Mental Health Diversion

May 21, 2020 48299488 0 Comments

The new California mental health diversion law enacted in 2018 (Penal Code section 1001.36), is very promising for those who truly suffer from mental health issues.  However, the implementation and inclusion of this form of legal relief into “alternative solutions & sentencing” has been met with strong opposition by many prosecutors (and judges, too), who feel the law can be too broadly applied and does not fully protect the rights and needs of victims, among other reasons.

Consequently, if a defendant truly suffers from a mental health condition and has committed a criminal  offense, the attorney and his/her client must be very conscientious in their presentation – that is, a thorough, detailed and documented history of the client’s mental health condition, how the condition and the criminal offense are related, and how the proposed treatment will be beneficial to the client and the community.

 To qualify for mental health diversion, the defendant:

  • must suffer from a mental health disorder (bipolar, schizophrenia, post-traumatic stress, for example)
  • committed the offense with the disorder having played a significant role in the commission
  • would respond to mental health treatment in the opinion of a mental health expert
  • consents to diversion and waives right to speedy trial
  • agrees to comply with treatment
  • would not pose an unreasonable risk of danger to public safety

The information and evidence needed to persuade a prosecutor and judge of the above qualifiers cannot be “touchy-feely”,  nor simply implied by the underlying facts of the case, or by the urgings of the client’s attorney.  The documentation must be comprehensively substantiated, accurate and credible.  Practically speaking, if these factors are lacking and no attempt is made to demonstrate their existence, the likelihood of having the client being placed in mental diversion is extremely low.

Ideally, an experienced and knowledgeable attorney will present information in the form of a report from a qualified expert, in the relevant field, including client examination and interview, past and current medical records, as well as the proposed treatment plan for the client.  And, the information should be provided in “one packet” to the prosecutor after all the necessary pieces have been put together.   While the criminal case is “put on hold”, the client will proceed with treatment.  Regular progress reports must be submitted to the court detailing how the client is performing, subject to any modifications to treatment that become appropriate or necessary.  If treatment is successful, and assuming the client has remained free from negative law enforcement contacts (new arrests, etc), the case will be dismissed and the arrest sealed (subject to a few exceptions).