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