BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 1351 Hearing Date: July 14, 2015
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|Author: |Eggman |
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|Version: |June 1, 2015 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|JM |
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Subject: Deferred Entry of Judgment: Pretrial Diversion
HISTORY
Source: Drug Policy Alliance
Immigrant Legal Resource Center
Prior Legislation:SB 1369 (Kopp), Chapter 1132, Statutes of 1996
Support: American Civil Liberties Union of California
(Co-Sponsor); Coalition for Humane Immigrant Rights of
Los Angeles (Co-Sponsor); Mexican American Legal
Defense and Education Fund (MALDEF) (Co-Sponsor);
National Council of La Raza (Co-Sponsor); African
Advocacy Network; Asian Americans Advancing Justice -
Asian Law Caucus; Asian Americans Advancing Justice -
L.A. ; Asian Law Alliance; California Attorneys for
Criminal Justice; California Immigrant Policy Center;
California Partnership; California Public Defenders
Association; California Rural Legal Assistance
Foundation; Californians for Safety and Justice;
Californians United for a Responsible Budget; Central
American Resource Center - Los Angeles; Chinese for
Affirmative Action; Community United Against Violence;
Congregations Building Community; Del Sol Group;
Dolores Street Community Services; Faith in Action
Kern County; Friends Committee on Legislation of
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California; Harvey Milk LGBT Democratic Club; Human
Rights Watch; Immigration Action Group; Institute for
Justice; Lawyers' Committee for Civil Rights of the
San Francisco Bay Area; Legal Services for Prisoners
with Children; Los Angeles Regional Reentry
Partnership; Justice Not Jails; MAAC; Mujeres Unidas y
Activas; National Association of Social Workers -
California Chapter; National Day Laborer Organizing
Network; National Immigration Law Center; Pangea Legal
Services; PICO California; Placer People of Faith;
Presente.org; Progressive Christians Uniting; Red
Mexicana de Lideres y Organizaciones Migrantes; Santa
Clara County Public Defender's Office; Silicon Valley
De-Bug; Solutions for Immigrants; William C. Velasquez
Institute; Vital Immigrant Defense Advocacy and
Services (VIDAS); One private individual
Opposition:California District Attorneys Association; California
State Board of Pharmacy;
California State Sheriffs' Association
Assembly Floor Vote: 47 - 30
PURPOSE
The purpose of this bill is to: 1) convert the existing system
of deferred entry of judgment (DEJ) for qualified drug
possession offenders - generally those with no prior convictions
or non-drug current charges - to a true diversion system, under
which eligible defendants are admitted to an education and
treatment program prior to conviction and granted of a dismissal
of the charges upon successful completion of the program; 2)
allow persons previously convicted of a drug possession offense,
or who have previously participated in a diversion or DEJ
program, or those for whom parole or probation has been revoked
may participate in a diversion program; and 3) set the length of
the program from six months to one year, except that the court
can extend that time for good cause.
Existing law:
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Provides that the entry of judgment may be deferred for a
defendant charged with specific controlled substance offenses if
the defendant meets specific criteria, including that he or she
has no prior convictions for any offense involving a controlled
substance and no prior felony convictions within five years.
(Pen. Code § 1000.)
Provides that upon successful completion of a deferred entry of
judgment, the arrest upon which the judgment was deferred shall
be deemed to never have occurred. The defendant may in response
to any question in regard to his or her prior criminal record
that he or she was not arrested or granted deferred entry of
judgment, except as specified. (Pen. Code § 1000.4, subd. (a).)
States that a record pertaining to an arrest resulting in
successful completion of a deferred entry of judgment program
shall not, without the defendant's consent, be used in any way
that could result in the denial of any employment, benefit,
license, or certificate. (Pen. Code § 1000.4, subd. (a).)
Requires that a defendant be advised that regardless of his or
her successful completion of a deferred entry of judgment
program, the arrest upon which the case was based, may be
disclosed by the Department of Justice (DOJ) in response to any
peace officer application request, and that the defendant is
obligated to disclose the arrest in response to any direct
question on the application. (Pen. Code § 1000.4, subd. (b).)
Provides that a superior court may administer a pre-plea drug
diversion program if the court, the county district attorney and
the public defender agree. (Pen. Code § 1000.5.)
