BILL ANALYSIS
AB 438
Page 1
Date of Hearing: April 28, 2009
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 438 (Beall) - As Amended: April 21, 2009
SUMMARY : Expands the cognitive developmental disabilities
diversion program to include non-violent and non-serious
felonies, and deletes the exclusion for persons previously
diverted. Specifically, this bill :
1)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 accused of an
offense charged as or reduced to a non-violent felony.
a) Defines "non-violent felony" as any felony that is not a
"violent felony" as defined in Penal Code Section 667.5(c)
or a "serious felony" as defined in Penal Code Section
1192.7(c) or Section 1192.8 (these offenses in these
sections are also known as "strikes").
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.
2)By July 1, 2010, the Department of Developmental Services
(DDS) shall 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. The task force shall include representation
from regional centers, the judicial council, probation
offices, public defenders, district attorneys, school
AB 438
Page 2
districts, local law enforcement, county mental health,
community service providers, regional center clients and their
families, and disability and juvenile justice advocacy
organizations. The task force, overall, shall include
geographically diverse participation from both large and small
counties. The task force may form separate subcommittees,
focusing on adults and juveniles. The task force shall meet
in a manner and as often as the department determines to be
appropriate, consistent with the goals of the task force and
the availability of funds.
a) States that the task force shall address issues
including, but not limited to, strategies and best
practices related to the accomplishment of all of the
following:
i) Early identification and assessment of people with
developmental disabilities in the criminal and juvenile
justice process.
ii) Development of protocols and procedures for ongoing
communication and cooperation between regional centers
and other local agencies, including law enforcement and
the courts.
iii) Training of jail and court personnel, including
judges, public defenders, district attorneys, and
probation officers, on issues related to people with
developmental disabilities and available community
resources.
b) Provides that the task force shall also 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 service needs, and recommendations for
addressing identified systemic barriers.
c) States that one focus of the task force shall be
identifying barriers to and needed services for serving in
community settings individuals who have been determined to
be incompetent to stand trial. This shall include
exploring approaches used in other states, assessing the
need for new licensing categories, and recommending, as
appropriate, alternative and innovative service delivery
AB 438
Page 3
models, including secure community treatment options, for
individuals charged with serious or violent felonies.
d) Specifies that as appropriate, the task force shall
develop model training curricula and model memoranda of
understanding between regional centers and the courts and
other local agencies.
e) States that the task force shall issue interim reports
to the Legislature on the progress of its work by July 1,
2011, and July 1, 2012. The task force shall complete its
work and issue a final report to the Legislature by June
30, 2013. The final report shall include a description of
best practices and strategies identified by the task force,
any sample training curricula, materials, and memoranda of
understanding developed by the task force, and
recommendations for future action, including legislative
recommendations related to adults and youth in the criminal
and juvenile justice systems.
f) Specifies that this section shall become inoperative on
July 1, 2013, and, as of January 1, 2014, is repealed,
unless a later enacted statute, that becomes operative on
or before January 1, 2014, deletes or extends the dates on
which it becomes inoperative and is repealed.
EXISTING LAW :
1)Establishes 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: (Penal
Code Sections 1001.20 et seq.)
a) Defines "cognitive developmental disability" as 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.
(Penal Code Section 1001.20.)
b) Defines "diversion-related treatment and habilitation"
to include specialized services or special adaptations of
generic services, directed towards the alleviation of
AB 438
Page 4
cognitive developmental disability or towards social,
personal, physical, or economic habilitation or
rehabilitation of an individual with a cognitive
developmental disability. (Penal Code Section 1001.20.)
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.
(Penal Code Section 1001.22.)
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. (Penal Code Section 1001.22.)
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 two years. The court has the authority to
either amend the diversion program or reinstate criminal
proceedings after conducting a hearing. (Penal Code
Section 1001.22.)
f) Provides that if the person diverted has performed
satisfactorily, the criminal charges shall be dismissed at
the end of the diversion period. (Penal Code Section
1001.31.)
g) Provides that diversion is not authorized if the
individual had previously been diverted within the prior
AB 438
Page 5
two years. (Penal Code Section 1001.21.)
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. (Penal Code Section 1001.21.)
2)Establishes procedures 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. (Penal Code Sections 1370.1 and 1370.4.)
3)Establishes procedures, including, 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. (Welfare and Institutions Code Section
6500 et seq.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Jails and
prisons are not appropriate places for many people accused of
non-violent 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 address the problem by enabling
such individuals 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 will make appropriate treatment and habilitation
available to more people with cognitive developmental
disabilities by authorizing courts to consider diversion for
persons accused of non-violent felonies. The court would base
AB 438
Page 6
any order on the totality of the circumstances and input from
reports submitted pursuant to the diversion statutes.
