Mental Health Diversion

For far too long the criminal justice system has warehoused and punished people who are competent, but suffer from a mental disorder rather than treat them.

In 2018 the California legislature passed and the Governor signed a bill authorizing people with mental illness to be taken out of the criminal justice system (this is different from being “crazy” or incompetent to stand trial); which pretty much just warehouses and punishes, but does not treat mental illness.  It is codified in Penal Code Section 1001.36 (hyperlink).  This section allows people who qualify to be treated for the mental health issue that caused or contributed to the crime instead of going to jail or prison.    The California Court of Appeals thought this was such a great idea that they returned a robbery conviction to the trial court for them to consider whether the defendant was eligible for mental health diversion. People v. Frahs. Unfortunately, the California legislature changed the law to make robbery and other serious crimes ineligible, see below.

Who qualifies for mental health diversion? Penal Code § 1001.36 states that a person qualifies when "the court is satisfied that the defendant’s mental disorder was a significant factor in the commission of the charged offense."

The court can base its decision on the following information:

"A court may conclude that a defendant’s mental disorder was a significant factor in the commission of the charged offense if, after reviewing any relevant and credible evidence, including, but not limited to, police reports, preliminary hearing transcripts, witness statements, statements by the defendant’s mental health treatment provider, medical records, records or reports by qualified medical experts, or evidence that the defendant displayed symptoms consistent with the relevant mental disorder at or near the time of the offense, the court concludes that the defendant’s mental disorder substantially contributed to the defendant’s involvement in the commission of the offense."

Penal Code § 1001.36(B) (2020).

What is a “mental disorder”? It’s not defined in the statute, but arguably anything in the DSM-V, the psychologist/psychiatrist bible of types of mental disorders, would qualify.

And the person “In the opinion of a qualified mental health expert, the defendant’s symptoms of the mental disorder motivating the criminal behavior would respond to mental health treatment.” Penal Code § 1001.36(C)

Basically, if a defendant can show by a broad category of evidence that the mental health problem was a significant factor in the crime  and a mental health professional says he will respond to treatment, then the person qualifies for mental health diversion.

What does mental health diversion consist of? Well the statute is kind of vague, but the statute does say it can be either in-patient or out-patient and that the court should listen to both sides before arriving at a treatment plan.

Who doesn’t qualify? Defendants charged with the following offenses can not qualify: Murder or voluntary manslaughter or:

"An offense for which a person, if convicted, would be required to register pursuant to Section 290, except for a violation of Section 314, Rape, Lewd or lascivious act on a child under 14 years of age,  assault with intent to commit rape, sodomy, or oral copulation, in violation of Section 220, commission of rape or sexual penetration in concert with another person, in violation of Section 264.1, continuous sexual abuse of a child, in violation of Section 288.5, a violation of subdivision (b) or (c) of Section 11418. There is also a provision allowing the court to deny mental health diversion if the defendant poses “an unreasonable risk of danger to public safety”.

Upon successful completion of the diversion the defendant’s case is dismissed.

If you think there is a relationship between your mental health issues and the crime you committed you need a lawyer who understands how to use that to avoid you having to go to jail or prison for what is really a mental health issue.


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