Bill Text: CA SB1399 | 2009-2010 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Parole: medical parole: permanently medically

Spectrum: Partisan Bill (Democrat 3-0)

Status: (Passed) 2010-09-28 - Chaptered by Secretary of State. Chapter 405, Statutes of 2010. [SB1399 Detail]

Download: California-2009-SB1399-Amended.html

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BILL NUMBER: SB 1399	AMENDED
	BILL TEXT

	AMENDED IN SENATE  APRIL 14, 2010
	AMENDED IN SENATE  APRIL 7, 2010
	AMENDED IN SENATE  APRIL 5, 2010

INTRODUCED BY   Senator Leno

                        FEBRUARY 19, 2010

   An act to amend Section 3041 of, and to add Section 3550 to, the
Penal Code, relating to parole.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 1399, as amended, Leno. Parole: physically or cognitively
debilitated or incapacitated inmates.
   Existing law generally regulates the granting and conditioning of
parole, and places the duty to monitor parolees on the Division of
Adult Parole Operations. Existing law,  as added by
Proposition 9,  the Victim's Bill of Rights Act of 2008:
Marsy's Law,  as added by Proposition 9  at the November 4,
2008, statewide general election, provides that the Board of Parole
Hearings or its successor in interest shall be the state's parole
authority and shall be responsible for protecting victims' rights in
the parole process.
   This bill would provide that, except as specified, any prisoner
who the Board of Parole Hearings determines, based on the results of
medical evaluations, suffers from a significant and permanent
condition, disease, or syndrome resulting in the prisoner being
physically or cognitively debilitated or incapacitated and the
conditions under which the prisoner would be released would not 
reasonably  pose a threat to public safety  ,  shall be
granted medical parole. Those provisions would 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 parole
pursuant to this bill is prohibited by any initiative statute. The
bill would require that parole placements and revocations pursuant to
 this bill   its provisions  shall be made
in accordance with the Victim's Bill of Rights Act of 2008: Marsy's
Law. The bill would require a physician employed by the Department of
Corrections and Rehabilitation who is the primary care provider for
a prisoner to recommend that a prisoner be referred to the Board of
Parole Hearings for consideration for medical parole if the physician
believes the prisoner meets the criteria for medical parole. The
bill would provide that the Division of Adult Parole Operations shall
have the authority to impose any reasonable conditions on prisoners
subject to parole pursuant to this bill, including, but not limited
to, the requirement that parolees submit to electronic monitoring.
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 3041 of the Penal Code is amended to read:
   3041.  (a) In the case of any inmate sentenced pursuant to any
provision of law, other than Chapter 4.5 (commencing with Section
1170) of Title 7 of Part 2, the Board of Parole Hearings shall meet
with each inmate during the third year of incarceration for the
purposes of reviewing the inmate's file, making recommendations, and
documenting activities and conduct pertinent to granting or
withholding postconviction credit. One year prior to the inmate's
minimum eligible parole release date a panel of two or more
commissioners or deputy commissioners shall again meet with the
inmate and shall normally set a parole release date as provided in
Section 3041.5. No more than one member of the panel shall be a
deputy commissioner. In the event of a tie vote, the matter shall be
referred for an en banc review of the record that was before the
panel that rendered the tie vote. Upon en banc review, the board
shall vote to either grant or deny parole and render a statement of
decision. The en banc review shall be conducted pursuant to
subdivision (e). The release date shall be set in a manner that will
provide uniform terms for offenses of similar gravity and magnitude
with respect to their threat to the public, and that will comply with
the sentencing rules that the Judicial Council may issue and any
sentencing information relevant to the setting of parole release
dates. The board shall establish criteria for the setting of parole
release dates and in doing so shall consider the number of victims of
the crime for which the inmate was sentenced and other factors in
mitigation or aggravation of the crime. At least one commissioner of
the panel shall have been present at the last preceding meeting,
unless it is not feasible to do so or where the last preceding
meeting was the initial meeting. Any person on the hearing panel may
request review of any decision regarding parole for an en banc
hearing by the board. In case of a review, a majority vote in favor
of parole by the board members participating in an en banc review is
required to grant parole to any inmate.
   (b) The panel or the board, sitting en banc, shall set a release
date unless it determines that the gravity of the current convicted
offense or offenses, or the timing and gravity of current or past
convicted offense or offenses, is such that consideration of the
public safety requires a more lengthy period of incarceration for
this individual, and that a parole date, therefore, cannot be fixed
at this meeting. After the effective date of this subdivision, any
decision of the parole panel finding an inmate suitable for parole
shall become final within 120 days of the date of the hearing. During
that period, the board may review the panel's decision. The panel's
decision shall become final pursuant to this subdivision unless the
board finds that the panel made an error of law, or that the panel's
decision was based on an error of fact, or that new information
should be presented to the board, any of which when corrected or
considered by the board has a substantial likelihood of resulting in
a substantially different decision upon a rehearing. In making this
determination, the board shall consult with the commissioners who
conducted the parole consideration hearing. No decision of the parole
panel shall be disapproved and referred for rehearing except by a
majority vote of the board, sitting en banc, following a public
meeting.
