A mentally disordered offender (MDO) is a status given to individuals convicted of certain violent or sex-based felonies, when the crime was caused by a severe mental disorder. These offenders must receive mental health monitoring as a condition of being released on parole.
California law imposes two different types of criminal sentencing:
- determinate sentencing: a sentence for a specific number of years; and
- indeterminate sentencing: a sentence of “x” years to life (also referred to as a “life” sentence) .
Normally, inmates released following a determinate sentence automatically go on parole. Meanwhile, inmates who serve the numeric part of their indeterminate sentence become eligible for parole pursuant to a California Board of Parole suitability (lifer) hearing.
However, there are exceptions to these rules for the inmate suffering from a mental disorder or illness that presents a public safety risk. These mentally disordered offenders – called “MDOs” – have their own set of California parole laws.
Below, our California criminal defense attorneys address the following:
- 1. What is the mentally disordered offender (MDO) law?
- 2. How is an MDO defined?
- 3. What treatment is required during parole supervision?
- 4. What treatment is required after parole?
- 5. What is the Lanterman-Petris-Short Act?
- Additional reading
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
In 1986, the California Legislature enacted the Mentally Disordered Offender (MDO) Law. Codified under Penal Code 2960 PC and its related sections, the dual purpose of this law is to
- protect society from certain prisoners with dangerous, treatable mental disorders, and;
- to provide treatment for those prisoners.2
The MDO law allows the California Department of Corrections and Rehabilitation (CDCR) and the California Department of Mental Health (DMH) to provide mental health treatment to those suffering from severe mental health disorders prior to, during, and even after their parole.
California law provides that every inmate must receive a mental health evaluation within their first year of imprisonment. The DMH then provides treatment to all inmates who qualify as MDOs while they are incarcerated.
To fall within the legal definition of a mentally disordered offender, the individual must meet the following five requirements:
- The inmate received a determinate sentence for a specifically enumerated violent crime. Examples include but are not limited to:
- certain California sex offenses (if convicted of a violent sex offense, California’s sexually violent predator (SVP) parole laws may apply as well),
- Penal Code 207 PC California’s kidnapping law,
- any robbery where the defendant personally used a deadly or dangerous weapon,
- Penal Code 451 PC California’s arson law, and
- any felony offense where the defendant used a firearm (which was proven under Penal Code sections 12022.5, 12022.53, or 12022.55 California’s sentencing enhancements for personal use of a firearm).
- The prisoner has a severe mental disorder that is not in remission or cannot be kept in remission without treatment.
- The severe mental disorder was one of the causes of – or was an aggravating factor in – the commission of a crime for which the prisoner was sentenced to prison.
- The inmate received treatment for their severe mental disorder while in prison for at least 90 days within the year prior to their parole or release. And
- A designated mental health professional certified that the individual represents a substantial danger or physical harm to other people because of their disorder.3
Let’s take a look at some of these terms to gain a better understanding of their legal definitions.
“Severe mental disorder” definition
“The term ‘severe mental disorder’ means an illness or disease or condition that:
- substantially impairs the person’s thought, perception of reality, emotional process, or judgment;
- grossly impairs behavior; or
- demonstrates evidence of an acute brain syndrome for which prompt remission, in the absence of treatment, is unlikely.”
“The term “severe mental disorder” as used in this section does not include a
- personality or adjustment disorder,
- mental retardation or
- other developmental disabilities, or addiction to or abuse of intoxicating substances.”4
The term “remission” means a finding that the overt signs and symptoms of the severe mental disorder are controlled either by psychotropic medication or psychosocial support.
A person “cannot be kept in remission without treatment” if they:
- have been in remission and they have been physically violent, except in self-defense,
- have made a serious threat of substantial physical harm upon the person of another so as to cause the target of the threat to fear for their safety or the safety of their immediate family,
- have intentionally caused property damage, or
- have not voluntarily followed the treatment plan. In determining whether a person has “voluntarily followed the treatment plan”, the court will judge the individual by comparing their conduct with that of a “reasonable person” in a similar situation.5
If an individual satisfies these criteria – and is therefore designated a mentally disordered offender – they must receive treatment as a condition of parole.
The Board of Parole Hearings (BPH) – the agency within the California Department of Corrections and Rehabilitation that determines who will and will not be placed on parole – requires MDOs to abide by this condition.6 Male parolees receive treatment at the Atascadero State Hospital, while females receive treatment at the Patton State Hospital.
