BILL ANALYSIS
SENATE HUMAN
SERVICES COMMITTEE
Senator Carol Liu, Chair
BILL NO: AB 438
A
AUTHOR: Beall
B
VERSION: April 21, 2009
HEARING DATE: June 9, 2009
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FISCAL: To Public Safety and Appropriations
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CONSULTANT:
Hailey
SUBJECT
Persons with developmental disabilities: criminal
proceedings: diversion
SUMMARY
Provides for diversion to community services, as
appropriate, of people with developmental disabilities who
become involved in the criminal and juvenile justice
systems.
ABSTRACT
Current law
1)Establishes the Lanterman Developmental Disabilities
Services Act, under which the State Department of
Developmental Services (DDS) contracts with 21 private
non-profit regional centers 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
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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 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. For purposes of the diversion
process:
a) Defines "cognitive developmental disability" to
mean: 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
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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.
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.
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.
f) Provides that if the person diverted has performed
satisfactorily, the criminal charges shall be
dismissed at the end of the diversion period.
g) Provides that diversion is not authorized if the
individual had previously been diverted within the
prior two years.
h) Provides that an individual with autism or with 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.
3)Requires that a regional center that either determines or
is informed that the community placement of a consumer is
at risk of failing and that admittance to a state
developmental center is a likelihood, immediately begin a
process (referred to as "deflection") to conduct an
assessment of the situation, determine barriers to
successful integration, and recommend the most
appropriate means to assist the consumer to remain in the
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community.
4)Establishes procedures under Penal Code Sections 1370.1
and 1370.4 for determining whether a criminal defendant
with a developmental disability is incompetent to stand
trial and, in such instances, for confining the
individual in a state developmental center or other
appropriate facility for purposes of receiving competency
training.
5)Establishes procedures, including under Welfare and
Institutions Code Section 6500 et seq ., 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
incompetent-to-stand-trial provisions and who are found
to be dangerous to themselves or others.
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 who is
accused of an offense that is charged as or reduced to a
nonviolent felony.
a) Defines "nonviolent felony" to mean any felony that
is not a "violent felony" as defined in subdivision
(c) of Section 667.5 of the Penal Code or not a
"serious felony" as defined in subdivision (c) of
Section 1192.7 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.
c) Repeals the requirement that diversion only be
available to a person with autism or to 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)Requires that, by July 1, 2010, DDS convene a task force
to identify strategies and best practices for local
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interagency coordination and cooperation in addressing
the needs of adults and juveniles with developmental
disabilities in the criminal and juvenile justice
systems.
a) Requires that the task force membership include
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.
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 developmental disabilities in the criminal and
juvenile justice processes;
ii) Development of protocols and procedures for
ongoing communication and cooperation between
regional centers 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 identify systemic
barriers to serving people with developmental
disabilities in community-based settings instead of
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jails and prisons, including licensing barriers and
community resource and services needs, and
recommendations for addressing systemic barriers.
g) Requires the task force, as appropriate, to develop
model training curricula and model memoranda of
understanding between regional centers and the courts
and other local agencies.
h) Requires that the task force issue interim reports
to the Legislature on July 1, 2011, and July 1 2012,
and shall complete its work and issue a final report
by June 30, 2013.
3) 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.
FISCAL IMPACT
The Assembly Appropriations Committee identifies potential
annual savings of approximately $300,000 to state and local
government as more costly correctional measures are
replaced by regional center services. The committee also
identifies annual costs of $150,000 for DDS to operate a
task force for three years.
BACKGROUND AND DISCUSSION
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 noted that people with
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developmental disabilities who get involved with the
criminal justice system are at a distinct disadvantage,
whether guilty or innocent. They are more suggestible and,
therefore, more vulnerable to the pressures of
interrogation. They are more likely to endure poor
treatment and suffer abuse. The recidivism rate is higher
than for other offenders. The report cited estimates that
somewhere between 2 percent and 10 percent of the jail and
prison population are people with developmental
disabilities.
A report of the California Policy Research Center,
University of California, identified a list of factors that
appear to explain the proportionately higher prevalence of
people with developmental disabilities in the justice
system. Among these are: lack of training on
developmental disabilities by police officers, judges and
lawyers; the increased likelihood of people with
developmental disabilities being convicted and receiving
longer sentences than offenders without disabilities; the
inability of people with developmental disabilities to make
bail; and, their inability to finish programs required for
parole consideration. [Petersilia, J., Doing Justice?
Criminal Offenders with Developmental Disabilities (2000).]
In its analysis of the 2009-10 budget, the Legislative
Analyst (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 the California Department of Corrections and
Rehabilitation'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, on page CJ-17 of their
report, is to divert lower-risk offenders to
community-based programs, which would result in
considerable cost savings.
Interagency collaboration
The Association of Regional Center Agencies' report cited
above contained a number of recommendations, some of which
are reflected in this bill. For example, the report
concluded that "[i]nteragency collaboration is necessary to
address the multi-faceted issues facing the forensically
involved population. Participating organizations and
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systems need to develop inter-agency agreements to share
client data, resources, expertise; develop and expand
resources; engage in advocacy and cross training."
This bill addresses interagency collaboration by requiring
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 regional centers 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.
Expansion of diversion
The regional center agencies' report also recommended
expanding the diversion statute to give judges discretion
to order diversion for non-violent felonies. This bill
authorizes the court to order diversion for such
individuals.
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.
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. The author argues
that it does not make sense from a policy standpoint to
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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, 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.
Previous votes
Assembly Floor 47-31
Assembly Appropriations11-5
Assembly Public Safety 5-2
Assembly Human Services 4-2
Arguments in support
Disability Rights California states 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."
Arguments in opposition
The California District Attorneys Association believes that
no one alleged to have committed a felony or a registerable
sex offense should qualify for diversion. The association
also objects to several features of the current diversion
program, so they oppose the program's expansion: current
law makes no requirement that a person plead guilty before
diversion, makes no requirement that the cognitive
dysfunction be related to the crime in question, and has no
provision disqualifying prospective participants based on
criminal history.
POSITIONS
Support: American Federation of State, County and
Municipal Employees
Disability Rights California
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Drug Policy Alliance Network
Oppose: California District Attorneys Association
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