"AB 438 also establishes 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 make
recommendations that will ultimately result in sensible and
less costly approaches to serving people with cognitive
developmental disabilities, both to their benefit and the
benefit of the state and their communities as a whole."
2)Background : According to the background provided by the
author, "[p]eople with cognitive developmental disabilities
often end up in the juvenile or criminal justice system who
would be better served by being provided with habilitation and
treatment programs, rather than ending up in jails and
prisons. Such programs are not only likely to be less costly
than jails and prisons, they can also reduce recidivism and
protect such individuals from being victimized in penal
facilities.
"Service models exist that can address the needs of people
with cognitive developmental disabilities who become involved
in the juvenile or criminal justice system that provide
cost-effective alternatives to incarceration in jails and
prisons. But such services are often unavailable. They may
exist in the state but be in short supply. There may be
licensing or other barriers to their development. There may
be inadequate coordination among agencies - including service
agencies for people with developmental disabilities and the
judicial system.
"The bill was amended to delete provisions that would arguably
have resulted in significant costs. It was also amended in
response to concerns raised by the California District
Attorneys Association that it would extend eligibility to
individuals who had committed 'serious' felonies, which are
often violent in nature. Eligibility has been narrowed to
exclude persons accused of both violent and serious felonies.
The CDAA's remaining concerns relate to more general issues
they have with the diversion program as it exists in current
law rather than, specifically, to provisions of AB 438."
AB 438
Page 7
3)Expansion of Diversion : 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 charged with non-violent
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 non-violent felonies includes some sex offenses
not on the statutory list of violent felonies. This, CDAA
argues, "is an unwarranted, overbroad, and dangerous
expansion." The author has amended this bill to exclude not
only individuals charged with violent felonies but also
individuals charged with "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) from eligibility
from diversion.
This bill also deletes the current restriction on eligibility
for diversion of individuals who have 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.
AB 438
Page 8
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 that 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.
4)Argument in Support : According to Disability Rights
California , "AB 438 is a positive measure that is beneficial
to the criminal justice system, the public, and individuals
with cognitive development disabilities. The measure would
reduce the growing jail population and provide appropriate,
effective treatment alternatives to incarceration for persons
with cognitive developmental disabilities charged with
nonviolent offenses.
"Expanding the diversion process to persons who have committed
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.
"Eliminating the automatic exclusion of defendants who have
been diverted during the past two years allows courts to
exercise judicial discretion in the matter and to determine,
based on the overall circumstances reflected in the reports,
whether or not the defendant could benefit from a diversion
program. A court could find, for example, that additional or
different diversionary supports and services are available
which would warrant a finding that an individual would benefit
from diversion despite the fact that they reoffended within
two years of a previous diversion.
"Furthermore, this bill results in no additional costs in
terms of assessment or reporting costs. This is because,
under current law, the court must, subject to the individual's
consent, order the regional center, probation department, and
prosecutor to prepare reports on any individual who the court
suspects has a cognitive development disability.
AB 438
Page 9
"Finally, the data collection and sharing and
multidisciplinary task force provisions of this bill would
increase interagency collaboration, result in the
developmental and dissemination of best practices,
recommendations for future action and how to reduce costs, and
lead to better outcomes for individuals with cognitive
developmental disabilities at a cost savings to the systems
that serve them."
5)Argument in Opposition: According to the California District
Attorneys Association , "[a]s you know, this bill greatly
expands eligibility for an existing diversion program for a
person with a cognitive developmental disability.
Specifically, the existing disqualification for a person who
previously had been diverted pursuant to the program within
two years prior to the current criminal proceedings is
eliminated. Additionally, the bill provides that the
diversion program would be open to any person alleged to have
committed an offense that is charged as, or reduced to, a
misdemeanor or nonviolent felony, whereas only offenses
charged as, or reduced to, a misdemeanor qualify a defendant
for participation currently.
"We understand the rationale for this type of diversion
program, but the bill's proposed expansion causes great
concern. Allowing persons alleged to have committed a sex
offense or any felony that is not on the statutory list of
violent felonies is an unwarranted, overbroad, and dangerous
expansion.
"This bill generates further concern when considered in the
context of the other features of the program. Specifically,
the guidelines for the existing diversion program fail to
include a requirement that a person who is to be diverted
plead guilty to the offense with the understanding that
successful completion of the program/treatment will result in
the dismissal of the charge. Additionally, there is no
requirement that the cognitive developmental disability must
be shown to be the reason for, or even a contributing factor
to, the commitment of the offense."
6)Prior Legislation : AB 1956 (Wolk), Statutes of 2004, Chapter
290, expanded the scope of the existing misdemeanor diversion
program for mentally retarded defendants.
AB 438
Page 10
REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State, County and Municipal Employees
Arc of California
Disability Rights California
Drug Policy Alliance
State Council on Disabilities
Opposition
California District Attorneys Association
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744