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