BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Gloria Romero, Chair S
2007-2008 Regular Session B
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6
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SB 1651 (Steinberg and Romero) 1
As Introduced February 22, 2008
Hearing date: April 8, 2008
Penal and Welfare and Institution Codes
AA:br
MENTALLY ILL DEFENDANTS AND INMATES
HISTORY
Source: California Council of Community Mental Health Agencies
Prior Legislation: SB 851 (Steinberg and Romero) - vetoed, 2007
Support: Homes to End Homelessness Coalition; Western Center on
Law & Poverty; Sacramento Housing Alliance; Burbank
Housing Development Corporation; Century Housing;
Sacramento Homeless Organizing Committee; Southern
California Association of Non-Profit Housing; Loaves &
Fishes; California Catholic Conference; St. Anthony
Foundation; Social Justice Caucus at the UCLA School of
Public Affairs; California Medical Association;
Jericho; one individual
Opposition:California District Attorneys Association; Citizens
Commission on Human Rights
( NOTE : THIS ANALYSIS REFLECTS AMENDMENTS THE AUTHOR INTENDS TO
SUBMIT IN COMMITTEE.)
KEY ISSUES
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SHOULD MENTAL HEALTH COURTS BE AUTHORIZED IN STATUTE, AS
SPECIFIED?
SHOULD MENTAL HEALTH COURT JURISDICTION BE EXTENDED TO CERTAIN
PAROLEES, AS SPECIFIED?
(CONTINUED)
SHOULD CDCR BE REQUIRED TO CREATE A PILOT PROGRAM FOR MENTAL HEALTH
SERVICES, TO THE EXTENT FUNDING IS AVAILABLE, AS SPECIFIED?
SHOULD FUNDING PRIORITIES FOR ADULT SYSTEM OF CARE PROGRAMS BE
REVISED, AS SPECIFIED?
PURPOSE
The purpose of this bill is to 1) expressly authorize courts to
establish mental health courts, as proposed by this bill; 2)
authorize the Board of Parole Hearings to suspend a parole
revocation pending parolee's successful completion of the mental
health court program, as specified; 3) require CDCR, to the
extent funding is available, to "create a pilot program to
provide comprehensive mental health and supportive services"
comparable to a specified case management and services approach,
with priority given "to parolees who, while incarcerated, were
deemed part of the Enhanced Outpatient Program or were in the
Correctional Clinical Case Management System"; 4) revise funding
priorities for funding adult system of care programs, as
specified; and 5) make additional changes, as specified.
Mental Health Courts
Current law generally authorizes a trial court to "defer entry
of judgment" for eligible drug offenders, provided the offender
pleads guilty and completes an approved drug program, as
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specified.<1> (Penal Code 1000.)
Current law generally authorizes pretrial diversion in
misdemeanor cases, as specified. (Penal Code 1001.1 et
seq.; 1001.50 et seq.)
Current law generally provides for diversion for defendants with
cognitive developmental disabilities in misdemeanor cases.
(Penal Code 1001.20 et seq.)
Current law generally provides for diversion in bad check
cases, as specified. (Penal Code 1001.60 et seq.)
Current law generally provides for diversion for parents accused
of contributing to the delinquency of a minor, as specified.
(Penal Code 1001.70 et seq.)
Current law provides for a variety of other special programs as
alternatives to traditional sentencing.<2>
This bill would enact the "Corrections Mental Health Act of
2008."
This bill would enact a new chapter to the Penal Code entitled,
"Mental Health Courts," as specified.
This bill would authorize superior courts "to develop and
implement mental health courts."
Mental Health Court Objectives
---------------------------
<1> "Prior to 1996, the procedure was known as 'pretrial
diversion' with no guilty plea requirement. The essential
change in 1996 was the requirement of a guilty plea. However,
the process remains essentially a form of 'diversion,' i.e.,
persons charged with specified drug offenses are diverted from
ordinary criminal procedures." (4 Witkin Cal.Crim.Law
Pretrial 341 (citations omitted).)
<2> See 4 Witkin Cal. Crim. Law Pretrial 356.
