We recommend that 4.5 of the 11.5 positions proposed for administration of the Infant Health and Protection Initiative by the Department of Social Services be deleted, for a savings of $306,000 ($153,000 General Fund), because of insufficient justification. (Reduce Item 5180-001-0001 by $153,000 and reduce Item 5180-001-0890 by $153,000.)
Finally, we recommend reducing the amount proposed for the Department of Alcohol and Drug Programs to provide substance abuse treatment by $500,000 from the General Fund, because the budget exceeds the amount required to provide services under the proposed initiative. (Reduce Item 4200-102-0001 by $500,000.)
Home Visiting Pilot Project. The budget proposes $10 million from the General Fund to support the costs of implementing the home visiting pilot project in five sites in the state. This consists of $5.5 million for the home visitation services and $4.5 million for perinatal drug treatment services. According to the DSS, each site would serve 500 families, at an average cost of $2,200 per family per year for the home visitation services. We note that the pilot project sites would be selected through an award of contracts pursuant to a review of requests for proposals (RFPs). According to the department's schedule, this process will require six months. Consequently, the pilot projects will be operational for only the last six months of the budget year, and should therefore require only about half of the annual cost of $5.5 million (General Fund), or $2,750,000. Accordingly, we recommend deletion of this excess funding from the proposed appropriation.
Our analysis also indicates that the amount proposed for drug treatment services in the Home Visiting Pilot Project exceeds the amount that will be required. Based on data provided by the Department of Alcohol and Drug Programs, the cost of these services for the 2,500 families in the pilot project will be $2,560,000 for a full year. Thus, the amount required for the six months in which the project will be implemented during the budget year will be $1,280,000. This is $3,220,000 below the $4.5 million (General Fund) proposed in the budget. Accordingly, we recommend that these funds be deleted from the budget.
DSS State Administration. The budget proposes $1.7 million ($872,000 General Fund and $872,000 federal funds) for the DSS to administer the CWS component of the initiative in 1997-98. This consists of $769,000 for 11.5 new positions, $125,000 for the first year of a three-year contract to develop a curriculum for the home visiting pilot project; $350,000 for the first year of a three-year contract to develop the child-risk assessment tool; and $500,000 for the first year of a three-year contract to evaluate the pilot project.
Our analysis of the proposal for departmental administration indicates that the number of positions requested is five more than needed, for the following reasons:
In our judgment, one consultant, rather than five, would be adequate to serve as staff to the various committees and groups. This should be sufficient to attend meetings and act as a coordinator. Similarly, we believe that one consultant is sufficient to coordinate, monitor, and review the activities of the vendor. We find no need to add departmental consultants to conduct research and develop- ment, since this would be the task of the vendor. Accordingly, we recommend reducing the budget proposal by 3.5 positions.
Thus, we recommend that the number of proposed new positions be reduced by 4.5 positions, for a savings of $306,000 ($153,000 General Fund).
DADP Substance Abuse Treatment. As indicated above, the budget proposes $11.5 million ($5 million General Fund) for the DADP for substance abuse treatment of individuals identified through the hospital protocols as requiring these services (excluding those persons in the Home Visiting Pilot Project). Based on information provided by the DADP, we find that the budget proposal does not fully account for the estimated number of persons needing treatment who will pay for this treatment themselves or pay through private health insurance. After making this adjustment, we estimate that the budget proposal exceeds the amount needed by $500,000 from the General Fund. Accordingly, we recommend deleting these funds from the budget.
Fiscal Summary of Recommendation. In total, adoption of our recommendations would result in a General Fund savings of $6.6 million in 1997-98.
The civil commitment process begins with the California Department of Corrections (CDC) and the Board of Prison Terms (BPT) screening for inmates who qualify as potential SVPs. The CDC and BPT screen for cases in which all of the following criteria apply: (1) the inmate has been convicted of a specified sexually violent offense such as rape or child molestation; (2) the inmate's crime involved two or more victims; and (3) the inmate's criminal acts involved efforts to promote a relationship with, and then victimize, a stranger or casual acquaintance. The CDC refers all potential SVP cases to the Department of Mental Health (DMH) for further assessment and clinical evaluation.
