BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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AB 438 (Beall)
As Amended April 21, 2009
Hearing date: July 7, 2009
Penal Code; Welfare and Institutions Code
MK:mc
PERSONS WITH DEVELOPMENTAL DISABILITIES:
CRIMINAL PROCEEDINGS: DIVERSION
HISTORY
Source: Author
Prior Legislation: None
Support: California Attorneys for Criminal Justice; California
Public Defenders Association; The Arc of California;
The California State Council on Developmental
Disabilities; Drug Policy Alliance; Disability Rights
California; AFSCME; a number of individuals
Opposition:California District Attorneys Association
Assembly Floor Vote: Ayes 47 - Noes 31
KEY ISSUES
SHOULD THE CRIMES FOR WHICH A PERSON WITH COGNITIVE DISABILITIES
MAY BE ELIGIBLE FOR DIVERSION BE EXPANDED TO INCLUDE ANY
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MISDEMEANOR OR NON-VIOLENT FELONY?
(CONTINUED)
SHOULD THE LIMITATION ON DIVERSION FOR PEOPLE WITH AUTISM ONLY IF
THEY ARE A CLIENT OF A REGIONAL CENTER BE ELIMINATED?
SHOULD THE PROHIBITION ON DIVERSION IF THE PERSON HAS BEEN DIVERTED
WITHIN TWO YEARS BE ELIMINATED?
SHOULD A TASK FORCE BE CREATED TO INDENTIFY STRATEGIES FOR
ADDRESSING THE NEEDS OF ADULTS AND JUVENILES WITH DEVELOPMENTAL
DISABILITIES IN THE CRIMINAL AND JUVENILE JUSTICE SYSTEM?
PURPOSE
The purpose of this bill is to expand diversion for persons with
cognitive disabilities and to create a task force to identify
strategies and best practices for dealing with persons with
developmental disabilities in the criminal justice system.
Existing law establishes 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. (Penal Code 1001.20 et seq.)
Existing law defines "cognitive developmental disability" as
mental retardation, autism, or disabling conditions found to be
closely related to mental retardation or autism or that requires
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. (Penal Code
1001.20.)
Existing law defines "diversion-related treatment and
habilitation" to include specialized services or special
adaptations of generic services, directed toward the alleviation
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of cognitive developmental disability or toward social,
personal, physical, or economic habilitation or rehabilitation
of an individual with a cognitive developmental disability.
(Penal Code 1001.20.)
Existing law 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, as specified. (Penal
Code 1001.22.)
Existing law 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. (Penal Code 1001.22.)
Existing law 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. (Penal Code 1001.22.)
Existing law provides that if the person diverted has performed
satisfactorily, the criminal charges shall be dismissed at the
end of the diversion period. (Penal Code 1001.31.)
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Existing law provides that diversion applies to any offense that
is charged as or reduced to a misdemeanor, except that diversion
shall not be ordered when the defendant previously has not been
diverted under this chapter within two years prior to the
present criminal proceedings. However, diversion is not
authorized if the individual had previously been diverted within
the prior two years. (Penal Code 1001.21.)
This bill provides that diversion for persons with cognitive
disabilities will apply to any offense that is charged as or
reduced to a misdemeanor or a non-violent felony.
This bill provides that a "non-violent" felony is a felony not
listed in the violent felony list in Penal Code section 667.5,
or a serious felony in Penal Code section 1192.7, or section
1192.8.
Existing law provides that an individual with autism, or 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.
(Penal Code 1001.21.)
This bill deletes the above criteria for eligibility.
Existing law establishes procedures for determining whether a
criminal defendant with a developmental disability is
incompetent to stand trial (IST) and, in such instances, for
confining the individual in a state developmental center or
other appropriate facility for purposes of receiving competency
training. (Penal Code 1370.1 and 1370.4.)
Existing law establishes procedures, including, 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 IST provisions and who are found
to be dangerous to themselves or others. (Welfare and
Institutions Code 6500 et seq.)
