BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    SB 1110


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          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  








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            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. 











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          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  








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               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  








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               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  








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            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










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             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.)











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          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.)









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          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).)









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          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  








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            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  








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            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  








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            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.):  








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          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  








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          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  








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            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  








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            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,  








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               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


          








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          Erotic Service Providers Union
          US Prostitutes Collective

          1 private individual





          Analysis Prepared by:David Billingsley / PUB. S. / (916)  
          319-3744