Existing law requires that a person arrested without a warrant be taken before a magistrate without unnecessary delay. Existing law also provides certain circumstances under which a person arrested without a warrant may be released from custody before being taken before a magistrate, including, among others, when the arresting officer believes that insufficient grounds exist to make a criminal complaint against the person arrested or when the person is arrested for intoxication only and no further proceedings are desirable. Existing law requires the record of arrest of a person released pursuant to specified circumstances to include a record of release and that the arrest be deemed a detention.

This bill would authorize an arresting officer to release an arrested person from custody without bringing the person before a magistrate if the person is, subsequent to being arrested, delivered or referred to a public health or social service organization that provides services including, but not limited to, housing, medical care, treatment for alcohol or substance use disorders, psychological counseling, or employment training and education, the organization agrees to accept the delivery or referral, and no further proceedings are desirable. The bill would require that the arrest under this provision be deemed a detention.

Existing law requires that a person arrested without a warrant be taken before a magistrate without unnecessary delay. Existing law also provides certain circumstances under which a person arrested without a warrant may be released from custody before being taken before a magistrate, including, among others, when the arresting officer believes that insufficient grounds exist to make a criminal complaint against the person arrested or when the person is arrested for intoxication only and no further proceedings are desirable. Existing law requires the record of arrest of a person released pursuant to specified circumstances to include a record of release and that the arrest be deemed a detention.

This bill would authorize an arresting officer to release an arrested person from custody without bringing the person before a magistrate if the person is, subsequent to being arrested, delivered or referred to a public health or social service organization that provides services including, but not limited to, housing, medical care, treatment for alcohol or substance use disorders, psychological counseling, or employment training and education, the organization agrees to accept the delivery or referral, and no further proceedings are desirable. The bill would require that the arrest under this provision be deemed a detention.

Existing law requires that a person arrested without a warrant be taken before a magistrate without unnecessary delay. Existing law also provides certain circumstances under which a person arrested without a warrant may be released from custody before being taken before a magistrate, including, among others, when the arresting officer believes that insufficient grounds exist to make a criminal complaint against the person arrested or when the person is arrested for intoxication only and no further proceedings are desirable. Existing law requires the record of arrest of a person released pursuant to specified circumstances to include a record of release and that the arrest be deemed a detention.

This bill would authorize an arresting officer to release an arrested person from custody without bringing the person before a magistrate if the person is, subsequent to being arrested, delivered or referred to a public health or social service organization that provides services including, but not limited to, housing, medical care, treatment for alcohol or substance use disorders, psychological counseling, or employment training and education, the organization agrees to accept the delivery or referral, and no further proceedings are desirable. The bill would require that the arrest under this provision be deemed a detention.

Existing law requires that a person arrested without a warrant be taken before a magistrate without unnecessary delay. Existing law also provides certain circumstances under which a person arrested without a warrant may be released from custody before being taken before a magistrate, including, among others, when the arresting officer believes that insufficient grounds exist to make a criminal complaint against the person arrested or when the person is arrested for intoxication only and no further proceedings are desirable. Existing law requires the record of arrest of a person released pursuant to specified circumstances to include a record of release and that the arrest be deemed a detention.

This bill would authorize an arresting officer to release an arrested person from custody without bringing the person before a magistrate if the person is, subsequent to being arrested, delivered or referred to a public health or social service organization that provides services including, but not limited to, housing, medical care, treatment for alcohol or substance use disorders, psychological counseling, or employment training and education, and no further proceedings are desirable. The bill would require that the arrest under this provision be deemed a detention.

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 2215

Author:(Bryan)

As Amended Ver:May 28, 2024

Majority vote

SUMMARY

Provides that a peace officer may release a person arrested without a warrant from custody, instead of taking the person before a magistrate, by delivering or referring that person to a public health or social service organization that provides services including, but not limited to, housing, medical care, treatment for alcohol or substance use disorders, psychological counseling, or employment training and education, the organization agrees to accept the delivery or referral, and no further proceedings are desired.

Senate Amendments

Specifies the release of the person to a public health or social service organization that provides services may occur only if the organization agrees to accept the delivery or referral.

COMMENTS

1. As passed by the Assembly, this bill: Provided that a peace officer may release a person arrested without a warrant from custody, instead of taking the person before a magistrate, by delivering or referring that person to a public health or social service organization that provides services including, but not limited to, housing, medical care, treatment for alcohol or substance use disorders, psychological counseling, or employment training and education, and no further proceedings are desired.

Committee on Revision of the Penal Code Recommendation: The subject of this bill is based on a recommendation made in the Committee on Revision of the Penal Code's (CRPC) most recent annual report. The CRPC was established to study and recommend statutory reforms to criminal law and procedure relating to, among other things, alternatives to incarceration. (Government Code, Section 8290.5, subd. (a)(3).) Citing the success of the LEAD Pilot Program at reducing recidivism rates for those who received supportive services under the program, CRPC made the following recommendation: "Update Penal Code Section 849 to encourage police officers in all jurisdiction (even those without LEAD programs) to release people arrested for low-level offenses to community-based supportive services in lieu of jail booking and referral to prosecution." (Com. Revision of Pen. Code, 2023 Annual Report and Recommendations (Dec. 2023), p. 13 <http://www.clrc.ca.gov/CRPC/Pub/Reports/CRPC_AR2023.pdf> [last visited Mar. 26, 2024].) This bill does just that.

According to the Author

"Assembly Bill 2215 will amend the Penal Code to explicitly authorize law enforcement to connect individuals they encounter directly to supportive services and treatment if they believe that doing so would be in the best interest of public and community safety. By adding clear and concise language to the penal code, AB 2215 allows law enforcement to exercise all of the tools available to them and codifies their discretionary authority."

Arguments in Support

According to Californians for Safety and Justice, the bill's sponsor, "This bill will update the Penal Code to make it clear that police officers in all jurisdictions, even those without Law Enforcement Assisted Diversion (LEAD) programs, connect people arrested for low-level offenses directly to supportive services and treatment if they feel that is in the best interest to public safety.

"In 2016, California established the LEAD Pilot Program, which allotted $15 million in funding over 2.5 years. San Francisco and Los Angeles received funding, most of which was for housing, case management, and other health services for LEAD participants. In each county, the pilots proved successful in reducing future arrests of people who received LEAD intervention compared to similar people who were arrested and brought to jail.

"While long term funding may have stalled LEAD programs in some areas, it has not slowed down jurisdictions like Los Angeles County and the City of Long Beach, who have expanded their programs to serve more people. California's Committee on the Revision of the Penal Code highlighted the lower recidivism for LEAD clients in their annual 2023 report.

"Many states including Colorado, Maryland, New Mexico, and Washington have established state-funded LEAD programs. Other states, including New Jersey, have secured private funding to establish LEAD programs. In Chicago, a program like LEAD allows police officers to connect people arrested for drug possession directly with a substance use counselor. Researchers from the University of Chicago Crime Lab found that over 79% of people who are diverted go on to start treatment, and that nearly half of those who start treatment remain engaged 60 days after with increasingly positive outcomes.

"Current law is silent on the use of pre-booking diversion by law enforcement, and jurisdictions that have a thriving LEAD program have asked for explicit legislative language codifying the authority their officers are already wielding. AB 2215 will add clear language to the penal code empowering law enforcement with additional pre-booking diversion tools that codify their discretionary authority to connect people to supportive services in the interest of community safety."

