Existing law prohibits a person from being tried, adjudged to punishment, or having his or her probation, mandatory supervision, postrelease community supervision, or parole revoked while that person is mentally incompetent. Existing law establishes a process by which a defendants mental competency is evaluated and by which the defendant receives treatment, including, if applicable, antipsychotic medication, with the goal of returning the defendant to competency. Existing law credits time spent by a defendant in a state hospital or other facility as a result of commitment during the process toward the term of any imprisonment for which the defendant is sentenced. Existing law, as added by Proposition 184, adopted November 8, 1994, and amended by Proposition 36, adopted November 6, 2012, commonly known as the Three Strikes Law, prohibits certain recidivist offenders from being committed to any facility other than a state prison.

By imposing additional duties upon county jail authorities, this bill would create a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

Existing law prohibits a person from being tried, adjudged to punishment, or having his or her probation, mandatory supervision, postrelease community supervision, or parole revoked while that person is mentally incompetent. Existing law establishes a process by which a defendants mental competency is evaluated and by which the defendant receives treatment, including, if applicable, antipsychotic medication, with the goal of returning the defendant to competency. Existing law credits time spent by a defendant in a state hospital or other facility as a result of commitment during the process toward the term of any imprisonment for which the defendant is sentenced. Existing law, as added by Proposition 184, adopted November 8, 1994, and amended by Proposition 36, adopted November 6, 2012, commonly known as the Three Strikes Law, prohibits certain recidivist offenders from being committed to any facility other than a state prison.

This bill would authorize, if a defendant has pled guilty or nolo contendere to, or been convicted of, an offense that will result in a sentence to state prison or county jail, the defendant or the prosecutor submit evidence that the defendant suffers from a diagnosable mental condition that was a substantial factor that contributed to the defendants criminal conduct. The bill would require that the evidence be submitted after the defendants conviction, but before his or her sentencing. The bill would require the court to consider any evidence submitted as described above in conjunction with the defendants sentencing, and would authorize the court to order the Department of Corrections and Rehabilitation or county jail authority, as applicable, to place the defendant in a residential mental health treatment facility. This placement would not be available to a defendant who is subject to the Three Strikes Law. The bill would also authorize the court to order the department or jail authority to place the defendant in a mental health program within the state prison or county jail, respectively. The bill would provide that the defendant has the right to counsel for these proceedings.

By imposing additional duties upon county jail authorities, this bill would create a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

Date of Hearing: April 13, 2016

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

ABPCA Bill Id:AB 2262

Author:(Levine) – As Amended Ver:March 28, 2016

Urgency: No State Mandated Local Program: Yes Reimbursable: No

SUMMARY:

This bill allows the court to order a defendant to serve all, or part, of their state prison or county jail sentence in a residential mental health facility, when a defendant establishes that they meet specified criteria regarding mental illness. Specifically, this bill:

1. Authorizes the court, upon a determination that a defendant has met the specified criteria regarding mental illness, and a determination that it is in the public interest, to order one or more of the following:
   
   1. That the defendant serve, if the defendant agrees, all or a part of his or her sentence in a residential mental health treatment facility instead of in state prison or county jail. Defendants with a current conviction for a violent felony, as specified, would not qualify.
      
   2. The California Department of Corrections and Rehabilitation (CDCR) or the county jail to place the defendant in a mental health program within the state prison or county jail system, respectively, at a level of care determined to be appropriate by mental health staff, within 30 days of the defendant’s placement in the state prison or county jail.
      
   3. CDCR or the county jail to prepare a postrelease mental health treatment plan six months prior to the defendant’s release to parole or postrelease community supervision which specifies the manner in which the defendant will receive mental health treatment services following that release, and shall address, if applicable and in the discretion of the court, medication management, housing, and substance abuse treatment.
      

FISCAL EFFECT:

1. Potential cost in the hundreds of thousands (GF) to CDCR. This bill would create a parallel track for inmates to be referred to the Mental Health Services Delivery System; one based on the system that has been developed by CDCR’s Division of Health Care Services in collaboration with and monitored by the Federal court in Coleman v. Brown, and a second system based on this bill, in which the courts determine that inmates require mental health care. Furthermore, AB 2262 may result in additional inmates being subject to Coleman v. Brown. It is difficult, if not impossible, to estimate the fiscal impact for this bill.

