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 AB 438 Page 2 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 AB 438 Page 3 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 AB 438 Page 4 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 AB 438 Page 5 end of the diversion period. Analysis Prepared by : Geoff Long / APPR. / (916) 319-2081