BILL ANALYSIS
AB 438
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Date of Hearing: May 13, 2009
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Kevin De Leon, Chair
AB 438 (Beall) - As Amended: April 21, 2009
Policy Committee: Public
SafetyVote: 5-2
Human Services 4-2
Urgency: No State Mandated Local Program:
No Reimbursable:
SUMMARY
This bill:
1)Expands the cognitive developmental disabilities diversion
program from misdemeanants to non-violent and non-serious
felons, deletes the exclusion for persons previously diverted,
and repeals the requirement that diversion be available only
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 at the time of the
charged offense.
2)Requires the Department of Developmental Services (DDS), by
July 1, 2010, to 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. The task force shall include specified broad
representation from regional centers, the Judicial Council,
probation offices, public defenders, district attorneys,
school districts, local law enforcement, county mental health,
community service providers, regional center clients and their
families, and disability and juvenile justice advocacy
organizations. The task force shall meet in a manner and as
often as the department determines to be appropriate,
consistent with the specified goals of the task force and the
availability of funds.
FISCAL EFFECT
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1)Potential moderate state and local savings, in the range of
$300,000, to the extent persons with cognitive disabilities
are diverted from state prison to less costly programs and
more effective regional center (RC) services.
Although the Department of Developmental Services (DDS) does
not track the number of RC clients on diversion, they do
identify 235 RC-eligible persons in state or local custody as
of April 1. Assuming an average per capita state prison cost
of $49,000 versus a per capita cost of about $35,000 per year
for specialized regional center services, this proposal could
save the difference per capita. If 10% of the 235 incarcerated
RC-eligibles were diverted from county jail or state prison to
RCs, annual savings would be in the range of $320,000.
In addition, divertees would be eligible for Medi-Cal, while
state prison inmates are not, so medical costs, which can
significantly increase state prison per capita costs, would be
less.
Finally, to the extent regional center programs prove more
effective than state prison for these individuals, and lead to
reduced recidivism rates, there is the potential for out-year
savings as well.
2)Annual costs for the task force would likely be in the range
of $150,000 for staffing, given the breadth and specificity of
the charge, the need for highly technical advice and legal
counsel, and three annual reports.
COMMENTS
1)Rationale. The intent of the author is to provide a
cost-effective and program-effective alternative to state
prison for offenders with a cognitive developmental
disability.
According to the author, "Jails and prisons are not
appropriate places for many people accused of non-violent
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 address the problem by enabling such
individuals 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
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conduct and avoiding costly and, often, repeated incarceration
in grossly overcrowded jails and prisons.
"AB 438 will make appropriate treatment and habilitation
available to more people with cognitive developmental
disabilities by authorizing courts to consider diversion for
persons accused of non-violent felonies. The court would base
any order on the totality of the circumstances and input from
reports submitted pursuant to the diversion statutes."
2)Support. According to Disability Rights California, "Expanding
the diversion process to persons who have committed 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."
3)Opposition . According to the California District Attorneys
Association, "This bill greatly expands eligibility for an
existing diversion program for a person with a cognitive
developmental disability. Specifically, the existing
disqualification for a person who previously had been diverted
pursuant to the program within two years prior to the current
criminal proceedings is eliminated. Additionally, the bill
provides that the diversion program would be open to any
person alleged to have committed an offense that is charged
as, or reduced to, a misdemeanor or nonviolent felony, whereas
only offenses charged as, or reduced to, a misdemeanor qualify
a defendant for participation currently?
"This bill generates further concern when considered in the
context of the other features of the program. Specifically,
the guidelines for the existing diversion program fail to
include a requirement that a person who is to be diverted
plead guilty to the offense with the understanding that
successful completion of the program/treatment will result in
the dismissal of the charge. Additionally, there is no
requirement that the cognitive developmental disability must
be shown to be the reason for, or even a contributing factor
to, the commitment of the offense."
4)Current law provides for the diversion of persons with
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cognitive developmental disabilities in the criminal justice
system for offenses which are charged as, or reduced to, a
misdemeanor.
a) Defines "cognitive developmental disability" as 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
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.
d) Provides that if the regional center determines a
defendant does not have a cognitive developmental
disability, criminal proceedings proceed. If the defendant
is found to have a cognitive developmental disability and
is eligible for regional center services, the defendant may
be diverted for a period of up to two years. The court has
the authority to amend the diversion program or reinstate
criminal proceedings after conducting a hearing.
e) Requires that if the diverted person performs
satisfactorily, the criminal charges are dismissed at the
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end of the diversion period.
Analysis Prepared by : Geoff Long / APPR. / (916) 319-2081