One single additional Enhanced Outpatient Program (EOP) inmate would cost the state between $20,119 and $45,885 per year at minimum; a single Correctional Clinical Case Management System (CCCMS) inmate would cost the state between $3,808 and $17,919. CDCR anticipates addition legal cost to petition the courts if their assessment of an inmate is in disagreement with the court, and to remove an inmate from care should the inmate’s mental health condition improve.

This bill could result in savings to CDCR however, if inmates serve their time in residential facilities instead of correctional institutions.

1. Potential cost in the hundreds of thousands (Trial Court Fund/GF) to the courts for the additional hearings that will be requested.
2. Potential significant nonreimbursable state mandated costs to counties to provide additional mental health services to current inmates in county jails. Some costs will be offset if inmates serve their time in residential facilities instead of county jails.

SUMMARY (Continued):

1. Permits a defendant, who at any prior time was eligible for public mental health services due to serious mental illness, or who is currently, or at any prior time was, eligible for Social Security Insurance due to a diagnosed mental illness, to petition the court for a sentence that includes mental health treatment. The petition must be filed after the defendant’s plea or conviction, but before his or her sentencing.
   
2. Specifies that the defendant shall bear the burden of establishing by a preponderance of the evidence that he or she meets the specified criteria regarding mental illness.
   
3. The defendant or prosecutor may, at any time, petition the court to recall a sentence that includes a mental health treatment order issued under these guidelines and the court may re-sentence the defendant, provided the defendant gets credit for the time he or she served and the court does not impose a sentence longer than originally imposed.
   
4. Specifies that a re-sentence may, but is not required, to include other mental health treatment, as specified.
   
5. Specifies that the defendant has the right to counsel for these proceedings.

COMMENTS:

1. Purpose. According to the author, "Jails and prisons have become California’s de facto mental health facilities, with those who are mentally ill being far more likely to be incarcerated than to be in a psychiatric hospital. Incarcerating those with mental illness does not make sense from an outcomes or a fiscal stand point. Furthermore, mental health courts have been demonstrated to save $7 in costs for every $1 spent. It costs $51,000 a year to house an inmate, and $20,412 to house and treat a person with mental illness. AB 1006 gives the court the ability to consider the presence of a mental illness in criminal sentencing.”
2. Background. Under current law, the court, in granting probation, may suspend the imposing or the execution of the sentence and may direct that the suspension may continue for a period of time not exceeding the maximum possible term of the sentence, except as specified, and upon those terms and conditions as it determines. The court also has authority to modify and change any and all the terms and conditions and to reimprison the probationer in the county jail, as specified.
3. Increased Rates of Recidivism Among Mentally Ill Offenders. A 2012 review conducted by the Utah Criminal Justice Center found that released inmates with serious mental illness experience poorer outcomes overall as they are “twice as likely to have their probation or parole revoked, are at an elevated risk for rearrest, incarceration, and homelessness, lack skills to obtain and sustain employment, and have higher rates of medical problems.” Also, CDCR data shows higher rates of recidivism in inmates identified with mental health issues when compared to those without.
4. California’s Current Sentencing Scheme Does Not Provide an Option for a Judge to Impose a Split Prison Sentence. Under California’s sentencing scheme, if a person is sent to state prison, they are sentenced for a determinate amount of time. Once an individual is sentenced to State Prison they are committed to the custody of CDCR. Once CDCR has custody of a defendant, CDCR, not the court, decides where and in what type of custodial setting the defendant serves their state prison term.
5. Support. According to The Steinberg Institute, “Simply locking people up with mental illness does not make sense from an outcomes standpoint, or from a civil rights perspective for that matter. We believe AB 2262 can help to mitigate the state's current struggle to treat offenders with a mental health diagnosis in prison and county jails, especially as people with mental illness are far less likely to commit a crime, violate prison rules, or recidivate if they are receiving high quality treatment."
6. Opposition. According to The California District Attorneys Association, “Beyond our concerns with the timing, frequency, and nature of the evidence being presented, we object to this bill’s attempt to place the trial court judge in the role of mental health expert – a role that they likely have neither the training, nor the inclination to carry out. Courts already have the authority to order a hearing to determine whether a defendant is mentally competent to stand trial, and now would be put in the position of evaluating evidence of mental illness to determine appropriate placements and programming for these individuals. We do not believe the court should be involved in post-conviction treatment issues.
   

