A Scandalous Abuse of the Legislative Process

By Michele Hanisee

In a startling abuse of the legislative process, a budget clean-up bill has just been used to sneak in radical and never-debated changes in the criminal justice system. It allows a defendant suffering from a mental disorder to be granted pre-trial diversion and the charges later dismissed for any crime if a judge finds the disorder played a significant role in the crime and if a defendant has “substantially complied” with mental health treatment during the diversion period. In short, this new law allows diversion and the dismissal of charges for any crime, including those where a victim was killed or seriously injured.

This massive change in law was slipped into AB 1810, the “Omnibus Health Trailer Budget Bill” for 2018. The purpose of trailer bills is supposed to be to implement provisions in the budget bill, not to write substantive new policy. However, as columnist George Skelton explained last year, these trailer bills are “created in the dark without much legislative or public scrutiny” and “mostly used now by Democrats for slipping through touchy new policy.”

Under AB 1810, a defendant charged with any crime can get those charges dismissed if they convince a judge the mental disorder they suffer from played a “major” role in the charged crime; if a mental health expert says the symptoms motivating the criminal behavior would respond to treatment; and if the defendant undergoes “treatment” during a diversion period with no minimum time period and a maximum of two years. Incredibly, only the defense gets to submit a psychiatric report; the prosecution has no opportunity to rebut that report with their own report or have their own expert examine the defendant. Finally, the mental health treatment shall be deemed “satisfactory” and dismissal granted should a defendant “substantially comply” with the diversion conditions and commit no “significant” new crimes while in diversion, although what constitutes “substantial completion” or a “significant” crime is not defined in the bill.

There is an illusionary restriction included in the legislation that was lifted from Prop 47, making a defendant ineligible for diversion if a judge finds the defendant poses an “unreasonable risk” of committing the following specific crimes-oral copulation or lewd conduct on a child under 14, homicide, assault with a machine gun on a police officer or firefighter, or possession of a weapon of mass destruction.

Where did this midnight change in the law come from? It was from SB 215, a far less radical bill winding its way through the legislative process for the past 18 months and pending in an Assembly committee. That bill excluded any violent crimes and many felonies, limiting its provisions for diversion to what its authors called “low-level offenses” that were defined as “a misdemeanor or jail-eligible felony” under Realignment. Prosecutor consent for a number of its listed crimes and monthly reporting for treatment progress to the court, prosecutor, and defense attorney if the crime was one of the listed felonies were bill features. Although lacking formal opposition, changes to further restrict crimes eligible for the diversion program included a recent amendment removing driving under the influence offenses from the eligibility category. SB 215’s current status per the legislature states the next scheduled hearing is “canceled at request of the author.”

Of course, the cancellation occurred because the outlines of SB 215 were lifted and placed into the Omnibus Trailer Bill that was supposed to address issues such as Medi-Cal coverage and licensing fees. Gone in this new law are the protective guardrails in SB 215. There are no provisions limiting eligible crimes to low level offenses, requiring prosecutorial consent for diversion for many listed crimes, or mandating that there be regular reporting to the court and prosecutor of a defendant’s progress during the diversion process.

In short, a deliberate and underhanded end run around the legislative process now allows charged criminals, including murderers, rapists, robbers, or arsonists, to avoid prosecution and punishment for their crimes by entering a short term “mental health treatment program” during which they only have to “substantially complete” the program and not commit any “significant” new crimes. Given the author of SB 215 claimed “one third of inmates” have a serious mental illness, simple extrapolation of this estimate means nearly one third of all crimes now are subject to dismissal after a short diversion process lasting no more than two years and requiring little of the defendant.

This misuse and abuse of the legislative process is not justice. Shame on the legislature!

Michele Hanisee is President of the Association of Los Angeles Deputy District Attorneys, the collective bargaining agent representing nearly 1,000 Deputy District Attorneys who work for the County of Los Angeles.