BILL ANALYSIS AB 438 Page 1 ASSEMBLY THIRD READING AB 438 (Beall) As Amended April 21, 2009 Majority vote HUMAN SERVICES 4-2 PUBLIC SAFETY 5-2 ----------------------------------------------------------------- |Ayes:|Beall, Ammiano, |Ayes:|Solorio, Furutani, Hill, | | |Portantino, Torres | |Ma, Skinner | | | | | | |-----+--------------------------+-----+--------------------------| |Nays:|Tom Berryhill, Logue |Nays:|Hagman, Gilmore | | | | | | ----------------------------------------------------------------- APPROPRIATIONS 11-5 ---------------------------------------------------------------- |Ayes:|De Leon, Ammiano, Charles | | | | |Calderon, Davis, | | | | |Krekorian, Hall, John A. | | | | |Perez, Price, Skinner, | | | | |Solorio, Torlakson | | | | | | | | |-----+---------------------------+---+--------------------------| |Nays:|Nielsen, Duvall, Harkey, | | | | |Miller, | | | | |Audra Strickland | | | | | | | | ---------------------------------------------------------------- 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 AB 438 Page 2 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 AB 438 Page 3 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 : AB 438 Page 4 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 AB 438 Page 5 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 AB 438 Page 6 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. AB 438 Page 7 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 FN: 0000707