Analysis Prepared by: Pedro Reyes / APPR. / (916) 319-2081

Date of Hearing: March 29, 2016

Counsel: David Billingsley

ASSEMBLY COMMITTEE ON

, Sr., Chair

ABPCA Bill Id:

Author:() – As Amended Ver:March 28, 2016

SUMMARY:

Allows the court to order a defendant to serve all, or part, of their state prison or county jail sentence in a residential mental health facility, when a defendant establishes that they meet specified criteria regarding mental illness. Specifically, this bill:

1. Permits a defendant, who at any prior time was eligible for public mental health services due to serious mental illness, or who is currently, or at any prior time was, eligible for Social Security Insurance due to a diagnosed mental illness, to petition the court for a sentence that includes mental health treatment.
   
2. Specifies that the petition shall be filed after the defendant’s plea or conviction, but before his or her sentencing.
   
3. Specifies that the defendant shall bear the burden of establishing by a preponderance of the evidence that he or she meets the specified criteria regarding mental illness.
   
4. Authorizes the court, upon a determination that a defendant has met the specified criteria regarding mental illness, and a determination that it is in the public interest, to order the one or more of the following:
   
   1. That the defendant serve, if the defendant agrees, all or a part of his or her sentence in a residential mental health treatment facility instead of in the state prison or county jail. Defendants with a current conviction for a violent felony, as specified, would not qualify.
      
   2. The California Department of Corrections and Rehabilitation (CDCR) or the county jail to place the defendant in a mental health program within the state prison or county jail system, respectively, at a level of care determined to be appropriate by mental health staff, within 30 days, of the defendant’s placement in the state prison or county jail.
      
   3. CDCR or the county jail to prepare a postrelease mental health treatment plan six months prior to the defendant’s release to parole or postrelease community supervision which specifies the manner in which the defendant will receive mental health treatment services following that release, and shall address, if applicable and in the discretion of the court, medication management, housing, and substance abuse treatment.
      
5. The defendant or prosecutor may, at any time, petition the court to recall a sentence that includes a mental health treatment order issued under these guidelines and the court may resentence the defendant, provided the defendant gets credit for the time he or she served and the court does not impose sentence longer than originally imposed.
   
6. Specifies that a re-sentence may, but is not required, to include other mental health treatment, as specified.
   
7. Specifies that the defendant has the right to counsel for these proceedings.

EXISTING LAW:

1. Finds and declares that the provision of probation services is an essential element in the administration of criminal justice. The safety of the public, which shall be a primary goal through the enforcement of court-ordered conditions of probation; the nature of the offense; the interests of justice, including punishment, reintegration of the offender into the community, and enforcement of conditions of probation; the loss to the victim; and the needs of the defendant shall be the primary considerations in the granting of probation. (Pen. Code, § 1202.7.)
   
2. Specifies that "probation" means "the suspension of the imposition or execution of a sentence and the order of conditional and revocable release in the community under the supervision of a probation officer." (Pen. Code, § 1203(a).)
   
3. Specifies that "conditional sentence" means "the suspension of the imposition or execution of a sentence and the order of revocable release in the community subject to conditions established by the court without the supervision of a probation officer." (Pen. Code, § 1203(a).)
   
4. Provides that the court, in granting probation, may suspend the imposing or the execution of the sentence and may direct that the suspension may continue for a period of time not exceeding the maximum possible term of the sentence, except as specified, and upon those terms and conditions as it shall determine. (Pen. Code, § 1203.1.)
   
5. States that the court may impose and require any or all of the terms of imprisonment, fine, and conditions, and other reasonable conditions, as it may determine are fitting and proper to the end that justice may be done and for the rehabilitation of the probationer, and that should the probationer violate any of the terms or conditions imposed by the court in the matter, it shall have authority to modify and change any and all the terms and conditions and to reimprison the probationer in the county jail, as specified. (Pen. Code, § 1203.1, subd. (j).)
6. Specifies that when it appears to the person in charge of a jail, or juvenile detention facility, or to any judge of a court in the county in which the jail or juvenile detention facility is located, that a person in custody in that jail or juvenile detention facility may be mentally disordered, he or she may cause the prisoner to be taken to a facility for 72-hour treatment and evaluation. (Pen. Code, § 4011.6.)
7. States that if a prisoner is detained in, or remanded to, a mental health facility, the facility shall transmit a report, which shall be confidential, to the person in charge of the jail or juvenile detention facility or judge of the court who caused the prisoner to be taken to the facility and to the local mental health director or his or her designee, concerning the condition of the prisoner. (Pen. Code, § 4011.6.)
8. Specifies that if the prisoner is detained in a mental health facility, the time passed in the facility shall count as part of the prisoner's sentence.
   
