Loophole in diversion program for mentally ill offenders puts public at risk, says SLO County DA

“How do we encourage every person who is sexually abused to report it?” District Attorney Dan Dow asks.
“How do we encourage every person who is sexually abused to report it?” District Attorney Dan Dow asks.

The intersection of California’s mental health and criminal justice systems presents a real crisis. There are currently close to 1,000 county jail inmates waiting for a bed in one of California’s state hospitals due to a lack of space. This is nearly equal to the patient population of an entire state hospital.

In an effort to address this problem, on July 1, 2018, Assembly Bill 1810 became law in California, creating a radically different approach to handling criminal cases of mentally ill offenders. Although well-intended, it created a significant threat to the safety of our communities by a loophole that will allow mentally ill offenders to own or possess firearms, to avoid sex offender registration and to avoid restitution to victims of crime.

This new law allows mentally ill defendants to avoid prosecution and be placed in pre-trial diversion for nearly every type of crime, no matter how violent, including serial rape or murder. There is no exclusion for violent crimes, sex offenses, and no exclusion for prior criminal history. Diversion, instead of prosecution, is now available for those with almost every kind of mental health diagnosis. This means offenders with mental illnesses most often associated with mass school shootings and other violent crimes are now eligible to be diverted, and if so, are legally able to possess firearms.

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As a result, California now affords mentally ill offenders greater access to firearms than before and allows some dangerous sex offenders with mental illness to escape sex offender registration. Finally, this law does not allow a mechanism for victims of crime by the mentally ill to receive restitution related to the crimes that are diverted. This unintended result is irresponsible and unconscionable.

Existing state and federal law prohibits all convicted felons and some misdemeanants from owning or possessing firearms. However, the newly created mental health diversion avoids conviction and therefore does not trigger the firearm prohibition and sex offender registration otherwise required after a conviction for those criminal acts.

The Legislature has only a few days until the end of the legislative session on Aug. 31, 2018, to correct the deficiencies in this law. I strongly urge every member of the California Legislature to immediately support urgency legislation that will address five necessary changes:

  1. Sex offender registration

  2. Prohibition on possessing firearms

  3. Victim restitution

  4. Exclusion of individuals who have committed serious and violent felonies such as murder and sexual assault crimes

  5. Funding for counties to implement the diversion program

Our public safety demands each of these important areas to be corrected.

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We should all agree there is a compelling need to dramatically improve the way we treat those with mental illness in the criminal justice system. However, we must demand that the safety of the public and protection of would-be-victims is an unseverable and equal priority with proper treatment of mentally ill offenders.

Time is of the essence so that the new language can be incorporated into the bill and passed before the end of this legislative session. This is a vital step towards keeping California safe.

Dan Dow is district attorney of San Luis Obispo County.