BILL ANALYSIS
AB 438
Page 1
Date of Hearing: April 14, 2009
ASSEMBLY COMMITTEE ON HUMAN SERVICES
Jim Beall, Jr., Chair
AB 438 (Beall) - As Introduced: February 24, 2009
SUBJECT : Persons with developmental disabilities: criminal and
juvenile justice systems
SUMMARY : Implements several measures to promote the provision
of community services, as appropriate, to people with
developmental disabilities who become involved in the criminal
and juvenile justice systems. Specifically, this bill :
1)Requires that, by July 1, 2010, the state Department of
Developmental Services (DDS) and the California Department of
Corrections and Rehabilitation (CDCR) enter into an
interagency agreement for the sharing of information and data
to ensure timely planning for the provision of services to
individuals with developmental disabilities served by DDS and
regional centers upon release from a facility or program
operated by CDCR.
a) Provides that the interagency agreement between DDS and
CDCR include a protocol and procedures by which regularly
updated information and data on adults and juveniles served
by CDCR be shared with DDS. The aggregate information must
include:
i) The number of individuals with identified
developmental disabilities or who are believed to have
developmental disabilities residing in each CDCR-operated
facility; and,
ii) The number of those individuals who are known to be
clients of a regional center and, for these individuals,
the number and age breakdown by regional center.
b) Requires that the interagency agreement include a
protocol for notice by CDCR to the appropriate regional
center of the anticipated release dates of person with
developmental disabilities.
c) Provides that nothing in the requirements for an
interagency agreement between CDCR and DDS shall be
AB 438
Page 2
construed to alter the requirements for the disclosure of
confidential information and records in existing law,
including Section 4514 of the Welfare & Institutions Code.
2)Authorizes a court to order that a diversion program be
implemented in the case of a person with a developmental
disability otherwise eligible for diversion who is accused of
an offense that is charged as or reduced to a nonviolent
felony.
a) Defines "nonviolent felony" to mean any felony that is
not a "violent felony" as defined in Section 667.5(c) of
the Penal Code.
b) Repeals the requirement that diversion is not available
if the person had been diverted within two years prior to
the present criminal proceedings.
c) Repeals the requirement that diversion only be available
to a person with autism, or a person with a condition
similar to mental retardation or requiring similar
treatment, if the person was a client of a regional center
for individuals with developmental disabilities at the time
of the charged offense.
3)Provides that existing procedures to prevent state
developmental center placements when a regional center
determines or is informed that an individual's community
placement is at risk of failing and admittance to a state
developmental center is a likelihood, shall also apply to
individuals whose current placement pursuant to Penal Code
1370.1 (incompetent to stand trial) is due to end if the
person is then at risk either of being placed in, or of
continued placement in, a state developmental center.
4)Requires that, by July 1, 2010, DDS convene a task force to
identify strategies and best practices for local interagency
coordination and cooperation in addressing the needs of adults
and juveniles with developmental disabilities in the criminal
and juvenile justice systems.
a) Requires that the task force membership include
representation from regional centers, the judicial council,
probation offices, public defenders, district attorneys,
school districts, local law enforcement, county mental
AB 438
Page 3
health, community service providers, regional center
clients and their families, and disability and juvenile
justice advocacy organizations.
b) Requires that the task force include geographically
diverse participation, from large and small counties.
c) Authorizes the task force to form separate
subcommittees, focusing on adults and juveniles.
d) Provides that the task force shall meet in a manner and
as often as DDS determines to be appropriate, consistent
with the goals of the task force and the availability of
funds.
e) Requires that the task force address issues including
strategies and best practices related to the following:
i) Early identification and assessment of people with
developmental disabilities in the criminal and juvenile
justice processes;
ii) Development of protocols and procedures for ongoing
communication and cooperation between regional centers
and other local agencies, including law enforcement and
the courts; and,
iii) Training of jail and court personnel on issues
related to people with developmental disabilities and
available community resources.
f) Requires the task force to identify systemic barriers to
serving people with developmental disabilities in
community-based settings instead of jails and prisons,
including licensing barriers and community resource and
services needs, and recommendations for addressing systemic
barriers.
g) Requires the task force, as appropriate, to develop
model training curricula and model memoranda of
understanding between regional centers and the courts and
other local agencies.
h) Requires that the task force issue interim reports to
the Legislature on July 1, 2011, and July 1 2012, and shall
AB 438
Page 4
complete its work and issue a final report by June 30,
2013.
i) Provides that the section related to the task force
shall become inoperative on July 1, 2013 and will sunset on
January 1, 2014 unless a later enacted statute deletes or
extends those dates.
EXISTING LAW
1)Establishes the Lanterman Developmental Disabilities Services
Act, under which DDS contracts with 21 private non-profit
regional centers to provide case management services and
arrange for, or purchase, services that meet the needs of
individuals with developmental disabilities. Under the
Lanterman Act:
a) Specifies legislative intent that people with
developmental disabilities have rights, including a right
to services and supports in the least restrictive
environment.
b) Provides that an array of services and supports should
be established that is sufficiently complete to meet the
needs and choices of each person with developmental
disabilities, regardless of age or degree of disability, to
support their integration into the mainstream life of the
community.
