MDO commitments and AB 1897: a practitioner's view

California has long had statutory mandates allowing for the civil commitment of any person serving time in prison who meets certain criteria relating to severe mental health conditions and is deemed to present a substantial danger of physical harm to others. The current statutory scheme, codified at California Penal Code sections 2960 to 2981, has been in place for almost exactly 40 years. These rules, collectively known as the Mentally Disordered Offender (MDO) law, were set up to make it easier for California to extend the commitments of people who have been incarcerated for crimes of violence.

To be clear, this means placing people into locked facilities who would otherwise be released from prison on parole. The initial commitment is for the duration of the parole period. Penal Code section 2962. The first determination of MDO status is administrative, although Penal Code section 2966 authorizes a jury trial at this stage if a petition challenging the initial commitment is filed in time.

Although the initial commitment period would normally expire with the end of parole, Penal Code section 2972 allows for the possibility of annual petitions for successive one-year commitments. Cases at this stage are brought by county district attorneys and can result in jury trials. I have personally represented clients at trial who have been held in locked facilities for periods of years that double and triple their original prison terms.

The legislative rationale for the MDO law is two-fold: 1) public safety; and 2) mental health treatment for individuals who fit the commitment criteria. Penal Code section 2960; See also People v. Robinson (1998) 63 Cal.App.4th 348, 352. The basic elements of a prima facie case for MDO commitment are listed in Penal Code section 2962 (See also CALCRIM 3456 and CALCRIM 3457):

1) The "prisoner has a severe mental disorder that is not in remission or cannot be kept in remission without treatment" (§ 2962(a)(1));

2) The disorder caused or aggravated the prisoner's "commission of a crime for which the prisoner was sentenced to prison" (§ 2962(b));

3) The prisoner was treated for the disorder for at least 90 days in the year prior to release on parole (§ 2962(c));

4) Statutorily designated mental health professionals have evaluated the prisoner and certified to the Board that the prisoner meets the above criteria and that because of the mental disorder "the prisoner represents a substantial danger of physical harm to others" (§ 2962 (d)); and

5) The prisoner received a determinate sentence for the predicate crime, and the crime is one of those listed in section 2962(e).

Short of being released entirely from an MDO commitment, the MDO law authorizes outpatient treatment "if the committing court finds that there is reasonable cause to believe that the committed person can be safely and effectively treated on an outpatient basis." Penal Code § 2964. The system set up for this outpatient treatment is the Forensic Conditional Release Program (CONREP), which usually places people in board and care facilities in the community, giving them greater autonomy than a locked hospital setting. While this sounds good in theory, there have been allegations of disturbing problems with CONREP. See, e.g., Christie Thompson, No Driving, No Working, No Dating: Inside A Government Program That Controls The Lives of People Leaving Psych Hospitals, The Marshall Project, Sept. 24, 2021.

A few weeks ago, in February 2026, Assembly Bill 1897 was introduced by a representative from San Francisco. AB 1897 is noteworthy for the two key changes it seeks to make to the current MDO law:  1) it requires the use of a specific forensic criminal risk assessment tool, the Historical Clinical Risk Management-20 (HCR-20) Version 3; and 2) it lowers the element of "substantial danger" simply to a "threat" of physical harm to others in order to effect or maintain a civil MDO commitment. While there may be very good reasons to challenge the statutory mandate of a specific forensic tool like the HCR-20 (See generally, Mayra Reyes, Danger! The Defendant is "Disturbed." Risks of Using Psychiatric Assessments to Predict Future Dangerousness, 17 Conn. Pub. Int. L.J. 141 (2017)), more concerning is the vague concept of "threat" as the entrée to lengthy, and potentially indefinite, civil commitments. This language seems to beg for a constitutional challenge.

Most courts looking at constitutional challenges to statutory schemes like the MDO law ultimately rely on Kansas v. Hendricks (1997) 521 U.S. 346, which upheld a Kansas Sexually Violent Predator (SVP) commitment law because, inter alia, that law "unambiguously" required "a finding of dangerousness either to one's self or to others as a prerequisite to involuntary confinement." Kansas v. Hendricks, 521 U.S. at 357.

This is one of the key requirements for the constitutionality of involuntary commitment statutes. To satisfy due process, an unambiguous finding of dangerousness is necessary. In Kansas v. Hendricks, the language is "likely to engage" in acts of predatory violence. Id. AB 1897 is attempting to strip this important element of its meaning.

In the case of In re Qawi (2004) 32 Cal.4th 1, the California Supreme Court specifically noted that "substantial danger of physical harm to others" is not defined. In re Qawi, 32 Cal.4th at 23. While the court in Qawi was concerned with forcible medication, a comparison was drawn to the rights of individuals in Lanterman-Petris-Short (LPS) conservatorship proceedings pursuant to Welfare and Institution Code section 5300. In rendering its decision in Qawi, the court found that section 5300, "in addition to requiring an assessment of future dangerousness, also requires a finding of recent dangerousness as evidenced by tangible acts or threats of violence." Qawi, id. at 24, emphasis added. The court then went on to hold, for purposes of forced medication, that "the MDO is determined by a court to be a danger to others within the meaning of Welfare and Institutions Code section 5300." Id. at 27. The AB 1987 substitution of "threat" for "substantial danger" violates the rationale in Qawi. To bring it full circle, consider Welfare and Institutions Code section 5008(h)(1)(B), the foundation of the Murphy Conservatorship, which also requires a finding that a person "represents a substantial danger of physical harm to others" before they can be committed. Welfare and InstituCode § 5008(h)(1)(B)(iv). Stripping this language from the MDO law will render it unconstitutional.

Another avenue of challenge may have been recently opened by the case of In re Grinder (2025) 114 Cal.App.5th 845, which upholds the right of habeas corpus to challenge elements of an initial MDO commitment.

So what is the purpose of AB 1897? I see it as a political response to concerns about a very small percentage of people who have been charged with acts of violence that attract public attention. In my experience, one of the persistent problems of government solutions for folks with chronic mental health issues in California is the lack of financial resources for proper care and treatment. What this bill appears to be doing is lessening the government's burden to place people in locked facilities (and making it easier to keep them there indefinitely) after they have already served their time for underlying criminal convictions. However, it does not seem to tackle any solutions for funding care or treatment. In that regard, it makes a good political soundbite without really solving anything. It will also invite litigation that will be a further drain on public coffers and taxpayer resources.

The reality is that an extremely high percentage of criminal defendants in California have serious mental health concerns. The California Department of State Hospitals is already at crisis proportions for involuntary commitments. Changes like those sought by AB 1897, particularly in the absence of solid funding for better mental health care, will only exacerbate existing problems.