Arguments in Opposition

According to the Los Angeles County Professional Peace Officers Association, "Releasing individuals without proper judicial oversight could pose risks to public safety. Without proper assessment of the individual's potential threat to society, there's a possibility that releasing them directly to a health or social service organization could put the community at risk.

"While providing access to health and social services is important, it should not come at the expense of proper legal proceedings. Bringing individuals before a magistrate ensures that they can access rehabilitation programs within the framework of the legal system, potentially leading to more effective outcomes in addressing underlying issues such as substance abuse or mental health disorders."

FISCAL COMMENTS

Unknown. This bill is keyed non-fiscal by the Legislative Counsel.

VOTES:

ASM PUBLIC SAFETY: 8-0-0

YES: McCarty, Alanis, Lackey, Stephanie Nguyen, Reyes, Ting, Wilson, Zbur

ASSEMBLY FLOOR: 72-0-8

YES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Cervantes, Chen, Connolly, Davies, Dixon, Flora, Mike Fong, Friedman, Gabriel, Gallagher, Garcia, Gipson, Haney, Hart, Holden, Hoover, Irwin, Jackson, Jones-Sawyer, Kalra, Lackey, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Reyes, Luz Rivas, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Waldron, Wallis, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas

ABS, ABST OR NV: Bauer-Kahan, Megan Dahle, Essayli, Vince Fong, Grayson, Mathis, Rendon, Villapudua

SENATE FLOOR: 31-9-0

YES: Allen, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dodd, Durazo, Eggman, Glazer, Gonzalez, Hurtado, Laird, Limón, McGuire, Menjivar, Min, Newman, Padilla, Portantino, Roth, Rubio, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener

NO: Alvarado-Gil, Dahle, Grove, Jones, Nguyen, Niello, Ochoa Bogh, Seyarto, Wilk

UPDATED

VERSION: May 28, 2024

CONSULTANT: Andrew Ironside / PUB. S. / (916) 319-3744 FN: 0004256

 THIRD READING  

Bill No: AB 2215

Author: Bryan (D), et al.

Amended: 5/28/24 in Senate

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 4-1, 6/11/24

AYES: Wahab, Bradford, Skinner, Wiener

NOES: Seyarto

ASSEMBLY FLOOR: 72-0, 4/11/24 - See last page for vote

SUBJECT: Criminal procedure: arrests

SOURCE: Californians for Safety and Justice

DIGEST:

This bill authorizes an arresting officer to release an arrested person from custody without bringing the person before a magistrate if the person is delivered or referred to a public health or social service organization that provides supportive services, the organization agrees to the delivery or referral, and no further proceedings are desirable.

ANALYSIS:

Existing law:

1. Provides that an arrest is taking a person into custody in a case and manner authorized by law, and authorizes peace officers and private persons to make arrests. (Pen. Code, § 834.)
2. Authorizes a peace officer to arrest a person without a warrant in the following circumstances:
   1. The officer has probable cause to believe that the person to be arrested has committed a public offense in the officer’s presence;
      
   2. The person arrested has committed a felony, although not in the officer’s presence; or,
      
   3. The office has probable cause to believe that the person to be arrested has committed a felony, whether or not a felony, in fact, has been committed. (Pen. Code, § 836.)
3. Requires, when an arrest is made without a warrant by a peace officer or private person, the person arrested be taken, without unnecessary delay, before the nearest or most accessible magistrate in the county in which the offense is triable, unless the person is otherwise released. (Pen. Code, § 849, subd. (a).)
4. Requires a complaint stating the charge against the arrested person to be laid before the magistrate. (Pen. Code, § 849, subd. (a).)
5. Establishes the Law Enforcement Assisted Diversion (LEAD) pilot program. (Pen. Code, § 1001.85, et seq.)
6. Provides that the purpose of the LEAD program is to improve public safety and reduce recidivism by increasing the availability and use of social service resources while reducing costs to law enforcement agencies and courts stemming from repeated incarceration. (Pen. Code, § 1001.85, subd. (a).)
7. Requires LEAD pilot programs to be consistent with the following principles, implemented to address and reflect the priorities of the community in which the program exists:
   1. Provides intensive case management services and an individually tailored intervention plan that acts as a blueprint for assisting LEAD participants;
      
   2. Prioritizes temporary and permanent housing that includes individualized supportive services, without preconditions of drug or alcohol treatment or abstinence from drugs or alcohol;
      
   3. Employs human and social service resources in coordination with law enforcement in a manner that improves individual outcomes and community safety, and promotes community wellness; and,
      
   4. Participation in LEAD services shall be voluntary throughout the duration of the program and shall not require abstinence from drug or alcohol use as a condition of continued participation. (Pen Code, § 1001.85, subd. (b).)
8. Authorizes a peace officer to release from custody, instead of taking the person before a magistrate, a person arrested without a warrant in the following circumstances:
   1. The officer is satisfied that there are insufficient grounds for making a criminal complaint against the person arrested;
      
   2. The person arrested was arrested for intoxication only, and no further proceedings are desirable;
      
   3. The person was arrested only for being under the influence of a controlled substance or drug and the person is delivered to a facility or hospital for treatment and no further proceedings are desirable;
      
   4. The person was arrested for driving under the influence of alcohol or drugs and the person is delivered to a hospital for medical treatment that prohibits immediate delivery before a magistrate; or,
      
   5. The person was arrested and subsequently delivered to a hospital or other urgent care facility, including, but not limited to, a facility for the treatment of co-occurring substance use disorders, for mental health evaluation and treatment, and no further proceedings are desirable. (Pen. Code, § 849, subd. (b)(1)-(5).)
9. Requires the record of arrest of a person released, as specified, to include a record of release, and that the arrest shall not be deemed an arrest, but a detention only. (Pen. Code, § 849, subd. (c).)

This bill:

Authorizes a peace officer to release a person arrested without a warrant from custody, instead of taking the person before a magistrate, by:

1. Delivering or referring that person to a public health or social service organization that provides services including, but not limited to, housing, medical care, treatment for alcohol or substance use disorders, psychological counseling, or employment training and education;
2. The organization agrees to accept the delivery or referral; and,
3. If no further proceedings are desired.

Background

Committee on the Revision of the Penal Code Recommendation. On January 1, 2020, the Committee on the Revision of the Penal Code (“Committee”) was established within the Law Review Commission to study the Penal Code and recommend statutory reforms. (SB 94, Committee on Budget and Fiscal Review, Chapter 25, Statutes of 2019; Gov. Code, § 8280.) The Committee’s objectives are as follows:

• Simplify and rationalize the substance of criminal law;
• Simplify and rationalize criminal procedures;
• Establish alternatives to incarceration that will aid in the rehabilitation of offenders; and,
• Improve the system of parole and probation.

(Gov. Code, § 8290.5, subd. (a).) In making recommendations to achieve these objectives, the Committee may recommend adjustments to the length of sentence terms. (Gov. Code, § 8290.5, subd. (b).) The Committee is required to prepare an annual report that describes its work in the prior calendar year and its expected work for the subsequent calendar year. (Gov. Code, § 8293, subd. (b).)