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This bill provides that by July 1, 2010, the Department of
Developmental Services (DDS) shall 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
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, overall, shall include
geographically diverse participation from both large and small
counties. The task force may form separate subcommittees,
focusing on adults and juveniles. The task force shall meet in
a manner and as often as the department determines to be
appropriate, consistent with the goals of the task force and the
availability of funds.
This bill states that the task force shall address issues
including, but not limited to, strategies and best practices
related to the accomplishment of all of the following:
early identification and assessment of people with
developmental disabilities in the criminal and juvenile
justice process;
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, including judges,
public defenders, district attorneys, and probation
officers, on issues related to people with developmental
disabilities and available community resources.
This bill provides that the task force shall also 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
service needs, and recommendations for addressing identified
systemic barriers.
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This bill states that one focus of the task force shall be
identifying barriers to and needed services for serving in
community settings individuals who have been determined to be
incompetent to stand trial. This shall include exploring
approaches used in other states, assessing the need for new
licensing categories, and recommending, as appropriate,
alternative and innovative service delivery models, including
secure community treatment options, for individuals charged with
serious or violent felonies.
This bill specifies that as appropriate, the task force shall
develop model training curricula and model memoranda of
understanding between regional centers and the courts and other
local agencies.
This bill states that the task force shall issue interim reports
to the Legislature on the progress of its work by July 1, 2011,
and July 1, 2012. The task force shall complete its work and
issue a final report to the Legislature by June 30, 2013. The
final report shall include a description of best practices and
strategies identified by the task force, any sample training
curricula, materials, and memoranda of understanding developed
by the task force, and recommendations for future action,
including legislative recommendations related to adults and
youth in the criminal and juvenile justice systems.
This bill specifies that this section shall become inoperative
on July 1, 2013, and, as of January 1, 2014, is repealed, unless
a later enacted statute, that becomes operative on or before
January 1, 2014, deletes or extends the dates on which it
becomes inoperative and is repealed.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
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California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
incarceration.<1>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
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<1> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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. . .
Although the evidence may be less than perfectly
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
period of two or three years.<2>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
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<2> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (Feb. 9, 2009).
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COMMENTS
1. Need for This Bill
According to the author:
People with cognitive developmental disabilities often
end up in the juvenile or criminal justice system who
would be better served by being provided with
habilitation and treatment programs, rather than ending
up in jails and prisons. Such programs are not only
likely to be less costly than jails and prisons, they
can also reduce recidivism and protect such individuals
from being victimized in penal facilities.
Service models exist that can address the needs of
people with cognitive developmental disabilities who
become involved in the juvenile or criminal justice
system that provide cost-effective alternatives to
incarceration in jails and prisons. But such services
are often unavailable. They may exist in the state but
be in short supply. There may be licensing or other
barriers to their development. There may be inadequate
coordination among agencies-including service agencies
for people with developmental disabilities and the
judicial system.
A 2002 report prepared by the Association of Regional
Center Agencies' Forensic Committee noted that people
with developmental disabilities who get involved with
the criminal justice system are at a distinct
disadvantage, whether or not they actually committed a
crime. 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 ARCA Report cited estimates that
somewhere between 2% and 10% of the jail and prison
population are people with developmental disabilities.
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A report of the California Policy Research Center,
University of California, identified a long list of
factors that appear to explain the high 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'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.
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 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 conduct and avoiding costly and,
often, repeated incarceration in grossly overcrowded
jails and prisons.
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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.
AB 438 also establishes 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 make recommendations
that will ultimately result in sensible and less
costly approaches to serving people with cognitive
developmental disabilities, both to their benefit and
the benefit of the state and their communities as a
whole.
2. Diversion for People With Cognitive Disabilities
Existing law creates a pre-plea diversion program for people
with cognitive disabilities. Diversion may apply to any person
who has been charged with a misdemeanor and has been evaluated
by a regional center for the developmentally disabled and who is
determined to be a person with a cognitive developmental
disability by the regional center. Diversion is not available
to the person who has been diverted under the same provisions
within two years or to a person with autism who was not under
the care of a regional center at the time of the offense. When
it is suspected a person may have cognitive disabilities, the
court may consult with the prosecutor, the defense counsel, the
probation department and the appropriate regional center in
order to determine whether a defendant may be diverted. The
court shall order the prosecutor, the probation department and
the regional center to prepare reports on the person's case; and
the Penal Code sets forth the process for making the final
determination whether or not a person is eligible for diversion.