   (c) For the purpose of reviewing the suitability for parole of
those inmates eligible for parole under prior law at a date earlier
than that calculated under Section 1170.2, the board shall appoint
panels of at least two persons to meet annually with each inmate
until the time the person is released pursuant to proceedings or
reaches the expiration of his or her term as calculated under Section
1170.2.
   (d) It is the intent of the Legislature that, during times when
there is no backlog of inmates awaiting parole hearings, life parole
consideration hearings, or life rescission hearings, hearings will be
conducted by a panel of three or more members, the majority of whom
shall be commissioners. The board shall report monthly on the number
of cases where an inmate has not received a completed initial or
subsequent parole consideration hearing within 30 days of the hearing
date required by subdivision (a) of Section 3041.5 or paragraph (2)
of subdivision (b) of Section 3041.5, unless the inmate has waived
the right to those timeframes. That report shall be considered the
backlog of cases for purposes of this section, and shall include
information on the progress toward eliminating the backlog, and on
the number of inmates who have waived their right to the above
timeframes. The report shall be made public at a regularly scheduled
meeting of the board and a written report shall be made available to
the public and transmitted to the Legislature quarterly.
   (e) For purposes of this section, an en banc review by the board
means a review conducted by a majority of commissioners holding
office on the date the matter is heard by the board. An en banc
review shall be conducted in compliance with the following:
   (1) The commissioners conducting the review shall consider the
entire record of the hearing that resulted in the tie vote.
   (2) The review shall be limited to the record of the hearing. The
record shall consist of the transcript or audiotape of the hearing,
written or electronically recorded statements actually considered by
the panel that produced the tie vote, and any other material actually
considered by the panel. New evidence or comments shall not be
considered in the en banc proceeding.
   (3) The board shall separately state reasons for its decision to
grant or deny parole.
   (4) A commissioner who was involved in the tie vote shall be
recused from consideration of the matter in the en banc review.
   (f) Notwithstanding any other provision of law, except as provided
in subdivision (g), any prisoner sentenced to a term of imprisonment
under Section 1168 who the Board of Parole Hearings determines,
based on the results of the medical evaluations performed by the
Department of Corrections and Rehabilitation physicians, suffers from
a significant and permanent condition, disease, or syndrome
resulting in the prisoner being physically or cognitively debilitated
or incapacitated and the conditions under which the prisoner would
be released would not  reasonably  pose a threat to public
safety shall be granted medical parole.
   (g) Subdivision (f) 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 parole, pursuant to
subdivision (f), is prohibited by any initiative statute. Parole
placements and revocations pursuant to subdivision (f) shall be made
in accordance with the Victim's Bill of Rights Act of 2008: Marsy's
Law.
   (h) When a physician employed by the Department of Corrections and
Rehabilitation who is the primary care provider for an inmate
identifies an inmate that he or she believes meets the criteria for
medical parole specified in subdivision (f), the primary care
physician shall recommend to the chief medical officer of the
institution where the prisoner is located that the prisoner be
referred to the Board of Parole Hearings for consideration for
medical parole. Within 30 days of receiving that recommendation the
chief medical officer shall make a determination of the prisoner's
eligibility for medical parole and, if he or she concurs in the
recommendation of the primary care physician, refer the matter to the
Board of Parole Hearings. If the chief medical officer 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.
   (i) Notwithstanding any other law, 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.
   (j) Notwithstanding any other provisions of this section, the
prisoner or his or her family member or designee may independently
request consideration for medical parole by contacting the chief
medical officer at the prison or the secretary. Within 30 days of
receiving the request, the chief medical officer shall , in
consultation with the prisoner's primary care physician, make a
determination whether the prisoner meets the criteria for medical
parole as specified in subdivision (f) and, if the chief medical
officer determines that the prisoner satisfies the criteria set forth
in subdivision (f), he or she shall refer the matter to the Board of
Parole Hearings.  Upon receiving a recommendation from a
chief medical officer of the department for a prisoner to be granted
medical parole, the board, as specified in subdivision (i), shall
make an independent judgment and make findings related thereto.
 If the chief medical officer 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. 
   (k) Upon receiving a recommendation from a chief medical officer
of the department for a prisoner to be granted medical parole
pursuant to subdivision (h) or (j), the board, as specified in
subdivision (i), shall make an independent judgment and make findings
related thereto.  
   (k) 
    (l)  The Division of Adult Parole Operations shall have
the authority to impose any reasonable conditions on prisoners
subject to medical parole supervision pursuant to subdivision (f),
including, but not limited to, the requirement that the parolee
submit to electronic monitoring. As a further condition of medical
parole, pursuant to subdivision (f), the parolee may be required to
submit to an examination by a physician for the purpose of diagnosing
their current medical condition. In the event such an examination
takes place, a report of the examination and diagnosis shall be
submitted to the board by the examining physician. If the board
determines that the person's medical condition has substantially
