Terry McLaughlin: New law will result in irreparable harm to California citizens
August 29, 2018
What is California's legislature busy doing while its citizens sleep? The legislators are passing bills that not only affect our pocketbooks, but imperil the safety of our very lives.
The California Association of Deputy District Attorneys has been sounding the alarm over just such a measure that was snuck into the "Omnibus Health Trailer Budget Bill" for 2018, a seemingly nondescript trailer bill addressing issues such as Medi-Cal coverage and licensing fees.
AB 1810 was heard in only one committee, rushed through both houses, and delivered to the governor for his signature in seven days. Although language was inserted into this bill that radically changes California's criminal justice system, there was no vetting, no discussion, no call for comments, and no outreach to the public before it was signed by Gov. Brown in June.
Buried deep in AB 1810 is a provision which allows a defendant claiming to suffer from a mental disorder to be granted pre-trial diversion for any crime, if a judge agrees the disorder played a significant role in the commission of the crime. This means criminal proceedings are halted for up to two years, and if there is "substantial compliance" by the defendant within that time, the bill would "require the court to dismiss the defendant's criminal charges … and the arrest deemed never to have occurred, and would require the court to order access to the record of the arrest restricted." (Section 15, AB 1810)
Unlike past reform bills, AB 1810 does not include a list of crimes making a defendant ineligible for this mental health diversion. When AB 109 (realignment) was passed in 2011, it specifically excluded serious and violent felons, and sex offenders.
Proposition 47, which reduced a number of crimes from felonies to misdemeanors, was approved by voters in 2014. Although flawed, this bill did include provisions to exclude certain violent felonies and sex crimes, although rape of an unconscious person was evidently not considered a serious enough crime to be excluded.
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Even Proposition 57, passed in 2016, which makes it much easier for supposedly nonviolent criminals to gain early parole, contained some exclusions for particularly violent crimes.
AB 1810 has no such safeguards. It applies to murderers, rapists, robbers, child molesters and arsonists, and unlike previous legislation, AB 1810 does not take into account the defendant's criminal history.
According to Michele Hanisee, a spokesperson for the Association of Deputy District Attorneys, "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."
Plumas County District Attorney David Hollister told the Plumas County News that "AB 1810 allows diversion for almost every type of mental health diagnosis. Defendants diagnosed with mental illnesses such as schizophrenia (diagnosis of some serial killers), paraphilia (of which serial rapists are often diagnosed) and depression (associated with mass school shooting murders) would be eligible for diversion. In real terms, defendants such as David Berkowitz ('Son of Sam' who killed six people in the 1970s claiming his neighbors' dog told him to do it) … and Jared Lee Loughner (convicted of killing six people and wounding 13 – including U.S. Rep. Gabby Giffords — in 2011) were diagnosed with schizophrenia and could conceivably, have been diverted under AB 1810."
A defendant's mental illness is certainly relevant and should be considered by prosecutors and judges, and Senate Bill 215, which is currently before the Legislature, would have allowed this in defined and limited circumstances.
But rather than allowing for debate and review, Gov. Brown chose to sign AB 1810, despite warnings from San Diego County District Attorney Summer Stephan in the San Diego Union Tribune that this is "the most irresponsible legislation our state has ever seen, and it would wreak havoc in our criminal justice system."
The Los Angeles County Association of Deputy District Attorneys added to this criticism, blasting the maneuvering that led to the passage of the new law as a "scandalous abuse of the legislative process."
On Aug. 14, after weeks of negotiation, the CA District Attorneys Association submitted a proposal to the governor to specifically ban defendants charged with murder, rape and other sex crimes, and to allow individual judges to bar a much broader range of dangerous suspects. El Dorado County District Attorney Vern Pierson, who is leading the negotiations, believes the proposal, while certainly not perfect, "seems to at least make an attempt to address most of the concerns."
Contact the Governor or your legislator to demand repeal or amendment of this extremely dangerous law, which inevitably will result in irreparable harm to the lives and safety of the citizens of California.
Terry McLaughlin, who lives in Nevada City, writes a twice monthly column for The Union. Write to her at email@example.com.