; California
Public Defenders Association; Friends Committee on
Legislation of California; Legal Services for Prisoners
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with Children; Taxpayers for Improving Public Safety
KEY ISSUE
SHOULD AN INDIVIDUAL WHO KILLED A PEACE OFFICER BE INELIGIBLE FOR
COMPASSIONATE RELEASE OR MEDICAL PAROLE?
PURPOSE
The purpose of this bill is to make an individual who killed a
peace officer ineligible for compassionate release or medical
parole.
Existing law provides that if the Secretary of the Department
of Corrections and Rehabilitation (CDCR), Board of Parole
Hearings (BPH), or both determine that the prisoner has six
months or less to live; that the conditions under which the
prisoner would be released do not pose a threat to public
safety and that the prisoner is permanently medically
incapacitated, the Secretary of CDCR or BPH may recommend to
the court that the prisoner's sentence be recalled. (Penal
Code � 1170 (e)(1) (2).)
Existing law requires the court to hold a hearing to consider
whether a prisoner's sentence should be recalled within 10 days
of receipt of a positive recommendation by the Secretary of
CDCR or BPH. (Penal Code � 1170 (e)(3).)
Existing law provides that any physician employed by CDCR who
determines that the prisoner has less than 6 months or less to
live shall notify the chief medical officer of the prognosis.
If the chief medical officer concurs the warden should be
notified and the warden shall then notify the prisoner and
designated family members of the recall and resentencing
procedures. (Penal Code � 1170(e)(4))
Existing law provides that the prisoner or his or her family
member or designee may request consideration for recall and
resentencing by contacting the chief medical officer at the
prison or the Secretary of CDCR. If the Secretary of CDCR
determines that the prisoner satisfies the criteria, the
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Secretary or BPH may recommend to the court that the prisoner's
sentence be recalled. (Penal Code � 1170 (e)(6).)
Existing law states that the Secretary shall submit a
recommendation for release within 30 days in the case of
inmates sentenced to determinate terms. (Penal Code � 1170
(e)(6).)
Existing law provides that in the case of inmates sentenced to
indeterminate terms, the Secretary may make a recommendation to
BPH with respect to inmates who have applied for consideration
for recall and resentencing. (Penal Code � 1170 (e)(6).)
Existing law allows the BPH to make an independent judgment as
to whether the inmate is eligible and to make findings related
thereto before rejecting the request or making a recommendation
to the Court. (Penal Code � 1170 (e)(6).)
Existing law provides that any recommendation for recall
submitted to the court by CDCR or BPH shall include one or more
medical evaluations, a post-release plan, and findings made as
to the prisoner's eligibility. (Penal Code � 1170 (e)(7).)
Existing law provides that the above compassionate release
provisions do not apply to a prisoner sentenced to death or a
term of life without the possibility of parole. (Penal Code �
1170 (e) (2) B)
This bill provides that the compassionate release provisions do
not apply if a person was convicted of murder of a peace officer
who was killed while engaged in the performance of his or her
duties and the individual knew or should have known that the
victim was a peace officer.
Existing law establishes the medical parole program whereby any
prisoner who the head physician of the institution where the
prisoner is located determines is permanently medically
incapacitated with a medical condition that renders him or her
permanently unable to perform activities of basic daily living,
and results in the prisoner requiring 24-hour care, and that
incapacitation did not exist at the time of sentencing, shall be
granted medical parole if the BPH determines that the conditions
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under which the prisoner would be released would not reasonably
pose a threat to public safety. (Penal Code � 3550(a).)
Existing law provides that the medical parole law shall not be
construed to alter or diminish the rights conferred under the
Victim's Bill of Rights Act of 2008: Marsy's Law, including
notification of victims of parole proceedings. (Penal Code �
3550(b).)
Existing law states that when a physician employed by CDCR who
is the primary care provider for an inmate identifies an inmate
that he or she believes meets the medical criteria for medical
parole, the primary care physician shall recommend to the head
physician of the institution where the prisoner is located that
the prisoner be referred to the BPH for consideration for
medical parole. Within 30 days of receiving that
recommendation, if the head physician of the institution concurs
in the recommendation of the primary care physician, he or she
shall refer the matter to BPH using a standardized form and
format developed by the department, and if the head physician of
the institution does not concur in the recommendation, he or she
shall provide the primary care physician with a written
explanation of the reasons for denying the referral. (Penal
Code � 3550(c).)
Existing law allows the prisoner or his or her family member or
designee to independently request consideration for medical
parole by contacting the head physician at the prison or CDCR.
Within 30 days of receiving the request, the head physician of
the institution shall, in consultation with the prisoner's
primary care physician, make a determination regarding whether
the prisoner meets the criteria for medical parole as specified
and, if the head physician of the institution determines that
the prisoner satisfies the criteria, he or she shall refer the
matter to BPH using a standardized form and format developed by
CDCR. If the head physician of the institution does not concur
in the recommendation, he or she shall provide the prisoner or
his or her family member or designee with a written explanation
of the reasons for denying the application. (Penal Code �
3550(d).)