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This bill would provide that a mental health court under these
provisions has the following objectives:
(1) Increase cooperation between the courts, criminal
justice, mental health, and substance abuse systems.
(2) Create a dedicated calendar or a locally developed
collaborative court-supervised mental health program or
system that contains the characteristics set out
(below) that will lead to placement of as many mentally
ill offenders, including those with cooccurring
disorders, in community treatment as is feasible and
consistent with public safety.
(3) Improve access to necessary services and support.
(4) Reduce recidivism.
(5) Reduce the involvement of the mentally ill in the
criminal justice system and their time in jail by
making mental health services available in the least
restrictive environment possible while promoting public
safety.
Mental Health Court Characteristics
This bill would provide that a mental health court under these
provisions has the following characteristics:
(1) Leadership by a superior court judicial officer
assigned by the presiding judge.
(2) Enhanced accountability by combining judicial
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supervision with rehabilitation services that are
rigorously monitored and focused on recovery.
(3) A problem solving focus.
(4) A team approach to decisionmaking.
(5) Integration of social and treatment services.
(6) Judicial supervision of the treatment process, as
appropriate.
(7) Community outreach efforts.
(8) Direct interaction between defendant and judicial
officer.
Court-County Collaboration; Plan
This bill would require that in developing a mental health
court, the presiding judge or his or her designee contact the
county board of supervisors, the county administrative officer,
or his or her designee to convene the county and court
stakeholders and, through a collaborative process with these
stakeholders, develop a plan that is consistent with this bill,
including the development of a plan which would be required to
address at a minimum the following components:
(1) Identifying existing resources and services for the
target population and establishing a collaborative
effort to share those resources and work together to
identify and seek new resources.
(2) The method by which the mental health court will
ensure that the target population of defendants will be
identified and referred to the mental health court.
(3) The method for assessing defendants for serious
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mental illness and cooccurring disorders.
(4) Eligibility criteria specifying what factors will
make the defendant eligible to participate in a mental
health court, including eligibility of the current
offense for inclusion in the mental health court,
amenability of the defendant to treatment and the facts
of the present case before the court, as well as prior
criminal history and mental health and substance abuse
treatment history of the defendant.
(5) The elements of the treatment and supervision
programs.
(6) Standards for continuing participation in, and
successful completion of, the mental health court
program.
(7) The need for the county mental health department and
the drug and alcohol department to provide initial and
ongoing training for designated staff on the nature of
serious mental illness and on the treatment and
supportive services available in the community.
(8) The process to ensure defendants will receive the
appropriate level of treatment services, based on
available resources, from county and community mental
health providers and other local agencies.
(9) The process for developing or modifying a treatment
plan for each defendant, based on a formal assessment
of the defendant's mental health and substance abuse
treatment needs. Participation in the mental health
court would require defendants to complete the
recommended treatment plan, and comply with any other
terms and conditions that will optimize the likelihood
that the defendant will complete the program.
(10)Process for referring cases to the mental health
court.
(11)A defendant's voluntary entry into the mental
health court, the right of a defendant to withdraw from
the mental health court, and the process for explaining
these rights to the defendant.
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Mental Health Court Teams
This bill would require that, in "developing a mental health
program, each mental health court team, lead by a judicial
officer, should include, but is not limited to, a judicial
officer to preside over the court, prosecutor, public defender,
county mental health liaison, substance abuse liaison, and
probation officer. The mental health court team will determine
the frequency of ongoing reviews of the progress of the offender
in community treatment in order to ensure the offender adheres
to the treatment plan as recommended, remains in treatment, and
completes treatment."
Voluntary Participation; Mandatory Compliance
This bill would provide that entry "into the mental health court
program is voluntary. Once an individual chooses to enter, the
defendant must comply with the conditions of participation
specified by the court."
This bill would provide that the length of an individual's
participation in the mental health court program shall not
exceed the term of probation or parole.
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Consent of Court and Prosecutor Required
This bill would require that a "defendant's participation
requires the consent of the judicial officer and the
prosecutor."
Victim Contact; Statement
This bill would authorize the judicial officer or prosecutor may
contact the victim in determining a defendant's suitability.