9. States that if the prisoner is to be released from the facility before conclusion of their sentence, the professional person in charge shall notify the local mental health director, counsel for the prisoner, the prosecuting attorney, and the person in charge of the jail or juvenile detention facility, who shall send for, take, and receive the prisoner back into the jail or juvenile detention facility. (Pen. Code, § 4011.6.)
10. Provides that a defendant, either charged with or convicted of a criminal offense, or a minor alleged to be within the jurisdiction of the juvenile court, may be concurrently subject to mental health detention as specified by law under the Welfare and Institutions Code. (Pen. Code, § 4011.6.)
11. States that upon conviction of any felony in which the defendant is sentenced to state prison, and the court makes any of the findings listed below, a court shall, in addition to any other terms of imprisonment, fine, and conditions, recommend in writing that the defendant participate in a counseling or education program having a substance abuse component while imprisoned:
    1. That the defendant at the time of the commission of the offense was under the influence of any alcoholic beverages; (Pen. Code, § 1203.096, subd. (b)(1).)
    2. That the defendant at the time of the commission of the offense was under the influence of any controlled substance; (Pen. Code, § 1203.096, subd. (b)(2).)
    3. That the defendant has a demonstrated history of substance abuse; and (Pen. Code, § 1203.096, subd. (b)(3).)
       
    4. That the offense or offenses for which the defendant was convicted are drug related. (Pen. Code, § 1203.096, subd. (b)(4).)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, "Jails and prisons have become California’s de facto mental health facilities with those who are mentally ill being far more likely to be incarcerated than to be in a psychiatric hospital. Incarcerating those with mental illness does not make sense from an outcomes or a fiscal stand point. Studies have found that individuals who participate in mental health courts reoffend one third of the time than those who do not and that participant’s show significant improvement in quality of life. Furthermore, mental health courts have been demonstrated to save $7 in costs for every $1 spent. It costs $51,000 a year to house an inmate, and $20,412 to house and treat a person with mental illness. AB 1006 gives the court the ability to consider the presence of a mental illness in criminal sentencing.”
   
2. Prevalence of Mentally Ill Offenders: The Department of Corrections and Rehabilitation’s (CDCR) Council on Mentally Ill Offenders (COMIO) regards the growing number of inmates suffering from mental health issues as a pressing concern.^[1]
   
   Nationally, a 2009 American Psychiatric Association study “found that 14.5% of male and 31.0% of female inmates recently admitted to jail have a serious mental illness” which is three to six times higher than rates found in the general population. “A serious mental illness” included major depressive disorder, depressive disorder not otherwise specified, schizophrenia spectrum disorder, schizoaffective disorder, schizophreniform disorder, brief psychotic disorder, delusional disorder, and psychotic disorder not otherwise specified.^[2]
   
   In 2009, the Division of Correctional Health Care Services for the CDCR estimated that 23 percent of California’s prison inmates have a serious mental illness.^[3] According to the Berkeley Center for Criminal Justice, an estimated “40 to 70 percent of youth in the California juvenile justice system have some mental health disorder or illness,” with 15 to 25 percent considered severely mentally ill. Based on these numbers, youth in California’s juvenile justice system are two to four times more likely to be in need of mental health care than California youth generally.^[4] The Bureau of Justice Statistics reported in 2006 that 74 percent of mentally ill state prisoners and 76 percent of mentally ill local jail inmates also met the criteria for substance dependence or abuse indicating a larger issue with co-occurring disorders among mentally ill offenders.^[5]
3. Increased Rates of Recidivism Among Mentally Ill Offenders: A 2012 review conducted by the Utah Criminal Justice Center found that released inmates with serious mental illness experience poorer outcomes overall as they are “twice as likely to have their probation or parole revoked, are at an elevated risk for rearrest, incarceration, and homelessness, lack skills to obtain and sustain employment, and have higher rates of medical problems.” ^[6]
   
   In 2009, the Council of State Governors Justice Center released a report entitled Improving Outcomes for People with Mental Illnesses under Community Corrections Supervision, which stated that the reasons for increased recidivism among mental ill offenders may be multifaceted:
   
   Once people with mental illnesses are finally released, it is often extremely difficult for them to successfully transition from incarceration to the community. Their mental illnesses may be linked to community corrections supervision failure in a number of ways. Skeem and Loudon have characterized these links as being direct, indirect, or spurious.
   