This bill:
Changes the existing deferred entry of judgment (DEJ) program
for specified offenses involving personal use or possession of
controlled substances into a pretrial drug diversion program.
Requires, to be eligible for diversion, that the defendant must
not have a prior conviction for a controlled substance offense
other than the offenses that may be diverted; the offense
charged must not have involved violence or threatened violence;
there must be no evidence in the current incident that the
defendant committed a drug offense other than an offense that
may be diverted; and the defendant must not have any conviction
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for a serious or violent felony, as define, within five years of
the current charges.
Provides that a defendant's participation in pretrial diversion
shall not constitute a conviction or an admission of guilt in
any action or proceeding.
Changes the minimum time allowed prior to dismissal of the case
from 18 months to six months, and the maximum time the
proceedings in the case can be suspended from three years to one
year, except the court can extend the length of the program for
good cause.
Provides that if the prosecuting attorney, the court, or the
probation department believes that the defendant is performing
unsatisfactorily in the program, or that he or she has been
convicted of an offense that indicates the defendant is prone to
violence, or the defendant is convicted of a felony, the
prosecuting attorney, the court, or the probation department may
move for termination of diversion.
Provides that if the court finds that the defendant is not
performing satisfactorily in the assigned program, or the court
finds that the defendant has been convicted of a specified type
of crime, the court shall reinstate the criminal charge or
charges and schedule the matter for further proceedings.
States if the defendant has completed pretrial diversion, at the
end of that period, the criminal charge or charges shall be
dismissed. Upon successful completion of a pretrial diversion
program, the arrest upon which the defendant was diverted shall
be deemed to have never occurred.
Retains provisions in the current DEJ law that are consistent
with to pre-trial diversion.
States that a participant in a pretrial diversion program or a
preguilty plea program shall be allowed, under the direction of
a licensed practitioner, to use medications - including but not
limited to methadone, buprenorphine and levoalphacetylmethadol
(LAAM) - to treat substance use disorders if the participant
allows release of his or her medical records to the court for
the limited purpose of determining whether or not the
participant is using such medications under the direction of a
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licensed practitioner and is in compliance with the pretrial
diversion or preguilty plea program rules.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past eight years, this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In February of this year the administration reported that as "of
February 11, 2015, 112,993 inmates were housed in the State's 34
adult institutions, which amounts to 136.6% of design bed
capacity, and 8,828 inmates were housed in out-of-state
facilities. This current population is now below the
court-ordered reduction to 137.5% of design bed capacity."(
Defendants' February 2015 Status Report In Response To February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).
While significant gains have been made in reducing the prison
population, the state now must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
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Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1.Need for This Bill
According to the author:
This bill seeks to limit harsh consequences to
immigrants by changing the current process for
nonviolent, misdemeanor drug offenses from deferred
entry of judgment (DEJ) to pretrial diversion. While
the current DEJ process eliminates a conviction if a
defendant successfully completes DEJ, the defendant
may still face federal consequences, including
deportation if the defendant is undocumented, or the
prohibition from becoming a U.S. citizen if the
defendant is a legal permanent resident. This is
systemic injustice to immigrants in this country, but
even U.S. citizens may face federal consequences,
including loss of federal housing and educational
benefits.
Given that President Obama has publicly called for
immigration officials to focus on violent, dangerous
felons, this bill will have a profoundly positive
impact on more than $2 million undocumented immigrants
and the more than 3 million legal permanent residents
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living in California by eliminating the draconian
consequences faced by immigrants who participate in
diversion programs in good faith. This bill will keep
families together, help people retain eligibility for
U.S. citizenship, and also preserve access to other
benefits for those who qualify.
2.DEJ as Compared to Diversion
Under existing law, a defendant charged with violations of
certain specified drug may be eligible to participate in a DEJ
program if he or she meets specified criteria. (Pen. Code §§
1000 et seq.) With DEJ, a defendant must enter a guilty plea
and entry of judgment on the defendant's guilty plea is deferred
pending successful completion of a program or other conditions.
If a defendant placed in a DEJ program fails to complete the
program or comply with conditions imposed, the court may resume
criminal proceedings and the defendant, having already pleaded
guilty, would be sentenced. If the defendant successfully
completes DEJ, the arrest shall be deemed to never have occurred
and the defendant may indicate in response to any question
concerning his or her prior criminal record that he or she was
not arrested or granted pretrial diversion for the offense.