This bill would expressly allow the victim to make a statement
at the time found appropriate by the judge after input from the
mental health court team.
Excluded Categories of Offenders
This bill would exclude from eligibility defendants convicted of
specified crimes, except with the approval of the prosecutor, or
a finding by the court on the record after a formal hearing that
there are extraordinary circumstances to permit the defendant to
participate where the interests of justice would best be
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served.<3>
Dismissal upon Successful Completion
This bill would provide that if the defendant has performed
successfully during the period of the mental health court, at
the end of that period, the criminal charge or charges may be
dismissed, as specified.
Parolees
This bill would authorize participation in a mental health court
program by a "parolee with a serious mental illness who is under
the dual jurisdiction of the courts and the Board of Parole
Hearings due to having committed a new offense while on parole,
or being on active probation during the term of parole, . . . ."
This bill would provide that the "Board of Parole Hearings may,
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<3> The crimes specified for exclusion are if a defendant has
been convicted of a serious felony, as defined in subdivision (c)
of Section 1192.7, or a violent felony, as defined in subdivision
(c) of Section 667.5, or of violating Section 207, subdivision
(a), (b), (c), or (d) of Section 243.4, Section 261.5, 266, 266c,
266h, 266i, or 285, subdivision (a) of Section 289, subdivision
(1) of Section 314, or Section 647.6. The bill would provide
that, at any hearing, the court would be required to consider the
maximum potential sentence that could be imposed and the danger
that may be posed by permitting the defendant to remain in the
community and participate in the mental health court.
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as an alternative to ordering a parolee returned to prison,
suspend revocation pending the parolee's successful completion
of the mental health court program."
This bill would provide that if "a parolee fails to successfully
complete the mental health court program, the Board of Parole
Hearings may revoke parole, as appropriate."
(1)This bill would enact specified statements
concerning the benefits of a system of care for
parolees with serious mental illnesses, and the adult
system of care providing models for parolees with
serious mental illness that can meet the performance
outcomes required by the Legislature, and would state
codified legislative intent concerning the
implementation of a system of care for mental health
services for seriously mentally ill parolees, as
specified.
Pilot Program: Mental Health and Supportive Services for
Parolees
Current law requires DMH to establish service standards that
ensure that members of the target population are identified, and
services provided to assist them to live independently, work,
and reach their potential as productive citizens, as specified.
(WIC 5806.)
This bill would state, in uncodified language, legislative
intent "to start as a pilot program and to expand this program
to provide comprehensive services, including supportive housing
where necessary, as (specified) including all eligible Enhanced
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Outpatient Program parolees in all counties of the state.
Priority shall be given to parolees who, while incarcerated,
were deemed part of the Enhanced Outpatient Program or were in
the Correctional Clinical Case Management System. Consideration
shall be given for likelihood of homelessness upon release."
This bill would require CDCR, to the extent funding is
available, to "create a pilot program to provide comprehensive
mental health and supportive services comparable to the case
management and services described" as specified, and would make
a technical conforming amendment to that section.
This bill would require that priority be given "to parolees who,
while incarcerated, were deemed part of the Enhanced Outpatient
Program or were in the Correctional Clinical Case Management
System. Consideration shall be given for likelihood of
homelessness upon release. Once enrolled, each parolee shall
remain enrolled until either opting out of the program with an
agreed upon discharge plan and followup plan, completing parole,
or having parole revoked for longer than a year. If a parolee
enrolled in the program has his or her parole revoked for less
than one year, he or she shall be reenrolled in the program upon
subsequent parole, if deemed appropriate by the department and
the program service provider."
This bill would require, to the extent funding is available,
CDCR in consultation with the State Department of Mental Health
to "develop service standards for prisoners with a serious
mental illness in this pilot program," as specified.
This bill would require CDCR to "develop comprehensive case
management plans and shall establish prison in-reach protocols
that include collaboration and cooperation with service
providers who are likely to serve program participants in the
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designated counties. Prior to the release of each program
participant, the department shall work with each participant,
the designated mental health personal services coordinator, the
relevant housing provider, and other relevant providers to
develop a discharge plan," as specified.
