BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 438
                                                                  Page  1

          Date of Hearing:   May 13, 2009

                        ASSEMBLY COMMITTEE ON APPROPRIATIONS
                                Kevin De Leon, Chair

                    AB 438 (Beall) - As Amended:  April 21, 2009 

          Policy Committee:                              Public  
          SafetyVote:  5-2
                                           Human Services     4-2

          Urgency:     No                   State Mandated Local Program:  
          No     Reimbursable:              

           SUMMARY  

          This bill:

          1)Expands the cognitive developmental disabilities diversion  
            program from misdemeanants to non-violent and non-serious  
            felons, deletes the exclusion for persons previously diverted,  
            and repeals the requirement that diversion be available only  
            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 at the time of the  
            charged offense.

          2)Requires the Department of Developmental Services (DDS), by  
            July 1, 2010, to 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 specified broad  
            representation from regional centers, the Judicial Council,  
            probation offices, public defenders, district attorneys,  
            school 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 shall meet in a manner and as  
            often as the department determines to be appropriate,  
            consistent with the specified goals of the task force and the  
            availability of funds.

           FISCAL EFFECT  









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          1)Potential moderate state and local savings, in the range of  
            $300,000, to the extent persons with cognitive disabilities  
            are diverted from state prison to less costly programs and  
            more effective regional center (RC) services. 

            Although the Department of Developmental Services (DDS) does  
            not track the number of RC clients on diversion, they do  
            identify 235 RC-eligible persons in state or local custody as  
            of April 1. Assuming an average per capita state prison cost  
            of $49,000 versus a per capita cost of about $35,000 per year  
            for specialized regional center services, this proposal could  
            save the difference per capita. If 10% of the 235 incarcerated  
            RC-eligibles were diverted from county jail or state prison to  
            RCs, annual savings would be in the range of $320,000. 

            In addition, divertees would be eligible for Medi-Cal, while  
            state prison inmates are not, so medical costs, which can  
            significantly increase state prison per capita costs, would be  
            less. 
            Finally, to the extent regional center programs prove more  
            effective than state prison for these individuals, and lead to  
            reduced recidivism rates, there is the potential for out-year  
            savings as well. 

          2)Annual costs for the task force would likely be in the range  
            of $150,000 for staffing, given the breadth and specificity of  
            the charge, the need for highly technical advice and legal  
            counsel, and three annual reports.  
           
          COMMENTS

          1)Rationale.  The intent of the author is to provide a  
            cost-effective and program-effective alternative to state  
            prison for offenders with a cognitive developmental  
            disability.

            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  








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            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  
            any order on the totality of the circumstances and input from  
            reports submitted pursuant to the diversion statutes."

           2)Support.  According to Disability Rights California, "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."

           3)Opposition  .  According to the California District Attorneys  
            Association, "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?  

            "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."   
             
           4)Current law provides for the diversion of persons with  








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            cognitive developmental disabilities in the criminal justice  
            system for offenses which are charged as, or reduced to, a  
            misdemeanor.  

             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.

             b)   Defines "diversion-related treatment and habilitation"  
               to include specialized services or special adaptations of  
               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.  

             d)   Provides that if the regional center determines a  
               defendant does not have a cognitive developmental  
               disability, criminal proceedings proceed. If the defendant  
               is found to have a cognitive developmental disability and  
               is eligible for regional center services, the defendant may  
               be diverted for a period of up to two years. The court has  
               the authority to amend the diversion program or reinstate  
               criminal proceedings after conducting a hearing.

             e)   Requires that if the diverted person performs  
               satisfactorily, the criminal charges are dismissed at the  








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               end of the diversion period.


           Analysis Prepared by  :    Geoff Long / APPR. / (916) 319-2081