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If the defendant is found to be eligible for diversion, the
court shall determine if the defendant shall be diverted under
either dual or single agency supervision and referred for
habilitation or rehabilitation diversion. If the court does not
deem the defendant a person who would benefit by diversion at
any time of the hearing, the suspended criminal proceedings may
be reinstituted or any other disposition as authorized by law
may be made; and diversion may be ordered at a later date. The
diversion may last no longer than two years. At the end of the
time, if the divertee has performed satisfactorily, all criminal
charges shall be dismissed.
This bill would expand the eligibility to any misdemeanor or
"non-violent felony." A non-violent felony is defined in the
bill as any felony not on the serious or violent lists in the
Penal Code. This bill also removes the limitation that makes a
person ineligible if he or she has been diverted within two
years. It also would remove the limitation that requires a
person with autism to only be eligible for diversion under this
section if he or she is under the care of the regional center at
the time of the offense.
Expanding the list of crimes available for diversion was one of
the suggestions in the 2002 report prepared by the Association
of Regional Center Agencies' Forensic Committee. The report
estimated that between 2 percent and 10 percent of the jail and
prison population at that time were people with developmental
disabilities. Supporters of this bill argue that people with
developmental disabilities have a distinct disadvantage at every
stage of the criminal justice system and do not benefit from
programs in incarceration. Supporters of this bill further
argue that expanding diversion to include these non-violent
offenders better serves both the community and the offenders.
Disability Rights California states:
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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 significance cost savings by
reducing the population of prisons, jails and juvenile
halls.
Eliminating the automatic exclusion of defendants who
have been diverted during the past two years allows
courts to exercise judicial discretion in the matter and
to determine, based on the overall circumstances
reflected in the reports, whether or not the defendant
could benefit from a diversion program. A court could
fine, for example, that additional or different
diversionary supports and services are available which
would warrant a finding that an individual would benefit
from diversion despite the fact that they reoffended
within two years of a previous diversion.
The California District Attorneys Association (CDAA) opposes
this bill arguing that as "a policy matter, the bill's proposed
expansion causes great concern" further stating:
Allowing persons alleged to have committed a
registerable sex offense or any felony that is not on
the statutory lists of violent or serious felons is an
unwarranted and dangerous expansion.
This bill generates further concern when considered in
the context of other features of the program.
Specifically, the guidelines for the existing diversion
protocol fail to include a requirement that person who
is diverted plead guilty to the offense with the
understanding that successful completion of the
program/treatment will result in the dismissal of the
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charge. Additionally, there is not requirement that the
cognitive developmental disability must be shown to be
the reason for, or even a contributing facto to, the
commitment of the offense. Finally, as amended there is
no provision that disqualifies prospective participants
based on criminal history. A person who is otherwise
qualified for the program would remain eligible in spite
of a past replete with violent, serious, and/or sex
offenses.
Despite the concerns of CDAA, this bill does not change the
requirement that the probation department, the prosecutor and
the regional center all prepare reports to the court in helping
make the determination whether or not a person is eligible for
diversion under this Chapter. Clearly a person with a history
of violence or sex offenses would have that background outlined
for the court in the report by both the prosecutor and the
probation department, if not also the regional center which may
not feel comfortable being responsible for the treatment of a
violent sex offender. This bill does not mandate such a person
get diversion, it merely permits it if the court, with input
from the probation department or the prosecutor, find that it is
appropriate for the person under the specific circumstances.
SHOULD THE PROVISIONS ALLOWING FOR PRE-PLEA DIVERSION FOR A
PERSON WITH DEVELOPMENTAL DISABILITIES BE EXPANDED TO INCLUDE
NON-VIOLENT FELONIES?
3. Task Force
The 2002 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 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
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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.
SHOULD THIS TASK FORCE BE CREATED?
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