It is a sad fact that the families of those who are declared incompetent to stand trial (IST) often abandon their family member transferred to State Department of State Hospitals (DSH) or the State Department of Developmental Services (DDS). There can be many reasons for families doing this, but most will not immediately abandon their loved one.
Some families never abandon their loved one and faithfully visit him or her for years or decades, never giving up hope that the person will be returned to competency to stand trial and perhaps be found not guilty, so they can return home.
It can take a determined effort to get accurate information on where an IST is even located: is he or she still in county jail, or has the person been transported to DSH or DDS to begin receiving services? Recently, with the COVID-19 pandemic, this purgatory has become more profound and dangerous with the spread of the highly contagious virus. The situation often reminds one of a Franz Kafka novel, as such delays in receiving treatment can stretch on for months and even years.
Five family members, led by Stephanie Stiavetti, of IST defendants committed to DSH or DDS decided judicial attention was needed and, in the Alameda County Superior Court, filed a petition for writ of mandate and a complaint for declaratory relief and injunctive relief challenging, as a due process violation, statewide delays in the transfer of IST defendants from county jails to DSH and DDS to begin services. Defendant was Stephanie Clendenin, director of DSH and DDS facilities.
The trial court granted the petition in part, first finding, that defendants systematically violate the due process rights of IST defendants in California who are committed to DSH pursuant to Penal Code § 1370 or to DDS pursuant to § 1370.1(a)(1)(B)(i). The trial court further found that due process requires DSH and / or DDS to commence substantive services for these IST defendants within 28 days of the date on which the order transferring responsibility for these defendants to DSH or DDS is served. The trial court phased in the 28-day constitutional deadline for commencing substantive services over a 30-month deadline.
As the reader may suspect, certain IST defendants were given less due process rights for public safety concerns. For example, for IST defendants charged with felony sex offenses who are committed to DDS under § 1370.1(a)(1)(B)(ii) and (iii), the transfer of responsibility to DDS does not occur until the defendant and certain required documentation is physically delivered to a DDS facility.
The DDS and DHS defendants appealed the trial court’s order to the First Appellate District Court in San Francisco. These defendants argued that any statewide deadline for admission of IST defendants was inappropriate and unnecessary and constitutional limits should be addressed on a case-by-case basis. These defendants also argued the 28-day deadline was arbitrary and not based on any relevant statutory or constitutional requirements.
The First Appellate District did an extensive review of the statutory background to competency proceedings (Penal Code §§ 1367, 1368 and 1370) and the responsibilities for IST defendants under 1370.1. It found there are certain deadlines in the code already, i.e., the 15-day deadline for the community program director to evaluate an IST defendant and submit a written recommendation as to whether the defendant should undergo outpatient treatment or be committed to DSH or any other treatment facility. There is also a 90-day deadline for the director of DSH where the IST defendant may be transferred to make a written report to the court concerning defendant’s progress toward the recovery of mental competence (Penal Code § 1370(b)(1)).
In other words, imposing a 28-day deadline for offering substantive services was not arbitrary or chosen without any statutory basis. Therefore, the First Appellate District affirmed the trial court’s order on this issue.
The First Appellate District’s ruling spans a further 15 pages and will not be summarized here, as the scope of this article is really just to give the reader a summary of this recent civil action that resulted in a new deadline for those who are IST and seems to free up the purgatory or waiting pool that often exists in county jail for such defendants.
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