This treatment is inpatient until and unless the individual is able to be treated safely and effectively as an outpatient for the duration of their parole.7 However, if the DMH has not placed the patient on outpatient care within 60 days, the patient may petition the court asking it to do so.8
Contesting “MDO” status
An individual wishing to contest their classification as an MDO has the ability to do so. The inmate (or new “parolee”) is entitled to an examination by two independent mental health professionals and to hearing before the Board.9
If the judge or a unanimous jury does not believe that the individual meets the mentally disordered offender criteria, they will be released on parole without the additional requirement of mandatory treatment.10
Though if the inmate simply refuses to sign off on this parole condition, the BPH may revoke parole pursuant to a California parole violation / revocation hearing. If the board revokes parole, it will order the individual to remain in custody for a maximum of an additional six months.11
If the DMH believes that a parolee’s mental disorder still presents a danger to society once their parole is up, the court has the authority to order a civil commitment.12 This is the same procedure that the court follows if the inmate refuses to sign off on their parole condition to receive treatment.13
This continued involuntary treatment may last for up to one year.
If, after that period, the MDO’s disorder is not in remission or cannot be kept in remission without treatment, treatment may be continued in one-year increments. This is the case as long as a judge or unanimous jury believes that continued involuntary treatment is necessary to protect the public.14
For prisoners/patients suffering from severe mental disorders who do not meet the legal definition of a Mentally Disordered Offender, there is an additional law in place.
The Board of Parole Hearings may seek the involuntary civil commitment of a mentally disordered inmate or parolee via the Lanterman-Petris-Short (LPS) Act.15 This law – codified under California Welfare and Institutions Code 5000 and its related sections – allows the inmate to receive involuntary treatment for a period of 72 hours to one year.16
Like the involuntary commitment procedure above, this period may be extended as long as the patient is “gravely disabled due to a mental disorder”.17
And as Santa Ana criminal defense attorney Neil Shouse18 explains:
“Like the MDO laws above, the Lanterman-Petris-Short Act has a variety of procedural safeguards to ensure that an individual suffering from a severe mental disorder is not unfairly or unjustly committed against their will.”19
For more in-depth information, refer to these scholarly articles:
- The Treatment of Mentally-Disordered Offenders – Psychology, Public Policy, and Law.
- The prediction of criminal and violent recidivism among mentally disordered offenders: A meta-analysis – Psychological Bulletin.
- Mentally disordered offenders: A national survey of patients and facilities – Law and Human Behavior.
- Treating the Mentally Disordered Offender: Society’s Uncertain, Conflicted, and Changing Views – Florida State University Law Review.
- A systematic review of structured group interventions with mentally disordered offenders – Criminal Behavior and Mental Health.
- Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
- California Penal Code 2960 — Legislative findings and declarations regarding mentally disordered offenders (MDOs) and California parole laws. (“The Legislature finds that there are prisoners who have a treatable, severe mental disorder that was one of the causes of, or was an aggravating factor in the commission of the crime for which they were incarcerated. Secondly, the Legislature finds that if the severe mental disorders of those prisoners are not in remission or cannot be kept in remission at the time of their parole or upon termination of parole, there is a danger to society, and the state has a compelling interest in protecting the public. Thirdly, the Legislature finds that in order to protect the public from those persons it is necessary to provide mental health treatment until the severe mental disorder which was one of the causes of or was an aggravating factor in the person’s prior criminal behavior is in remission and can be kept in remission.”)