2)Establishes, under the Penal Code (Sections 1001.20 -
1001.34), a process for the diversion of persons with
cognitive developmental disabilities in the criminal justice
system for offenses which are charged as, or reduced to, a
misdemeanor. For purposes of the diversion process:
a) Defines "cognitive developmental disability" to mean:
mental retardation; autism; or disabling conditions found
to be closely related to mental retardation or autism or
that require treatment similar to that required for
individuals with mental retardation or autism, and that
would qualify an individual for services provided under the
Lanterman Act.
b) Defines "diversion-related treatment and habilitation"
to include specialized services or special adaptations of
AB 438
Page 5
generic services, directed towards the alleviation of
cognitive developmental disability or towards social,
personal, physical, or economic habilitation or
rehabilitation of an individual with a cognitive
developmental disability.
c) Requires the court to consult with the prosecutor,
defense counsel, probation department, and the appropriate
regional center in order to determine whether a defendant
may be diverted. When the court suspects that a defendant
may have a cognitive developmental disability, and the
defendant consents to the diversion process and to his or
her case being evaluated for eligibility for regional
center services, and waives his or her right to a speedy
trial, the court must order the prosecutor, the probation
department, and the regional center to prepare specified
reports. The regional center's report must determine
whether the defendant has a cognitive developmental
disability and a proposed diversion program, individually
tailored to the needs of the defendant, as specified.
d) Requires the prosecutor to submit a report, as
specified. If the prosecutor recommends against diversion,
the report must include a written declaration explaining
the reasons. The court determines whether the defendant
should be diverted.
e) Provides that if the regional center determines that the
defendant does not have a cognitive developmental
disability, the criminal proceedings for the offense
charged shall proceed. If the defendant is found to have a
cognitive developmental disability and to be eligible for
regional center services, he or she may be diverted for a
period of up to 2 years. The court has the authority to
either amend the diversion program or reinstate criminal
proceedings after conducting a hearing.
f) Provides that if the person diverted has performed
satisfactorily, the criminal charges shall be dismissed at
the end of the diversion period.
g) Provides that diversion is not authorized if the
individual had previously been diverted within the prior
two years.
AB 438
Page 6
h) Provides that an individual with autism, or a condition
similar to mental retardation or requiring similar
treatment, is eligible for diversion only if he or she was
a regional center client at the time of the charged
offense.
3)Requires that a regional center that either determines or is
informed that the community placement of a consumer is at risk
of failing and that admittance to a state developmental center
is a likelihood, immediately begin a process (referred to as
"deflection") to conduct an assessment of the situation,
determine barriers to successful integration, and recommend
the most appropriate means to assist the consumer to remain in
the community.
4)Establishes procedures under Penal Code Sections 1370.1 and
1370.4 for determining whether a criminal defendant with a
developmental disability is incompetent to stand trial (IST)
and, in such instances, for confining the individual in a
state developmental center or other appropriate facility for
purposes of receiving competency training.
5)Establishes procedures, including under Welfare and
Institutions Code Section 6500 et seq ., for the involuntary
civil commitment to a developmental center or other
appropriate facility of individuals with developmental
disabilities who do not become competent to stand trial
following confinement under the IST provisions and who are
found to be dangerous to themselves or others.
FISCAL EFFECT : Unknown
COMMENTS :
Background : According to the author, "Jails and prisons are not
appropriate places for many people accused of nonviolent crimes
whose conduct, while not conforming to the law, is primarily
related to a cognitive developmental disability. The
alternative of providing appropriate treatment and habilitation
can enable them to learn the skills necessary to be productive
members of the community--benefiting not only those individuals
but also society as a whole by both addressing the conduct and
avoiding costly and, often, repeated incarceration in grossly
overcrowded jails and prisons."
AB 438
Page 7
A 2002 report prepared by the Association of Regional Center
Agencies' Forensic Committee (ARCA Report) noted that people
with developmental disabilities who get involved with the
criminal justice system are at a distinct disadvantage, whether
or not they actually committed a crime. They are more
suggestible and, therefore, more vulnerable to the pressures of
interrogation. They are more likely to endure poor treatment
and suffer abuse. The recidivism rate is higher than for other
offenders. The ARCA Report cited estimates that somewhere
between 2% and 10% of the jail and prison population are people
with developmental disabilities. A report of the California
Policy Research Center, University of California, identified a
long list of factors that appear to explain the high prevalence
of people with developmental disabilities in the justice system.
Among these are: Lack of training on developmental
disabilities by police officers, judges and lawyers; the
increased likelihood of people with developmental disabilities
being convicted and receiving longer sentences than offenders
without disabilities; the inability of people with developmental
disabilities to make bail; and their inability to finish
programs required for parole consideration. Petersilia, J.,
Doing Justice? Criminal Offenders with Developmental
Disabilities (2000).
