Mental Diversion for Criminal Cases

In the early 1980s, federal funding for mental health treatment and facilities was dramatically slashed. In the movement for deinstitutionalization (moving patients out of hospitals and back into the community), President Reagan sought to push the responsibility for funding the treatment of the mentally ill back on the states, but most states did not accept this new responsibility. The result was a drastic reduction in services available to the mentally ill. Not surprisingly, the criminal justice system became the de facto arena for dealing with the mentally ill. Unfortunately, as in the war on drugs, the criminal justice system was wholly unprepared and ill-suited to deal with what was actually a public health issue. Just as we have learned that we cannot incarcerate our way out of the scourge of the drug problem, we are beginning to learn that jails and prisons are not great places to address mental health.

The shuttering of hospitals designed to house and care for the mentally ill led to a huge increase in the number of jail and prison inmates suffering from mental illness, yet these facilities were wholly unprepared to deal with and treat such individuals, often compounding the problem and worsening people’s mental health. Along the way, police officers, also unprepared for their role, became the first line of mental health crisis intervention personnel.

Last June, recognizing the ineffectiveness and wastefulness of the situation, Governor Brown signed into law Penal Code 1001.36, establishing mental disorder diversion in criminal cases. The new law permits a judge to “put a case on hold” for up to two years while a defendant receives medical treatment for a treatable mental disorder or mental illness. If defendant “performs satisfactorily” on diversion, the judge can then order the arrest record sealed.

The law makes diversion discretionary, meaning it is up to the judge in the case to decide whether the case and defendant are appropriate for diversion. In order to even qualify for consideration, a defendant must meet several criteria. The defendant must provide evidence of a diagnosis by a qualified mental health expert of a recognized mental health disorder. The judge must also find that a connection between the disorder and the crime, that the mental disorder “played a significant role in the commission of the charged offense” or “substantially contributed to the defendant’s involvement in the commission of the offense.”

The judge must also find that the defendant’s mental health symptoms that contributed to the crime would respond to mental health treatment. As such, several conditions, such as borderline personality disorder, which are deemed not to respond to treatment, are categorically excluded from the law. This also means that the defendant must propose a course of treatment.

Additionally, the judge must find that “defendant will not pose an unreasonable risk of danger to public safety.” As the decision is discretionary, this requirement may often be a hook for a judge to hand their hat on if they are inclined to deny diversion. No judge wants to be responsible for letting a mentally ill person participate in diversion who goes out and hurts someone.

If a mental health diversion motion is successful and a defendant is admitted to diversion, the court then receives periodic progress reports. The defendant has significant motivation to participate in and complete treatment as the result if they do so is the dismissal and sealing of their criminal charges.

The new law is a great step in the right direction to stop criminalizing and start treating mental illness. Unfortunately, the bill is not perfect. So much discretion is given to the judge that many diversion motions that should be granted are being denied as it is difficult to teach an old dog new tricks and many judges who have been on the bench for a long time are accustomed to and comfortable with incarcerating the mentally ill, which is a certain way to protect the public, even if it is expensive, inhumane and ineffective at soling the long term problem. Moreover, the law did nothing to address the problem that really created the crisis in the first place, a lack of funding for mental health treatment. While the law states that funding for treatment can come from public or private funds, public funds for mental health treatment remain scarce, leading to another circumstance in the criminal justice system where those with means to pay for treatment will be far more likely to be able to take advantage of participation in diversion than those who would rely on publicly funded treatment. Nonetheless, a step in the right direction is better than no step at all and hopefully the various participants in the criminal justice system will begin to see the wisdom in treating rather than punishing mental illness and find ways to divert funding from incarceration to treatment.

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