BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 1110 Hearing Date: April 19, 2016
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|Author: |Hancock |
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|Version: |February 17, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|JM |
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Subject: Law Enforcement Assisted Diversion
HISTORY
Source: Author
Prior Legislation:None
Support: American Civil Liberties Union; California Attorneys
for Criminal Justice; California Public Defenders
Association; Crime Victims United of California
Opposition:California District Attorneys Association
PURPOSE
The purpose of this bill is to authorize the establishment of
three pilot projects for the Law Enforcement Assisted Diversion
(LEAD) in which a law enforcement officer takes a low-level drug
seller or possessor, or a prostitution offender, directly to
treatment and services, bypassing the court system in that
matter; as specified.
Existing law includes deferred entry of judgment (DEJ) and true
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diversion programs for rehabilitation and treatment of drug
offenders. (Pen. Code §§ 1000 and 1000.5.)
In DEJ, a defendant determined by the prosecutor to be
eligible for DEJ must plead guilty to the underlying drug
possession charge. The court then defers entry of judgment
and places the defendant in a rehabilitation and education
program. If he or she successfully completes the program,
the guilty plea is withdrawn and the arrest is deemed to
have not occurred. If the defendant fails in the program,
the court immediately imposes judgment and sentences the
defendant.
In true diversion, the criminal charges against an
eligible defendant are set aside and the defendant is
placed in a rehabilitation and education program treatment.
If the defendants successfully complete the program, the
arrest is dismissed and deemed to not have occurred. If
the defendant fails in the program, criminal charges are
reinstated.
Existing law includes the Substance Abuse and Crime Prevention
Act (SACPA - Proposition 36 of the 2000 General Election.)
Defendants convicted of a non-violent drug possession offense
must be offered treatment on probation without incarceration, if
not disqualified by prior violent or serious felony convictions,
commission of a non-drug offense or a history establishing that
he or she is no amenable to treatment. (Pen. Code § 1210 and
1210.1.)
Existing law includes a limited number of pre-trial diversion
programs for non-drug offenses. In these programs, criminal
charges are reinstated if the defendant fails in the program.
Misdemeanor diversion, excluding driving under the
influence, crimes requiring registration as a sex offender,
crimes involving violence, as specified. (Pen. Code §§
1001, 1001.50-1001.55.)
Bad check diversion. (Pen. Code §1001.60.)
Existing law defines misdemeanor diversion thus: "[P]retrial
diversion refers to the procedure of postponing prosecution of
an offense filed as a misdemeanor either temporarily or
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permanently at any point in the judicial process from the point
at which the accused is charged until adjudication." (Pen. Code
§ 1001.1.)
Existing law excludes specified driving under the influence
offenses from pretrial diversion eligibility. (Pen. Code §
1001.2, subd. (a).)
Existing law provides that the district attorney of each county
shall review annually any diversion program adopted by the
county. The district attorney must approve the program and each
participant. (Pen. Code § 1001.2, subd. (b).)
This bill provides that the Board of State and Community
Corrections shall approve three counties to establish a Law
Enforcement Assisted Diversion (LEAD) pilot program.
This bill provides that an interested county shall apply to the
board and state how the program would operate in that county.
This bill provides that a LEAD pilot program shall include the
following:
Authorization for designated peace officers to take
persons subject to arrest for specified offenses to a drug
treatment facility or program. The specified offenses
include:
o Sale or transfer, or possession for sale or
transfer, of a controlled substances where the sale or
transfer is intended to provide subsistence living or
to allow the person to obtain drugs for his or her own
consumption.
o Possession of a controlled substance or other
prohibited substance.
o Being under the influence of a controlled
substance, other prohibited drug or alcohol.
Authorization for designated officers to take persons
subject to arrest for prostitution to an agency or entity
that will provide a broad range of services to the person
in lieu of arrest. Examples of services include medical,
psychological, drug or alcohol treatment, child care and
employment-related services.
