BILL ANALYSIS
AB 438
Page 1
ASSEMBLY THIRD READING
AB 438 (Beall)
As Amended April 21, 2009
Majority vote
HUMAN SERVICES 4-2 PUBLIC SAFETY 5-2
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|Ayes:|Beall, Ammiano, |Ayes:|Solorio, Furutani, Hill, |
| |Portantino, Torres | |Ma, Skinner |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Tom Berryhill, Logue |Nays:|Hagman, Gilmore |
| | | | |
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APPROPRIATIONS 11-5
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|Ayes:|De Leon, Ammiano, Charles | | |
| |Calderon, Davis, | | |
| |Krekorian, Hall, John A. | | |
| |Perez, Price, Skinner, | | |
| |Solorio, Torlakson | | |
| | | | |
|-----+---------------------------+---+--------------------------|
|Nays:|Nielsen, Duvall, Harkey, | | |
| |Miller, | | |
| |Audra Strickland | | |
| | | | |
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SUMMARY : Implements measures to promote the provision of
community services, as appropriate, to people with cognitive
developmental disabilities who become involved in the criminal
and juvenile justice systems. Specifically, this bill :
1)Authorizes a court to order that a diversion program be
implemented in the case of a person with a cognitive
developmental disability otherwise eligible for diversion who
is accused of an offense that is charged as or reduced to a
nonviolent felony. This section of the bill:
a) Defines "nonviolent felony" to mean any felony that is
not a "violent felony" as defined in Section 667.5(c) of
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the Penal Code or a "serious felony" as defined in Sections
1192.7(c) or 1192.8 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; and,
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
(RC) for individuals with developmental disabilities at the
time of the charged offense.
2)Requires that, by July 1, 2010, the Department of
Developmental Services (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 cognitive developmental disabilities in the
criminal and juvenile justice systems. This section of the
bill:
a) Requires that the task force membership include
representation from RCs, the judicial council, probation
offices, public defenders, district attorneys, school
districts, local law enforcement, county mental health,
community service providers, RC 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
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developmental disabilities in the criminal and juvenile
justice processes;
ii) Development of protocols and procedures for ongoing
communication and cooperation between RCs 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 do the following:
i) 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;
ii) Identify barriers to, and needed services for,
serving, in community settings, individuals who have been
determined to be incompetent to stand trial. This
includes exploring approaches used in other states,
assessing the need for new licensing categories, and
recommending, as appropriate, alternative and innovative
service delivery models, including, but not limited to,
secure community treatment options, for individuals
arrested for serious or violent felonies;
iii) As appropriate, develop model training curricula and
model memoranda of understanding between RCs and the
courts and other local agencies; and,
iv) Issue interim reports to the Legislature on July 1,
2011, and July 1 2012, and complete its work and issue a
final report by June 30, 2013.
g) 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 :
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1)Establishes the Lanterman Developmental Disabilities Services
Act, under which DDS contracts with 21 private non-profit RCs
to provide case management services and arrange for, or
purchase, services that meet the needs of individuals with
developmental disabilities. 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; and,
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.
FISCAL EFFECT : According to the Assembly Appropriations
Committee analysis:
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 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 RC 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
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significantly increase state prison per capita costs, would be
less.
Finally, to the extent RC 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 :
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."
A 2002 report prepared by the Association of Regional Center
Agencies' Forensic Committee (ARCA Report) recommended expanding
the diversion statute to give judges discretion to order
diversion for non-violent felonies.
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.
Expansion of eligibility for diversion : This bill authorizes
the court to order diversion for individuals charged with
non-violent or non-serious felonies. It also gives the court
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discretion to order diversion of an individual who had been
diverted within the prior two years.
Of note, this bill does not require diversion in any case. As
under current law, diversion "may" be ordered at the discretion
of the court for eligible individuals with cognitive
developmental disabilities if the court determines that
diversion is appropriate and "is acceptable to the court, the
prosecutor, the probation department, and the regional center."
Penal Code Section 1001.23(a).
Disability Rights California (DRC) states, in supporting this
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. In response, this
bill was amended to exclude from eligibility for diversion, not
only individuals charged with violent felonies but also
individuals charged with "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. CDAA continues to oppose this
bill; although, its concerns now relate primarily to provisions
in existing law.
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.
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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 RC 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 RC 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.
Interagency task force : This bill 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 RCs 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.
Analysis Prepared by : Eric Gelber / HUM. S. / (916) 319-2089
FN: 0000707