Existing law requires CDCR to complete parole plans for inmates
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referred to the BPH for medical parole consideration. The parole
plans shall include, but not be limited to, the inmate's plan
for residency and medical care. (Penal Code � 3550(e).)
Existing law provides, notwithstanding any other law, that
medical parole hearings shall be conducted by two-person panels
consisting of at least one commissioner. In the event of a tie
vote, the matter shall be referred to the full board for a
decision. Medical parole hearings may be heard in absentia.
(Penal Code � 3550(f).)
Existing law requires the BPH, upon receiving a recommendation
from the head physician of the institution where a prisoner is
located for the prisoner to be granted medical parole, to make
an independent judgment regarding whether the conditions under
which the inmate would be released pose a reasonable threat to
public safety, and make written findings related thereto.
(Penal Code � 3550(g).)
Existing law authorizes the BPH or the Division of Adult Parole
Operations to impose any reasonable conditions on prisoners
subject to medical parole supervision, including, but not
limited to, the requirement that the parolee submit to
electronic monitoring. As a further condition of medical
parole, the parolee may be required to submit to an examination
by a physician selected by the BPH for the purpose of diagnosing
the parolee's current medical condition. In the event such an
examination takes place, a report of the examination and
diagnosis shall be submitted to the BPH by the examining
physician. If the BPH determines, based on that medical
examination that the person's medical condition has improved to
the extent that the person no longer qualifies for medical
parole, the board shall return the person to the custody of the
CDCR. (Penal Code � 3550(h).)
Existing law requires CDCR, at the time a prisoner is placed on
medical parole supervision, to ensure that the prisoner has
applied for any federal entitlement programs for which the
prisoner is eligible, and has in his or her possession a
discharge medical summary, full medical records, parole
medications, and all property belonging to the prisoner that was
under the control of the department. Any additional records
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shall be sent to the prisoner's forwarding address after release
to health care-related parole supervision. (Penal Code �
3550(i).)
Existing law states that medical parole shall not apply to any
prisoner sentenced to death or life in prison without
possibility of parole or to any inmate who is serving a sentence
for which medical parole is prohibited by any initiative
statute. (Penal Code � 3550(b).)
This bill provides that a prisoner who was convicted of murder
of a peace officer who the prisoner knew or should have known
was in the performance of his or her duties is not eligible for
medical parole.
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
historic Public Safety Realignment Act of 2011, the State of
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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:
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.
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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 February 18, 2014, the
state reported that as of February 12, 2014, California's 33
prisons were at 144.3 percent capacity, with 117,686 inmates.
8,768 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
1.Need for the Bill
According to the author:
In 1973, a Mr. Gerald Youngberg took the lives of San
Bernardino County Sheriff's Lt. Al Stewart, California
Highway Patrol Officer Larry Wetterling, and gas
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station attendant named Robert Jenkins in
execution-style murders. In 2012, Youngberg attempted
to receive a medical parole release from prison despite
major law enforcement opposition throughout California.
Interestingly, California's medical parole law exempts
from eligibility persons sentenced to death or life
without the possibility of parole - a sentence Mr.
Youngberg would have certainly received had those
punishment options been available when he committed
this triple murder in 1973.
Although Youngberg was ultimately denied his medical
parole, the danger that he or a similarly situated
person who has been convicted of murdering a peace
officer could be released on either medical parole or
compassionate release parole remains very real. Senate
Bill 1284 would exempt from medical parole eligibility
and compassionate release eligibility a prisoner who
was convicted of the murder of a peace officer.
The honorable work that our men and women in law
enforcement perform on a daily basis is crucial to
ensuring that our neighbors and families live in safe
communities. Senate Bill 1284 is necessary to guarantee
that individuals convicted of these heinous crimes
serve their entire sentences given to them by a jury of
their peers.
2. Compassionate Release and Medical Parole
There are two ways that a prisoner may be released in California
for medical reasons, compassionate release or medical parole.
With compassionate release:
A recommendation for the recall of a terminally
prisoner under P.C. 1170(e) may be initiated by
notification to the warden by any department physician
who determines that a prisoner has 6 months or less to
live. (P.C. 1170(e)(4).) Also, a prisoner or family
member or designee may independently request
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consideration for recall by contacting the prison's
chief medical officer or the secretary. If the
secretary determines that the prisoner satisfies the
criteria for recall, the secretary or board may
recommend to the court that the sentence be recalled.