The DMH reviews the CDC assessment and also determines if the individual has a diagnosed mental disorder that will predispose him or her to engage in sexually violent criminal behavior upon release from prison. Once the DMH determines that an individual is an SVP, the case is referred to the county counsel or district attorney. If the county counsel or district attorney concurs with the DMH, a petition for commitment is filed in the county's superior court. The superior court determines if there is probable cause that the individual is likely to engage in sexually violent predatory criminal behavior upon his or her release. If probable cause is found, the case is sent to trial. Persons found by the court or jury to be SVPs are civilly committed to the custody of the DMH for two years in a secure facility, subject to annual review, and extension of the civil commitment if it is determined that the mental disorder and danger to the community persist.
The budget proposes $20.7 million from the General Fund ($16.6 million for the DMH, $3.5 million for the CDC, and $0.6 million for the BPT) for the SVP program in 1997-98. This does not include county costs, which are estimated to be roughly $10 million.
Kansas Program Before the US Supreme Court. The state of Kansas operates an SVP program that is similar to the one in California. A lawsuit challenging the constitutionality of the Kansas program is currently before the US Supreme Court. The Kansas State Supreme Court ruled the program was unconstitutional, and the case has been appealed to the US Supreme Court. A decision by the Supreme Court is expected to be announced in June of this year.
This Supreme Court decision could have important consequences for the SVP program in California. If the Kansas program is held to be unconstitutional, it could affect pending court challenges to the program in California. On the other hand, if the Kansas program is upheld, it could alleviate existing delays in moving cases through the process in the California program, as we discuss below.
Delays in Processing Cases. The SVP program in California has been in operation since January 1996. As previously indicated, the SVP commitment process includes several stages. So far, the time required to move cases through the system has been much longer than initially anticipated.
In the first 12 months of implementation (January through December 1996), 991 potential SVPs were referred to the DMH by the CDC for evaluation. By the end of December, 410 cases were still pending at various stages of the process, and only 10 had been civilly committed. If this trend continues, the number of civil commitments will fall far short of the 138 assumed in the 1996-97 budget.
The small number of civil commitments is due to unanticipated delays in the processing time for SVP cases. According to the DMH, this is primarily because of a slowdown in the judicial component of the process while participants in that process await the verdict in the Kansas case. Defense attorneys, for example, have an incentive to make maximum use of the allowable time for program components such as the probable cause hearings, in anticipation of the possibility that the court will strike down the Kansas program. Thus, the DMH believes that if the Supreme Court upholds the Kansas program, the civil commitment process in the California program will begin to move much more expeditiously.
Figure 8 (see page 22) displays the status and disposition of all the SVP cases in 1996, and shows the large number of cases (410) that are still pending.
Uncertainty in Projecting Budget-Year Commitments. The number of cases that result in civil commitments in 1997-98 will depend in large part on the degree to which there are changes in the processing time for the cases (the caseload flow through the system). Based on data from 1996, we estimate that of those persons who are evaluated by the DMH as having a mental disorder that predisposes them to re-offend (287 in Figure 9 on page 23), about 44 percent will ultimately be civilly committed under the SVP process. This is illustrated in the caseload flow model in Figure 9. We further estimate that if the system operates within the time frames that were initially anticipated for processing cases, there will be 126 new civil commitments in 1997-98. Conversely, if the processing time remains unchanged, we estimate that about 30 cases will be civilly committed in the budget year. Thus, there is considerable uncertainty in projecting this program outcome. The department indicates that it will review the caseloads in the program and revise its proposal at the time of the May Revision.
As previously indicated, the budget proposes $20.7 million from the General Fund to support the SVP program in 1997-98. Our analysis indicates, however, that the state costs could increase significantly in the budget and subsequent years because of (1) the possibility that county costs will be determined to be a state reimbursable mandate; (2) the buildup of caseload due to the length of time required for treatment; and (3) the costs associated with community placement of SVPs. Each of these costs is discussed in detail below.
County Costs May Be a State Reimbursable Mandate.
County Costs May Be a State Reimbursable Mandate.Once the DMH refers an SVP to the county counsel or district attorney, the costs associated with the civil proceedings are the responsibility of the counties. We estimate the county costs for the SVP civil commitment proceedings to be roughly $10 million in 1997-98. This estimate includes the costs of prosecuting, defending, and incarcerating SVPs.
