AB 2657: Incarcerated person’s competence.

Existing law authorizes the warden of a state prison to whom an incarcerated person is delivered for execution to suspend the execution of a judgment of death in specified circumstances. Under existing law, if the court sets a date for execution, the warden is required to report that to the Secretary of the Department of Corrections and Rehabilitation, who is required to appoint 3 alienists (psychiatrists) from the Department of Corrections and Rehabilitation staff, at least 20 days prior to the date appointed for execution, to examine the defendant and investigate the defendants sanity.

This bill would require the secretary to select and appoint 3 psychiatrists or licensed psychologists to examine the incarcerated person and investigate and report whether the incarcerated person is competent to be executed. The bill would require that a copy of the report be provided to the incarcerated person, the Attorney General, the district attorney of the county in which the incarcerated person was sentenced, and to the Governor.

Existing law requires the warden to notify the district attorney of the county in which the prison is situated if there is good reason to believe that an incarcerated person, under judgment of death, has become incompetent to be executed. Existing law requires the district attorney to immediately file a petition in the superior court of the county stating the conviction and judgment, the fact that the incarcerated person is believed to be incompetent to be executed, and inquiring into the incarcerated persons competence. Existing law also requires the court to summon and impanel a jury of 12 persons to inquire into the incarcerated persons sanity.

This bill would require the warden to notify the district attorney of the county in which the incarcerated person was sentenced, the Attorney General, and the incarcerated persons counsel, if there is good reason to believe that an incarcerated person has become incompetent to be executed. If the warden issues that notice, the bill would require the Attorney General to file a petition, identifying that there is reason to believe that the incarcerated person is incompetent to be executed, with the court if the incarcerated persons counsel fails to file the petition or the incarcerated person does not have counsel. The bill would also remove the right to a jury trial on the subject of incompetence for execution.

Existing law requires the judge to hold a hearing if the superintendent of the medical facility certifies to the judge that the incarcerated person has recovered their sanity, and if at the hearing it is determined that the incarcerated person has in fact recovered their sanity, existing law requires the judge to certify that to the Governor, who is required to then issue to the warden a warrant appointing a day for the execution of the judgment. Existing law requires the court to appoint counsel to represent the incarcerated person at the hearing if the defendant appears without counsel. Existing law also requires the district attorney to attend the hearing.

This bill would require the court to hold a hearing if there is reason to believe the incarcerated person is presently incompetent to be executed, as specified, or if there is reason to believe the incarcerated person is permanently incompetent to be executed, as specified. The bill would require the court to vacate the sentence or sentences of death if the court finds by a preponderance of the evidence that the incarcerated person is permanently incompetent to be executed, and would require the court to resentence the incarcerated person to life without the possibility of parole. The bill would not require the district attorney to attend the hearing.