After holding meetings over the course of a year and hearing testimony from more than 40 witnesses, extensive public comment, thorough staff research, and deliberations of Committee members over the course of 4 public meetings, the Committee released its fourth annual report December 2023 describing its work and resulting 10 recommendations. (See http://www.clrc.ca.gov/CRPC/Pub/Reports/CRPC_AR2023.pdf [as of May 29, 2024].)

One of the Committee’s recommendations, citing the success of the LEAD Pilot Program at reducing recidivism rates for those who received supportive services under the program, is to support Law Enforcement Assisted Diversion (LEAD) in two ways. First, by re-establishing the lapsed pilot program with expanded eligibility for offenses. Second, to make permanent changes to the Penal Code to encourage police officers in jurisdictions without LEAD programs to release people arrested for low-level offenses to community-based supportive services instead of jail and referral to prosecution:

The original LEAD pilot was targeted at low-level offenses, particularly those related to drugs and prostitution, and the only felony eligible for LEAD was subsistence drug sales. Other low-level felonies such as burglary and theft were not eligible, nor were many common misdemeanors like theft and trespassing. Erica Shehane, Los Angeles County Office of Diversion and Reentry Director for LEAD, told the Committee that any new LEAD pilot program should expand the list of eligible crimes and give counties the flexibility to decide to make additional offenses LEAD-eligible.

In addition to expanding eligible offenses in the pilot program, the Penal Code should encourage law enforcement agencies that do not have official LEAD programs to develop similar pre-booking diversion practices. There is no law that prevents counties that did not receive pilot funding from implementing LEAD or similar programs and some counties have done so.

Additionally, current law, Penal Code section 849, allows officers to release an arrested person without further proceedings in some circumstances, including when a person is under the influence of drugs and delivered to a hospital for treatment. But this law does not authorize release to LEAD or similar programs. As explained to the Committee by Los Angeles Sheriff’s Department Captain Geofrey Deedrick, a Penal Code provision specifically authorizing officers to use pre-booking diversion (through LEAD or other similar programs) would empower more officers to use their discretion to divert appropriate cases.

Expanding Penal Code section 849 to allow police officers to refer someone to community-based supportive service programs like addiction or mental health counseling rather than taking them to jail would achieve this goal.

(Id. at p. 15.)

This bill enacts the second half of the recommendation by providing another circumstance under which law enforcement could release a person arrested without a warrant from custody, instead of taking the person before a magistrate, by delivering or referring the individual to supportive services if the organization agrees to accept the delivery or referral, and if no further proceedings are desirable.

FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local: No

SUPPORT: (Verified 6/11/24)

Californians for Safety and Justice (source)

ACLU California Action
California Faculty Association
California Immigrant Policy Center
California Public Defenders Association
Californians United for A Responsible Budget
Communities United for Restorative Youth Justice (CURYJ)
Ella Baker Center for Human Rights
Friends Committee on Legislation of California
Initiate Justice
Lawyers' Committee for Civil Rights of The San Francisco Bay Area
Legal Services for Prisoner With Children
Los Angeles County District Attorney's Office
Peace Officers Research Association of California (PORAC)
Prosecutors Alliance of California, a Project of Tides Advocacy
Rubicon Programs
San Francisco Public Defender
Smart Justice California, a Project of Tides Advocacy
Steinberg Institute
The Transformative In-prison Workgroup
Uncommon Law
Universidad Popular
Vera Institute of Justice
Young Women's Freedom Center

OPPOSITION: (Verified 6/11/24)

Riverside County Sheriff’s Office

ASSEMBLY FLOOR: 72-0, 4/11/24

AYES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Cervantes, Chen, Connolly, Davies, Dixon, Flora, Mike Fong, Friedman, Gabriel, Gallagher, Garcia, Gipson, Haney, Hart, Holden, Hoover, Irwin, Jackson, Jones-Sawyer, Kalra, Lackey, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Reyes, Luz Rivas, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Waldron, Wallis, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas

NO VOTE RECORDED: Bauer-Kahan, Megan Dahle, Essayli, Vince Fong, Grayson, Mathis, Rendon, Villapudua

Prepared by: Stella Choe / PUB. S. /

6/11/24 16:46:47

**** END ****

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Aisha Wahab, Chair

2023 - 2024 Regular

Bill No: AB 2215 Hearing Date: June 11, 2024

Subject: Criminal procedure: arrests

HISTORY

Source: Californians for Safety and Justice

Prior Legislation: SB 238 (Hertzberg), Chapter 566, Statutes of 2017

SB 843 (Committee on Budget), Chapter 33, Statutes of 2016

Support: ACLU California Action; California Faculty Association; California Immigrant Policy Center; California Public Defenders Association; Californians United for A Responsible Budget; Communities United for Restorative Youth Justice (CURYJ); Ella Baker Center for Human Rights; Friends Committee on Legislation of California; Initiate Justice; Lawyers' Committee for Civil Rights of The San Francisco Bay Area; Legal Services for Prisoner With Children; Peace Officers Research Association of California (PORAC); Prosecutors Alliance of California; Rubicon Programs; San Francisco Public Defender; Smart Justice California; Steinberg Institute; The Transformative In-prison Workgroup; UnCommon Law; Universidad Popular; Vera Institute of Justice; Young Women's Freedom Center

Opposition: Los Angeles County Professional Peace Officers Association; Riverside County Sheriff's Office

Assembly Floor Vote: 72 - 0

PURPOSE

The purpose of this bill is to authorize an arresting officer to release an arrested person from custody without bringing the person before a magistrate if the person is delivered or referred to a public health or social service organization that provides services such as housing, medical care, treatment for alcohol or substance use disorders, psychological counseling, or employment training and education, the organization agrees to the delivery or referral, and no further proceedings are desirable.

Existing law provides that an arrest is taking a person into custody in a case and manner authorized by law, and authorizes peace officers and private persons to make arrests. (Pen. Code, § 834.)

Existing law authorizes a peace officer to arrest a person without a warrant in the following circumstances:

• The officer has probable cause to believe that the person to be arrested has committed a public offense in the officer’s presence;
  
• The person arrested has committed a felony, although not in the officer’s presence; or,
  
• The office has probable cause to believe that the person to be arrested has committed a felony, whether or not a felony, in fact, has been committed. (Pen. Code, § 836.)

Existing law requires, when an arrest is made without a warrant by a peace officer or private person, the person arrested be taken, without unnecessary delay, before the nearest or most accessible magistrate in the county in which the offense is triable, unless the person is otherwise released. (Pen. Code, § 849, subd. (a).)

Existing law requires a complaint stating the charge against the arrested person to be laid before the magistrate. (Pen. Code, § 849, subd. (a).)

Existing law establishes the Law Enforcement Assisted Diversion (LEAD) pilot program. (Pen. Code, § 1001.85, et seq.)

Existing law provides that the purpose of the LEAD program is to improve public safety and reduce recidivism by increasing the availability and use of social service resources while reducing costs to law enforcement agencies and courts stemming from repeated incarceration. (Pen. Code, § 1001.85, subd. (a).)

