August 2011

Let us suppose that the Mentally Disordered Offender (MDO) law works in the way that the California legislators intended that it should.  We can do so by following the route of a typical person classified as an MDO.


Any individual, in order to be classified as an MDO, must commit one of numerous felonies enumerated by the MDO law (P.C. 2960-2981).  So let us suppose that our selected individual has been convicted of such a crime, let’s say it was felony assault.  Let’s say he was sentenced to five years in the state penitentiary, and after two years is paroled.  Except, under the MDO law, instead of being released on parole, he is examined by two psychiatrists hired by the prison authorities (Department of Corrections and Rehabilitation – CDCR) and found to meet all six criteria for being classified as an MDO.  While this sounds like an unlikely occurrence, in practice it happens quite frequently.  The examinations are cursory, and slanted toward a positive outcome for the system.  It is easy to ignore the true criteria and simply mark them as having been met, without real investigation.  The presumption of guilt is heavy.  In fact, no figures are available from the DMH as to what percentage of prisoners sent to them by the CDCR are found to meet the MDO criteria, a telling omission that is only too common in this area of the law.  Persons familiar with the proceedings estimate that it comes close to 100%.


Now, instead of being released from prison on parole, he is sent to one of the state mental hospitals operated by the Department of Mental Health (DMH), where he is met by DMH psychiatrists who give him a mental illness diagnosis. There are more than 350 different diagnoses he could be given, but let’s say the DMH psychiatrists diagnose him as suffering from schizophrenia.


Our prisoner is now designated as a mental patient instead of a prisoner.  He can challenge this finding in Superior Court, but, again, his chances of prevailing are slim to none.  Instead of being locked up for punishment as he was while he was in prison, he is now being held for medical treatment, so that his mental illness can be placed “in remission” and he will “no longer be a danger to others or to himself.”  This presumption lends a bias to the court proceedings – after all, he is not being punished, he is being given the medical treatment he needs in order to become a productive member of society.


He is assigned to a Treatment Team made up of a treating psychiatrist, a psychologist, a social worker, a medical doctor, a Nnrse, and various other Psych Technicians and supervisors on the unit where he must live.  He is also allowed to have an Advocate of his own choice on his Treatment Team, but this requirement is seldom, if ever, fulfilled for various reasons which we will not go into here.


The most fundamental aspect of his treatment is drugs.  Almost all patients are immediately placed on drugs, if they were not already on drugs when they arrived from the prison, which most were.  These drugs form the central aspect of his treatment, and it is expected and explicitly stated by the Treatment Team that the patient will remain on drugs for the remainder of his life.  The drugs do not “cure” the patient of his mental illness – they only render him fit for re-integration into life outside the institutions of the state providing he continues to consume them until he dies.  The so-called “side effects” of these drugs are extremely uncomfortable, distressing, and life-shortening.  For this reason, most prisoners find it extremely difficult to maintain the prescribed drug regimen.  In fact, long-suppressed evidence is now coming to light showing that patients never prescribed these drugs do far better in the long run than those who take them.


All other aspects of his treatment are given short shrift.  He is assigned to classes and must attend if he hopes to leave the hospital.  The classes cover such things as drug addiction (street drugs, that is – addiction to prescribed drugs is not only encouraged, it is enforced), basic living skills, mental health awareness, and some vocational training.  The patient is helped to write a Treatment Plan, outlining the steps he needs to take in order to be released from the hospital.  This Plan, and the patient’s progress toward meeting the goals in it, is monitored at monthly Treatment Team meetings.


While the whole Treatment Team approach sounds good on paper, in practice it is a farce.  Most Team meetings are pro forma routine, with little input from the patient and next to no interaction between him and the other Team members on any meaningful level.  The paperwork is filed and the requirements of the program are fulfilled – on paper.  But in reality, the patient is given no autonomy and no responsibility not tightly controlled by the hospital authorities.  He must endeavor to fit himself into the tight little box constructed for him by his diagnosis and the critical eyes of his overseers.  Any slight deviation from those boundaries is cause for failure to progress towards release.  If he is one of the rare few who happen to have an Advocate on his team, the Advocate will be dismissed for any true advocacy advanced on the patient’s behalf.  All the Team members follow the treating psychiatrist’s lead – no real toleration of dissent is allowed.