This bill would require CDCR to report to the Legislature on or
before May 1, 2010 and every two years thereafter with reporting
in the final year on or before January 1, 2014, as specified,
and to "evaluate, at a minimum, the effectiveness of the
strategies for parolees in reducing homelessness, recidivism,
involvement with local law enforcement, and other measures
identified by the department," as specified.
This bill would authorize CDCR to receive technical assistance
from the State Department of Mental Health, and to contract with
counties or private providers, as specified.
This bill would sunset these provisions on January 1, 2014.
Adult Systems of Care
Current law sets forth funding priorities for funding adult
system of care programs, as specified, (WIC 5814.)
This bill would revise this provision to state that "priorities
shall include, but not be limited to, maintaining funding for
the existing programs that meet adult system of care contract
goals, counties with a high incidence of persons who are
severely mentally ill and homeless or who are at risk of
becoming homeless and meet the criteria developed (as specified)
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. . . of this subdivision, and those who are discharged from a
jail or have successfully completed parole."
This bill additionally would revise the membership of the
advisory committee authorized by this section to 1) add a mental
health court judicial officer, 2) add a representative of the
California Mental Health Directors Association, and 3) replace
the "California Alliance for the Mentally Ill" with the
"National Alliance on Mental Illness (NAMI) California."
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
California continues to face an extraordinary and severe prison
and jail overcrowding crisis. California's prison capacity
remains nearly exhausted as prisons today continue to be
operated with a significant level of overcrowding.<4> A year
ago, the Legislative Analyst's office summarized the trajectory
of California's inmate population over the last two decades:
During the past 20 years, jail and prison
populations have increased significantly. County
jail populations have increased by about 66
percent over that period, an amount that has been
limited by court-ordered population caps. The
prison population has grown even more dramatically
during that period, tripling since the
mid-1980s.<5>
The level of overcrowding, and the impact of the population
crisis on the day-to-day prison operations, is staggering:
As of December 31, 2006, the California Department
of Corrections and Rehabilitation (CDCR) was
estimated to have 173,100 inmates in the state
--------------------
<4> Analysis of the 2007-08 Budget Bill: Judicial and Criminal
Justice, Legislative Analyst's Office (February 21, 2007); see
also, court orders, infra.
<5> California's Criminal Justice System: A Primer.
Legislative Analyst's Office (January 2007).
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prison system, based on CDCR's fall 2006
population projections. However, . . . the
department only operates or contracts for a total
of 156,500 permanent bed capacity (not including
out-of-state beds, . . . ), resulting in a
shortfall of about 16,600 prison beds relative to
the inmate population. The most significant bed
shortfalls are for Level I, II, and IV inmates, as
well as at reception centers. As a result of the
bed deficits, CDCR houses about 10 percent of the
inmate population in temporary beds, such as in
dayrooms and gyms. In addition, many inmates are
housed in facilities designed for different
security levels. For example, there are currently
about 6,000 high security (Level IV) inmates
housed in beds designed for Level III inmates.
. . . (S)ignificant overcrowding has both
operational and fiscal consequences. Overcrowding
and the use of temporary beds create security
concerns, particularly for medium- and
high-security inmates. Gyms and dayrooms are not
designed to provide security coverage as well as
in permanent housing units, and overcrowding can
contribute to inmate unrest, disturbances, and
assaults. This can result in additional state
costs for medical treatment, workers'
compensation, and staff overtime. In addition,
overcrowding can limit the ability of prisons to
provide rehabilitative, health care, and other
types of programs because prisons were not
designed with sufficient space to provide these
services to the increased population. The
difficulty in providing inmate programs and
services is exacerbated by the use of program
space to house inmates. Also, to the extent that
inmate unrest is caused by overcrowding,
rehabilitation programs and other services can be
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disrupted by the resulting lockdowns.<6>
As a result of numerous lawsuits, the state has entered into
several consent decrees agreeing to improve conditions in the
state's prisons. As these cases have continued over the past
several years, prison conditions nonetheless have failed to
improve and, over the last year, the scrutiny of the federal
courts over California's prisons has intensified.