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This bill includes legislative findings that a LEAD program has
been demonstrated in Seattle, Washington to lower recidivism,
increase cooperation of participants in treatment and related
programs and has significantly reduced law enforcement and court
costs.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past several 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 December of 2015 the administration reported that as "of
December 9, 2015, 112,510 inmates were housed in the State's 34
adult institutions, which amounts to 136.0% of design bed
capacity, and 5,264 inmates were housed in out-of-state
facilities. The current population is 1,212 inmates below the
final court-ordered population benchmark of 137.5% of design bed
capacity, and has been under that benchmark since February
2015." (Defendants' December 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).) One
year ago, 115,826 inmates were housed in the State's 34 adult
institutions, which amounted to 140.0% of design bed capacity,
and 8,864 inmates were housed in out-of-state facilities.
(Defendants' December 2014 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).)
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While significant gains have been made in reducing the prison
population, the state 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:
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:
In 2011, Law Enforcement Assisted Diversion (LEAD) was
developed and launched in Seattle, Washington. The
program was a new harm-reduction oriented process for
responding to low-level offenses such as drug
possession, sales and prostitution. It was the result
of an unprecedented collaboration between police,
prosecutors, civil rights advocates, public defenders,
political leaders, mental health and drug treatment
providers, housing providers, other service agencies
and business and neighborhood leaders.
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In a LEAD program, police officers exercise
discretionary authority at point of contact to divert
individuals to a community-based, harm-reduction
intervention. When officers encounter individuals who
have violated the law due to unmet behavioral health
needs, the officers refer the individuals to a
trauma-informed intensive case management program. In
lieu of the normal criminal justice system cycle -
booking, detention, prosecution, conviction and
incarceration - the case management program provides a
wide range of support services for the individual,
often including transitional and permanent housing
and/or drug treatment.
After three years of operation in Seattle, a 2015
independent, non-randomized controlled outcome study
by the University of Washington found that LEAD
participants were 58% less likely to be arrested after
enrollment in the program compared to a control group
that went through the usual criminal justice
processing. With significant reductions in recidivism,
LEAD functions as a public safety program that has the
potential to decrease the number of those arrested as
well as improve the health and well-being of people
struggling at the intersection of poverty and drug and
mental health problems.
This bill would approve three counties for the
establishment of a LEAD pilot program. This bill
would also require the LEAD pilot programs to
authorize designated officers to take a person for
whom the officer has probable cause for arrest for
specified controlled substances offenses, including
possession of a controlled substance or other
prohibited substance, or prostitution to treatment
programs and services in lieu of arrest.
2.General Background - LEAD Concept, Participants and Goals
Law enforcement assisted diversion (LEAD) is a program in which
law enforcement officers who contact a low-level drug offender,
or a person engaged in prostitution, and offer the person
treatment and services without a criminal prosecution arising
out of that contact. If the person agrees to engage in the
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program, prosecution is not deferred, it is never instigated.
In Seattle, the referral to services and participation can also
be done through a social contact between an officer and a
potential participant. In this context, "social" means the
contact is not initiated by or through the commission of a crime
by the participant. An officer can interact with a person that
the officer knows is drug dependent, involved in low-level drug
sales, or involved in prostitution, without evidence of a
particular offense, and offer LEAD assistance.
It is sometimes stated that LEAD referrals are made at the time
of arrest. In an interaction that is not social, it appears
that the officer would detain, not formally arrest, a potential
participant. The person would then essentially have the option
to either accept referral for LEAD or submit to arrest and
prosecution. If the person refuses referral or does not qualify
for LEAD after screening, the arrest would formally occur and
the person would be booked and prosecuted.
The core of the LEAD program is case management. A LEAD officer
brings the participant to a social services case manager. The
case manager determines the best program for the participant.
Social workers involved in the program can maintain direct
contact with participants in the community or at appointments.
The core goals of LEAD are harm reduction and housing stability.
The participant can engage in treatment, but ongoing treatment
is not a condition of participation. As noted above, once the
participant is accepted into LEAD, there will be no prosecution
of the underlying offense.
A more detailed description of how LEAD was created and
implemented in Seattle can be found in the University of
Washington evaluations. The description in the UW evaluations is
particularly illuminating because it reflects the full scope of
what the study considered. The link to the evaluations pages of
the Seattle LEAD website is the following:
http://leadkingcounty.org/lead-evaluation/.