- California Penal Code 2962 PC — Treatment by state department of mental health as condition of parole; criteria for prisoners. (“As a condition of parole, a prisoner who meets the following criteria [as is therefore designated a mentally disordered offender (MDO)] shall be required to be treated by the State Department of Mental Health, and the State Department of Mental Health shall provide the necessary treatment: (a) The prisoner has a severe mental disorder that is not in remission or cannot be kept in remission without treatment.(b) The severe mental disorder was one of the causes of or was an aggravating factor in the commission of a crime for which the prisoner was sentenced to prison. (c) The prisoner has been in treatment for the severe mental disorder for 90 days or more within the year prior to the prisoner’s parole or release. (d)(1) Prior to release on parole, the person in charge of treating the prisoner and a practicing psychiatrist or psychologist from the State Department of Mental Health have evaluated the prisoner at a facility of the Department of Corrections, and a chief psychiatrist of the Department of Corrections has certified to the Board of Prison Terms that the prisoner has a severe mental disorder, that the disorder is not in remission, or cannot be kept in remission without treatment, that the severe mental disorder was one of the causes or was an aggravating factor in the prisoner’s criminal behavior, that the prisoner has been in treatment for the severe mental disorder for 90 days or more within the year prior to his or her parole release day, and that by reason of his or her severe mental disorder the prisoner represents a substantial danger of physical harm to others.(e) The crime referred to in subdivision (b) meets both of the following criteria: (1) The defendant received a determinate sentence pursuant to Section 1170 for the crime. (2) The crime is one of the following: (A) Voluntary manslaughter. (B) Mayhem. (C) Kidnapping in violation of [California Penal Code] Section 207. (D) Any robbery wherein it was charged and proved that the defendant personally used a deadly or dangerous weapon, as provided in subdivision (b) of Section 12022, in the commission of that robbery. (E) Carjacking, as defined in subdivision (a) of Section 215, if it is charged and proved that the defendant personally used a deadly or dangerous weapon, as provided in subdivision (b) of Section 12022, in the commission of the carjacking. (F) [Certain California sex offenses, including] Rape, as defined in paragraph (2) or (6) of subdivision (a) of Section 261 or paragraph (1) or (4) of subdivision (a) of Section 262. (G) Sodomy by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person. (H) Oral copulation by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person. (I) Lewd acts on a child under the age of 14 years in violation of Section 288. (J) Continuous sexual abuse in violation of Section 288.5. (K) The offense described in subdivision (a) of Section 289 where the act was accomplished against the victim’s will by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person. (L) Arson in violation of subdivision (a) of Section 451, or arson in violation of any other provision of [Penal Code] Section 451 [California’s arson law]or in violation of Section 455 where the act posed a substantial danger of physical harm to others. (M) Any felony in which the defendant used a firearm which use was charged and proved as provided in Section 12022.5, 12022.53, or 12022.55 [California’s sentencing enhancements for personal use of a firearm]. (N) A violation of Section 12308. (O) Attempted murder. (P) A crime not enumerated in subparagraphs (A) to (O), inclusive, in which the prisoner used force or violence, or caused serious bodily injury as defined in paragraph (4) of subdivision (f) of Section 243. (Q) A crime in which the perpetrator expressly or impliedly threatened another with the use of force or violence likely to produce substantial physical harm in such a manner that a reasonable person would believe and expect that the force or violence would be used. For purposes of this subparagraph, substantial physical harm shall not require proof that the threatened act was likely to cause great or serious bodily injury.”)
- See same, subdivision “a”.
- See same.
- See California Penal Code 2962 PC — Treatment by state department of mental health as condition of parole; criteria for prisoners designated as mentally disordered offenders (MDOs), endnote 3, above.
- California Penal Code 2964 — Inpatient or outpatient treatment; hearing; informing prisoner of right; burden of proof. (“(a) The treatment required by Section 2962 shall be inpatient unless the State Department of Mental Health certifies to the Board of Prison Terms that there is reasonable cause to believe the parolee can be safely and effectively treated on an outpatient basis, in which case the Board of Prison Terms shall permit the State Department of Mental Health to place the parolee in an outpatient treatment program specified by the State Department of Mental Health.”)
- See same. (“(b) If the State Department of Mental Health has not placed a [mentally disordered offender (MDO)] parolee on outpatient treatment within 60 days after receiving custody of the parolee or after parole is continued pursuant to Section 3001, the parolee may request a hearing before the Board of Prison Terms, and the board shall conduct a hearing to determine whether the prisoner shall be treated as an inpatient or an outpatient. At the hearing, the burden shall be on the State Department of Mental Health to establish that the prisoner requires inpatient treatment as described in this subdivision. If the prisoner or any person appearing on his or her behalf at the hearing requests it, the board shall appoint two independent professionals as provided for in Section 2978.”)