   First, mental illnesses may directly result in probation or parole revocation. For example, an individual may not access treatment, leading him or her to decompensate, behave in a bizarre or dangerous manner in public, get arrested for this behavior, and have his or her probation revoked.
   
   Second, mental illnesses may indirectly result in revocation. For example, an individual with clinical depression may have impaired functioning that prevents him or her from main­taining employment and paying court ordered fines, which are standard conditions of release. Notably, many people with mental illnesses returning to the community from jail or prison lack financial or social supports. Some were receiving Medicaid and other forms of public assistance at the time of their arrest, and these benefits are typically terminated rather than suspended during incarceration, and rarely rein­stated immediately upon release. In short, there is often no safety net to compensate for functional impairments that may place individuals with mental illnesses at risk for revocation.
   
   Third, mental illnesses may not result in revocation. Instead, the relationship between the two may be spurious—that is, more apparent than real—because a third variable associated with mental illness causes revocation. For example, an individual with bipolar disorder may be at risk of committing a new offense not because of his or her mental illness, but because of crimino­genic attitudes or affiliation with antisocial peers. Alternatively, an individual with psychosis may be monitored exceptionally closely and revoked readily by his or her probation officer, given that traditional supervision strategies often reflect mis­conceptions about (and stigma associated with) mental illness.^[7]
   
   CDCR data shows higher rates of recidivism in inmates identified with mental health issues when compared to those without. Upon release, inmates exhibiting mental health problems are assigned one of two mental health services designations: Enhanced Outpatient Program (EOP) or Correctional Clinical Case Management System (CCCMS). Inmates with severe mental illness expected to experience difficulty transitioning out of corrections are designated as EOP and receive treatment at a level similar to day treatment services in the community, while inmates receiving CCCMS services are housed within the general population and participate on an outpatient basis. In the 2012 CDCR Outcome Evaluation Report, 76.7 percent of first-release inmates with an EOP designation recidivated after three years, compared to lower rates found in CCCMS designees (70.6 percent) and those without a designation (62 percent).^[8]
   
   According to a 2005 CDCR report, mental health issues “comprised the single most critical gap in juvenile justice services. ... According to those surveyed, the number of at-risk youth and youthful offenders with mental health problems continues to increase as does the seriousness of their mental illnesses. The only thing not increasing is the resources to treat and confine these troubled and troubling youth.” Even if juvenile offenders receive assistance, absence of treatment after release may contribute to a path of behavior that includes continued delinquency and adult criminality.^[9]
4. Under Existing Law, Judges Have Discretion to Impose Conditions on Felony or Misdemeanor Cases When a Defendant is Placed on Probation: Probation is the suspension of the imposition or execution of a sentence and the conditional release of a defendant into the community under the direction of a probation officer. “Probation is generally reserved for convicted criminals whose conditional release into society poses minimal risk to public safety and promotes rehabilitation.” (People v. Carbajal (1995) 10 Cal.4^th 1114,1120.) Probation can be conditioned on serving a period of incarceration in county jail and on conditions reasonably related to the offense. Certain convicted felons are not eligible for probation. Other felons are presumptively ineligible for probation, but may be granted probation in an unusual case.
   
   The primary considerations in granting probation are: (1) Public safety; (2) the nature of the offense; (3) the interests of justice; (4) the victim’s loss; and (5) the defendant’s needs. (Pen. Code, § 1202.7.)
   