Diversion on the other hand suspends the criminal proceedings
without requiring the defendant to enter a plea. Diversion also
requires the defendant to successfully complete a program and
other conditions imposed by the court. Unlike DEJ however, if a
defendant does not successfully complete the diversion program,
criminal proceedings resume but the defendant, having not
entered a plea, may still proceed to trial or enter a plea. If
diversion is successfully completed, the criminal charges are
dismissed and the defendant may, with certain exceptions,
legally answer that he or she has never been arrested or charged
for the diverted offense.
In order to avoid adverse immigration consequences, diversion of
an offense is preferable to DEJ because the defendant is not
required to plead guilty in order to participate in the program.
Having a conviction for possession of controlled substances,
even if dismissed, could trigger deportation proceedings or
prevent a person from becoming a U.S. citizen.
(Paredes-Urrestarazu v. U.S. INS (9th Cir. 1994) 36 F3d. 801.)
This bill seeks to minimize the potential exposure to adverse
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immigration consequences for persons who commit minor drug
possession offenses by re-establishing a pretrial diversion
program for minor drug possession.
Prior to 1997, the program pursuant to Penal Code § 1000 et seq.
was a pretrial diversion program. SB 1369 (Kopp), Chapter 1132,
Statutes of 1996, changed the diversion program to a DEJ
program. Proponents of SB 1369 and its DEJ provisions argued
that DEJ would provide more effective drug treatment than
diversion courts. While many involved in DEJ and drug court
programs believe in the effectiveness of the programs, research
has not established the superiority of DEJ or drug court
programs over other forms of drug treatment. SB 1369 did
include a provision allowing any county to elect to operate a
drug possession diversion program, with the approval of the
presiding judge, the district attorney and the public defender.
It is unknown whether studies have been done comparing the
effectiveness of DEJ and true diversion, including long-term
outcomes.
3.Drug Treatment in the Courts
Recent research has considered the effectiveness of varying
forms of court-based drug treatment with other forms or sources
of treatment demand.<1> UCLA studies of the effectiveness of
SACPA - Proposition 36 of 2000 were released in 2003 and
2006.<2> SACPA requires drug treatment without incarceration
for non-violent drug possession. UCLA found that the SACPA
model was as effective as drug court or voluntary treatment
models and produced $2.50 in savings from every dollar spent.
Improvements in funding allocations and programs would have
produced better results.
State funding for SACPA ended in 2006. Individual counties must
bear the costs of the program. The California Society of
Addiction Medicine has more recently found that SACPA produced
positive results, including for participants who did not
complete the full program.
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<1> Much of the basis for this comment is a report or monograph
written by Senate Fellow, Bethany Renfree at the request of
Senator Jackson.
<2>
http://www.uclaisap.org/prop36/documents/sacpa_costanalysis.pdf
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An extensive 2007 study of 474 drug offenders in drug court in
Maricopa County Arizona (the Phoenix area) compared the outcomes
in drug court treatment for persons who were subject to jail
sanctions against those who were not subject to sanctions. The
study found that the threat of jail sanctions did not affect the
participant's rate of retention in or completion of the program.
There has been some published research concluding that specific
drug court models may be effective in reducing drug abuse, at
least in the short term. The model is the HOPE program in
Hawaii, in which the court engages in very close, direct and
constant monitoring of participants in the program.
Participants are drug tested frequently and must follow program
conditions or be subject to immediate, short-term incarceration.
4.Deferred Entry of Judgment or Pre-Plea Diversion and the
Substance Abuse and Crime Prevention Act of 2000 (SACPA -
Proposition 36 of the 2000 General Election
Deferred entry of judgment and true pre-plea diversion (DEJ) are
distinct programs from the Substance Abuse and Crime Prevention
Act - SACPA ("Prop 36") - program. After enactment of SACPA in
2000, the California Attorney General opined that SACPA did not
repeal DEJ by implication. (84 Ops. Cal. Atty. Gen. 85 - 2001.)
Deferred entry of judgment - as the name of the program denotes
- applies prior to imposition of judgment and sentence. SACPA
is a probation program under which a person convicted of a
non-violent drug possession offense must be offered treatment,
without incarceration, on probation. Further, the offenses
covered by the two programs, while overlapping to a great
extent, are not the same. The offenses covered under SACPA are
broader than those included under DEJ.