improved and that the person poses a threat to public safety, the
board may revoke the parole and return the person to the custody of
the department.
   (1) Notwithstanding any other provision of law establishing
maximum periods for parole, a prisoner placed on medical parole
supervision prior to the earliest possible parole date that the
prisoner would otherwise have been released to parole under, shall
remain on medical parole, pursuant to subdivision (f), until that
earliest possible parole date, at which time the provisions of
paragraph (2) shall apply.
   (2) At the expiration of the period described in paragraph (1),
the parolee shall commence serving that period of parole provided by,
and under all other provisions of, Chapter 8 (commencing with
Section 3000) of Title 1 of Part 3. 
   (l) 
    (m)  The warden or warden's representative, along with
the appropriate medical or mental health care representatives, shall,
at the time a prisoner is placed on medical parole supervision
pursuant to subdivision (f), 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 shall be sent to the prisoner's forwarding address
after release to health care-related parole supervision.
  SEC. 2.  Section 3550 is added to the Penal Code, to read:
   3550.  (a) Notwithstanding any other provision of law, except as
provided in subdivision (b), any prisoner sentenced to a term of
imprisonment under Section 1170 who the Board of Parole Hearings
determines, based on the results of the medical evaluations performed
by the Department of Corrections and Rehabilitation physicians,
suffers from a significant and permanent condition, disease, or
syndrome resulting in the prisoner being physically or cognitively
debilitated or incapacitated and the conditions under which the
prisoner would be released would not  reasonably  pose a
threat to public safety shall be granted medical parole.
   (b) Subdivision (a) 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 parole, pursuant to
subdivision (a), is prohibited by any initiative statute. Parole
placements and revocations pursuant to subdivision (a) shall be made
in accordance with the Victim's Bill of Rights Act of 2008: Marsy's
Law.
   (c) When a physician employed by the Department of Corrections and
Rehabilitation who is the primary care provider for an inmate
identifies an inmate that he or she believes meets the criteria for
medical parole specified in subdivision (a) the primary care
physician shall recommend to the chief medical officer of the
institution where the prisoner is located that the prisoner be
referred to the Board of Parole Hearings for consideration for
medical parole. Within 30 days of receiving that recommendation the
chief medical officer shall make a determination of the prisoner's
eligibility for medical parole and, if he or she concurs in the
recommendation of the primary care physician, refer the matter to the
Board of Parole Hearings. If the chief medical officer 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.
   (d) Notwithstanding any other law, 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.
   (e) Notwithstanding any other provisions of this section, the
prisoner or his or her family member or designee may independently
request consideration for medical parole by contacting the chief
medical officer at the prison or the secretary. Within 30 days of
receiving the request, the chief medical officer shall, in
consultation with the prisoner's primary care physician, make a
determination whether the prisoner meets the criteria for medical
parole as specified in subdivision (a) and, if the chief medical
officer determines that the prisoner satisfies the criteria set forth
in subdivision (a), he or she shall refer the matter to the Board of
Parole Hearings.  Upon receiving a recommendation from a
chief medical officer of the department for a prisoner to be granted
medical parole, the board, as specified in subdivision (d), shall
make an independent judgment and make findings related thereto.
 If the chief medical officer 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. 
   (f) Upon receiving a recommendation from a chief medical officer
of the department for a prisoner to be granted medical parole
pursuant to subdivision (c) or (e), the board, as specified in
subdivision (d), shall make an independent judgment and make findings
related thereto.  
   (f) 
    (g)  Notwithstanding any other provision of law, the
Division of Adult Parole Operations shall have the authority to
impose any reasonable conditions on prisoners subject to medical
parole supervision pursuant to subdivision (a), including, but not
limited to, the requirement that the parolee submit to electronic
monitoring. As a further condition of medical parole, pursuant to
subdivision (a), the parolee may be required to submit to an
examination by a physician for the purpose of diagnosing their
current medical condition. In the event such an examination takes
place, a report of the examination and diagnosis shall be submitted
to the board by the examining physician. If the board determines that
the person's medical condition has substantially improved and that
the person poses a threat to public safety, the board may revoke the
parole and return the person to the custody of the department.
   (1) Notwithstanding any other provision of law establishing
maximum periods for parole, a prisoner placed on medical parole
supervision prior to the earliest possible parole date that the
prisoner would otherwise have been released to parole under, shall
remain on medical parole, pursuant to subdivision (a), until that
earliest possible parole date, at which time the provisions of
paragraph (2) shall apply.
   (2) At the expiration of the period described in paragraph (1),
the parolee shall commence serving that period of parole provided by,
and under all other provisions of, Chapter 8 (commencing with
Section 3000) of Title 1 of Part 3. 
   (g) 
    (h)  The warden or warden's representative, along with
the appropriate medical or mental health care representatives, shall,
at the time a prisoner is placed on medical parole supervision
pursuant to subdivision (a), 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 shall be sent to the prisoner's forwarding address
after release to health care-related parole supervision.