BILL ANALYSIS Ó SB 1110 Page 1 Date of Hearing: June 28, 2016 Counsel: David Billingsley ASSEMBLY COMMITTEE ON PUBLIC SAFETY Reginald Byron Jones-Sawyer, Sr., Chair SB 1110 (Hancock) - As Amended May 31, 2016 SUMMARY: Establishes the Law Enforcement Assisted Diversion (LEAD) pilot program in up to three jurisdictions where law enforcement officers can take or refer individuals directly to services without pursuing criminal charges. Specifically, this bill: 1)States that purpose of the LEAD program is to improve public safety and reduce recidivism by increasing the availability and use of social service resources while reducing costs to law enforcement agencies and courts stemming from repeated SB 1110 Page 2 incarceration. 2)Specifies that LEAD pilot programs shall be consistent with the following principles: a) Providing intensive case management services and an individually tailored intervention plan; b) Prioritizing temporary and permanent housing that includes individualized supportive services, without preconditions of drug or alcohol treatment or abstinence from drugs or alcohol; c) Employing human and social service resources in coordination with law enforcement in a manner that improves individual outcomes and community safety, and promotes community wellness; and d) Participation in LEAD services shall be voluntary throughout the duration of the program and shall not require abstinence from drug or alcohol use as a condition of continued participation. 3)States that the LEAD program shall be administered by the Board of State and Community Corrections (BSCC). 4)Specifies that BSCC shall award grants, on a competitive basis, to up to three jurisdictions. SB 1110 Page 3 5)Provides that BSCC shall establish minimum standards, funding schedules, and procedures for awarding grants, based on specified criteria. 6)Requires successful grant applicants to collect and maintain data pertaining to the effectiveness of the program as indicated by the board in the request for proposals. 7)Specifies that LEAD programs funded pursuant to this bill shall provide services to individuals by one of the following options: a) Prebooking referral. As an alternative to arrest, a law enforcement officer may take or refer a person for whom the officer has probable cause for arrest for specified offenses to a case manager to be screened for immediate crisis services and to schedule a complete assessment intake interview. Participation in LEAD diversion shall be voluntary, and the person may decline to participate in the program at any time. Criminal charges based on the conduct for which a person is diverted to LEAD shall not be filed, provided that the person finishes the complete assessment intake interview within a period set by the local jurisdictional partners, but not to exceed 30 days after the referral. b) Social contact referral. A law enforcement officer may refer an individual to LEAD whom he or she believes is at high risk of arrest in the future for any of the specified crimes, provided that the individual meets the criteria specified in this paragraph and expresses interest in voluntarily participating in the program. LEAD may accept these referrals if the program has capacity after SB 1110 Page 4 responding to prebooking diversion referrals. 8)Specifies that all social contact referrals to LEAD shall meet the following criteria: a) Verification by law enforcement that the individual has had prior involvement with low-level drug activity or prostitution, based on specified criteria; b) The individual's prior involvement with low-level drug or prostitution activity occurred within the LEAD pilot program area; c) The individual's prior involvement with low-level drug or prostitution activity occurred within 24 months of the date of referral; d) The individual does not have a pending case in drug court or mental health court; and e) The individual is not prohibited, by means of an existing no-contact order, temporary restraining order, or antiharassment order, from making contact with a current LEAD participant. 9)States that the following offenses are eligible for either prebooking diversion, social contact referral, or both: a) Possession for sale or transfer of a controlled SB 1110 Page 5 substance or other prohibited substance where the circumstances indicate that the sale or transfer is intended to provide a subsistence living or to allow the person to obtain or afford drugs for his or her own consumption; b) Sale or transfer of a controlled substance or other prohibited substance where the circumstances indicate that the sale or transfer is intended to provide a subsistence living or to allow the person to obtain or afford drugs for his or her own consumption; c) Possession of a controlled substance or other prohibited substance; d) Being under the influence of a controlled substance or other prohibited substance; e) Being under the influence of alcohol and a controlled substance or other prohibited substance; or f) Prostitution. 10)States that the services provided to those participating in LEAD diversion include, but are not limited to, case management, housing, medical care, mental health care, treatment for alcohol or substance use disorders, nutritional counseling and treatment, psychological counseling, employment, employment training and education, civil legal SB 1110 Page 6 services, and system navigation. 