If the patient hasn’t met the goals specified in the Treatment Plan by the time his parole has ended (in our patient’s case, three years after being admitted to the hospital), the DMH authorities can submit a report to the District Attorney of the county where he was convicted of his crime, and the DA will then call for a hearing to keep him in the hospital for another year.  This process can be repeated indefinitely.  So our patient finds that he faces a commitment in the hospital up to a life sentence, served one year at a time.  The effect of this sentence on his mental health is not recognized or discussed at all.  If he chooses to contest and appeal this ruling, he must be transported back to jail in the county he came from, to await the hearing itself, which may take months to calendar, and at which he will most often be represented by a Public Defender, unless he or his family has the means to hire a private attorney – a rare occurrence.


At the hearing, a forensic psychiatrist from the hospital will take the witness stand and read from the voluminous records compiled by the hospital authorities during his incarceration at the hospital.  He will have no opportunity to cross-examine any of the anonymous authors of the statements read by the forensic psychiatrist, since this hearing (and all the proceedings under the MDO law) is designated as a civil proceeding – not criminal – and therefore the patient has none of the rights guaranteed in the Constitution.  Needless to say, most patients are not willing to undergo the hardships of travel, jail, and potential harm posed by these proceedings for the minimal chance that they might prevail against these heavy odds against them.  Most simply choose to wait another year and hope that the hospital authorities will finally rule that they are “in remission” and are “no longer a danger to others.”


However, despite all these obstacles, some patients do manage to get released.  In all but very rare cases, they are released to the Conditional Release Program (CONREP), a system of community care facilities run by contractors who provide the facilities and personnel to the DMH.  Nominally, he is back in the community.  But let’s look at the new circumstances in which our prisoner finds himself.


He must continue to take the drugs under supervision.  By now, his body is addicted to the drugs, and if he should find a way to avoid taking them, he is most likely to slip back into some form of psychosis.  Such occurrence will result in immediate arrest and shipment back to the state hospital.  If he commits a chargeable criminal offense while psychotic, he will be charged in criminal proceedings and sent back to jail (if it was a misdemeanor) or prison (if it was a felony).  He will then be subject to the MDO law again and start all over again at square one.  If he didn’t commit a crime, he is still subject to indefinite incarceration for “treatment” in a state mental hospital.


The treatment – other than supervision of his drug habit – provided by CONREP is minimal.  Other elements of a plan to re-integrate the prisoner into society are simply not there.  Counseling, job training, transition to residential housing, social support systems – all these are given lip service at best.  Our prisoner has now been thoroughly institutionalized and has become dependant upon the state for survival.  The state feeds him drugs and keeps him at subsistence level.  He is isolated, alienated, and forgotten.  He spends the remainder of his days rotating between CONREP facilities located in the worst part of town, and homelessness, or jails, prisons, and mental hospitals.  The recidivism rate from CONREP back to jail and prison is about 70% within two years of release.


This is “success” as defined by the MDO law.  The admitted cost of keeping a patient in a state mental hospital is about $200,000 per year.  The pharmaceutical companies have a guaranteed market for their products, and a place to try out their new drugs that they push through the Food and Drug Administration approval process.  The MDO law itself has become the foundation for further laws undermining the rights of ever greater sectors of our citizenry, such as convicted sexual offenders, immigrants, parents, religious groups, whistleblowers and political dissidents.  This pattern follows the historical trend of societies that turned to police state tactics in order to survive in times of crisis.



Our prisoner who became a “patient” under the MDO law has paved the way for ever greater numbers of us to become entrapped by the same methodology of stigmatization, extralegal proceedings, drugging, and indefinite incarceration.  Unless we defend his rights by combating laws like the MDO law, we will follow in his footsteps.  It’s already happening.  Wake up and look around.



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