Criminal Defense

Mental Health Diversion: We Need a Better Way

October 26, 2018 by Michael Poole in Criminal Defense  Special Report  
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Why is Mental Health Diversion Important?

The arena of mental health diversion, and its slow acceptance rate with the criminal justice system, has come a long way in the State of California since the days of the “Twinkie Defense” to be sure. In fact, it wasn’t until Governor Jerry Brown signed Assembly Bill 1810 into law on June 27, 2018 that a truly compassionate, treatment-focused approach to handling those with mental disorders took effect in California. While there are no shortage of critics of the new law, and its codification as California Penal Code § 1001.36, this new rule offers those in need of mental health treatment the option of accessing and benefiting from that treatment instead of entering the current system of mass-incarceration that all too often leads to high recidivism rates and a lack of true rehabilitation. Our current incarceration system focuses less on rehabilitating and making people well so that they can return as productive members of society, and far too much on punitive measures designed to simply punish the individual. Therefore, California Penal Code § 1080.36 is a welcome break from that tradition, and a much-needed alternative to those suffering from untreated mental disorders in California’s justice system.

The Key to Mental Health Diversion is Understanding Mental Disorders, How They Relate to Criminal Acts, and How to Forge a More Compassionate and Effective Treatment Plan.

The best aspect of California Penal Code § 1001.36 is that it allows some defendants to receive their specific, needed mental health treatments when they are accused of a crime in lieu of serving a prison sentence. Because of this structure, it is what is known as a pretrial diversion in California.
Pretrial diversion, of which there are several different types, including the more established military diversion and drug diversion, allows a defendant to postpone all further action in her case in order to participate in a mental health treatment program. The reason why mental health diversion is so important, much like all other diversion programs, is that when one enrolls in and successfully completes such program, the pending criminal charges against the defendant are dismissed in their entirety. What this means is that along with the charges going away, the record of the arrest will be sealed, effectively making it so the arrest never occurred.

In a society with countless ways of punishing those who have already served their time and paid their debt to society, whether it be lack of access to public and private housing, all but complete exclusion from certain jobs, and the loss of constitutional rights such as the right to vote and serve on a jury, diversion opportunities such as this mental health diversion are increasingly more important in preventing people from dropping into second-class citizen status. Through mental health diversion, more people suffering from mental health related issues will be able to get the treatment they deserve and re-enter society in the most productive way possible.

Who Qualifies for Mental Health Diversion?

In order to qualify, according to California Penal Code § 1001.36(b)(1-6), all of the following conditions must be met:

  • The defendant suffers from a mental disorder identified in the Diagnostic and Statistical Manual of Mental Disorders with the express exclusion of antisocial personality disorder, borderline personality disorder, and pedophilia;
  • The defendant’s mental disorder played a significant role in the commission of the charged offense after reviewing any relevant and credible evidence;
  • In the opinion of a qualified mental health expert, the defendant’s mental health symptoms that motivated the criminal behavior would respond to treatment;
  • The defendant consents to the mental health diversion and waives her right to a speedy trial;
  • The defendant agrees to comply with the mental health treatment; and

The court, after being allowed to consider the opinions of the district attorney, the defense attorney, or a qualified mental health expert, as well as the defendant’s criminal history, the current offense, and any other factors that the court deems appropriate, is satisfied that the defendant will not pose an unreasonable risk of danger to public safety if allowed to be treated in the community.

In order to go about proving that one is suffering from one of the approved mental health disorders, it is up to the defense to present all relevant evidence. For the most part, this will be a recent diagnosis made by a mental health expert after examining the individual, their medical records and mental health history, and any relevant arrest reports or information.

To make a determination that the individual suffered from a mental health issue at the time of the incident and that it played a significant role in the alleged crime, the judge will review a wide array of information, including medical records, assessments by mental health experts or the individual’s own mental health provider, and police reports about the incident.

Another crucial aspect of successfully achieving a mental health diversion is establishing that whatever mental health symptoms the individual was presenting at the time of the incident, in the opinion of a mental health expert, would be responsive to treatment. In other words, treatment can’t just be a palliative measure, instead, must be effective in actually helping to address the root cause and treat it. This focus on results-oriented wellness is one of the best aspects of the mental health diversion, as it places the individual and their well-being at the heart of the evaluation.

Simply wanting to help treat one’s underlying mental health issues is not enough, whether within the criminal justice system or outside of it. As anyone who has ever personally dealt with a mental health disorder or had someone in their lives who has well known, the desire to want to change and accept treatment is a crucial ingredient to any strides being made in mental health treatment. Therefore, in addition to waiving one’s right to a speedy trial to enter the diversion, the individual must also consent and agree to comply with the treatment plan. It is this willingness to want to be better than not only is persuasive in a courtroom setting but also what can lead to a lifetime of better mental health for those suffering.

Lastly, the court must be confident that the individual, if placed in a mental health diversion program, will not pose an unreasonable risk to the community. Since the individual will be forgoing possible incarceration, and since both misdemeanors and felonies can potentially qualify under the mental health diversion, the judge will take a serious look, using all available facts at her disposal, to ascertain whether or not the individual will not present a threat to themselves or the community at large if allowed to seek treatment in lieu of a prison sentence.

What Happens Once I’m Enrolled in a Mental Health Diversion Program?

If successful in achieving enrollment in a mental health diversion program, one should be prepared for it to last up to two years, which can consist of in-patient or outpatient treatment, depending on the circumstances.

As noted in, California Penal Code § 1001.36(c)(1)(B),

“The defendant may be referred to a program of mental health treatment utilizing existing inpatient or outpatient mental health resources. Before approving a proposed treatment program, the court shall consider the request of the defense, the request of the prosecution, the needs of the defendant, and the interests of the community.”

While mental health diversion treatment can be accessed through private or personal money, public funds are also an option for those who require it. If an individual does not have adequate funds to access the requisite mental health care they need, which is often the case since a lack of treatment is what contributed to these predicaments, to begin with, then the court can refer the individual to either a county mental health agency or an existing collaborative court.

Once enrolled in a program, the mental health provider will supply the court with progress reports. If the mental health provider responsible for the diversion program reports that the individual is underperforming or has become disabled, or, in addition, if the individual is charged with a new qualifying crime (a misdemeanor that shows a propensity for violence, a new felony, or another such crime that would make the individual ineligible for diversion), then a new hearing will be necessitated. At this hearing, the judge will decide if the treatment program needs to be modified, if the individual needs to be placed into a conservatorship arrangement through a county investigator, or if the diversion needs to be eliminated altogether which would reinstate the criminal proceedings.

On the other hand, if the mental health diversion program is completed successfully, all charges against the individual will be dismissed.

As noted in California Penal Code § 1001.36(e),

“A court may conclude that the defendant has performed satisfactorily if the defendant has substantially complied with the requirements of diversion, has avoided significant new violations of law unrelated to the defendant’s mental health condition, and has a plan in place for long-term mental health care.”

Once the court dismisses the charges, the arrest will be treated like it never happened, and the court will order access to the record of the arrest restricted. This means that the individual can freely indicate in response to any employment questions concerning her prior criminal record that she was not arrested or diverted for the offense, except if applying to be an officer of the peace.

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