Existing law requires LEAD pilot programs to be consistent with the following principles, implemented to address and reflect the priorities of the community in which the program exists:

• Providing intensive case management services and an individually tailored intervention plan that acts as a blueprint for assisting LEAD participants;
  
• Prioritizing temporary and permanent housing that includes individualized supportive services, without preconditions of drug or alcohol treatment or abstinence from drugs or alcohol;
  
• Employing human and social service resources in coordination with law enforcement in a manner that improves individual outcomes and community safety, and promotes community wellness; and,
  
• Participation in LEAD services shall be voluntary throughout the duration of the program and shall not require abstinence from drug or alcohol use as a condition of continued participation. (Pen Code, § 1001.85, subd. (b).)

Existing law authorizes a peace officer to release from custody, instead of taking the person before a magistrate, a person arrested without a warrant in the following circumstances:

• The officer is satisfied that there are insufficient grounds for making a criminal complaint against the person arrested;
  
• The person arrested was arrested for intoxication only, and no further proceedings are desirable;
  
• The person was arrested only for being under the influence of a controlled substance or drug and the person is delivered to a facility or hospital for treatment and no further proceedings are desirable;
  
• The person was arrested for driving under the influence of alcohol or drugs and the person is delivered to a hospital for medical treatment that prohibits immediate delivery before a magistrate; or,
  
• The person was arrested and subsequently delivered to a hospital or other urgent care facility, including, but not limited to, a facility for the treatment of co-occurring substance use disorders, for mental health evaluation and treatment, and no further proceedings are desirable. (Pen. Code, § 849, subd. (b)(1)-(5).)

Existing law requires the record of arrest of a person released, as specified, to include a record of release, and that the arrest shall not be deemed an arrest, but a detention only. (Pen. Code, § 849, subd. (c).)

This bill additionally authorizes a peace officer to release a person arrested without a warrant from custody, instead of taking the person before a magistrate, by:

• Delivering or referring that person to a public health or social service organization that provides services including, but not limited to, housing, medical care, treatment for alcohol or substance use disorders, psychological counseling, or employment training and education;
• The organization agrees to accept the delivery or referral; and,
• If no further proceedings are desired.

COMMENTS

1. Need for This Bill

According to the author of this bill:

Assembly Bill 2215 will amend the Penal Code to explicitly authorize law enforcement to connect individuals they encounter directly to supportive services and treatment if they believe that doing so would be in the best interest of public and community safety. By adding clear and concise language to the penal code, AB 2215 allows law enforcement to exercise all of the tools available to them and codifies their discretionary authority.

1. Committee on the Revision of the Penal Code’s Recommendation

On January 1, 2020, the Committee on the Revision of the Penal Code (“Committee”) was established within the Law Review Commission to study the Penal Code and recommend statutory reforms. (SB 94, Ch. 25, Stats. 2019; Gov. Code, § 8280.) The Committee’s objectives are as follows:

1. Simplify and rationalize the substance of criminal law;
2. Simplify and rationalize criminal procedures;
3. Establish alternatives to incarceration that will aid in the rehabilitation of offenders; and,
4. Improve the system of parole and probation.

(Gov. Code, § 8290.5, subd. (a).) In making recommendations to achieve these objectives, the Committee may recommend adjustments to the length of sentence terms. (Gov. Code, § 8290.5, subd. (b).) The Committee is required to prepare an annual report that describes its work in the prior calendar year and its expected work for the subsequent calendar year. (Gov. Code, § 8293, subd. (b).)

After holding meetings over the course of a year and hearing testimony from more than 40 witnesses, extensive public comment, thorough staff research, and deliberations of Committee members over the course of 4 public meetings, the Committee released its fourth annual report December 2023 describing its work and resulting 10 recommendations. (See http://www.clrc.ca.gov/CRPC/Pub/Reports/CRPC_AR2023.pdf [as of May 29, 2024].)

One of the Committee’s recommendations, citing the success of the LEAD Pilot Program at reducing recidivism rates for those who received supportive services under the program, is to support Law Enforcement Assisted Diversion (LEAD) in two ways. First, by re-establishing the lapsed pilot program with expanded eligibility for offenses. Second, to make permanent changes to the Penal Code to encourage police officers in jurisdictions without LEAD programs to release people arrested for low-level offenses to community-based supportive services instead of jail and referral to prosecution:

The original LEAD pilot was targeted at low-level offenses, particularly those related to drugs and prostitution, and the only felony eligible for LEAD was subsistence drug sales. Other low-level felonies such as burglary and theft were not eligible, nor were many common misdemeanors like theft and trespassing. Erica Shehane, Los Angeles County Office of Diversion and Reentry Director for LEAD, told the Committee that any new LEAD pilot program should expand the list of eligible crimes and give counties the flexibility to decide to make additional offenses LEAD-eligible.

In addition to expanding eligible offenses in the pilot program, the Penal Code should encourage law enforcement agencies that do not have official LEAD programs to develop similar pre-booking diversion practices. There is no law that prevents counties that did not receive pilot funding from implementing LEAD or similar programs and some counties have done so.

Additionally, current law, Penal Code section 849, allows officers to release an arrested person without further proceedings in some circumstances, including when a person is under the influence of drugs and delivered to a hospital for treatment. But this law does not authorize release to LEAD or similar programs. As explained to the Committee by Los Angeles Sheriff’s Department Captain Geofrey Deedrick, a Penal Code provision specifically authorizing officers to use pre-booking diversion (through LEAD or other similar programs) would empower more officers to use their discretion to divert appropriate cases.

Expanding Penal Code section 849 to allow police officers to refer someone to community-based supportive service programs like addiction or mental health counseling rather than taking them to jail would achieve this goal.

(Id. at p. 15.)

This bill would enact the second half of the recommendation by providing another circumstance under which law enforcement could release a person arrested without a warrant from custody, instead of taking the person before a magistrate, by delivering or referring the individual to supportive services if the organization agrees to accept the delivery or referral, and if no further proceedings are desirable.

1. LEAD Pilot Program

In 2016, California established the LEAD Pilot Program through a public safety budget trailer bill which allotted $15 million in funding over 2.5 years. (SB 843 (Committee on Budget), Chapter 33, Statutes of 2016.) The stated goals of the program were “to improve public safety and reduce recidivism by increasing the availability and use of social service resources while reducing costs to law enforcement agencies and courts stemming from repeated incarceration.” (Pen. Code, § 1001.85, subd. (a).) The program was aimed serving persons who are involved in drug offenses and sex work by diverting those arrested for these low-level offenses to social service providers in lieu of prosecution. Los Angeles County and the City and County of San Francisco received grants under the program, most of which was for housing, case management, and other health services for LEAD participants.

The Board of State and Community Corrections, the entity that administered the grant program, contracted with researchers at the California State University Long Beach to evaluate the pilot program in the two pilot sites. The report found that the pilot programs proved successful in reducing future arrests of people who received LEAD intervention compared to similar people who were arrested and brought to jail:

At the 12-month follow-up period, LEAD clients had significantly lower rates of misdemeanor and felony arrests, and felony cases. Notably, the significant increase in citations for LEAD clients seen at the 6-month follow-up was not present after a year in the program. These positive findings are likely due to the harm-reduction nature of LEAD. LEAD participants’ case managers also coordinated with San Francisco public defenders to assist with active cases as to not compromise LEAD intervention plans (Collins et al. 2019). The lower recidivism for LEAD clients translate into a one-year criminal justice system utilization cost savings of $3691 over system-as-usual comparison individuals. However, due to data availability, these costs do not include jail or probation costs, so the criminal justice savings are likely underestimations. In addition, other system cost savings were not included in this analysis (medical and mental health system, in particular).

