Michael MacIntyre, M.D., Q.M.E.
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Mental health diversion in California under PC § 1001.36
A new law encourages non-traditional criminal rehabilitation

Dr. Michael MacIntyre
August 2022

In 2018, a new statute went into effect in California, allowing for the pre-trial diversion of certain defendants into mental health treatment. The law exists to allow defendants to enter a mental health treatment program on a pre-trial basis with the goal that effective treatment of any mental disorder will prevent the defendant’s future recidivism. If the defendant successfully completes treatment, the charges against them are dismissed, and the arrest records are sealed. There are similar diversion programs through drug court (for those charged with possession) and veterans’ court (for veterans charged with crimes who have a mental illness).

There are several criteria that must be met, but an expert psychiatrist is most helpful with four specific criteria related to the defendant’s mental state, behavior, and prognosis:

  1. Suffer from a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders (currently DSM-5)—except if that diagnosis is antisocial personality disorder, borderline personality disorder (BPD), and pedophilia.
  2. The court must be satisfied that the defendant’s mental disorder was a significant factor in the commission of the charged offense.
  3. A mental health expert must believe that the defendant’s symptoms of the mental disorder contributing to the criminal behavior would respond to mental health treatment and
  4. The court believes the defendant will not pose an unreasonable risk of danger to the public safety if treated in the community.

A psychiatrist will review medical records, arrest reports, and examine the defendant to determine if these criteria are met and will write a report or testify to a judge to explain if and why the psychiatric criteria for diversion are met.

Though the law specifically mentions bipolar disorder, schizophrenia, schizoaffective disorder, or post-traumatic stress disorder as examples of qualifying diagnosis, any diagnosis in the DSM-5 qualifies for diversion except antisocial personality disorder, borderline personality disorder, and pedophilia. There is some controversy regarding these exceptions, especially with borderline personality disorder, a condition that has a strong hereditary component and has a good long-term prognosis with appropriate treatment. However, the court only concerns itself with the behavior motivating the criminal behavior. Since people with BPD often have comorbid disorders (for example, about half also have PTSD), it’s possible that someone with BPD qualifies for diversion if another condition they have was the cause of the criminal behavior and would respond to treatment. Additionally, substance use disorders may be qualifying diagnoses. “Substance-related and addictive disorders” makes up an entire diagnostic section of the DSM. Additionally, many drugs can cause transient symptoms of psychosis, paranoia, delusions, and mania that might contribute to an alleged offense.

The standard for what extent a mental disorder contributed to an offense is defined by statute as a “significant factor in the commission of the charged offense.” This is a very different bar than that required for an insanity defense or mens rea defense. For example, a person might still know what they are doing or have a specific intent, but still have symptoms of disorders like bipolar disorder, PTSD, or a substance use disorder significantly contribute to their ability to control their behavior.

Importantly, the disorder must respond to treatment, specifically the symptoms that led to the offense. For these reasons, its important to have an evaluation by a psychiatrist familiar with appropriate diagnosis, the latest treatments, and the treatment options in that community. Fortunately, most mental health disorders do have successful treatments and FDA approved medications exist for many divertible conditions including schizophrenia, major depressive disorder, bipolar disorder, PTSD, alcohol use disorder, and opioid use disorder.

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