11)States that grant funding may be used to support any of the following: a) Project management and community engagement; b) Temporary services and treatment necessary to stabilize a participant's condition, including necessary housing; c) Outreach and direct service costs for services described in this section; d) Civil legal services for LEAD participants; e) Dedicated prosecutorial resources, including for coordinating any nondiverted criminal cases of LEAD participants; f) Dedicated law enforcement resources, including for overtime required for participation in operational meetings and training; g) Training and technical assistance from experts in the implementation of LEAD in other jurisdictions; and SB 1110 Page 7 h) Collecting and maintaining the data necessary for program evaluation. 12)Requires BSCC to contract with a nonprofit research entity, university, or college to evaluate the effectiveness of the LEAD program. 13)Requires a report of the findings shall be submitted to the Governor and the Legislature, as specified, by January 1, 2020. 14)States that BSCC shall not spend more than five percent annually of the moneys allocated to the program for its administrative costs, excluding specified costs. 15)The provisions of this bill will sunset as of January 1, 2020. EXISTING LAW: 1)Provides that the entry of judgment may be deferred with respect to a defendant charged with specific controlled substance offenses if they meet specific criteria, including no prior convictions for any offense involving a controlled substance and have had no prior felony convictions within five years. (Pen. Code, §1000.) SB 1110 Page 8 2)Authorizes the presiding judge of the superior court, or a judge designated by the presiding judge, together with the district attorney and the public defender, to agree in writing to establish and conduct a preguilty plea drug court for specified drug related offenses, wherein criminal proceedings are suspended without a plea of guilty for designated defendants. (Pen. Code, § 1000.5, subd. (a).) 3)States if there is no agreement in writing for a preguilty plea program by the presiding judge or his or her designee, the district attorney, and the public defender, the program shall be operated as a DEJ program as provided in this chapter. (Pen. Code, § 1000.5, subd. (a).) 4)Provides upon successful completion of a DEJ program, the arrest upon which the judgment was deferred shall be deemed to have never occurred. 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 DEJ for the offense, except as specified. (Pen. Code, § 1000.4, subd. (a).) 5)Authorizes the District Attorney to approve pretrial diversion programs within the county of their jurisdiction.(Pen. Code, § 1001.2.) 6)Specifies that pretrial diversion refers to the procedure of postponing prosecution of an offense filed as a misdemeanor either temporarily or permanently at any point in the judicial process from the point at which the accused is charged until adjudication. (Pen. Code, § 1001.1.) 7)States that at no time shall a defendant be required to make an admission of guilt as a prerequisite for placement in a pretrial diversion program. (Pen. Code, § 1001.3.) SB 1110 Page 9 8)Provides that a divertee is entitled to a hearing, as set forth by law, before his or her pretrial diversion can be terminated for cause. (Pen. Code, § 1001.4.) 9)States that if the divertee has performed satisfactorily during the period of pretrial diversion, the criminal charges shall be dismissed at the end of the period of diversion. (Pen. Code, § 1001.7.) 10)Specifies that upon successful completion of a pretrial diversion program, the arrest upon which the diversion was based shall be deemed to have never occurred. The divertee may indicate in response to any question concerning his or her prior criminal record that he or she was not arrested or diverted for the offense, except as specified. (Pen. Code, § 1001.9, subd. (a).) 11)States that a record pertaining to an arrest resulting in successful completion of a pretrial diversion program shall not, without the divertee's consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate. (Pen. Code, § 1001.9, subd. (a).) 12)Specifies that the divertee shall be advised that, regardless of his or her successful completion of pretrial diversion, the arrest upon which the diversion was based may be disclosed by the Department of Justice in response to any peace officer application request. (Pen. Code, § 1001.9, subd. (b).) SB 1110 Page 10 13)Specifies that pretrial diversion shall not apply in the following situations (Pen. Code, § 1001.51, subd. (a)): a) The defendant's record does not indicate that probation or parole has ever been revoked without thereafter being completed; b) The defendant's record does not indicate that he has been diverted pursuant to this chapter within five years prior to the filing of the accusatory pleading which charges the divertible offense; and, c) The defendant has never been convicted of a felony, and has not been convicted of a misdemeanor within five years prior to the filing of the accusatory pleading which charges the divertible offense. 