In its analysis of the 2009-10 budget, the Legislative Analyst's
Office (LAO) noted that "[s]ince corrections expenditures make
up 10 percent of the state's total General Fund budget, it is
reasonable for the Legislature to consider reducing CDCR's
budget to help address the state's current massive General Fund
shortfall." 2009-10 Budget Analysis Series: Judicial and
Criminal Justice , p. CJ-12. Among the strategies discussed by
the LAO is to divert lower-risk offenders to community-based
programs, which would result in considerable cost savings. Id .
at CJ-17.
Interagency collaboration : The ARCA Report contained a number
of recommendations, some of which are reflected in this bill.
For example, the report concluded that "[i]nteragency
collaboration is necessary to address the multi-faceted issues
facing the forensically involved population. Participating
organizations and systems need to develop inter-agency
agreements to share client data, resources, expertise; develop
and expand resources; engage in advocacy and cross training."
This bill addresses interagency collaboration in two ways.
AB 438
Page 8
First, it requires DDS and CDCR to develop an interagency
agreement, including protocols to share data, that will
facilitate planning for the provision of appropriate services
and supports for incarcerated individuals after they are
returned to the community. This bill also requires DDS to
establish an inter-agency task force to identify strategies and
best practices for local interagency coordination and
cooperation in addressing the needs of adults and juveniles with
developmental disabilities in the criminal and juvenile justice
systems. The task force will focus on issues including early
identification and assessment of people with developmental
disabilities in the criminal and juvenile justice processes;
development of protocols and procedures for ongoing
communication and cooperation between regional centers and other
local agencies, including law enforcement and the courts; and,
training of jail and court personnel on issues related to people
with developmental disabilities and available community
resources. The task force will annually report on its work to
the Legislature prior to January 1, 2014, when the provision
will sunset.
Expansion of diversion : The ARCA Report recommended expanding
the diversion statute to give judges discretion to order
diversion for non-violent felonies. This bill authorizes the
court to order diversion for such individuals.
Disability Rights California (DRC) states, in supporting the
bill, that expanding diversion to persons who have been charged
with nonviolent felonies "strikes a good balance between the
interest in public safety and the interest in diverting persons
with cognitive disabilities from the criminal justice and
juvenile justice systems whose needs for rehabilitation and
treatment cannot be adequately met within these systems. In
addition, it is also likely to result in significant cost
savings by reducing the population of prisons, jails, and
juvenile halls."
In opposing the expansion of diversion, the California District
Attorneys Association (CDAA) argues that the expansion to
nonviolent felonies would include some sex offenses that are not
on the statutory list of violent felonies. This, CDAA argues,
"is an unwarranted, overbroad, and dangerous expansion." The
author has indicated that he will consider amending the bill to
exclude from eligibility for diversion, not only individuals
charged with violent felonies but also individuals charged with
AB 438
Page 9
"serious felonies" within the meaning of Penal Code Sections
1192.7(c) and 1192.8, which would include sex offenses that are
defined as serious, even if not within the definition of a
violent felony.
This bill also deletes the current restriction on eligibility
for diversion of individuals who had already participated in a
diversion program within the preceding two years. DRC, in
supporting the elimination of the automatic exclusion of persons
who have been diverted in the prior two years, says that this
"allows courts to exercise judicial discretion in the matter and
to determine, based on the overall circumstances reflected in
the report, whether or not the defendant could benefit from a
diversion program.
In addition, this bill deletes the provision in current law that
denies eligibility for diversion to certain individuals with
cognitive developmental disabilities--individuals with autism,
individuals with a disabling condition similar to mental
retardation, and individuals with treatment needs similar to
that required for individuals with mental retardation--unless
the individual was a client of a regional center at the time of
the charged offense. No such exclusion exists in current law
for persons with mental retardation. The author argues that it
does not make sense from a policy standpoint to disallow
diversion to some individuals with cognitive developmental
disabilities merely because they had not been receiving regional
center services at the time of the charged offense. In fact,
the author argues, the fact that they have a cognitive
developmental disability but were not receiving appropriate
services is a factor in favor of providing habilitation services
instead of imprisonment.
Expansion of deflection process : The so-called "deflection"
process of Welfare and Institutions Code Section 4418.7 utilizes
the resources of the state's regional resource development
projects to prevent developmental center placement of
individuals whose community placements are at risk of failing
and for whom developmental center admission is a likelihood.
This bill would provide that the same process is to be utilized
for individuals whose confinement under IST provisions is about
to end and who are then at risk of developmental center
placement. It would apply the process not only to those at risk
of being placed in a developmental center if they currently
reside in a community program, but also, for those currently
AB 438
Page 10
residing in a developmental center, at risk of continued
confinement in a developmental center when their IST commitment
ends through an involuntary civil commitment process. This
provision is consistent with the intent of the Lanterman Act
that people with developmental disabilities receive services in
the least restrictive environment.
DOUBLE REFERRAL : This bill has been double-referred. Should
this bill pass out of this committee, it will be referred to the
Assembly Public Safety Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State, County and Municipal Employees
(AFSCME)
Disability Rights California
Opposition
California District Attorneys Association
Analysis Prepared by : Eric Gelber / HUM. S. / (916) 319-2089