(Malm, Law Enforcement Assisted Diversion (LEAD) External Evaluation, Report to the Legislature, CSU Long Beach (Jan 1. 2020) pp. 120-121 CSULB-LEAD-REPORT-TO-LEGISLATURE-1-15-2020.pdf (ca.gov) [as of May 29, 2024].)

Similar to the authority provided to law enforcement through the LEAD program, this bill would give law enforcement officers to use their discretion to divert cases during the pre-booking stage to connect someone to community-based supportive service programs such as addiction or mental health counseling rather than taking them to jail, if the organization agrees to accept the delivery or referral and if no further proceedings are desirable.

1. Argument in Support

According to Californians for Safety and Justice, the sponsor of this bill:

In 2016, California established the LEAD Pilot Program, which allotted $15 million in funding over 2.5 years. San Francisco and Los Angeles received funding, most of which was for housing, case management, and other health services for LEAD participants. In each county, the pilots proved successful in reducing future arrests of people who received LEAD intervention compared to similar people who were arrested and brought to jail.

While long term funding may have stalled LEAD programs in some areas, it has not slowed down jurisdictions like Los Angeles County and the City of Long Beach, who have expanded their programs to serve more people. California’s Committee on the Revision of the Penal Code highlighted the lower recidivism for LEAD clients in their annual 2023 report.

Many states including Colorado, Maryland, New Mexico, and Washington have established state-funded LEAD programs. Other states, including New Jersey, have secured private funding to establish LEAD programs. In Chicago, a program like LEAD allows police officers to connect people arrested for drug possession directly with a substance use counselor. Researchers from the University of Chicago Crime Lab found that over 79% of people who are diverted go on to start treatment, and that nearly half of those who start treatment remain engaged 60 days after with increasingly positive outcomes.

Current law is silent on the use of pre-booking diversion by law enforcement, and jurisdictions that have a thriving LEAD program have asked for explicit legislative language codifying the authority their officers are already wielding. AB 2215 will add clear language to the penal code empowering law enforcement with additional pre-booking diversion tools that codify their discretionary authority to connect people to supportive services in the interest of community safety.

1. Argument in Opposition

According to the Los Angeles County Professional Peace Officers Association:

Releasing individuals without proper judicial oversight could pose risks to public safety. Without proper assessment of the individual’s potential threat to society, there’s a possibility that releasing them directly to a health or social service organization could put the community at risk.

While providing access to health and social services is important, it should not come at the expense of proper legal proceedings. Bringing individuals before a magistrate ensures that they can access rehabilitation programs within the framework of the legal system, potentially leading to more effective outcomes in addressing underlying issues such as substance abuse or mental health disorders.

-- END –

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Aisha Wahab, Chair

2023 - 2024 Regular

Bill No: AB 2215 Hearing Date: May 28, 2024

Subject: Criminal procedure: arrests

HISTORY

Source: Californians for Safety and Justice

Prior Legislation: SB 238 (Hertzberg), Chapter 566, Statutes of 2017

SB 843 (Committee on Budget), Chapter 33, Statutes of 2016

Support: ACLU California Action; California Faculty Association; California Immigrant Policy Center; California Public Defenders Association; Californians United for A Responsible Budget; Communities United for Restorative Youth Justice (CURYJ); Ella Baker Center for Human Rights; Friends Committee on Legislation of California; Initiate Justice; Lawyers' Committee for Civil Rights of The San Francisco Bay Area; Legal Services for Prisoner With Children; Peace Officers Research Association of California (PORAC); Prosecutors Alliance of California; Rubicon Programs; San Francisco Public Defender; Smart Justice California; Steinberg Institute; The Transformative In-prison Workgroup; UnCommon Law; Vera Institute of Justice; Young Women's Freedom Center

Opposition: Los Angeles County Professional Peace Officers Association; Riverside County Sheriff's Office

Assembly Floor Vote: 72 - 0

PURPOSE

The purpose of this bill is to authorize an arresting officer to release an arrested person from custody without bringing the person before a magistrate if the person is delivered or referred to a public health or social service organization that provides services such as housing, medical care, treatment for alcohol or substance use disorders, psychological counseling, or employment training and education, and no further proceedings are desirable.

Existing law provides that an arrest is taking a person into custody in a case and manner authorized by law, and authorizes peace officers and private persons to make arrests. (Pen. Code, § 834.)

Existing law authorizes a peace officer to arrest a person without a warrant in the following circumstances:

• The officer has probable cause to believe that the person to be arrested has committed a public offense in the officer’s presence;
  
• The person arrested has committed a felony, although not in the officer’s presence; or,
  
• The office has probable cause to believe that the person to be arrested has committed a felony, whether or not a felony, in fact, has been committed. (Pen. Code, § 836.)

Existing law requires, when an arrest is made without a warrant by a peace officer or private person, the person arrested be taken, without unnecessary delay, before the nearest or most accessible magistrate in the county in which the offense is triable, unless the person is otherwise released. (Pen. Code, § 849, subd. (a).)

Existing law requires a complaint stating the charge against the arrested person to be laid before the magistrate. (Pen. Code, § 849, subd. (a).)

Existing law authorizes a peace officer to release from custody, instead of taking the person before a magistrate, a person arrested without a warrant in the following circumstances:

• The officer is satisfied that there are insufficient grounds for making a criminal complaint against the person arrested;
  
• The person arrested was arrested for intoxication only, and no further proceedings are desirable;
  
• The person was arrested only for being under the influence of a controlled substance or drug and the person is delivered to a facility or hospital for treatment and no further proceedings are desirable;
  
• The person was arrested for driving under the influence of alcohol or drugs and the person is delivered to a hospital for medical treatment that prohibits immediate delivery before a magistrate; or,
  
• The person was arrested and subsequently delivered to a hospital or other urgent care facility, including, but not limited to, a facility for the treatment of co-occurring substance use disorders, for mental health evaluation and treatment, and no further proceedings are desirable. (Pen. Code, § 849, subd. (b)(1)-(5).)

Existing law requires the record of arrest of a person released, as specified, to include a record of release, and that the arrest shall not be deemed an arrest, but a detention only. (Pen. Code, § 849, subd. (c).)

Existing law establishes the Law Enforcement Assisted Diversion (LEAD) pilot program. (Pen. Code, § 1001.85, et seq.)

Existing law provides that the purpose of the LEAD program is to improve public safety and reduce recidivism by increasing the availability and use of social service resources while reducing costs to law enforcement agencies and courts stemming from repeated incarceration. (Pen. Code, § 1001.85, subd. (a).)

Existing law requires LEAD pilot programs to be consistent with the following principles, implemented to address and reflect the priorities of the community in which the program exists:

• Providing intensive case management services and an individually tailored intervention plan that acts as a blueprint for assisting LEAD participants;
  
• Prioritizing temporary and permanent housing that includes individualized supportive services, without preconditions of drug or alcohol treatment or abstinence from drugs or alcohol;
  
• Employing human and social service resources in coordination with law enforcement in a manner that improves individual outcomes and community safety, and promotes community wellness; and,
  
• Participation in LEAD services shall be voluntary throughout the duration of the program and shall not require abstinence from drug or alcohol use as a condition of continued participation. (Pen Code, § 1001.85, subd. (b).)