In May of 1996, Los Angeles County filed a claim with the Commission on State Mandates asserting that the county costs under the SVP civil commitment proceedings represent a state reimbursable mandate. The Commission is tentatively scheduled to make a decision on the matter in late March 1997. We note that the Attorney General has issued an opinion supporting the county's claim.
Caseload Increases. Caseloads in the SVP program could increase significantly in the coming years because the time required for treatment is likely to lead to an increasing number of ongoing cases. The initial treatment period is two years. The program, however, requires the confinement and treatment of SVPs until it is determined that they no longer present a threat to society. Thus, treatment could be extended well beyond the two-year period. We note, in this respect, that SVPs are referred to DMH without regard to whether they are considered "amenable to treatment."
We also note that these ongoing cases will result in costs other than the costs of treatment. This is because extensions of the confinement period require hearings to determine if the SVP is still a danger to society. As a point of reference, the state of Washington's SVP program incurred an average cost of $30,000 per extended commitment hearing. Moreover, to the extent that accommodating SVPs increases the total population in the state hospital system, additional facilities may eventually be required to increase the capacity of the system.
Community Placement Costs. The SVPs regarded by the court to no longer be a danger to others may be released unconditionally or may be placed in a conditional release program. The SVP community placement costs are unknown at this time because the DMH and the Conditional Release Program (CONREP) providers are in the initial stages of developing the most appropriate community placement program. As an indication of the potential costs, we note that mentally disordered offenders (who are different from SVPs) are placed in highly supervised community settings at an annual cost of about $21,000 per person.
The legislation creating the SVP program specifies that offenders who are to be released on parole, and who receive civil court commitments as SVPs, are to be confined "...in a secure facility designated by the Department of Mental Health" that also "..shall be located on the grounds of an institution under the jurisdiction of the Department of Corrections."
Last year, we advised the Legislature that the Governor's budget proposal to provide funding to house SVPs at Atascadero State Hospital (ASH) was inconsistent with state law. The Legislature adopted Chapter 197, Statutes of 1996 (AB 3493, Friedman) stating legislative intent that SVPs be held at ASH during 1996-97. We have been advised by the Office of the Legislative Counsel, however, that this statement of legislative intent did not alter the original statutory requirement that SVPs be held at a state prison.
Another legislative measure, Chapter 462, Statutes of 1996 (AB 3130, Boland) initially contained language eliminating the requirement that SVPs be housed in state prison. That language was removed from the bill prior to its enactment. Nonetheless, at the time of this Analysis, 13 SVPs had already been transferred to ASH.
Governor's Budget Inconsistent With State Law. The Governor's budget again requests funding to house and treat SVPs at ASH in 1997-98. The administration, however, has not submitted the trailer bill legislation that would be required to amend current law to authorize this practice.
We believe that a state hospital such as ASH is a more appropriate placement for SVPs than the state prison system for several reasons.
We are advised by the California Department of Corrections (CDC) that the placement of persons with a civil commitment (rather than a prison sentence) into a prison setting creates legal, procedural, and management problems for the state. Placing the SVPs in the same facilities as prison inmates is complicated by the fact that SVPs have broader legal rights.
In the event that state law is not changed to place SVPs at ASH, the CDC has indicated that the prison facility most likely to receive these individuals would be the California Medical Facility (CMF) at Vacaville in Solano County, where an acute psychiatric care unit is located. We are concerned about the potential impact of sending SVPs to CMF at this time because of ongoing and active federal district court litigation over the medical care being provided there for mentally disordered prison inmates.
Finally, in our view, sending SVPs to state hospitals is consistent with the legal arguments in defense of the constitutionality of the SVP law. In ongoing litigation over the constitutionality of California's SVP law, the state contends that civil commitments do not constitute an illegal further punishment of offenders beyond their original prison sentence, but rather a measure taken under civil law to protect the public by subjecting high-risk parolees to appropriate mental health treatment.
Analyst's Recommendation. For these reasons, we recommend the enactment of legislation removing the requirement that SVP civil commitments be housed at state prisons.