BILL ANALYSIS AB 438 Page 1 Date of Hearing: April 14, 2009 ASSEMBLY COMMITTEE ON HUMAN SERVICES Jim Beall, Jr., Chair AB 438 (Beall) - As Introduced: February 24, 2009 SUBJECT : Persons with developmental disabilities: criminal and juvenile justice systems SUMMARY : Implements several measures to promote the provision of community services, as appropriate, to people with developmental disabilities who become involved in the criminal and juvenile justice systems. Specifically, this bill : 1)Requires that, by July 1, 2010, the state Department of Developmental Services (DDS) and the California Department of Corrections and Rehabilitation (CDCR) enter into an interagency agreement for the sharing of information and data to ensure timely planning for the provision of services to individuals with developmental disabilities served by DDS and regional centers upon release from a facility or program operated by CDCR. a) Provides that the interagency agreement between DDS and CDCR include a protocol and procedures by which regularly updated information and data on adults and juveniles served by CDCR be shared with DDS. The aggregate information must include: i) The number of individuals with identified developmental disabilities or who are believed to have developmental disabilities residing in each CDCR-operated facility; and, ii) The number of those individuals who are known to be clients of a regional center and, for these individuals, the number and age breakdown by regional center. b) Requires that the interagency agreement include a protocol for notice by CDCR to the appropriate regional center of the anticipated release dates of person with developmental disabilities. c) Provides that nothing in the requirements for an interagency agreement between CDCR and DDS shall be AB 438 Page 2 construed to alter the requirements for the disclosure of confidential information and records in existing law, including Section 4514 of the Welfare & Institutions Code. 2)Authorizes a court to order that a diversion program be implemented in the case of a person with a developmental disability otherwise eligible for diversion who is accused of an offense that is charged as or reduced to a nonviolent felony. a) Defines "nonviolent felony" to mean any felony that is not a "violent felony" as defined in Section 667.5(c) of the Penal Code. b) Repeals the requirement that diversion is not available if the person had been diverted within two years prior to the present criminal proceedings. c) Repeals the requirement that diversion only be available to a person with autism, or a person with a condition similar to mental retardation or requiring similar treatment, if the person was a client of a regional center for individuals with developmental disabilities at the time of the charged offense. 3)Provides that existing procedures to prevent state developmental center placements when a regional center determines or is informed that an individual's community placement is at risk of failing and admittance to a state developmental center is a likelihood, shall also apply to individuals whose current placement pursuant to Penal Code 1370.1 (incompetent to stand trial) is due to end if the person is then at risk either of being placed in, or of continued placement in, a state developmental center. 4)Requires that, by July 1, 2010, DDS convene a task force to identify strategies and best practices for local interagency coordination and cooperation in addressing the needs of adults and juveniles with developmental disabilities in the criminal and juvenile justice systems. a) Requires that the task force membership include representation from regional centers, the judicial council, probation offices, public defenders, district attorneys, school districts, local law enforcement, county mental AB 438 Page 3 health, community service providers, regional center clients and their families, and disability and juvenile justice advocacy organizations. b) Requires that the task force include geographically diverse participation, from large and small counties. c) Authorizes the task force to form separate subcommittees, focusing on adults and juveniles. d) Provides that the task force shall meet in a manner and as often as DDS determines to be appropriate, consistent with the goals of the task force and the availability of funds. e) Requires that the task force address issues including strategies and best practices related to the following: i) Early identification and assessment of people with developmental disabilities in the criminal and juvenile justice processes; ii) Development of protocols and procedures for ongoing communication and cooperation between regional centers and other local agencies, including law enforcement and the courts; and, iii) Training of jail and court personnel on issues related to people with developmental disabilities and available community resources. f) Requires the task force to identify systemic barriers to serving people with developmental disabilities in community-based settings instead of jails and prisons, including licensing barriers and community resource and services needs, and recommendations for addressing systemic barriers. g) Requires the task force, as appropriate, to develop model training curricula and model memoranda of understanding between regional centers and the courts and other local agencies. h) Requires that the task force issue interim reports to the Legislature on July 1, 2011, and July 1 2012, and shall AB 438 Page 4 complete its work and issue a final report by June 30, 2013. i) Provides that the section related to the task force shall become inoperative on July 1, 2013 and will sunset on January 1, 2014 unless a later enacted statute deletes or extends those dates. EXISTING LAW 1)Establishes the Lanterman Developmental Disabilities Services Act, under which DDS contracts with 21 private non-profit regional centers to provide case management services and arrange for, or purchase, services that meet the needs of individuals with developmental disabilities. Under the Lanterman Act: a) Specifies legislative intent that people with developmental disabilities have rights, including a right to services and supports in the least restrictive environment. b) Provides that an array of services and supports should be established that is sufficiently complete to meet the needs and choices of each person with developmental disabilities, regardless of age or degree of disability, to support their integration into the mainstream life of the community. 