This bill authorizes a peace officer to release a person arrested without a warrant from custody, instead of taking the person before a magistrate, by delivering or referring that person to a public health or social service organization that provides services including, but not limited to, housing, medical care, treatment for alcohol or substance use disorders, psychological counseling, or employment training and education, and if no further proceedings are desired.

COMMENTS

1. Need for This Bill

According to the author of this bill:

Assembly Bill 2215 will amend the Penal Code to explicitly authorize law enforcement to connect individuals they encounter directly to supportive services and treatment if they believe that doing so would be in the best interest of public and community safety. By adding clear and concise language to the penal code, AB 2215 allows law enforcement to exercise all of the tools available to them and codifies their discretionary authority.

1. Committee on the Revision of the Penal Code’s Recommendation

On January 1, 2020, the Committee on the Revision of the Penal Code (“Committee”) was established within the Law Review Commission to study the Penal Code and recommend statutory reforms. (SB 94, Ch. 25, Stats. 2019; Gov. Code, § 8280.) The Committee’s objectives are as follows:

1. Simplify and rationalize the substance of criminal law;
2. Simplify and rationalize criminal procedures;
3. Establish alternatives to incarceration that will aid in the rehabilitation of offenders; and,
4. Improve the system of parole and probation.

(Gov. Code, § 8290.5, subd. (a).) In making recommendations to achieve these objectives, the Committee may recommend adjustments to the length of sentence terms. (Gov. Code, § 8290.5, subd. (b).) The Committee is required to prepare an annual report that describes its work in the prior calendar year and its expected work for the subsequent calendar year. (Gov. Code, § 8293, subd. (b).)

After holding meetings over the course of a year and hearing testimony from more than 40 witnesses, extensive public comment, thorough staff research, and deliberations of Committee members over the course of 4 public meetings, the Committee released its fourth annual report December 2023 describing its work and resulting 10 recommendations. (See http://www.clrc.ca.gov/CRPC/Pub/Reports/CRPC_AR2023.pdf [as of May 21, 2024].)

One of the Committee’s recommendations, citing the success of the LEAD Pilot Program at reducing recidivism rates for those who received supportive services under the program, is to support Law Enforcement Assisted Diversion (LEAD) in two ways. First, by re-establishing the lapsed pilot program with expanded eligibility for offenses. Second, to make permanent changes to the Penal Code to encourage police officers in jurisdictions without LEAD programs to release people arrested for low-level offenses to community-based supportive services instead of jail and referral to prosecution:

The original LEAD pilot was targeted at low-level offenses, particularly those related to drugs and prostitution, and the only felony eligible for LEAD was subsistence drug sales. Other low-level felonies such as burglary and theft were not eligible, nor were many common misdemeanors like theft and trespassing. Erica Shehane, Los Angeles County Office of Diversion and Reentry Director for LEAD, told the Committee that any new LEAD pilot program should expand the list of eligible crimes and give counties the flexibility to decide to make additional offenses LEAD-eligible.

In addition to expanding eligible offenses in the pilot program, the Penal Code should encourage law enforcement agencies that do not have official LEAD programs to develop similar pre-booking diversion practices. There is no law that prevents counties that did not receive pilot funding from implementing LEAD or similar programs and some counties have done so.

Additionally, current law, Penal Code section 849, allows officers to release an arrested person without further proceedings in some circumstances, including when a person is under the influence of drugs and delivered to a hospital for treatment. But this law does not authorize release to LEAD or similar programs. As explained to the Committee by Los Angeles Sheriff’s Department Captain Geofrey Deedrick, a Penal Code provision specifically authorizing officers to use pre-booking diversion (through LEAD or other similar programs) would empower more officers to use their discretion to divert appropriate cases.

Expanding Penal Code section 849 to allow police officers to refer someone to community-based supportive service programs like addiction or mental health counseling rather than taking them to jail would achieve this goal.

(Id. at p. 15.)

This bill would enact the second half of the recommendation.

1. LEAD Pilot Program

In 2016, California established the LEAD Pilot Program through a public safety budget trailer bill which allotted $15 million in funding over 2.5 years. (SB 843 (Committee on Budget), Chapter 33, Statutes of 2016.) The stated goals of the program were “to improve public safety and reduce recidivism by increasing the availability and use of social service resources while reducing costs to law enforcement agencies and courts stemming from repeated incarceration.” (Pen. Code, § 1001.85, subd. (a).) The program was aimed serving persons who are involved in drug offenses and sex work by diverting those arrested for these low-level offenses to social service providers in lieu of prosecution. Los Angeles County and the City and County of San Francisco received grants under the program, most of which was for housing, case management, and other health services for LEAD participants.

The Board of State and Community Corrections, the entity that administered the grant program, contracted with researchers at the California State University Long Beach to evaluate the pilot program in the two pilot sites. The report found that the pilot programs proved successful in reducing future arrests of people who received LEAD intervention compared to similar people who were arrested and brought to jail:

At the 12-month follow-up period, LEAD clients had significantly lower rates of misdemeanor and felony arrests, and felony cases. Notably, the significant increase in citations for LEAD clients seen at the 6-month follow-up was not present after a year in the program. These positive findings are likely due to the harm-reduction nature of LEAD. LEAD participants’ case managers also coordinated with San Francisco public defenders to assist with active cases as to not compromise LEAD intervention plans (Collins et al. 2019). The lower recidivism for LEAD clients translate into a one-year criminal justice system utilization cost savings of $3691 over system-as-usual comparison individuals. However, due to data availability, these costs do not include jail or probation costs, so the criminal justice savings are likely underestimations. In addition, other system cost savings were not included in this analysis (medical and mental health system, in particular).

(Malm, Law Enforcement Assisted Diversion (LEAD) External Evaluation, Report to the Legislature, CSU Long Beach (Jan 1. 2020) pp. 120-121 CSULB-LEAD-REPORT-TO-LEGISLATURE-1-15-2020.pdf (ca.gov) [as of May 21, 2024].)

Similar to the LEAD program, this bill would give law enforcement officers to use their discretion to divert cases during the pre-booking stage to connect someone to community-based supportive service programs such as addiction or mental health counseling rather than taking them to jail.

1. Argument in Support

According to Californians for Safety and Justice, the sponsor of this bill:

In 2016, California established the LEAD Pilot Program, which allotted $15 million in funding over 2.5 years. San Francisco and Los Angeles received funding, most of which was for housing, case management, and other health services for LEAD participants. In each county, the pilots proved successful in reducing future arrests of people who received LEAD intervention compared to similar people who were arrested and brought to jail.

While long term funding may have stalled LEAD programs in some areas, it has not slowed down jurisdictions like Los Angeles County and the City of Long Beach, who have expanded their programs to serve more people. California’s Committee on the Revision of the Penal Code highlighted the lower recidivism for LEAD clients in their annual 2023 report.

Many states including Colorado, Maryland, New Mexico, and Washington have established state-funded LEAD programs. Other states, including New Jersey, have secured private funding to establish LEAD programs. In Chicago, a program like LEAD allows police officers to connect people arrested for drug possession directly with a substance use counselor. Researchers from the University of Chicago Crime Lab found that over 79% of people who are diverted go on to start treatment, and that nearly half of those who start treatment remain engaged 60 days after with increasingly positive outcomes.