   Courts have broad general discretion to fashion and impose additional probation conditions that are particularized to the defendants. People v. Smith (2007) 152. Cal.App.4^th 1245, 1249. Courts may impose any “reasonable” conditions necessary to secure justice and assist the rehabilitation of the probationer. Under existing law, a judge can impose a condition of probation that a defendant spend a certain amount of time in a residential mental health facility in conjunction with a jail sentence, or as an alternative to a jail sentence. In imposing probation conditions related to mental health, the court is not limited to ordering residential mental health treatment. The court can order outpatient mental health treatment, or other mental health directives the court finds appropriate. When a defendant is placed on probation the court retains jurisdiction over the case to ensure the defendant complies with probation. The court has the power to impose further punishment if the defendant does not comply with probation.
5. California’s Current Sentencing Scheme Does Not Provide an Option for a Judge to Impose a Split Prison Sentence: Under California’s sentencing scheme, if a person is sent to state prison, they are sentenced for a determinate amount of time. Once an individual is sentenced to State Prison they are committed to the custody of CDCR. Once CDCR has custody of a defendant, CDCR, not the court, decides where and in what type of custodial setting the defendant serves their state prison term.
   
   When a court sentences a defendant to state prison, the court loses jurisdiction over the individual.

“If the judgment is for imprisonment, ‘the defendant must forthwith be committed to the custody of the proper officer and by him or her detained until the judgment is complied with.’ The sheriff, upon receipt of the certified abstract of judgment "or minute order thereof," is required to deliver the defendant to the warden of the state prison together with the certified abstract of judgment or minute order. ‘It is clear then that at least upon the receipt of the abstract of the judgment by the sheriff, the execution of the judgment is in progress.’

“Thus, for example, in People v. Banks, we considered the effect of a stay of execution in the context of the trial court's authority to grant probation for certain offenses. We observed that upon entry of a guilty plea, if the trial court chooses to retain jurisdiction under the statutes dealing with probation, it may pronounce judgment and suspend its execution by refraining from issuing a commitment of the defendant to the prison authority. We stated: "The critical requirement for control over the defendant and the rest of the action is that the court shall not have surrendered its jurisdiction in the premises by committing and delivering the defendant to the prison authority." People v. Karaman, (1992) 4 Cal.4^th 335,345 (citation omitted)(italics added.)

Because the court loses jurisdiction over a defendant when they are sentenced to state prison, it is unclear who would have the authority to enforce transfer of a defendant from a mental health facility to a state prison if treatment in a residential mental health treatment was ordered for a portion of the defendant’s sentence at the beginning of the sentence. The same problem would exist if the court sentenced the defendant to begin their term with state prison, but directed the later part of the state prison term to be served in a mental health facility.

For the same jurisdictional reasons, it is unclear what remedies would be available if a defendant left a residential mental health treatment facility after being sentenced to such a facility for a portion of, or all of, a state prison sentence.

1. Logistical Difficulties of Post Sentencing Procedures to Petition the Court to Resentence the Defendant: The proposed legislation allows for the defendant or prosecutor to petition the resentence the defendant, and provides that defendants have a right to counsel for those proceedings. From a practical standpoint, appointing counsel for an individual who is in a residential mental health treatment facility presents challenges for a system where most of the defendants are represented by Public Defender Offices. Public Defender Offices are accustomed to visiting and representing clients in custody at the local county jail. To see and represent clients placed in a variety of mental health facilities that can be in disparate geographic regions would present substantial obstacles to such representation. The same obstacles are present if a defendant in state prison required representation on a resentencing.
   
2. Suggested Committee Amendments to be Taken in the Future: Specify that if a judge re-sentences a defendant, the court may not impose a sentence longer than originally imposed.
   
3. Argument in Support: According to The Steinberg Institute, “As co-sponsor of AB 2262 (Levine), the Steinberg Institute is starkly aware of the fact that roughly half of all prisoners in California are mentally ill and have received psychiatric treatment within the past year. Many of these offenders’ crimes were directly linked to their mental health condition and the lack of appropriate treatment. According to the U.S. Supreme Court, conditions in California prisons are exacerbating psychiatric disorders of prisoners living with mental illness. When released from custody, parolees with mental illness have a higher recidivism rate compared to healthy parolees, according to the Department of Corrections. This creates a revolving door of high cost individuals remaining in the criminal justice system and not accessing the treatment they need to be-come productive citizens.
   
   "AB 2262, the Mental Health Justice Act, addresses this issue by allowing Superior Courts discretion when sentencing an offender with a mental illness to include mental health treatment in prison and county jails when in the best interests of the defendant and the community.
   
   "Under current law, when an offender is convicted of a crime, courts have power only over the length of the offender’s sentence. Even when mental illness is an obvious component of the offender’s crime, courts have no statutory authority to require mental health treatment or supervision.
   