14)Specifies that pretrial diversion shall not apply if the defendant is charged with a specified misdemeanor. (Pen. Code, § 1001.51, subd. (c).) FISCAL EFFECT: Unknown COMMENTS: 1)Author's Statement: According to the author, "As the United States addresses the urgent crisis of mass criminalization and incarceration, there is a clear need to find viable, effective alternatives. Law Enforcement Assisted Diversion (LEAD) is an effort to prevent people from entering the criminal justice system unnecessarily. LEAD uses police diversion and SB 1110 Page 11 community-based, trauma-informed care systems to improve public safety and reduce law violations by people who participate in the program. "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 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." "Therefore SB 1110 seeks to respond to unaddressed public health and human service needs - addiction, untreated mental illness, homelessness, and extreme poverty - through a public health framework that reduces reliance on the formal criminal justice system. The bill would approve three counties for the establishment of a LEAD pilot program and would create a sunset date of 3 years." 2)Pretrial Diversion and Deferred Entry of Judgment: Existing law provides avenues for diversion on misdemeanor charges through the court system. The statutory framework allows for diversion by means of deferred entry of judgment or pretrial SB 1110 Page 12 diversion. In deferred entry of judgment, a defendant determined by the prosecutor to be eligible for deferred entry of judgment 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 pretrial 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 provides that counties can set up a misdemeanor pretrial diversion program if the District Attorney, Courts and the Public Defender agree. This bill would establish a pilot diversion program where the diversion would take place before an individual went to court. An individual's initial contact with the criminal justice system is with law enforcement. A LEAD program would provide an opportunity for diversion at that first contact with the criminal justice system, as opposed to later in the process once criminal charges have been filed. This bill would provide that the pilot project would be administered by the Board of State and Community Corrections (BSCC). BSSC would be authorized to provide grant money for up to three jurisdictions to establish a LEAD program with specific guidelines. 3)LEAD Program in Seattle: In 2011, LEAD program was developed and launched in Seattle, Washington. The program was a new harm-reduction oriented process for responding to low-level SB 1110 Page 13 offenses such as drug possession, sales and prostitution. The LEAD program in Seattle was 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. 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. The LEAD program in Seattle has similar guidelines to the LEAD program proposed in this bill. 4)Evaluation of the LEAD Program in Seattle: A team from University of Washington's Harborview Medical Center prepared two reports evaluating the efficacy of Seattle's LEAD Program. The first report described 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). (LEAD Program Evaluation: Recidivism Report, University of Washington, March, 2015.) The first report made the following specific findings regarding recidivism (Id.): SB 1110 Page 14 Shorter-term outcomes: Compared to the control group, the LEAD group had 60% lower odds (likelihood) of arrest during the six months subsequent to evaluation entry. Longer-term outcomes: Compared to the control group, the LEAD group had 58% lower odds of at least one arrest subsequent to evaluation entry. 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. 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. 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%. The second report describes 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, defense) and associated costs. (Criminal Justice and Legal System Utilization and Associated Costs, University of Washington, June, 2015.) The team 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, across nearly all outcomes. The team made the following specific findings (Id.): Jail bookings: Compared to the control group, LEAD program SB 1110 Page 15 participants had 1.4 fewer jail bookings on average per year subsequent to their evaluation entry. Jail days: Compared to the control group, the LEAD group spent 39 fewer days in jail per year subsequent to their evaluation entry. Prison incarceration: Compared to the control group, the LEAD group had 87% lower odds of at least one prison incarceration subsequent to evaluation entry. 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. Costs associated with criminal justice and legal system utilization: From pre- to postevaluation entry, LEAD participants showed substantial cost reductions (-$2100), whereas control participants showed cost increases (+$5961). 