Current law is silent on the use of pre-booking diversion by law enforcement, and jurisdictions that have a thriving LEAD program have asked for explicit legislative language codifying the authority their officers are already wielding. AB 2215 will add clear language to the penal code empowering law enforcement with additional pre-booking diversion tools that codify their discretionary authority to connect people to supportive services in the interest of community safety.

1. Argument in Opposition

According to the Los Angeles County Professional Peace Officers Association:

Releasing individuals without proper judicial oversight could pose risks to public safety. Without proper assessment of the individual’s potential threat to society, there’s a possibility that releasing them directly to a health or social service organization could put the community at risk.

While providing access to health and social services is important, it should not come at the expense of proper legal proceedings. Bringing individuals before a magistrate ensures that they can access rehabilitation programs within the framework of the legal system, potentially leading to more effective outcomes in addressing underlying issues such as substance abuse or mental health disorders.

-- END –

ASSEMBLY THIRD READING

ATR Bill Id:AB 2215

Author:(Bryan)

As Introduced Ver:February 7, 2024

Majority vote

SUMMARY

Provides that a peace officer may release a person arrested without a warrant from custody, instead of taking the person before a magistrate, by delivering or referring that person to a public health or social service organization that provides services including, but not limited to, housing, medical care, treatment for alcohol or substance use disorders, psychological counseling, or employment training and education, and no further proceedings are desired.

Major Provisions

COMMENTS

Committee on Revision of the Penal Code Recommendation: The subject of this bill is based on a recommendation made in the Committee on Revision of the Penal Code's (CRPC) most recent annual report. The CRPC was established to study and recommend statutory reforms to criminal law and procedure relating to, among other things, alternatives to incarceration. (Gov. Code, Section 8290.5, subd. (a)(3).) Citing the success of the LEAD Pilot Program at reducing recidivism rates for those who received supportive services under the program, CRPC made the following recommendation: "Update Penal Code Section 849 to encourage police officers in all jurisdiction (even those without LEAD programs) to release people arrested for low-level offenses to community-based supportive services in lieu of jail booking and referral to prosecution." (Com. Revision of Pen. Code, 2023 Annual Report and Recommendations (Dec. 2023), p. 13 <http://www.clrc.ca.gov/CRPC/Pub/Reports/CRPC_AR2023.pdf> [last visited Mar. 26, 2024].) This bill does just that.

According to the Author

"Assembly Bill 2215 will amend the Penal Code to explicitly authorize law enforcement to connect individuals they encounter directly to supportive services and treatment if they believe that doing so would be in the best interest of public and community safety. By adding clear and concise language to the penal code, AB 2215 allows law enforcement to exercise all of the tools available to them and codifies their discretionary authority."

Arguments in Support

According to Californians for Safety and Justice, the bill's sponsor, "This bill will update the Penal Code to make it clear that police officers in all jurisdictions, even those without Law Enforcement Assisted Diversion (LEAD) programs, connect people arrested for low-level offenses directly to supportive services and treatment if they feel that is in the best interest to public safety.

"In 2016, California established the LEAD Pilot Program, which allotted $15 million in funding over 2.5 years. San Francisco and Los Angeles received funding, most of which was for housing, case management, and other health services for LEAD participants. In each county, the pilots proved successful in reducing future arrests of people who received LEAD intervention compared to similar people who were arrested and brought to jail.

"While long term funding may have stalled LEAD programs in some areas, it has not slowed down jurisdictions like Los Angeles County and the City of Long Beach, who have expanded their programs to serve more people. California's Committee on the Revision of the Penal Code highlighted the lower recidivism for LEAD clients in their annual 2023 report.

"Many states including Colorado, Maryland, New Mexico, and Washington have established state-funded LEAD programs. Other states, including New Jersey, have secured private funding to establish LEAD programs. In Chicago, a program like LEAD allows police officers to connect people arrested for drug possession directly with a substance use counselor. Researchers from the University of Chicago Crime Lab found that over 79% of people who are diverted go on to start treatment, and that nearly half of those who start treatment remain engaged 60 days after with increasingly positive outcomes.

"Current law is silent on the use of pre-booking diversion by law enforcement, and jurisdictions that have a thriving LEAD program have asked for explicit legislative language codifying the authority their officers are already wielding. AB 2215 will add clear language to the penal code empowering law enforcement with additional pre-booking diversion tools that codify their discretionary authority to connect people to supportive services in the interest of community safety."

Arguments in Opposition

According to the Los Angeles County Professional Peace Officers Association, "Releasing individuals without proper judicial oversight could pose risks to public safety. Without proper assessment of the individual's potential threat to society, there's a possibility that releasing them directly to a health or social service organization could put the community at risk.

"While providing access to health and social services is important, it should not come at the expense of proper legal proceedings. Bringing individuals before a magistrate ensures that they can access rehabilitation programs within the framework of the legal system, potentially leading to more effective outcomes in addressing underlying issues such as substance abuse or mental health disorders."

FISCAL COMMENTS

Unknown. This bill is keyed non-fiscal by the Legislative Counsel.

VOTES

ASM PUBLIC SAFETY: 8-0-0

YES: McCarty, Alanis, Lackey, Stephanie Nguyen, Reyes, Ting, Wilson, Zbur

UPDATED

VERSION: February 7, 2024

CONSULTANT: Andrew Ironside / PUB. S. / (916) 319-3744 FN: 0002694

Date of Hearing: April 2, 2024

Counsel: Andrew Ironside

ASSEMBLY COMMITTEE ON

Kevin McCarty, Chair

ABPCA Bill Id:

Author:() – As Ver:

SUMMARY:

Provides that a peace officer may release a person arrested without a warrant from custody, instead of taking the person before a magistrate, by delivering or referring that person to a public health or social service organization that provides services including, but not limited to, housing, medical care, treatment for alcohol or substance use disorders, psychological counseling, or employment training and education, and no further proceedings are desired.

EXISTING LAW:

1. Requires, when an arrest is made without a warrant by a peace officer or private person, the person arrested be taken, without unnecessary delay, before the nearest or most accessible magistrate in the county in which the offense is triable, unless the person is otherwise released. (Pen. Code, § 849, subd. (a).)
   
2. Requires a complaint stating the charge against the arrested person to be laid before the magistrate. (Pen. Code, § 849, subd. (a).)
   
3. Authorizes a peace officer to release from custody, instead of taking the person before a magistrate, a person arrested without a warrant in the following circumstances:
   
   1. The officer is satisfied that there are insufficient grounds for making a criminal complaint against the person arrested;
      
   2. The person arrested was arrested for intoxication only, and no further proceedings are desirable;
      
   3. The person was arrested only for being under the influence of a controlled substance or drug and the person is delivered to a facility or hospital for treatment and no further proceedings are desirable;
      
   4. The person was arrested for driving under the influence of alcohol or drugs and the person is delivered to a hospital for medical treatment that prohibits immediate delivery before a magistrate; or,
      
   5. The person was arrested and subsequently delivered to a hospital or other urgent care facility, including, but not limited to, a facility for the treatment of co-occurring substance use disorders, for mental health evaluation and treatment, and no further proceedings are desirable. (Pen. Code, § 849, subd. (b)(1)-(5).)
      
4. Requires the record of arrest of a person released, as specified, to include a record of release, and that the arrest shall not be deemed an arrest, but a detention only. (Pen. Code, § 849, subd. (c).)
   