- California Penal Code 2966 — Treatment for mentally disordered offenders (MDOs) as condition of parole; hearing by board to prove prisoner meets criteria; judicial review; petition; procedure; jury trial; application to continuation of parole. (“(a) A prisoner may request a hearing before the Board of Prison Terms, and the board shall conduct a hearing if so requested, for the purpose of proving that the prisoner meets the criteria in Section 2962. At the hearing, the burden of proof shall be on the person or agency who certified the prisoner under subdivision (d) of Section 2962. If the prisoner or any person appearing on his or her behalf at the hearing requests it, the board shall appoint two independent professionals as provided for in Section 2978. The prisoner shall be informed at the hearing of his or her right to request a trial pursuant to subdivision (b). The Board of Prison Terms shall provide a prisoner who requests a trial, a petition form and instructions for filing the petition. (b) A prisoner who disagrees with the determination of the Board of Prison Terms that he or she meets the criteria of (MDO) under] Section 2962, may file in the superior court of the county in which he or she is incarcerated or is being treated a petition for a hearing on whether he or she, as of the date of the Board of Prison Terms hearing, met the criteria of Section 2962. The court shall conduct a hearing on the petition within 60 calendar days after the petition is filed, unless either time is waived by the petitioner or his or her counsel, or good cause is shown. Evidence offered for the purpose of proving the prisoner’s behavior or mental status subsequent to the Board of Prison Terms hearing shall not be considered. The order of the Board of Prison Terms shall be in effect until the completion of the court proceedings. The court shall advise the petitioner of his or her right to be represented by an attorney and of the right to a jury trial. The attorney for the petitioner shall be given a copy of the petition, and any supporting documents. The hearing shall be a civil hearing; however, in order to reduce costs, the rules of criminal discovery, as well as civil discovery, shall be applicable. The standard of proof shall be beyond a reasonable doubt, and if the trial is by jury, the jury shall be unanimous in its verdict. The trial shall be by jury unless waived by both the person and the district attorney. The court may, upon stipulation of both parties, receive in evidence the affidavit or declaration of any psychiatrist, psychologist, or other professional person who was involved in the certification and hearing process, or any professional person involved in the evaluation or treatment of the petitioner during the certification process. The court may allow the affidavit or declaration to be read and the contents thereof considered in the rendering of a decision or verdict in any proceeding held pursuant to subdivision (b) or (c), or subdivision (a) of Section 2972. If the court or jury reverses the determination of the Board of Prison Terms, the court shall stay the execution of the decision for five working days to allow for an orderly release of the prisoner.”)
- See same.
- California Penal Code 3060.5 PC — Revocation; refusal to sign parole agreements, duty to register forms, or to provide blood or saliva samples; term of confinement. (“Notwithstanding any other provision of law, the parole authority shall revoke the parole of any prisoner who refuses to sign a parole agreement setting forth the general and any special conditions applicable to the parole, and shall order the prisoner returned to prison. Confinement pursuant to any single revocation of parole under this section shall not, absent a new conviction and commitment to prison under other provisions of law, exceed six months, except as provided in subdivision (c) of Section 3057.”)
- California Penal Code 2970 — Evaluation on remission where severe mental disorder is not in, or cannot be kept in, remission. (“Not later than 180 days prior to the termination of parole, or release from prison if the prisoner refused to agree to treatment as a condition of parole as required by [Penal Code] Section 2962 [for mentally disordered offenders (MDOs)], unless good cause is shown for the reduction of that 180-day period, if the prisoner’s severe mental disorder is not in remission or cannot be kept in remission without treatment, the medical director of the state hospital which is treating the parolee, or the community program director in charge of the parolee’s outpatient program, or the Director of Corrections, shall submit to the district attorney of the county in which the parolee is receiving outpatient treatment, or for those in prison or in a state mental hospital, the district attorney of the county of commitment, his or her written evaluation on remission. If requested by the district attorney, the written evaluation shall be accompanied by supporting affidavits. The district attorney may then file a petition with the superior court for continued involuntary treatment for one year. The petition shall be accompanied by affidavits specifying that treatment, while the prisoner was released from prison on parole, has been continuously provided by the State Department of Mental Health either in a state hospital or in an outpatient program. The petition shall also specify that the prisoner has a severe mental disorder, that the severe mental disorder is not in remission or cannot be kept in remission if the person’s treatment is not continued, and that, by reason of his or her severe mental disorder, the prisoner represents a substantial danger of physical harm to others.”)
- See same.
