I write to share an alarming addition to Sacramento’s movement to reform our criminal justice system. The week prior to the Independence Day holiday, Governor Jerry Brown signed into law Assembly Bill (AB) 1810, a seemingly nondescript omnibus health trailer budget bill addressing things like Medi-Cal coverage and licensing fees.
Unfortunately, that was not all the bill contained. Attached to AB 1810 was the establishment of Mental Health Diversion for All Criminals. This final bill, the author of the Mental Health Diversion portion remaining unknown, was heard in only one committee then rushed through both houses and delivered to the Governor for his signature in seven days. There was no vetting, no real discussion, no call for comment and no outreach to the public.
Mental Health Diversion for All Criminals (AB1810) allows a defendant suffering from a mental disorder to be granted pre-trial diversion for any crime if a judge finds the disorder played a significant role in the crime. In using the term “diversion” what the legislature means is criminal proceedings are stopped for a period of up to two years and, if there is “substantial compliance” by the defendant, the charges are dismissed and records of the arrest and prosecution are sealed. In such a scenario there is no restitution ordered for the victim, no prohibition on possessing firearms due to a felony conviction and no registration to monitor sex offenders.
Unlike past reform legislation, AB 1810 does not include a list of crimes making a defendant ineligible for Mental Health Diversion. When AB 109 passed in 2011 and the responsibility for many felons was passed from the state to the county it was written to exclude serious and violent felons as well as sex offenders. When Proposition 47 (the “Safe Neighborhoods and Schools Act” reducing a slew of drug and theft crimes from felonies to misdemeanors) was approved by the voters in 2014, similar provisions were included to exclude violent, serious and sex crimes and offenders. Even when Proposition 57 (“Parole for Non-violent Criminals) was approved in 2016 making it easier for “nonviolent” (as defined by the initiative) felons to gain early parole at least there were some exclusions for a class (albeit smaller than most would expect) of violent criminals.
AB 1810 has no such safeguards concerning the current crime committed or past convictions. AB 1810 applies to murderers, rapists, robbers, child molesters, arsonists and the like and allows them to avoid prosecution and punishment for their crimes by entering into a short term mental health program during which they only have to “substantially comply” with the program and not commit any “significant” new crimes. In diverting a defendant, and unlike past acts and initiatives, AB 1810 does not take into account the defendant’s criminal history. If the defendant fails the program and commits a new crime, that same defendant would still be eligible for diversion under AB 1810. Even more unsettling, AB 1810 allows diversion for almost every type of mental health diagnosis. Defendants diagnosed with mental illnesses such as schizophrenia (diagnosis of some serial killers), paraphilia (of which serial rapists are often diagnosed) and depression (associated with mass school shooting murders) would be eligible for diversion. In real terms, defendants such as David Berkowitz (“Son of Sam” who killed six people in the 1970s claiming his neighbors’ dog told his to do it), Richard Chase (the “Vampire of Sacramento” who killed six people and drank their blood) and Jared Lee Loughner (convicted of killing six people and wounding thirteen – including U.S. Representative Gabriel Giffords — in 2011) were all diagnosed with schizophrenia and could, conceivably, all have been diverted under AB 1810.
In practice, a defendant can get any type of case dismissed if they can: 1) convince a judge the mental disorder they suffer from played a major role in the charged crime; 2) if a mental health expert says the symptoms motivating the criminal behavior would respond to treatment; and, 3) if the defendant undergoes treatment during a diversion period with no minimum time period and a two year maximum. With regard to the information a judge would have to grant diversion under AB 1810, only the defense gets to submit a psychiatric report. The prosecution gets no such opportunity to submit their own report or have their own expert examine the defendant.
While largely unknown, news of AB 1810 is slowly filtering out to the public. San Diego County District Attorney Summer Stephan calls AB 1810 “the most irresponsible legislation our state has ever seen.” The Los Angeles County Deputy District Attorneys Association termed the process in which AB 1810 became law as a “scandalous abuse of the legislative process.” An op-ed piece in the San Diego Union – Tribune concluded, “[W]hat Brown and state lawmakers have done is an outrageous simultaneous display of arrogance and incompetence – one that seems certain to haunt the criminal justice reform movement.”
In leading the Plumas County District Attorney’s Office, I have taken positions supportive of alternative approaches for certain classes of crimes and defendants. The DA’s office created Plumas County’s Alternative Sentencing Program, Day Reporting Center and Pretrial Release programs all designed to help curb recidivism by lower level offenders while demanding a level of accountability and maintaining our public’s safety. We have had tremendous success with these programs.
I also support the expansion of our previous Drug Court to a Community Justice model meeting the needs of those suffering from addiction and mental illness who come within our criminal justice system. While I support the concept of mental health diversion, it is imperative any such program has logical safeguards to exclude certain crimes and certain diagnoses as well as provide a process that is fair and serves justice. AB 1810 fails on each of these counts.
In Plumas County, we enjoy a sense of relative safety eluding other parts of our state. While we have our challenges, our law enforcement community supports a level of safety and accountability our residents and visitors alike have rightfully become accustomed. AB 1810 is not a step in the right direction but, rather, a setback for sensible and responsible criminal justice reform. Simply put, AB 1810 is bad legislation, which could harm Californians.