Connecting mental health with crime
Mental health is a hot topic these days. Especially surrounding the topic of criminal behavior triggered by either undiagnosed or untreated/undertreated mental health issues. Criminal behavior can be a cry for help. That’s where mental health diversion comes in. That’s also where we come in. We have a motto in our office: “If we do our job, you’ll never need us again.” Part of our job is to attack the underlying problem and help our client resolve it so that the client does not offend again. The underlying problem for some people is undiagnosed or untreated mental health issues.
What is mental health diversion and how can it help our client
Mental Health Diversion (California Penal Code § 1001.36) allows qualifying individuals with mental disorders to get treatment when faced with criminal charges and to later on have the charges against them dismissed. This statute is the product of California Senate Bill 215 which became effective on June 27, 2018 and allows a person to obtain treatment pre-trial.
- The defendant suffers from a mental disorder listed in the Diagnostic and Statistical Manual of Mental Disorders (with some exclusions for things like anti-social personality disorder, borderline personality disorder, and pedophilia) and that diagnosis is supported by evidence provided to the court by the defense;
- The court is satisfied that the defendant’s mental disorder was a significant factor in the commission of the crime or crimes;
- The symptoms of the mental disorder that motivated the criminal behavior would respond to mental health treatment;
- The defendant consents to diversion and waives their speedy trial rights;
- The defendant agrees to comply with treatment as a condition of diversion;
- The court is satisfied that the defendant will not pose an unreasonable risk of danger to public safety if treated in the community; and
- The defendant was not charged with certain offenses.
The defense can request mental health diversion at any stage of the proceedings prior to sentencing. Not everyone who has a mental health diagnosis will qualify for diversion. Ultimately, the court has discretion to grant or deny the defense’s request to enroll in mental health diversion.
If the request is granted, it doesn’t make the charges disappear instantly. The grant of the defense’s request for mental health diversion is only the start. The defendant has to comply with treatment for a specified period of time, up to two years. The case is continued out over that period of time. Once the specified period of time has elapsed, if the defendant has satisfactorily complied with treatment, not committed any new offenses, and has a plan in place for long-term mental health care, the court then dismisses the criminal case against the defendant and the arrest is generally deemed to have never occurred.
A fresh start
Mental Health Diversion gives an applicable defendant a shot at a “fresh start,” if this is their only offense. If this isn’t a person’s only offense, it can serve as a catalyst towards recovery and changed behavior, especially if the underlying cause of the offense(s) is untreated or undiagnosed mental health issues.
Mommy always comes back
It’s a summer evening. It’s warm, but not oppressively hot. The smell of burgers and fries wafts through the dirty fast-food parking lot. It’s a familiar smell to the little boy, who is all of about three years old and doesn’t feel very well. He’s hungry but doesn’t know who to ask. He doesn’t know his babysitter well, but his mom does. He’s shy and scared to ask the babysitter for dinner; he doesn’t know when his mom will be back. He knows Mommy always comes back, but sometimes it’s in an hour, and other times it’s longer. He’s seen Mommy talk to his babysitter. The babysitter is older and dressed in dirty clothes, but she’s nice and smiles at him. The babysitter asks people for money to eat or to take the bus a lot.
A police officer walks up to the babysitter. The little boy knows it’s a police officer because he’s seen them on TV. He wants to be one someday. The officer smiles at him and his babysitter. “Is this your grandson?” The officer asks. “No, I’m watching him for his mom. She had to go get something.” The babysitters voice sounds like she’s afraid of the police officer. The boy looks at her quizzically.
“Did she ask you to watch him?” The officer seems nice.
The babysitter stammers, “She…she just left him here and, and…told me to watch him and that she would be back later.”
“Do you know where she went? Did she give you a phone number?” The police officer looks at the boy and smiles. “It’s okay. We’re gonna find your mom.”
Officers found the boy’s mother sleeping in someone’s garage storage unit later that evening. She was arrested and subsequently charged as a result.
This story is adapted from a real case, People v. L.G.,where the underlying problem was successfully identified, and the court granted Mental Health Diversion for our client. It’s not a pretty story, but it’s real. We did our job. We identified the issue and developed a step-by-step plan to help. This young mother acted erratically because of a then-undiagnosed mental disorder. She was formally evaluated by a qualified mental health expert who diagnosed her with a qualifying mental disorder under the Diagnostic and Statistical Manual. That disorder caused her erratic behavior, and the disorder was a substantial factor in the commission of the charged offense. She continued treatment and is on the path to a much brighter future.
Everyone has a story
Mental health issues aren’t always clear cut. As attorneys, we are trained to pay close attention to detail. We take time with our clients to get to know them so we can understand their needs. We carefully review the evidence and when appropriate, conduct our own investigation into the offense. Our client is not the offense that they are charged with. They’re a person with a life and a story. That story is relevant to how we handle our client’s case. A mental illness might be a part of our client’s story, large or small.
The impact mental health has society
According to the Centers for Disease Control, 3.9% of adults aged 18 or over reported serious psychological distress in the past 30 day. In 2016, the CDC reported 5.5 million emergency department visits with mental disorders, behavior and neurodevelopment as the primary diagnosis. That same year, the CDC also reported 56.8 million visits to physicians’ officers with mental disorders, behavior and neurodevelopment as the primary diagnosis. Mental health issues impact more people than we realize. Those issues often spill over into criminal charges for behavior that stems from the illness itself.
The importance of psychological evaluation
While not every mental disorder qualifies for diversion under Penal Code § 1001.36, diagnoses like Bipolar disorder, Schizophrenia, Schizoaffective disorder, and Post-traumatic stress disorder may. The statute requires that the diagnosis be listed in the Diagnostic and Statistical Manual of Mental Disorders but excludes things like antisocial personality disorder and pedophilia (and others). To prove a mental disorder under Penal Code §1001.36, the qualified medical expert, usually a medical doctor or psychologist, will examine the defendant, review medical records, arrest reports, and/or any other relevant documentation. Following the evaluation, that expert may make a diagnosis regarding any mental disorders the defendant suffers from. The qualified medical expert will prepare a report regarding their findings for the court.
How mental health diversion could influence the outcome
If we determine that someone may qualify for mental health diversion, we will prepare a motion for the court which details not only the qualified medical expert’s findings, but also explains to the court how that mental disorder played a significant role in the charged crime, including being present at the time of the offense, and how likely the defendant would and has responded to treatment. A diversion program under Penal Code § 1001.36(c)(3) lasts up to two years and can be inpatient, outpatient, or a combination of the two. Before the court approves a proposed treatment plan, they’ll consider the defense’s request for diversion, any requests made by the prosecution, the needs of the defendant and the interests of the community.
The diversion program is a process and takes time
That sounds pretty simple, right? Go to a doctor, get a diagnosis, and then get charges dropped? Great! It’s not as easy as it sounds, and it’s all part of a larger process of applying our skills and knowledge to each client’s unique situation and the client’s compliance with the terms and conditions of mental health diversion. If the court grants diversion, it forms a contract between the client and the court. The client will comply with the terms of the diversion program, and after a certain amount of time, the charges against the client are dismissed. If the client fails to comply, the court can remove them from the diversion program and proceed with the traditional court process regarding criminal charges.
Mental disorder treatment leads to a bright future
Compliance means active participation in mental health treatment starting before the court grants diversion and continuing treatment after the charges are dismissed as part of a long-term plan of care. If you might qualify for mental health diversion, we will work with you to set up an initial evaluation with a qualified medical expert (or perhaps more than one, depending on the circumstances). We can also point you in the direction of various services based on your situation. We follow up with you to make sure that you are getting the help you need and are there to answer questions.