2)Establishes, under the Penal Code (Sections 1001.20 - 1001.34), a process for the diversion of persons with cognitive developmental disabilities in the criminal justice system for offenses which are charged as, or reduced to, a misdemeanor. For purposes of the diversion process: a) Defines "cognitive developmental disability" to mean: mental retardation; autism; or disabling conditions found to be closely related to mental retardation or autism or that require treatment similar to that required for individuals with mental retardation or autism, and that would qualify an individual for services provided under the Lanterman Act. b) Defines "diversion-related treatment and habilitation" to include specialized services or special adaptations of AB 438 Page 5 generic services, directed towards the alleviation of cognitive developmental disability or towards social, personal, physical, or economic habilitation or rehabilitation of an individual with a cognitive developmental disability. c) Requires the court to consult with the prosecutor, defense counsel, probation department, and the appropriate regional center in order to determine whether a defendant may be diverted. When the court suspects that a defendant may have a cognitive developmental disability, and the defendant consents to the diversion process and to his or her case being evaluated for eligibility for regional center services, and waives his or her right to a speedy trial, the court must order the prosecutor, the probation department, and the regional center to prepare specified reports. The regional center's report must determine whether the defendant has a cognitive developmental disability and a proposed diversion program, individually tailored to the needs of the defendant, as specified. d) Requires the prosecutor to submit a report, as specified. If the prosecutor recommends against diversion, the report must include a written declaration explaining the reasons. The court determines whether the defendant should be diverted. e) Provides that if the regional center determines that the defendant does not have a cognitive developmental disability, the criminal proceedings for the offense charged shall proceed. If the defendant is found to have a cognitive developmental disability and to be eligible for regional center services, he or she may be diverted for a period of up to 2 years. The court has the authority to either amend the diversion program or reinstate criminal proceedings after conducting a hearing. f) Provides that if the person diverted has performed satisfactorily, the criminal charges shall be dismissed at the end of the diversion period. g) Provides that diversion is not authorized if the individual had previously been diverted within the prior two years. AB 438 Page 6 h) Provides that an individual with autism, or a condition similar to mental retardation or requiring similar treatment, is eligible for diversion only if he or she was a regional center client at the time of the charged offense. 3)Requires that a regional center that either determines or is informed that the community placement of a consumer is at risk of failing and that admittance to a state developmental center is a likelihood, immediately begin a process (referred to as "deflection") to conduct an assessment of the situation, determine barriers to successful integration, and recommend the most appropriate means to assist the consumer to remain in the community. 4)Establishes procedures under Penal Code Sections 1370.1 and 1370.4 for determining whether a criminal defendant with a developmental disability is incompetent to stand trial (IST) and, in such instances, for confining the individual in a state developmental center or other appropriate facility for purposes of receiving competency training. 5)Establishes procedures, including under Welfare and Institutions Code Section 6500 et seq ., for the involuntary civil commitment to a developmental center or other appropriate facility of individuals with developmental disabilities who do not become competent to stand trial following confinement under the IST provisions and who are found to be dangerous to themselves or others. FISCAL EFFECT : Unknown COMMENTS : Background : According to the author, "Jails and prisons are not appropriate places for many people accused of nonviolent crimes whose conduct, while not conforming to the law, is primarily related to a cognitive developmental disability. The alternative of providing appropriate treatment and habilitation can enable them to learn the skills necessary to be productive members of the community--benefiting not only those individuals but also society as a whole by both addressing the conduct and avoiding costly and, often, repeated incarceration in grossly overcrowded jails and prisons." AB 438 Page 7 A 2002 report prepared by the Association of Regional Center Agencies' Forensic Committee (ARCA Report) noted that people with developmental disabilities who get involved with the criminal justice system are at a distinct disadvantage, whether or not they actually committed a crime. They are more suggestible and, therefore, more vulnerable to the pressures of interrogation. They are more likely to endure poor treatment and suffer abuse. The recidivism rate is higher than for other offenders. The ARCA Report cited estimates that somewhere between 2% and 10% of the jail and prison population are people with developmental disabilities. A report of the California Policy Research Center, University of California, identified a long list of factors that appear to explain the high prevalence of people with developmental disabilities in the justice system. Among these are: Lack of training on developmental disabilities by police officers, judges and lawyers; the increased likelihood of people with developmental disabilities being convicted and receiving longer sentences than offenders without disabilities; the inability of people with developmental disabilities to make bail; and their inability to finish programs required for parole consideration. Petersilia, J., Doing Justice? Criminal Offenders with Developmental Disabilities (2000). In its analysis of the 2009-10 budget, the Legislative Analyst's Office (LAO) noted that "[s]ince corrections expenditures make up 10 percent of the state's total General Fund budget, it is reasonable for the Legislature to consider reducing CDCR's budget to help address the state's current massive General Fund shortfall." 