BILL ANALYSIS
Senate Appropriations Committee Fiscal Summary
Senator Christine Kehoe, Chair
438 (Beall)
Hearing Date: 08/17/2009 Amended: 04/21/2009
Consultant: Jacqueline Wong-HernandezPolicy Vote: Public Safety
5-2
Human Services
3-2
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BILL SUMMARY: AB 438 expands diversion eligibility for persons
with cognitive disabilities, and requires the Department of
Developmental Services (DDS) to create a task force to identify
strategies and best practices for dealing with persons with
developmental disabilities in the criminal justice system.
Specifically, this bill:
1. 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.
Defines a "non-violent" felony as a felony not listed in
the violent felony list in Penal Code section 667.5, or a
serious felony in section 1192.7, or 1192.8.
2. Deletes the current requirement 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.
3. Requires that, by July 1, 2010, 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 developmental
disabilities in the criminal and juvenile justice systems.
Requires that the task force include representation from
regional centers, Judicial Council, probation offices,
public defenders, district attorneys, school districts,
local law enforcement, county mental health, and other
stakeholders.
4. 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: (A) early identification and assessment of
people with developmental disabilities in the criminal and
juvenile justice process; (B) development of protocols and
procedures for ongoing communication and cooperation
between regional centers and other local agencies,
including law enforcement and the courts; and (C) training
of jail and court personnel on issues related to people
with developmental disabilities and available community
resources.
5. Requires the task force to identify systemic barriers to
serving people with developmental disabilities in
community-based settings instead of jails and prisons, and
make recommendations for addressing identified systemic
barriers. Requires the task force shall develop model
training curricula and model memoranda of understanding
(MOU) between regional centers, the courts and other local
agencies.
6. Requires the task force to issue interim reports to the
Legislature its progress by July 1, 2011, and July 1, 2012,
and a final report 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.
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AB 438 (Beall)
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Fiscal Impact (in thousands)
Major Provisions 2009-10 2010-11
2011-12 Fund
Increased eligibility testing Unknown,
potentially significant costs General
Increased diversions Unknown,
potentially substantial costs General
Decreased CDCR population Potential savings, offset by
diversion costs* General
New task force $65
$130 $130 General
Substantial ongoing cost pressure
Court costs Unknown,
likely minor court costs General**
Potential savings, to the extent that
trials are averted
*Diversion costs will likely exceed CDCR savings.
**Trial Courts Trust Fund
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STAFF COMMENTS: This bill meets the criteria for referral to the
Suspense File.
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. Existing law defines
"diversion-related treatment and habilitation" to include
specialized services or special adaptations of generic services,
directed toward the alleviation 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 provides for possible diversion to a Regional
Center treatment program in lieu of jail time in misdemeanor
cases 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. The
prosecutor must 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.
Existing diversion requirements limit eligibility to individuals
charged with (or whose charges were reduced to) a misdemeanor,
who were already Regional Center clients, and who have not been
diverted in the past two years.
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AB 438 (Beall)
This bill expands the eligibility for diversion consideration to
anyone determined to have a specified cognitive developmental
disability who is charged with (or whose charges are reduced to)
a non-violent felony, regardless of whether the defendant has
ever been a Regional Center client, and regardless of whether
the defendant has been diverted in the past two years. This bill
substantially expands the number of defendants eligible to (or
for whom the court or district attorney can) request testing for
a qualifying cognitive developmental disability. The Regional
Centers would be statutorily obligated to complete these
additional assessments and mandatory reports, at a time when
Regional Centers have been cut by more than $334,000,000 General
Fund (in addition to a federal funding reduction) in the 2009-10
State Budget.
The extent to which actual diversions will increase is unknown,
because this specific diversion is a court option rather than a
requirement. Moreover, the court has many options for diverting
defendants, both related to mental health (including state
mental hospitals) and related to specific crimes (such as drug
courts). Diverting felons will save CDCR incarceration costs of
approximately $23,000 per inmate per year*, but that savings
will be offset by treatment received through the Regional
Centers. Those costs include, at a minimum: assessment and
intake, the creation of an individual program plan, lifetime
entitlement to services, and ongoing case management. It is
unclear the extent to which additional clinical and intake staff
may be needed to support an increase of assessments and/or
services.
Regional Center treatment will likely be more expensive than
incarceration, in some cases. Regional Centers determines
appropriate services and placements for individuals with
cognitive developmental disabilities, based on their supervision
and treatment needs. This treatment can include supervised
residential placement in a Community Care Facility (CCF), or
Supportive Living services. It is likely that many individuals
charged with felonies will require more supervision and
treatment services than other people with cognitive disabilities
that may attend day programs or receive occasional services.
Moreover, the court is likely to seek a program with
supervision, since it is functionally "sentencing" the defendant
to that program. According to the Department of Developmental
Services (DDS), CCFs designed for individuals with cognitive
disabilities cost more than $5,000 per individual per month - an
annual cost of more than double incarceration. In 2007, the
average cost of Supported Living services was $49,972, and the
median cost was $26,488. Because the court would order the
defendant to be diverted, the state would be forced to pay these
costs.
This bill requires DDS to create a task force to identify best
practices related to the accomplishment of all of the following:
(a) early identification and assessment of people with
developmental disabilities in the criminal and juvenile justice
process; (b) development of protocols and procedures for ongoing
communication and cooperation between regional centers and other
local agencies, including law enforcement and the courts; and
(c) 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. The task force is also charged
with identifying systemic barriers to serving people with
developmental disabilities in community-based settings instead
of jails and prisons, including licensing barriers and
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AB 438 (Beall)
community resource and service needs, and making recommendations
for addressing identified systemic barriers.
Considering the extent of the work assigned to this new task
force, including the development of protocols and training for
various local agencies, as well as annual reports to the
Legislature, it is likely that DSS will require 1 PY to staff
this task force. DDS has sustained reductions and furloughs, and
cannot absorb the workload associated with duties of this task
force. Furthermore, to the degree that training for local
agencies, model training curricula, procedures and protocols for
agencies' interaction, sample memoranda of understanding, and
recommendations for future action (all of which are provided for
in the provisions of this bill describing task force duties) are
adopted, there will be substantial cost pressure to implement
the recommendations.
*Based on the Legislative Analyst's Office calculation for the
amount of savings yielded be inmate reduction. The often-cited
$49,000 annual cost per inmate is derived by dividing the CDCR
budget by the number of inmates. In releasing/diverting a small
number of inmates, the actual savings is not proportional
throughout the department's budget due to extensive fixed costs.