5)Argument in Support: According to Drug Policy Alliance, "SB 1110 (Hancock) would authorize pre-booking diversion pilot programs for certain non-violent offenses, in particular subsistence level drug selling and sex work, modeled after LEAD (Law Enforcement Assisted Diversion), which was pioneered in Seattle in 2011. The program has since been replicated in Santa Fe, New Mexico and Albany, New York and is being considered by jurisdictions across the United States. LEAD has been proven to reduce criminal behavior and improve public safety by allowing law enforcement to connect low level offenders directly with community-based treatment and supportive services. "LEAD was created as a response to repeated legal challenges to racially biased arrest practices in Seattle, and its implementation initiated what has become a remarkable renewal of the relationship between the police and the communities SB 1110 Page 16 they serve. SB 1110 (Hancock) paves the way to affect real change within law enforcement agencies: police officers not only become accustomed to the idea that these offenses do not belong in the criminal justice system, but they also become invested in truly helping those whom they divert. "SB 1110 (Hancock) will foster significant reductions in recidivism and at a fraction of the cost, and helps California along its path towards a durable solution to prison overcrowding. LEAD is an effective way to decrease the number of those arrested, incarcerated, and otherwise caught up in the criminal justice system and reduce recidivism. Furthermore, LEAD introduces members of the criminal justice system to a health-based harm reduction approach, and a focus on individual and community wellness, rather than an unproductive focus on sobriety and punishment." 6)Argument in Opposition: According to The US Prostitutes Collective, "While those who put forward SB 1110 may be well-meaning, the legislation was written without input from sex workers. It goes against the demands of the sex worker movement internationally which is for decriminalization, because it treats sex work not as a job but as a disease and sex workers not as workers but as offenders in need of treatment and rehabilitation. Amnesty International, Open Society Foundation and other key organizations support decriminalization. "Similar programs to those proposed in SB 1110 have been extremely problematic. For example, in Seattle (which is used as an example of good practice for SB 1110) hundreds of people were swept off the street and into LEAD by a four-month police and FBI undercover operation to clean-up downtown. "LEAD is law enforcement led. It gives the police the power to decide who gets arrested or not and who goes into the program, and puts women's access to services in police hands. If sex workers refuse LEAD they will be charged. If they accept LEAD, charges still stay open on their file -- if they don't SB 1110 Page 17 meet all the conditions the program dictates, want out or are kicked out, they will be charged with what they were arrested for. Given institutional racism and sexism, sex workers disproportionately impacted include trans, women of color and immigrants. "Seattle's LEAD program speaks of being inspired by "arrest-referral" projects in the UK. But sex workers there complain that these programs have not stopped criminalization. Instead they have: increased police powers over sex workers; cut into the ability of sex workers to earn a living; undermined the independence of the few sex worker services that do exist, turning them into an arm of law enforcement. "Rising poverty is increasing the numbers of women, particularly mothers, going into sex work. For those of us who want to get out of prostitution we need money and resources not punitive rehabilitation programs. The bill includes a diversion program for drug users, which is not being opposed, so anyone who wants drug treatment has this option." 7)Prior Legislation: a) SB 513 (Hancock), Chapter 798, Statutes of 2013, provides that two years after successfully completing a prefiling diversion program administered by a prosecuting attorney, an individual may petition the court for an order sealing the records of arrest and related court files and records, as specified. b) AB 994 (Lowenthal), of the 2013-14 Legislative Session, would have required each county to establish and maintain a postplea misdemeanor diversion program, to be administered by the district attorney of that county, and authorizes either the district attorney or the superior court to offer diversion to a defendant. AB 994 was vetoed by the Governor. c) AB 2199 (Harman), of the 2005-06 Legislative Session, SB 1110 Page 18 would have established a pretrial diversion education program for persons arrested for nonviolent misdemeanor or felony firearms offenses. AB 2199 was never heard by the Assembly Public Safety Committee. REGISTERED SUPPORT / OPPOSITION: Support Drug Policy Alliance (Sponsor) Alameda County Board of Supervisors American Civil Liberties Union of California California Attorneys for Criminal Justice California District Attorneys Association California Police Chiefs Association California Public Defenders Association Californians for Safety and Justice Center on Juvenile and Criminal Justice Crime Victims United of California County Behavioral Health Directors Association of California Opposition SB 1110 Page 19 Erotic Service Providers Union US Prostitutes Collective 1 private individual Analysis Prepared by:David Billingsley / PUB. S. / (916) 319-3744