In 2018, Assembly Bill 1810, also known as California’s Mental Health Diversion Statute, was signed into law. The stated purpose of the statute was to divert individuals with mental disorders away from the criminal legal system. (Pen. Code § 1001.35). It was passed in an effort to tackle the growing number of Californians who have found themselves in jail or prison due to untreated or undiagnosed mental illness. Legislators were finally responding to what doctors, attorneys, and mental health advocates have known for decades – that mental illness and its symptoms have long been over-criminalized and even worsened by the criminal justice system.
Although overall inmate populations have shrunk, the number of mentally ill inmates has grown in both county jails and state prisons. In Los Angeles County jails, there was a 34% increase between 2013 and 2016. In January of 2019, the Los Angeles District Attorney’s office set up their own unit to evaluate a client’s prospects of mental health diversion. After evaluating a client’s mental health history and case information, the unit provides their opinion on granting mental health diversion. However, it is ultimately up to the judge to decide whether an individual qualifies for diversion. (Pen. Code § 1001.36)
As a criminal defense attorney, I meet individuals on a daily basis who have been treated harshly by the criminal justice system as a result of their mental illnesses. It is now possible for to advocate for pre-trial diversion for individuals who qualify for mental health diversion under this statute. Diversion entails treatment and possible case dismissal if the program is completed successfully by the individual. In other words, a client who successfully completes the diversionary period earns a dismissal of the case.
Who qualifies for mental health diversion?
A client who suffers from a mental disorder, as listed in the most recent addition of the Diagnostic and Statistical Manual of Mental Disorders (DSM). (Pen. Code § 1001.36(b)(1)). Diagnoses include, but are not limited to, bipolar disorder, schizophrenia, schizoaffective disorder, or post-traumatic stress disorder (Penal Code Section 1001.36 (b)). Evidence of the defendant's mental disorder shall be provided by the defense and shall include a recent diagnosis by a qualified mental health expert. (Pen. Code § 1001.36(b)(1)).
Unfortunately, mental health diversion does not apply in juvenile court. However, it does apply to juveniles whose cases have been transferred to adult court.
Currently, diversion only applies to cases that are not final on appeal. However, courts have seen cases come back on appeal in order to determine if mental health diversion should have been granted at the trial level.
Are any mental illnesses disqualified from diversion?
Yes, the following diagnoses are disqualifiers for mental health diversion:
Antisocial personality disorder, borderline personality disorder, and pedophilia. (Pen. Code § 1001.36(b)(1)(A)).
Are any charges excluded from mental health diversion?
Yes, murder or voluntary manslaughter and other serious offenses are excluded from diversion. The statute also excludes individuals who pose a risk of a committing a so-called “super-strike,” which includes rape, murder, and child molestation. However, please note that a prior record does not automatically disqualify an individual from mental health diversion.
Is a mental illness diagnosis enough to grant diversion?
No, in addition to a recent diagnosis, a client must show that his/her mental illness was a significant factor in the commission of the charged offense. (Pen. Code § 1001.36(b)(1)(B)). This can be shown with relevant and credible evidence, such as whether the client was displaying symptoms consistent with his/her mental disorder at or near the time of the offense. Id.
To make that determination, the court could review the following documents:
Police reports, preliminary hearing transcripts, witness statements, statements by mental health treatment provider, medical records, police reports, preliminary hearing transcripts, witness statements, statements by the defendant's. Id.
Finally, it must be demonstrated that the crime causing symptoms will likely respond to treatment. (Pen. Code § 1001.36(b)(1)(C)).
Which programs qualify for mental health diversion?
Many programs satisfy the requirement. (Pen. Code § 1001.36(c)(1)(B)). For example, drug treatment centers will qualify, along with programs that are facilitated through the Department of Mental Health or the Department of Public Health. A defendant can also partake in treatment through a collaborative court such as veteran’s court or women’s reentry. For example, one of my former clients was a veteran who was connected with services through the Veteran’s Administration. Although this client did not qualify for veteran’s diversion, he did qualify for mental health diversion, and after a hearing, the court placed him on a veteran’s diversion for a felony strike offense.
Most Los Angeles County courts have a social worker liaison with the Department of Mental Health who assists attorneys and clients with finding appropriate mental health treatment programs. Clients who are on parole would also qualify for some services through AB 109.
If mental health diversion is granted, how long would diversion last?
Diversion can last for up to two years. (Pen. Code § 1001.36(c)(1)(B)(3)). It is up to the judge to decide how long an individual needs to be in a program