   "AB 2262 does the following:
   
   "If a defendant has pled guilty or no contest to, or has been convicted of, an offense that will result in a sentence to state prison or county jail, the defendant or the prosecutor may submit evidence, for the courts consideration during sentencing, of a defendant’s diagnosed mental illness that was a substantial factor that contributed to the defendant’s criminal conduct.
   
   "Having considered the evidence submitted and if the court determines that it is in the best interest of public safety, the court may do one, or more of the following:
   
   "(A) Order that the defendant serve, if the defendant agrees, all or a part of his or her sentence in a residential mental health treatment facility instead of in the state prison or county jail, unless that placement would pose an unreasonable risk of danger to public safety.
   
   "(B) Direct the Department of Corrections and Rehabilitation or county jail authority to place the defendant in a mental health program within the state prison or county jail system, respectively, at a level of care determined to be appropriate by the department’s mental health staff or county mental health staff, within 30 days, of the defendant’s sentencing.
   
   "(C) Order the Department of Correction and Rehabilitation or the county jail to prepare a post release mental health treatment plan six months prior to the defendant’s release to parole or post release community supervision. The treatment plan shall specify the manner in which the defendant will receive mental health treatment services following that release, and shall address, if applicable and in the discretion of the court, medication management, housing, and substance abuse treatment.
   
   "At any time, upon a petition from the defendant or prosecutor, if it is in the public interest, the court may recall a sentence that includes a mental health treatment order issued under this section and either resentence the defendant to any other mental health treatment authorized under subdivision (c) or resentence the defendant in the same manner as if he or she had not previously been sentenced with application of this section, provided that the initial sentence, and the defendant receives credit for the time he or she served.
   
   "Simply locking people up with mental illness does not make sense from an outcomes standpoint, or from a civil rights perspective for that matter. We believe AB 2262 can help to mitigate the state's current struggle to treat offenders with a mental health diagnosis in prison and county jails, especially as people with mental illness are far less likely to commit a crime, violate prison rules, or recidivate if they are receiving high quality treatment."
   
   "California has made great strides over the past ten years improving the lives of individuals with severe mental illness through the Mental Health Services Act and subsequent legislative reforms to the mental health system. However, despite all the progress we have made, there still remains a great deal of work to be done. AB 2262 helps ensure the courts have appropriate and cost-effective sentencing options and that offenders who suffer from a diagnosable mental illness receive the care they need."
   
4. Argument in Opposition: According to The California District Attorneys Association, “Beyond our concerns with the timing, frequency, and nature of the evidence being presented, we object to this bill’s attempt to place the trial court judge in the role of mental health expert – a role that they likely have neither the training, nor the inclination to carry out. Courts already have the authority to order a hearing to determine whether a defendant is mentally competent to stand trial, and now would be put in the position of evaluating evidence of mental illness to determine appropriate placements and programming for these individuals. We do not believe the court should be involved in post-conviction treatment issues.
   
   “While the initial blurring of the lines between judge and mental health evaluator is of great concern at the time of sentencing, so too is the continuing jurisdiction that the court would retain over every one of these cases as a result of the bill allowing defendants and prosecutors to return to the court 'at any time' for a change in the placement order or discharge plans. This puts an unknown, but significant, burden on trial court resources, and marks a drastic departure from the traditional role of the court.
   
   “Finally, we believe that the determination of whether a convicted defendant would pose an unreasonable risk of danger to public safety, for purposes of determining eligibility for residential mental health treatment, is based on an unreachable standard. Penal Code section 1170.18(c) currently defines “unreasonable risk of danger to public safety” as an unreasonable risk that the person will commit one of the few enumerated violent felonies in PC 667(e)(2)(C)(iv).
   
   “Those crimes are limited to sexually violent offenses, murder, certain sex crimes with children under 14 years old, assault with a machine gun on a peace officer, possession of weapons of mass destruction, or a crime punishable by death or life imprisonment. Put another way, those crimes do not include, and it would not be enough to show a likelihood that the individual would commit, any of the following violent offenses (and this is a partial list):
   
   ▪ Carjacking
   ▪ Armed robbery
   ▪ Assault on a peace officer with something other than a machine gun
   ▪ Most felonies in which the defendant personally uses a firearm
   ▪ Assault with a deadly weapon by an inmate
   ▪ Kidnapping
   ▪ Holding a hostage by a state prison inmate
   ▪ A felony where the defendant personally inflicted great bodily injury
   
   “Moreover, to be eligible for residential mental health treatment, the defendant must not be subject to the Three Strikes Law. So, in order to render someone ineligible to serve their sentence in a residential facility, a court would have to determine that someone who has not committed a strike in the past, now poses an unreasonable risk of committing one of these few heinous offenses in the future.
   