The federal court has appointed a receiver to take over the
direct management and operation of the prison medical health
care delivery system from the state. The crisis has continued
to escalate and, in July of last year, the federal court
established a three-judge panel to consider placing a cap on the
number of prisoners allowable in California prisons. It is
anticipated that the court will reach its decision this year.
In his order establishing the judicial panel, Judge Thelton
Henderson stated in part:
It is clear to the Court that the crowded conditions
of California's prisons, which are now packed well
beyond their intended capacity, are having - and in
the absence of any intervening remedial action, will
continue to have - a serious impact on the Receiver's
ability to complete the job for which he was
appointed: namely, to eliminate the unconstitutional
conditions surrounding delivery of inmate medical
health care.
. . . (T)his case is also somewhat unique in that even
Defendants acknowledge the seriousness of the
overcrowding problem, which led the Governor to declare
a state of emergency in California's prisons in October
2006. While there remains dispute over whether crowded
conditions are the primary cause of the constitutional
problems with the medical health care system in
California prisons, or whether any relief other than a
prisoner release order will remedy the constitutional
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<6> Analysis 2007-08 Budget Bill, supra, fn. 1.
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deprivations in this case, there can be no dispute that
overcrowding is at least part of the problem. . . .
The record is equally clear that the Receiver will be
unable to eliminate the constitutional deficiencies at
issue in this case in a reasonable amount of time
unless something is done to address the crowded
conditions in California's prisons. This Court
therefore believes that a three-judge court should
consider whether a prisoner release order is warranted
. . . . (Hon. Thelton Henderson, Order dated July 23,
2007 in Plata v. Schwarzenegger (N.D. Cal) No. C01-1351
TEH (citations omitted).)
Similarly, Judge Lawrence Karlton stated:
There is no dispute that prisons in California are
seriously and dangerously overcrowded. () The
record suggests there will be no appreciable change
in the prison population in the next two years.
(Hon. Lawrence K. Karlton, Senior Judge, United
States District Court, Order dated July 23, 2007 in
Coleman v. Schwarzenegger (E.D. Cal.) No. S90-0520
LKK JFM P (citations omitted).)
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1. Stated Need for This Bill
Materials from the author's office state in part:
Across the United States, people with mental illness
are overrepresented in our prisons and jails. . . .
Without appropriate care for their mental health, these
individuals will continue to reenter the criminal
justice system. . . .
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While Californians have deposited more than $2 billion
into the Mental Health Services Act Account since the
passage of Proposition 63 in 2004, those resources are
not available for individuals in prisons and on parole.
As one of the authors of Prop. 63, Senator Steinberg
intentionally constructed firewalls between criminal
justice and community services to focus resources on
rebuilding a public mental health system degraded from
nearly four decades of neglect.
. . . Now that population levels behind bars have
become a crisis, it is time to address one of the
missing links of corrections reform: addressing
offenders' mental health needs. The opportunity is in
routing mentally ill offenders into services as early
as possible, thereby treating their needs, stabilizing
their illness, increasing their ability to fully
incorporate the living situation around them, and
reducing the likelihood that they will re-offend.
This bill would improve how we respond to people living
with mental illness who become involved in the criminal
justice system. It addresses the continuum of their
possible experiences in court, prison, parole, and back
into their communities based on proven methods of care
and identified Prop. 63 support where appropriate.
. . .
Last year, Governor Schwarzenegger vetoed similar
legislation, SB 851 (Steinberg & Romero). SB 1651
makes amendments to the enrolled version of SB 851 that
address the Administration's concerns.
2. Previously Heard in Senate Health Committee; Author's
Amendments
This bill was heard on April 2, 2008 in Senate Health Committee,
where it passed (7-3). Because of the double-referral to this
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Committee, the author agreed to take author's amendments in this
Committee. Those amendments, which generally refine the
provisions already in the bill, are reflected in this analysis.
3. Prior Bill Passed by This Committee, Vetoed Last Year
The author carried very similar legislation last year - SB 851.
