Special Conditions of Parole for Mentally Disordered Offenders (MDO)

What does it mean to be a “mentally disordered offender” (MDO) — and what mandatory special conditions apply to MDOs on parole?

Under state law, you may be classified as a “mentally disordered offender” (MDO) on parole only if:

    You have been diagnosed with a serious mental illness that causes you to pose a substantial danger of physical harm to others, AND
    You have been sentenced to prison for an offense involving violence.[590]

According to the CDCR, if you are a MDO, must receive inpatient treatment from the Department of State Hospitals (DSH)[591] as a mandatory condition of parole.

  1. 590

    Cal. Penal Code § 2962. The definition of a crime involving violence under Cal. Penal Code § 2062(e) is broader than the definition of violent felonies in Cal. Penal Code § 667.5(c). ↑

  2. 591

    The DSH was formerly known as the Department of Mental Health (DMH). ↑

Who decides whether I’m a MDO? When does this happen?

There are several steps to the MDO determination process:

First, while you are in prison, CDCR mental health staff and a DSH psychologist or psychiatrist must screen you for classification as a MDO.[592]If both agree that you qualify as a MDO, the CDCR should send certification papers to the Board of Parole Hearings (BPH) stating that you have been found to be a MDO.[593] The BPH must notify you that you’ll have to undergo DSH inpatient treatment as a parole condition.[594] The BPH must also notify you of your right to challenge the MDO finding.[595]

  1. 592

    Cal. Penal Code § 2962(d)(1). ↑

  2. 593

    Cal. Penal Code § 2962(d)(1). ↑

  3. 594

    15 Cal. Code Regs. § 2573(c). ↑

  4. 595

    Cal. Penal Code §§ 2966 and 2978; 15 Cal. Code Regs. §§ 2573-2574. ↑

I think I’ve been wrongly classified as a MDO. What can I do?

You can challenge the CDCR’s finding that you are a MDO, which means requesting a hearing before the BPH. If you challenge the finding, the BPH must do the following:

    Have you evaluated by two independent mental health professionals, AND
    Hold a hearing before a BPH commissioner.

At the hearing, the state will be required to prove “by a preponderance of evidence” (that it’s more likely than not) that you’re a MDO — specifically, that (1) you’ve been diagnosed with a serious mental illness that causes you to pose a substantial danger of physical harm to others, AND (2) you were sentenced to prison for a violent offense.[596] If you want a lawyer at the hearing, the state must provide one for free.[597]

What is the Department of State Hospitals (DSH)?

The DSH was created in 2012 to take over the functions of the now-defunct Department of Mental Health (DMH). DSH oversees inpatient mental health treatment facilities in California.

What if, at this hearing, the BPH commissioner decides to agree with the CDCR’s finding that you are a MDO? You can challenge that decision by filing a petition in the local county superior court to demand a jury trial. If you request a trial, the BPH must provide you with (1) a petition form and (2) instructions for filing the petition. At trial, the state must prove “beyond a reasonable doubt” that you met the criteria of being classified as a MDO.[598] If you want a lawyer at trial, the state must provide one for free.

  1. 596

    Cal. Penal Code § 2966(a); 15 Cal. Code Regs. § 2576(b). ↑

  2. 597

    15 Cal. Code Regs. § 2576(b)(4). ↑

  3. 598

    Cal. Penal Code § 2966(a)-(b). ↑

I have been found to be a MDO. Can I ask to be treated as an outpatient?

It might be possible. The normal rule is that if you are a MDO on parole, you must be placed in inpatient treatment (confined to a state hospital where you will live and receive mental health treatment) — unless the Department of State Hospitals (DSH) finds that you can be treated safely as an outpatient.[599]

After 60 days in DSH custody, you can request a hearing before a BPH commissioner to ask for outpatient status as a MDO (this means you would live in the community but go to a mental health hospital for treatment).[600] At the hearing, the DSH must show by “a preponderance of the evidence” (that it is more likely than not) that you require inpatient treatment.[601] Once you request this hearing, you have the right to a free appointed attorney (called a “panel attorney”)[602] and the appointment of two independent evaluators. If you disagree with the BPH commissioner’s decision, you may appeal it in county superior court (see below for more information).[603]

  1. 599

    Cal. Penal Code § § 2964. ↑

  2. 600

    Cal. Penal Code § § 2964(b). ↑

  3. 601

    Cal. Penal Code § § 2964; 15 Cal. Code Regs. § 2578. ↑

  4. 602

    For more information on Panel Attorneys, see CDCR Panel Attorney Program Guide, http://www.cdcr.ca.gov/BOPH/docs/Attorney_Orientation/Panel_Attorney_Program_Guide.pdf. ↑

  5. 603

    Cal. Penal Code § 2964(a) and (b); 15 Cal. Code Regs. §§ 2576, 2578. Your email must be made within sixty days of the BPH’s determination that your are an MDO. ↑

Once I have been found to be a MDO, when and how often will my MDO status be reviewed?

The BPH must review your status as a MDO when you reach your presumptive discharge date (PDD: the date when you should be discharged early from parole, unless the BPH finds a good reason to keep you; see PG. 153). At that date, the BPH must decide to recommend either that you continue in your MDO inpatient placement, or that you be discharged.[604] If the BPH recommends that you continue in your MDO placement, it MUST hold re-commitment proceedings, which are similar to the original MDO commitment procedures (see PG. 176 for information about the initial MDO classification process that happens in prison).[605] Before you are re-committed, you should receive written notice of the decision.[606] If you are re-committed multiple times as a MDO, you could end up serving your entire parole term in a DSH hospital.[607]

WHAT IS “RE-COMMITMENT”?

Re-commitment is the process by which DSH decides that a person is still a MDO and must be confined in a DSH facility for another year.

  1. 604

    15 Cal. Code Regs. §§ 2535 and 2580. ↑

  2. 605

    15 Cal. Code Regs. § 2580(b)-(c). ↑

  3. 606

    Cal. Penal Code § 2972.1. ↑

  4. 607

    Cal. Penal Code § 2970(e). ↑

Can the Department of State Hospitals (DSH) hold me beyond my Maximum Discharge Date (MDD)?

Possibly. If you are classified as a MDO and you reach your maximum discharge date (your maximum parole term under state law, after which you must be discharged; see PG. 153), the DSH can seek to continue your mental health commitment. This means you would have to stay in inpatient treatment for one more year.[608]

If your MDO commitment is continued,the DSH can continue to seek re-commitment every year.[609] If the DSH seeks to continue your MDO commitment, you’ll be appointed an attorney and a jury trial in the county Superior Court. The district attorney will represent the DSH. At trial, the DSH must prove that you still meet MDO criteria — that you are (1) diagnosed with a serious mental illness that causes you to pose a substantial danger of physical harm to others, AND (2) were sentenced to prison for an offense involving violence.[610]

  1. 608

    Cal. Penal Code § 2970(a). ↑

  2. 609

    Cal. Penal Code § 2970. ↑

  3. 610

    The burden of proof in an MDO hearing is “beyond a reasonable doubt”—this means that in order for your to be re-committed, the district attorney must prove, beyond a reasonable doubt, that you are still both: (1) diagnosed with a serious mental illness that causes you to pose a substantial danger of physical harm to others AND (2) were sentenced to prison for an offense involving violence. Cal. Penal Code § 2970. ↑