3.Seattle LEAD Memorandum of Understanding Participants
LEAD is governed by a Policy Coordinating Group that operates
pursuant to a memorandum of understanding (MOU) among the
following:
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Seattle Office of the Mayor
King County Executive Office
Seattle City Council
King County Council
Seattle City Attorney's Office
King County Prosecuting Attorney's Office
Seattle Police Department
King County Sheriff's Office
Washington Department of Corrections
Belltown LEAD Community Advisory Board
Skyway LEAD Community Advisory Board
The Defender Association, Racial Disparity Project
ACLU of Washington, Drug Policy Project
4.Executive Summary of the University of Washington LEAD
Participant Recidivism Evaluation - Released March 27, 2015
This report describes findings from a quantitative analysis
comparing outcomes for LEAD participants versus
"system-as-usual" control participants on shorter- and
longer-term changes on recidivism outcomes, including arrests
(i.e., being taken into custody by legal authority) and criminal
charges (i.e., filing of a criminal case in court). Arrests and
criminal charges were chosen as the recidivism outcomes because
they likely reflect individual behavior more than convictions,
which are more heavily impacted by criminal justice system
variables external to the individual. Findings:
Analyses indicated statistically significant recidivism
improvement for the LEAD group compared to the control
group on some shorter- and longer-term outcomes. o
Shorter-term outcomes were assessed for the six months
prior and subsequent to participants' entry into the
evaluation.
o Compared to the control group, the LEAD group
had 60% lower odds (likelihood) of arrest during the
six months subsequent to evaluation entry. The effect
of LEAD on getting arrested during the 6-month
follow-up was statistically significant (p = .03).
o This finding reflected the fact that-comparing
the six months prior and subsequent to entry into the
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evaluation-the proportion of control participants who
were arrested increased by 51%, whereas the proportion
of LEAD participants who were arrested plateaued
(+6%).
o Inclusion of warrant-related arrests could
either a) inflate apparent recidivism by reflecting
nonappearance for prior violations or b) accurately
represent new criminal activity that triggered prior
warrants to be served even if there was no booking on
a new crime. Thus, we examined the arrest data both
with and without warrant arrests. Analyses of
exclusively nonwarrant-related arrests indicated no
significant LEAD effects.
o Further, there were no statistically
significant LEAD effects on total charges or felony
charges filed over this shorter-term period. LEAD
Evaluation: Recidivism Report 3/27/15 UW LEAD
Evaluation Team 3 o Longer-term outcomes were assessed
during the entirety of the LEAD evaluation time frame,
ranging from October 2009 through July 2014. Analyses
took into account the fact that participants had been
in the program for differing amounts of time by
statistically controlling for this factor.
o Compared to the control group, the LEAD group
had 58% lower odds of at least one arrest subsequent
to evaluation entry. The LEAD effect on arrests over
time was statistically significant (p = .001).
o This finding reflected the fact that the
proportion of control participants who were arrested
at least once subsequent to evaluation entry increased
by 4%, whereas the proportion of LEAD participants who
were arrested subsequent to evaluation entry decreased
by 30%.
o Analyses indicated that, compared to control
participants, LEAD participants had 34% lower odds of
being arrested at least once when warrant-related
arrests were removed. This effect was marginally
significant (p = .09).
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o Although there was no statistically
significant effect for total charges, the LEAD group
had 39% lower odds of being charged with a felony
subsequent to evaluation entry compared to the control
group. This effect was statistically significant (p =
.03).
o The proportion of LEAD participants charged
with at least one felony decreased by 52% subsequent
to evaluation entry. The proportion of control group
participants receiving felony charges decreased by
18%.
Interpretation of findings: These statistically
significant reductions in arrests and felony charges for
LEAD participants compared to control participants
indicated positive effects of the LEAD program on
recidivism.
5. Executive Summary of the University of Washington Lead
Evaluation of Criminal Justice and Legal System Utilization
and Associated Costs - Released June 24, 2015
The University of Washing evaluation released on sets out
findings from a quantitative analysis comparing outcomes for
LEAD participants versus "system-as-usual" control participants
on criminal justice and legal system utilization (i.e., jail,
prison, prosecution, and defense) and associated costs. Findings
include:
The cost of the LEAD program averaged $899 per person
per month. However, these costs included program start-up
and decreased to $532 per month towards the end of the
evaluation.
Across nearly all outcomes, we observed statistically
significant reductions for the LEAD group compared to the
control group on average yearly criminal justice and legal
system utilization and associated costs.
o Jail bookings: Compared to the control group,
LEAD program participants had 1.4 fewer jail bookings
on average per year subsequent to their evaluation
entry.
