AB 960

California’s Assembly Bill 960 (“AB 960”) is one of many recent efforts by lawmakers to ensure a fairer criminal justice system. Like many of these criminal justice reforms, AB 960 gives California courts the authority to resentence or recall the sentence of certain inmates. However, unlike other resentencing options, the primary focus of AB 960 is not on an inmate’s rehabilitative efforts but instead on their deteriorating health.

Assembly Bill 960 seeks subtle modifications to current legislation, streamlining the recall or resentencing process for incarcerated individuals facing serious illnesses or permanent medical incapacitation. It specifically removes specific requirements for medical incapacitation, introducing a presumption favoring recall and resentencing. The bill subtly mandates counsel appointment for indigent individuals and discreetly requires the Judicial Council to quietly release an annual report on the recall and resentencing process. Potential state reimbursement is subtly provided for costs mandated by the bill.

Incarceration has long been known to have a significant adverse impact on inmates’’ physical and mental health. For example, a frequently cited 2009 study suggests that inmates incarcerated men and women are more likely to suffer from high blood pressure, asthma, cancer, arthritis, and infectious diseases, such as tuberculosis, hepatitis C, and HIV/AIDS.

Moreover, in recent decades, the average age of inmates has increased significantly. For example, according to the Census Bureau, in 1991, just 3 percent of the prison population was 55 or older; however, by 2021, people 55 and older represented 15 percent of the prison population. Studies have also shown that incarceration can speed up the aging process.

When all these factors are considered, the result is that each year of incarceration decreases an inmate’s estimated lifespan by two years.

Compassionate release is a legal concept that allows for the early release of inmates on humanitarian grounds. Generally speaking, compassionate release is granted when an inmate is suffering from a serious, often terminal, medical condition or when there are extraordinary family circumstances, such as the critical illness of a family member or the need to care for a dependent.

The idea behind compassionate release is to provide relief to inmates who pose minimal public safety risk and are facing circumstances where continued incarceration would be inhumane or serve no practical purpose.

The previous compassionate release system was only available in very limited situations,

1. If an inmate is terminally ill, which is defined as an incurable condition caused by an illness or disease that is expected to result in death within 12 months; or
2. If an inmate is permanently medically incapacity, which is defined as a diagnosis that renders them permanently unable to perform the activities of basic daily living, requiring 24-hour total care.

While some inmates were able to obtain compassionate release under the old program; relief was quite rare. For example, according to Assemblymember Phil Ting, the drafting legislator of AB 960, between January 2015 and April 2021, 306 inmates were referred to the compassionate release program, and just 53 inmates were released. Tragically, 95 inmates died before the burdensome process could be completed.

Assembly Bill 960 streamlines California’s compassionate release program, expanding eligibility and simplifying the process. AB 960 also creates a presumption in favor of resentencing in certain situations and requires that inmates be provided the assistance of an attorney throughout the process. These are expanded upon in greater detail below.

Under AB 960, an inmate is eligible for compassionate release if they meet one of the two criteria:

• The inmate has a serious and advanced illness with an end-of-life trajectory, or
• The inmate is permanently medically incapacitated.

These criteria are significantly broader than they were under the previous compassionate release program. For example, no longer does an inmate need to prove that their medical condition will result in their death within 12 months to qualify. Similarly, AB 960 loosens the definition of “permanently medically disabled” by clarifying that an inmate is “permanently medically disabled” if they are unable to complete basic activities of daily living, including, but not limited to, bathing, eating, dressing, toileting, transferring, and ambulation. The law also explicitly includes progressive end-stage dementia and removes the requirement that an inmate requires 24-hour care to qualify for relief.

Assembly Bill 960 also creates a presumption that an inmate is entitled to compassionate release if they meet the above criteria. This presumption can only be overcome by the State if the prosecution is able to prove that the inmate is an “unreasonable risk of danger to public safety.”

The new law will also make seeking compassionate release easier for inmates than it previously was. For example, AB 960 requires any CDCR physician to notify the chief medical executive of the facility if they determine that an inmate suffers from a serious and advanced illness with an end-of-life trajectory or has a medical condition that renders them permanently medically incapacitated. If the chief medical executive agrees, they must notify the warden within 48 hours, who must then inform the inmate or their family of the compassionate release program. Additionally, AB 960 requires the court to hold a hearing within ten days of receiving a recommendation from the CDCR. Inmates and their loved ones are also able to initiate this process on their own by contacting the chief medical executive at the inmate’s facility.

Compassionate release is available to all inmates, regardless of their original sentence. The only exception involved inmates who were convicted of first-degree murder of a peace officer. However, even here, this prohibition only applies in two situations:

1. The inmate killed a peace officer during the commission of the officer’s duties, and the inmate knew or should have known that the person was a peace officer.
2. The inmate killed a peace officer or former peace officer in retaliation for performing their official duties.

All other inmates, even those with LWOP sentences and death-sentenced inmates, are eligible for compassionate release.

To qualify for compassionate release, an inmate does not need to establish that they have engaged in rehabilitative programming. However, as with any form of discretionary resentencing relief, having a strong history of pursuing education, taking self-help courses, and having a history of being a productive worker can be very helpful. That said, rehabilitative efforts do not affect an inmate's eligibility, strictly speaking, because eligibility is only based on an inmate’s health. But to the extent that an inmate is respected among fellow inmates and correctional staff, it will only serve to help them in their pursuit of relief.

If you are serving a lengthy prison sentence and you suffer from a terminal or incapacitating medical condition, the newly revamped compassionate release program may offer a form of relief. The dedicated, compassionate release lawyers at Power Trial Lawyers have experience successfully pursuing resentencing relief on behalf of California inmates.

To learn more, and to schedule a free and no-obligation consultation with one of our attorneys at Power Trial Lawyers, give us a call at 213-863-5300. You can also connect with us through our secure online contact form.