The procedures for the programs are also different. The
prosecutor determines if the defendant meets the eligibility
requirements for DEJ. The trial court cannot overturn the
prosecutor's determination of ineligibility. If the defendant
disagrees with the prosecutor's determination, his or her only
remedy is by appeal to the Court of Appeal. In contrast, the
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trial court determines whether a convicted defendant is eligible
for probation under SACPA. A defendant must plead guilty before
being placed in a DEJ program. A person who is convicted at
trial of non-violent drug possession is eligible for SACPA,
unless a disqualifying factor, such as possession of a weapon at
the time of the offense. A defendant who fails in a DEJ program
is subject to imposition of judgment and sentencing. However,
if the defendant's conviction is for a non-violent drug
possession offense, he or she shall be offered treatment on
probation under SACPA. (In re Scoggins (2001) 94 Cal.App.4th
650, 652-658.) As the covered offenses and eligibility
requirements are broader under SACPA than DEJ, it is most likely
that a person who fails in DEJ would be eligible for SACPA.
5.Argument in Support
The Immigrant Legal Resource Center (ILRC) argues:
According to data published by Syracuse University,
over 250,000 people have been deported from the U.S.
for nonviolent drug offenses since 2008. A nonviolent
drug offense was the cause of deportation for more
than one in every ten people deported in 2013 for any
reason.
This is particularly devastating to families in
California, which is the most immigrant-rich state in
America. One out of every four persons living in the
state is foreign-born. Half of California's children
live in households headed by at least one foreign-born
parent - and the majority of these children are U.S.
citizens. It is estimated that 50,000 parents of U.S.
citizen children were deported in a little over two
years, leaving many children parentless. Deportation
due to minor drug offenses destroys California
families.
AB 1351 will amend Penal Code 1000 et seq. to allow
courts to order pre-trial diversion, rather than
require a guilty plea. This was the way that PC 1000
worked until 1997. Because there will be no guilty
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plea, there will be no 'conviction' for federal
immigration purposes. For any person who fails to
adhere to conditions of a pre-trial diversion program,
the court could reinstate the charges and schedule
proceedings pursuant to existing law. Diversion will
not be allowed for any person charged with drug sale,
or possession for sale, nor will be allowed for
persons who involve minors in drug sales or provide
drugs to minors.
6.Argument in Opposition
According to the California District Attorneys Association:
AB 1351 would turn [the current] process on its head,
allowing the defendant to enter a treatment program
before entering a plea. If the program was not
completed successfully, only then would criminal
proceedings actually begin. From a practical
standpoint, this creates tremendous problems for
prosecutors, as it becomes much more difficult to
locate witnesses and maintain evidence many months
after the offense has occurred.
Additionally, AB 1351 would reduce the length of drug
treatment programs down to one-third of what they
currently are. Right now, someone participates in
drug diversion for 18 months to 36 months. This bill
would only allow 6 to 12 months of treatment. Much of
the success of drug diversion is based on this
long-term treatment. Reducing the required length of
treatment might lead to more people completing their
programs, but it also reduces the likelihood that
those programs will actually have positive long-term
outcomes for drug offenders. It's unclear how
reducing the amount of drug treatment that someone
receives would have any positive impact on their
immigration consequences.
Further, AB 1351 removes many of the pre-requisites
for participation in drug diversion. Currently, a
defendant must not have any prior drug convictions in
order to be eligible for drug diversion. Under AB
1351, as long as the prior offenses were all
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diversion-eligible offenses, there is no limit to the
number of drug offenses someone could accumulate while
maintaining drug diversion eligibility. This bill
also eliminates the requirement that a defendant have
no felony convictions in the previous five years,
instead only requiring that a defendant not have any
prior serious or violent felonies.
7.Related Legislation
AB 1352 (Eggman) requires a court to allow a defendant to
withdraw his or her guilty or nolo contendere plea and
thereafter dismiss the case upon a finding that the case was
dismissed after the defendant completed DEJ and that the plea
may result in the denial of, or loss to, the defendant denial of
any employment, benefit, license, or certificate, as specified.
AB 1352 will be heard by this Committee today.
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