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o Jail days: Compared to the control group, the
LEAD group spent 39 fewer days in jail per year
subsequent to their evaluation entry.
o Prison incarceration: Compared to the control
group, the LEAD group had 87% lower odds of at least
one prison incarceration subsequent to evaluation
entry.
o Misdemeanor and felony cases: There were no
statistically significant LEAD effects on the average
yearly number of misdemeanor cases. Compared to
control participants, however, LEAD participants
showed significant reductions in felony cases.
o Costs associated with criminal justice and
legal system utilization: From pre- to post-evaluation
entry, LEAD participants showed substantial cost
reductions (-$2100), whereas control participants
showed cost increases (+$5961).
Interpretation of findings:
o LEAD program costs were commensurate with
another supportive program for homeless individuals in
King County. It should be noted that LEAD program
costs LEAD Evaluation: Utilization and Cost Report
6/24/15 UW LEAD Evaluation Team 3 will vary widely
across communities depending on LEAD
participant characteristics (e.g., prevalence of
homelessness) and community factors (e.g., cost of
living, Medicaid coverage).
o Compared to system-as-usual controls, LEAD
participants evinced meaningful and statistically
significant reductions in criminal justice and legal
system utilization and associated costs.
6.Seattle LEAD Funding Sources, Processes and Recommendations
The Seattle LEAD program has garnered interest from around the
country. To respond to inquiries about the program, LEAD opened
a National Assistance Bureau. Kris Nyrop, the National
Assistance Bureau Director explained the LEAD funding history.
Foundation Funding
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o LEAD received about 800,000 the first year and
a little more than that the second. Those were the two
years we operated without any public funds.
o LEAD was dependent on foundation money from
the beginning of the program in October, 2011 through
2013
In 2014, 2015, and 2016 LEAD used a 50-50% mix of
private and public funds.
o LEAD anticipates being entirely publicly
funded by 2017.
Affordable Care Act and Medicaid Issues:
o LEAD began prior to the passage of the
Affordable Care Act (ACA). Washington State is a
Medicaid expansion state. LEAD is now using Medicaid
money to pay for many of the costs and services that
were initially funded by foundation grants. These
included health and dental care, drug treatment and
mental health care.
o LEAD managers have discovered that Washington
State's Medicaid expansion is not as broad as it could
be. For example, New York Medicaid reimburses some
case management costs.
o LEAD national assistance would recommend that
other states or local entities implementing a LEAD
program determine what can be funded through Medicaid.
7.PBS Frontline Documentary on LEAD in the Context of the Opioid
Addiction Epidemic
On February 23, 2016, the PBS Frontline program broadcast and
released on-line a detailed documentary about LEAD and the
history of the prescription drug opioid addiction epidemic. The
documentary explained how the prescription opioid abuse epidemic
led to a great increase in the use of heroin, particularly by
people who could no longer obtain prescription opioids. The
documentary was released on with the title, "Chasing Heroin."
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The URL for the documentary on-line is:
http://www.pbs.org/wgbh/frontline/film/chasing-heroin/
8.Drug Dependence as a Disease of Chronic Relapse; Effectiveness
of Treatment and Punishment in the Court System
It has been widely emphasized by experts in drug abuse and
treatment that drug dependence or addiction is a chronically
relapsing condition, similar to obesity or diabetes in this
respect.<1> It is to be expected that a person in treatment for
drug dependence will relapse and use the drug of dependence or
another drug. Such relapses do not mean that the person is not
benefiting from treatment. It appears that treatment is
cumulative, such that what appear to be initial failures in
treatment contribute to success or substantial progress over
time. For example, a history of less frequent relapses with
success or progress by the treatment participant in employment,
training, education or family responsibilities and relations
would indicate that treatment is beneficial. The likelihood of
chronic relapse by LEAD participants in Seattle is expected.
Relapse does not limit a LEAD participant's involvement in the
program.
Recent research has considered the effectiveness of varying
forms of court-based drug treatment with other forms or sources
of treatment demand. 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.
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
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<1>
http://www.drugabuse.gov/publications/media-guide/science-drug-ab
use-addiction-basics
<2>
http://www.uclaisap.org/prop36/documents/sacpa_costanalysis.pdf
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participant's rate of retention in or completion of the program.
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