2009-10 Budget Analysis Series: Judicial and Criminal Justice , p. CJ-12. Among the strategies discussed by the LAO is to divert lower-risk offenders to community-based programs, which would result in considerable cost savings. Id . at CJ-17. Interagency collaboration : The ARCA Report contained a number of recommendations, some of which are reflected in this bill. For example, the report concluded that "[i]nteragency collaboration is necessary to address the multi-faceted issues facing the forensically involved population. Participating organizations and systems need to develop inter-agency agreements to share client data, resources, expertise; develop and expand resources; engage in advocacy and cross training." This bill addresses interagency collaboration in two ways. AB 438 Page 8 First, it requires DDS and CDCR to develop an interagency agreement, including protocols to share data, that will facilitate planning for the provision of appropriate services and supports for incarcerated individuals after they are returned to the community. This bill also requires DDS to establish an inter-agency task force to identify strategies and best practices for local interagency coordination and cooperation in addressing the needs of adults and juveniles with developmental disabilities in the criminal and juvenile justice systems. The task force will focus on issues including early identification and assessment of people with developmental disabilities in the criminal and juvenile justice processes; development of protocols and procedures for ongoing communication and cooperation between regional centers and other local agencies, including law enforcement and the courts; and, training of jail and court personnel on issues related to people with developmental disabilities and available community resources. The task force will annually report on its work to the Legislature prior to January 1, 2014, when the provision will sunset. Expansion of diversion : The ARCA Report recommended expanding the diversion statute to give judges discretion to order diversion for non-violent felonies. This bill authorizes the court to order diversion for such individuals. Disability Rights California (DRC) states, in supporting the bill, that expanding diversion to persons who have been charged with nonviolent felonies "strikes a good balance between the interest in public safety and the interest in diverting persons with cognitive disabilities from the criminal justice and juvenile justice systems whose needs for rehabilitation and treatment cannot be adequately met within these systems. In addition, it is also likely to result in significant cost savings by reducing the population of prisons, jails, and juvenile halls." In opposing the expansion of diversion, the California District Attorneys Association (CDAA) argues that the expansion to nonviolent felonies would include some sex offenses that are not on the statutory list of violent felonies. This, CDAA argues, "is an unwarranted, overbroad, and dangerous expansion." The author has indicated that he will consider amending the bill to exclude from eligibility for diversion, not only individuals charged with violent felonies but also individuals charged with AB 438 Page 9 "serious felonies" within the meaning of Penal Code Sections 1192.7(c) and 1192.8, which would include sex offenses that are defined as serious, even if not within the definition of a violent felony. This bill also deletes the current restriction on eligibility for diversion of individuals who had already participated in a diversion program within the preceding two years. DRC, in supporting the elimination of the automatic exclusion of persons who have been diverted in the prior two years, says that this "allows courts to exercise judicial discretion in the matter and to determine, based on the overall circumstances reflected in the report, whether or not the defendant could benefit from a diversion program. In addition, this bill deletes the provision in current law that denies eligibility for diversion to certain individuals with cognitive developmental disabilities--individuals with autism, individuals with a disabling condition similar to mental retardation, and individuals with treatment needs similar to that required for individuals with mental retardation--unless the individual was a client of a regional center at the time of the charged offense. No such exclusion exists in current law for persons with mental retardation. The author argues that it does not make sense from a policy standpoint to disallow diversion to some individuals with cognitive developmental disabilities merely because they had not been receiving regional center services at the time of the charged offense. In fact, the author argues, the fact that they have a cognitive developmental disability but were not receiving appropriate services is a factor in favor of providing habilitation services instead of imprisonment. Expansion of deflection process : The so-called "deflection" process of Welfare and Institutions Code Section 4418.7 utilizes the resources of the state's regional resource development projects to prevent developmental center placement of individuals whose community placements are at risk of failing and for whom developmental center admission is a likelihood. This bill would provide that the same process is to be utilized for individuals whose confinement under IST provisions is about to end and who are then at risk of developmental center placement. It would apply the process not only to those at risk of being placed in a developmental center if they currently reside in a community program, but also, for those currently AB 438 Page 10 residing in a developmental center, at risk of continued confinement in a developmental center when their IST commitment ends through an involuntary civil commitment process. This provision is consistent with the intent of the Lanterman Act that people with developmental disabilities receive services in the least restrictive environment. DOUBLE REFERRAL : This bill has been double-referred. Should this bill pass out of this committee, it will be referred to the Assembly Public Safety Committee. REGISTERED SUPPORT / OPPOSITION : Support American Federation of State, County and Municipal Employees (AFSCME) Disability Rights California Opposition California District Attorneys Association Analysis Prepared by : Eric Gelber / HUM. S. / (916) 319-2089