BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 438
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          ASSEMBLY THIRD READING
          AB 438 (Beall)
          As Amended April 21, 2009
          Majority vote 

           HUMAN SERVICES      4-2         PUBLIC SAFETY       5-2         
           
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          |Ayes:|Beall, Ammiano,           |Ayes:|Solorio, Furutani, Hill,  |
          |     |Portantino, Torres        |     |Ma, Skinner               |
          |     |                          |     |                          |
          |-----+--------------------------+-----+--------------------------|
          |Nays:|Tom Berryhill, Logue      |Nays:|Hagman, Gilmore           |
          |     |                          |     |                          |
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           APPROPRIATIONS      11-5                                        
           
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          |Ayes:|De Leon, Ammiano, Charles  |   |                          |
          |     |Calderon, Davis,           |   |                          |
          |     |Krekorian, Hall, John A.   |   |                          |
          |     |Perez, Price, Skinner,     |   |                          |
          |     |Solorio, Torlakson         |   |                          |
          |     |                           |   |                          |
          |-----+---------------------------+---+--------------------------|
          |Nays:|Nielsen, Duvall, Harkey,   |   |                          |
          |     |Miller,                    |   |                          |
          |     |Audra Strickland           |   |                          |
          |     |                           |   |                          |
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           SUMMARY  :  Implements measures to promote the provision of  
          community services, as appropriate, to people with cognitive  
          developmental disabilities who become involved in the criminal  
          and juvenile justice systems.  Specifically,  this bill  :

          1)Authorizes a court to order that a diversion program be  
            implemented in the case of a person with a cognitive  
            developmental disability otherwise eligible for diversion who  
            is accused of an offense that is charged as or reduced to a  
            nonviolent felony.  This section of the bill:

             a)   Defines "nonviolent felony" to mean any felony that is  
               not a "violent felony" as defined in Section 667.5(c) of  








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               the Penal Code or a "serious felony" as defined in Sections  
               1192.7(c) or 1192.8 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; and,

             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  
               (RC) for individuals with developmental disabilities at the  
               time of the charged offense.

          2)Requires that, by July 1, 2010, the Department of  
            Developmental Services (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 cognitive developmental disabilities in the  
            criminal and juvenile justice systems.  This section of the  
            bill:

             a)   Requires that the task force membership include  
               representation from RCs, the judicial council, probation  
               offices, public defenders, district attorneys, school  
               districts, local law enforcement, county mental health,  
               community service providers, RC 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  








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                 developmental disabilities in the criminal and juvenile  
                 justice processes;

               ii)    Development of protocols and procedures for ongoing  
                 communication and cooperation between RCs 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 do the following:

               i)     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;

               ii)    Identify barriers to, and needed services for,  
                 serving, in community settings, individuals who have been  
                 determined to be incompetent to stand trial. This  
                 includes exploring approaches used in other states,  
                 assessing the need for new licensing categories, and  
                 recommending, as appropriate, alternative and innovative  
                 service delivery models, including, but not limited to,  
                 secure community treatment options, for individuals  
                 arrested for serious or violent felonies;

               iii)   As appropriate, develop model training curricula and  
                 model memoranda of understanding between RCs and the  
                 courts and other local agencies; and,

               iv)    Issue interim reports to the Legislature on July 1,  
                 2011, and July 1 2012, and complete its work and issue a  
                 final report by June 30, 2013.

             g)   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  :









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          1)Establishes the Lanterman Developmental Disabilities Services  
            Act, under which DDS contracts with 21 private non-profit RCs  
            to provide case management services and arrange for, or  
            purchase, services that meet the needs of individuals with  
            developmental disabilities.  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; and,

             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.  

           FISCAL EFFECT  :  According to the Assembly Appropriations  
          Committee analysis:

          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 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 RC 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  








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            significantly increase state prison per capita costs, would be  
            less.  
            Finally, to the extent RC 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  :

           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."

          A 2002 report prepared by the Association of Regional Center  
          Agencies' Forensic Committee (ARCA Report) recommended expanding  
          the diversion statute to give judges discretion to order  
          diversion for non-violent felonies.  

          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.

           Expansion of eligibility for diversion  :  This bill authorizes  
          the court to order diversion for individuals charged with  
          non-violent or non-serious felonies.  It also gives the court  








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          discretion to order diversion of an individual who had been  
          diverted within the prior two years.  

          Of note, this bill does not  require  diversion in any case.  As  
          under current law, diversion "may" be ordered at the discretion  
          of the court for eligible individuals with cognitive  
          developmental disabilities if the court determines that  
          diversion is appropriate and "is acceptable to the court, the  
          prosecutor, the probation department, and the regional center."   
          Penal Code Section 1001.23(a).

          Disability Rights California (DRC) states, in supporting this  
          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.  In response, this  
          bill was amended to exclude from eligibility for diversion, 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.  CDAA continues to oppose this  
          bill; although, its concerns now relate primarily to provisions  
          in existing law.

          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.  








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          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 RC 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 RC 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.

           Interagency task force  :  This bill 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 RCs 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.

           
          Analysis Prepared by  :    Eric Gelber / HUM. S. / (916) 319-2089 


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