For inmates sentenced to determinate terms, the
secretary must submit a recommendation for release
within 30 days. For those sentenced to indeterminate
terms, the secretary may make a recommendation to the
board. At its next lawfully noticed meeting, the board
must consider this information and make an independent
judgment and related findings before rejecting the
request or making a recommendation to the court. (P.C.
1170(e)(6).)
A recommendation for recall by the secretary or the
board must include one or more medical evaluations, a
postrelease plan, and the required findings. (P.C.
1170(e)(7).) Within 10 days of receipt of a positive
recommendation, the court must hold a hearing to
consider whether recall is appropriate. (P.C.
1170(e)(3).) If possible, the matter must be heard by
the judge who sentenced the prisoner. (P.C.
1170(e)(8).)
If the court grants the recall, the department must
release the prisoner within 48 hours of receipt of the
court's order, unless the prisoner agrees to a longer
time period. (P.C. 1170(e)(9).) (3 Witkin Cal. Crim.
Law Punishment � 395)
SB 1399 (Leno) (Chapter 405, Statutes of 2010) enacted medical
parole, which became operative in January of 2011. (Penal Code
� 3550.) The law provides that medical parole shall be granted
where (1) an inmate has been found by the head physician in the
institute where they are housed to be permanently medically
incapacitated with a medical condition that renders him or her
permanently unable to perform activities of basic daily living,
and results in the prisoner requiring 24-hour care and (2) the
Board of Parole Hearings also makes a determination that the
conditions under which the prisoner would be released would not
reasonably pose a threat to public safety.
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Neither compassionate release nor medical parole applies to a
person who is sentenced to life without parole.
3. No Compassionate Release or Medical Parole for Peace Officer
Murder
This bill provides that compassionate release and medical parole
do not apply to a person convicted of murder of a peace officer
while performing his or her duties or in retaliation for his or
her duties.
4. Murder Conviction
The sponsor of the bill asserts that this bill is consistent
with the intent of compassionate release and medical parole
since those sentenced to life without parole are exempted.
There was a period of time in the 1970's when life without
parole and death were not sentences available for first degree
murder; therefore there are people sentenced during that time
who were convicted of first degree murder who were not sentenced
to life without parole or death.
However, this bill refers to cases of murder, not just first
degree murder, so there are people who have been convicted of
2nd degree murder of a peace officer who could have been
sentenced to 25 to life under Penal Code Section 190 (b). In
those cases either by jury trial, judge trial or by plea it was
found that the life without parole sentence was not appropriate
in that case. Should those people be automatically exempt from
compassionate release or medical parole if they become
permanently medically incapacitated? Should the bill be
clarified to state it only applies to 1st degree murder?
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5. Support
The California Police Chiefs Association supports this bill
stating:
The clear intent of this provision is to assure that
persons who had committed the most serious of crimes
would not be eligible for Medical Parole. The challenge
is that there was a period in the 1970's when
California had neither a death penalty nor a sentence
of life in prison without the possibility of parole.
What this mean is that persons who committed first
degree murder of peace officers in the line of duty
during that period-a crime that would result in a
sentence of death or life in prison without parole at
any other time in California history-were eligible for
Medical Parole or Compassionate Release.
This is not a theoretical problem. In late 2011, Gerald
Youngberg, convicted during the seventies of the
execution style murders of Highway Patrol Officer Larry
Wetterling and San Bernardino County Sheriff's
Lieutenant Al Steward, as well as service station
attendant Robert Jenkins, in a crime described as "evil
in all its banality" was approved for Medical Parole.
Fortunately, the national outcry against this potential
miscarriage of justice contributed to Gerald
Youngberg's Medical Parole approval being rescinded.
Nevertheless, the Youngberg near miss provided an
important teachable moment: persons who murdered peace
officers in the line of duty during that period in
California History where there was neither the death
penalty nor life without parole should not be permitted
to take advantage of that historical hiatus to obtain
Medical Parole of Compassionate Release. At any other
time in California's history they would have been
ineligible for Medical Parole or Compassionate Release
based on the certain sentence of either death or life
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without parole for murder of a peace officer in the
line of duty.
6. Opposition
The ACLU opposes this bill stating:
The intent of medical parole is to release inmates who
require twenty-four hour care at huge expense to the
State. An inmate living in a persistent vegetative
state or otherwise medically incapacitated is not
likely to pose a threat to public safety, yet the State
is responsible for around the clock-in-custody care at
a cost of thousands of dollars per week.
Moreover, the likelihood that the person sentenced to
prison for the killing of a peace officer will be
granted medical parole is by no means certain. It
simply allows an inmate to petition the Board of Parole
Hearings for release. However, given that the intent
of medical parole was to reduce the financial strain of
caring for medically incapacitated inmates, it makes
little sense to begin excepting our specified offenses
for which an inmate is not eligible, despite being
medically incapacitated. If an inmate meets the
requirements specified in the law, he or she would be
eligible for release.
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