- California Penal Code 2972 — Hearing on petition for continued treatment; jury trial; order; petition for recommitment; rights of patient; modification by regulations. (“(a) The court shall conduct a hearing on the petition under Section 2970 for continued treatment [of mentally disordered offenders (MDOs)]. The court shall advise the person of his or her right to be represented by an attorney and of the right to a jury trial. The attorney for the person shall be given a copy of the petition, and any supporting documents. The hearing shall be a civil hearing, however, in order to reduce costs the rules of criminal discovery, as well as civil discovery, shall be applicable. The standard of proof under this section shall be proof beyond a reasonable doubt, and if the trial is by jury, the jury shall be unanimous in its verdict. The trial shall be by jury unless waived by both the person and the district attorney. The trial shall commence no later than 30 calendar days prior to the time the person would otherwise have been released, unless the time is waived by the person or unless good cause is shown. (c) If the court or jury finds that the patient has a severe mental disorder [and that the individual is, in fact, a mentally disordered offender (MDO)], that the patient’s severe mental disorder is not in remission or cannot be kept in remission without treatment, and that by reason of his or her severe mental disorder, the patient represents a substantial danger of physical harm to others, the court shall order the patient recommitted to the facility in which the patient was confined at the time the petition was filed, or recommitted to the outpatient program in which he or she was being treated at the time the petition was filed, or committed to the State Department of Mental Health if the person was in prison. The commitment shall be for a period of one year from the date of termination of parole or a previous commitment or the scheduled date of release from prison as specified in Section 2970. Time spent on outpatient status, except when placed in a locked facility at the direction of the outpatient supervisor, shall not count as actual custody and shall not be credited toward the person’s maximum term of commitment or toward the person’s term of extended commitment. (e) Prior to the termination of a commitment under this section, a petition for recommitment may be filed to determine whether the patient’s severe mental disorder is not in remission or cannot be kept in remission without treatment, and whether by reason of his or her severe mental disorder, the patient represents a substantial danger of physical harm to others. The recommitment proceeding shall be conducted in accordance with the provisions of this section.”)
- California Penal Code 5000 — Short title. (“This part shall be known and may be cited as the Lanterman-Petris-Short Act.”)See also California Penal Code 5001 — Legislative intent. (“The provisions of this part shall be construed to promote the legislative intent as follows: (a) To end the inappropriate, indefinite, and involuntary commitment of mentally disordered persons, developmentally disabled persons, and persons impaired by chronic alcoholism, and to eliminate legal disabilities; (b) To provide prompt evaluation and treatment of persons with serious mental disorders or impaired by chronic alcoholism; (c) To guarantee and protect public safety; (d) To safeguard individual rights through judicial review; (e) To provide individualized treatment, supervision, and placement services by a conservatorship program for gravely disabled persons; (f) To encourage the full use of all existing agencies, professional personnel and public funds to accomplish these objectives and to prevent duplication of services and unnecessary expenditures; (g) To protect mentally disordered persons and developmentally disabled persons from criminal acts.”)
- Terhune v. Superior Court (1998) 65 Cal.App.4th 864“, 878. (“The LPS Act establishes procedures for the involuntary treatment of persons, who, by reason of a mental disorder [but who do not meet the criteria for mentally disordered offenders (MDOs)], are dangerous to others or to themselves, or who are gravely disabled. Such persons may be taken into custody for 72-hour treatment (Welf. & Inst. Code 5150), detained for treatment for an additional 14 days (Welf. & Inst. Code 5250, 5256.6), and confined for up to 180 days of additional treatment, provided certain findings are made and procedures followed. When a petition is filed seeking that extended commitment, the individual is entitled to a jury trial and representation by appointed counsel. (Welf. & Inst. Code 5300-5303.1.) The confinement may be extended for another 180 days by means of a further petition. (Welf. & Inst. Code 5304.)”)
- California Welfare and Institutions Code 5361 — Termination; power and authority over estate; reappointment. (“Conservatorship initiated pursuant to this chapter shall automatically terminate one year after the appointment of the conservator by the superior court. The period of service of a temporary conservator shall not be included in the one-year period. If upon the termination of an initial or a succeeding period of conservatorship the conservator determines that conservatorship is still required, he may petition the superior court for his reappointment as conservator for a succeeding one-year period. The petition must include the opinion of two physicians or licensed psychologists who have a doctoral degree in psychology and at least five years of postgraduate experience in the diagnosis and treatment of emotional and mental disorders that the conservatee is still gravely disabled as a result of mental disorder or impairment by chronic alcoholism.”)
- Santa Ana criminal defense lawyer Neil Shouse is a former prosecutor who now uses his police experience to represent California prisoners with parole issues.
- See endnote 16, above.