   “There are no tests, no assessments, and no fortune-telling devices that foresee when a person is likely to commit a murder, or a rape, or possess a weapon of mass destruction. Even the most finely tuned assessment tool, at best, can say that an offender has a likelihood of violently recidivating – but not which type of crime he or she will commit. These assessment tools are simply scales based on other offenders with similar characteristics and backgrounds – essentially a criminal actuarial table. They can predict a possibility of committing a crime in the future compared to others with the same data points, but cannot predict which crime or whether the crime will occur. Nor are they intended for this purpose, but as a guide to assist in planning the appropriate level of supervision and treatment to reduce that likelihood to recidivate.
   
   “Surely there is a use for these tools under the model contemplated by AB 2262, but it should not be to predict whether someone will commit a particular, fact-specific offense as criteria for a placement in a lower security facility.
   
   “In practice, we believe that the “unreasonable risk” standard is insufficient to ensure that violent individuals are not placed in residential treatment facilities.”
5. Related Legislation: AB 1006 (Levine), of the 2015-2016 Legislative Session, would have allowed the court to order the defendant to serve part of his or her sentence in a residential mental health treatment facility or order the defendant placed in a mental health program in the state prison or county jail, if the defendant had a diagnosable mental condition. AB 1006 was held in the Assembly Appropriations Committee.
   
6. Prior Legislation: SB 1323 (Cedillo), of the 2005-2006 Legislative Session, would have appropriated $350,000 from the General Fund for allocation, over 5 years, to the County of Los Angeles, for the purpose of funding one position to work, in conjunction with the Los Angeles County Superior Court, on a 5‑year Prototype Court Pilot Program for nonviolent felony offenders in the state who have been identified as having both serious mental health and substance abuse problems. SB 1323 was held in Senate Appropriations Committee.

REGISTERED SUPPORT / OPPOSITION:

Support

Steinberg Institute (Co-sponsor)

National Alliance on Mental Illness, California
1 Private Individual

Opposition

California District Attorneys Association
Alameda County District Attorney

Analysis Prepared by:

1. http://www.cdcr.ca.gov/comio/Legislation.html ↑

2. Steadman, H., Osher, F. C., Robbins, P. C., Case, B., & Samuels, S. (2009). Prevalence of serious mental illness among jail inmates. Psychiatric Services, 60(6), 761-765. <http://www.ncbi.nlm.nih.gov/pubmed/19487344>. ↑

3. Administrative Office of the Courts, Center for Families, Children & the Courts. (2011). Task Force for Criminal Justice Collaboration on Mental Health Issues: Final Report. <http://www.mentalcompetency.org/resources/guides-standards/files/California%20Mental%20Health%20Task%20Force%20Report.pdf>. ↑

4. Berkeley Center for Criminal Justice. (2010). Juvenile Justice Policy Brief Series: Mental Health Issues in California’s Juvenile Justice System. <https://www.law.berkeley.edu/img/BCCJ_Mental_Health_Policy_Brief_May_2010.pdf> ↑

5. Treatment Advocacy Center & National Sheriffs’ Association. (2010). More Mentally Ill Persons Are in Jails and Prisons Than Hospitals: A Survey of States. <http://www.treatmentadvocacycenter.org/storage/documents/final_jails_v_hospitals_study.pdf> ↑

6. University of Utah, Utah Criminal Justice Center. (2012). Treating Offenders with Mental Illness: A Review of the Literature. <http://ucjc.utah.edu/wp-content/uploads/MIO-butters-6-30-12-FINAL.pdf>. ↑

7. https://s3.amazonaws.com/static.nicic.gov/Library/023634.pdf. ↑

8. http://www.cdcr.ca.gov/adult_research_branch/Research_Documents/ARB_FY_0708_Recidivism_Report_10.23.12.pdf. ↑

9. California Department of Corrections and Rehabilitation. (2005). Status Report on Juvenile Justice Reform. ↑