Renewed focus on rehabilitation in state criminal proceedings

Criminal sentencing has traditionally been thought of as serving four related, but distinct, purposes: punishment, through which society expresses its disapproval of the defendant's conduct; incapacitation, through which a defendant is removed from society for a period of time and therefore prevented from committing additional offenses; deterrence, through which both the defendant and others are discouraged from breaking the law; and rehabilitation, through which a defendant receives some form of education, treatment, or counselling.

During the so-called "tough on crime" era, the pendulum in California sentencing swung heavily in favor of prioritizing punishment and incapacitation, leading to long prison sentences. This focus necessarily resulted in a lack of resources directed at offender rehabilitation. Several newly enacted statutes, combined with the policies of newly elected Los Angeles County District Attorney George Gascón may signal a shift away from punishment and toward rehabilitation as a priority in criminal sentencing.

1. Misdemeanor diversion

Until recently, almost all misdemeanor prosecutions resulted in the imposition of a period of probation of up to three years. Probation would typically be conditioned on the payment of fines and fees, and the performance of community service or hard labor by the defendant. Newly enacted Assembly Bill 3234 substantially changes the landscape. The bill creates new Penal Code Section 1001.95, which gives a trial court judge the discretion to impose diversion in misdemeanor cases even over the objection of the prosecuting agency. The period of diversion may extend up to 24 months, during which time the defendant will be required to comply with appropriate terms and conditions fashioned by the judge as well as complete any programs or other obligations which are appropriate given the circumstances of the case and the defendant's history. This could include drug treatment, anger management, or any combination of terms and conditions which are tailored to the specific defendant.

In all cases, however, the defendant must pay full restitution to any victim who suffered a loss and comply with any protective order issued in the case. The defendant's financial inability to pay restitution, however, shall not be grounds for finding that the defendant has violated the terms of diversion. Section 1001.95 does not apply to misdemeanor defendants charged with domestic violence offenses, stalking, or sex offenses which would subject the defendant to sex offender registration if convicted.

2. Mental health diversion

New Penal Code Section 1001.36 provides another avenue for diversion which is specifically targeted at defendants suffering from mental health challenges. The benefit to a defendant is potentially even greater than under Section 1001.95, as Section 1001.36 applies even in serious felony cases. The only offenses explicitly excepted from eligibility are the most serious and violent felonies, such as murder, rape, and lewd acts with a child under the age of 14. Successful completion of mental health diversion entitles the defendant to a complete dismissal of the charges, leaving him or her with no criminal record.

A motion under Section 1001.36 may be brought at any time in the proceedings by defense counsel. The moving party must establish that the defendant (1) suffers from a mental disorder identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, with limited exceptions such as borderline personality disorder and pedophilia, (2) that the disorder was a "significant factor" in the defendant's commission of the charged offense, (3) that the disorder would respond to treatment in the opinion of a qualified mental health professional, (4) that the defendant would comply with treatment and waive certain procedural rights, and (5) that the defendant would not pose an unreasonable risk to public safety if treated in the community.

If the court agrees that diversion should be granted, even over the prosecution's objection, the court will continue the jury trial for up to two years, during which time the criminal prosecution is "stayed." The defendant must complete a court-ordered course of mental health treatment and report regularly to the court about his or her progress. As with Section 1001.95, payment of victim restitution is required in a mental health diversion, but the inability to pay due to indigency cannot be used as a basis to find the defendant in violation or fail to impose the diversion in the first instance.

3. Los Angeles County district attorney special directives

Several of the new Gascón administration's special directives also embody a prioritization of rehabilitation over punishment. For juvenile offenders, this change is stark. Under Special Directive 20-09, juvenile court misdemeanors will not be prosecuted at all. Both misdemeanors and low-level felony offenses will be referred to a pre-filing diversion program. Those cases which are filed must consist of the lowest possible code section and include only one count per incident. No "strike" offenses under California's three strikes law will be filed against 16 or 17 year olds, and no juveniles will be certified to be tried as adults. Finally, sex offender registrable offenses will not be filed against juveniles.

The benefits of these policies also extend to adult defendants. Under Special Directive 20-07, deputy DA's are required to reject for filing all cases involving trespass, disturbing the peace, driving without a license, driving on a suspended license, criminal threats (misdemeanor), simple drug possession, minor in possession, public intoxication and under the influence in public, loitering, loitering to commit prostitution, and non-violent resisting arrest. Even if a misdemeanor case is filed, deputies are required to offer the following resolutions sequentially: (1) informal office hearing; (2) pre-plea diversion; (3) post-plea diversion. Diversion offers may not be conditioned on waiver of statutory rights such as requesting discovery or on temporal deadlines, with the exception of the commencement of trial. The diversion offer requirement applies in all misdemeanor cases except those involving DUIs or domestic violence. Even in those cases, however, a plea offer may not include more than 15 days of community labor or a "status" registration, i.e. registration as a drug offender or a sex offender.

For felony defendants, the focus on rehabilitation takes the form of a presumption of probation rather than state prison time. Under Special Directive 20-08, absent extraordinary circumstances which must be approved by a supervisor, probation is the presumptive offer in all probation-eligible cases. In non-probation-eligible cases, the presumptive offer is the low state prison term provided for in the relevant statute. Given the acrimony in the District Attorney's office over the implementation of these policies, resulting most recently in litigation between Gascon and the union representing line prosecutors, it remains to be seen in what percentage of felony cases supervisors find "extraordinary circumstances." 