That measure passed this Committee (4-1), and subsequently was
vetoed. In his veto message Governor Schwarzenegger stated:
Although the provisions of this bill are to be
implemented contingent upon the availability of
funds, this bill would place a tremendous cost
pressure on the General Fund to increase mental
health services provided to inmates and parolees.
The California Department of Corrections and
Rehabilitation estimates annual costs for the
staff necessary to implement this bill would
exceed $14 million annually.
While I agree that more efforts need to be made
to ensure that prisoners with mental health
issues receive appropriate treatment, this bill
allows people who have committed crimes to avoid
punishment completely because of a mental health
issue. This bill would also enable a defendant
to not enter a plea or make an admission of
guilt.
The mental health courts model specified in this
bill is an important component of public safety
and for managing our criminal justice system and
I hope that the author will continue to work on
mental health issues, especially as it relates to
mentally ill criminal offenders so that
California can reduce recidivism rates and
provide proper treatment for healthier citizens.
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4. Opposition
The California District Attorneys Association opposes this bill,
arguing in part:
We must oppose this bill primarily because of the
provisions dealing with diversion of mentally ill
defendants. Because many counties currently
operate mental health courts, the need for this
measure is unclear.
Unfortunately, this bill lacks detail in several
important areas. The diversion programs
envisioned by this bill are not barred from
allowing a defendant's participation without
entering a plea or making an admission of guilt.
Additionally, criteria for participation in the
program are absent and despite the language that
attempts to preclude those convicted of a serious
or violent felony or a sex offense, the provision
allowing a judge to overrule that exclusion in the
interest of justice renders its efficacy largely
moot. Additionally, the language would fail to
preclude a person suspected of or charged with
such a crime, as would likely be the case in a
pre-plea or deferred entry of judgment diversion
program. These programs are not bound by any
minimum time periods for participation and
completion of the diversion programs occurs when
unspecified criteria are met.
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5. Background: Existing Mental Health Courts
California currently has mental health courts. As explained by
the Judicial Council:
Crises in community mental health care and the
long-term effects of de-institutionalization, the
drug epidemic of the 1980s and 1990s, the dramatic
increase in homelessness over the last two
decades, and widespread jail overcrowding have all
led to an increase in mental health courts. . . .
Like drug courts, mental health courts focus on
treatment to restore health and reduce criminal
activity. They focus on providing mentally ill
offenders with better access to treatment,
consistent supervision, and support to reconnect
with their families. The biggest challenges in
mental health courts are in the areas of training,
funding, and the management of complex cases.
Thirteen California trial court systems reported
having mental health courts in operation or
planned as of July 2002.
. . .
. . . Several types of mental health court models
have developed. . . . In 2001 Los Angeles
implemented a mental health court for misdemeanor
cases, including typical quality-of-life crimes
such as possessing a shopping cart. After arrest,
a mental health service provider conducts an
assessment to determine general needs and whether
the defendant is homeless. Unlike drug courts,
once the defendant is accepted into the program,
he or she participates in "status hearings" with
the provider, not with the court. The only time
the defendant shows up at court is when, after a
year of being clean and sober and not committing a
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new offense, his or her case is dismissed. The
mental health court has created linkages with a
variety of social services, such as job training
and GED exam preparation.
In January 1999, San Bernardino County's mental
health court began as a pilot program in the
superior court, with the Supervised Treatment
After Release (STAR) Program as its primary
component. . . .
On January 4, 2001, Riverside County began a
mental health court in the Hall of Justice in
downtown Riverside. . . .
In a mental health court, the two systems work
together to ensure that each defendant has the
best possible opportunity to comply with his or
her terms of probation and stay with the medical
treatment program. Mental health treatment terms
(such as medication, substance abuse placement,
psychiatric visits, and counseling) are made
mandatory probation terms. The defendant is made
aware that failure to comply means further
incarceration. All defendants are placed on
formal probation, and the probation officer is
aware of all the mental health treatment terms and
receives a copy of the defendant's mental health
evaluation.
. . .
The mental health court in Santa Clara County was
established in 1999 to serve preconviction and
postconviction defendants. . . .
Both Los Angeles County and Santa Clara County
also have juvenile mental health courts in
addition to their adult mental health courts. . .
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