5. Provides that an arrest is taking a person into custody in a case and manner authorized by law, and authorizes peace officers and private persons to make arrests. (Pen. Code, § 834.)
   
6. Authorizes a peace officer to arrest a person without a warrant in the following circumstances:
   
   1. The officer has probable cause to believe that the person to be arrested has committed a public offense in the officer’s presence;
      
   2. The person arrested has committed a felony, although not in the officer’s presence; or,
      
   3. The office has probable cause to believe that the person to be arrested has committed a felony, whether or not a felony, in fact, has been committed. (Pen. Code, § 836.)
      
7. Authorizes a private person to arrest an individual in the following circumstances:
   
   1. For a public offense committed or attempted in their presence;
      
   2. When the person arrested has committed a felony, although not in their presence; or,
      
   3. When a felony has been in fact committed, and the person has reasonable cause for believing the person arrested to have committed it. (Pen. Code, § 837.)
      
8. Requires a private person who has arrested another for the commission of a public offense to, without unnecessary delay, take the person arrested before a magistrate, or deliver the person to a peace officer. (Pen. Code, § 847, subd. (a).)
   
9. Provides that a public officer or employee, when authorized by ordinance, may arrest a person without a warrant whenever the officer or employee has reasonable cause to believe that the person to be arrested has committed a misdemeanor in the presence of the officer or employee that is a violation of a statute or ordinance that the officer or employee has the duty to enforce. (Pen. Code, § 836.5, subd. (a).)
   
10. Establishes the Law Enforcement Assisted Diversion (LEAD) pilot program. (Pen. Code, § 1001.85, et seq.)
    
11. Provides that the purpose of the LEAD program is to improve public safety and reduce recidivism by increasing the availability and use of social service resources while reducing costs to law enforcement agencies and courts stemming from repeated incarceration. (Pen. Code, § 1001.85, subd. (a).)
    
12. Requires LEAD pilot programs to be consistent with the following principles, implemented to address and reflect the priorities of the community in which the program exists:
    
    1. Providing intensive case management services and an individually tailored intervention plan that acts as a blueprint for assisting LEAD participants;
       
    2. Prioritizing temporary and permanent housing that includes individualized supportive services, without preconditions of drug or alcohol treatment or abstinence from drugs or alcohol;
       
    3. Employing human and social service resources in coordination with law enforcement in a manner that improves individual outcomes and community safety, and promotes community wellness; and,
       
    4. Participation in LEAD services shall be voluntary throughout the duration of the program and shall not require abstinence from drug or alcohol use as a condition of continued participation. (Pen Code, § 1001.85, subd. (b).)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, “Assembly Bill 2215 will amend the Penal Code to explicitly authorize law enforcement to connect individuals they encounter directly to supportive services and treatment if they believe that doing so would be in the best interest of public and community safety. By adding clear and concise language to the penal code, AB 2215 allows law enforcement to exercise all of the tools available to them and codifies their discretionary authority.”
   
2. Law Enforcement Assisted Diversion (LEAD) Program: The 2016 public safety budget trailer bill created the LEAD Pilot Program. The program aims “to improve public safety and reduce recidivism by increasing the availability and use of social service resources while reducing costs to law enforcement agencies and courts stemming from repeated incarceration.” (Pen. Code, § 1001.85, subd. (a).) LEAD programs fund intensive case management services, housing services, and help coordinate human and social services and law enforcement to improve individual and community public safety outcomes. (Pen Code, § 1001.85, subd. (b)(1)-(3).) In 2020, researches at the California State University Long Beach, School of Criminology submitted a report to the Board of State and Community Corrections (BSCC) on the LEAD Pilot Programs launched in Los Angeles County and San Francisco. According to the researchers:
   

LEAD has four core principles: diversion, harm reduction, housing first, and intensive case management. At the point of contact, LEAD police officers exercise discretion in deciding whether to divert an eligible individual (involved in drug offenses or sex work) to community-based services or process them through the criminal justice system (LEAD National Support Bureau, n.d.a). The underlying rationale is that by routing individuals involved in drug offenses and sex work away from jail and into health, social, behavioral, and mental health services, their likelihood of reoffending will decrease, and criminal justice costs will be avoided. The services will allow individuals to address the underlying reasons for their criminal behavior, leading to long-term desistance.

The second core principle of LEAD is harm reduction. Broadly, harm reduction is best defined as “a pragmatic yet compassionate set of principles and procedures designed to reduce the harmful consequences of addictive behavior for both drug consumers and for the society in which they live” (Marlatt, 1996, p. 779). In LEAD, harm reduction refers to reducing the harms associated with drug use and sex work and providing individualized intervention plans for participants based on their immediate needs.

LEAD’s third core principle is housing first. The housing first models seek to provide stability through the form of housing, specifically permanent housing, without conditional requirements to enroll in drug or mental health treatment (National Alliance to End Homelessness, 2016). By providing housing, clients’ lives will be more stable, allowing them to address problems, traumas, and struggles in their life (LEAD National Support Bureau, n.d.a).

The last core principle of LEAD is intensive case management (ICM). ICM essentially services high acuity clients with frequent case manager-client contact (de Vet et al., 2013). The goal of ICM is to improve the clients’ quality of life through the development of individualized intervention plans and provisions of services based on assessments of client’s needs.

(Malm, Law Enforcement Assisted Diversion (LEAD) External Evaluation, Report to the Legislature, CSU Long Beach (Jan 1. 2020) p. 10 <https://www.bscc.ca.gov/wp-content/uploads/CSULB-LEAD-REPORT-TO-LEGISLATURE-1-15-2020.pdf> [last visited Mar. 26, 2024].)

Although outcome and cost data from Los Angeles County was not made available in time for the report, the researchers noted that the success of the LEAD Pilot Program in San Francisco was particularly pronounced:

At the 12-month follow-up period, LEAD SF clients had significantly lower rates of misdemeanor and felony arrests, and felony cases. Felony arrests were about two and a half times higher (257%) for individuals in the comparison group. Misdemeanor arrests were over six times higher (623%) for the comparison group. And felony cases were three and a half times higher (360%) for the comparison group. Notably, the significant increase in citations for LEAD clients seen at the 6- month follow-up was not present after a year in the program. These positive findings are likely due to the harmreduction nature of LEAD. LEAD participants’ case managers also coordinated with San Francisco public defenders and DAs to assist with active cases as to not compromise LEAD intervention plans.

(Id. at p. 8.)

The research concluded that “this evaluation adds to the evidence supporting LEAD as a promising alternative to the criminal justice system as usual.” (Id. at p. 122.)

This bill would provide that peace officers statewide, not just those participating in LEAD pilot programs, may release a person arrested without a warrant by delivering or referring that person to a public health or social service organization that provides supportive services.

1. Committee on Revision of the Penal Code Recommendation: The subject of this bill is based on a recommendation made in the Committee on Revision of the Penal Code’s (CRPC) most recent annual report. The CRPC was established to study and recommend statutory reforms to criminal law and procedure relating to, among other things, alternatives to incarceration. (Gov. Code, § 8290.5, subd. (a)(3).) Citing the success of the LEAD Pilot Program at reducing recidivism rates for those who received supportive services under the program, CRPC made the following recommendation: “Update Penal Code § 849 to encourage police officers in all jurisdiction (even those without LEAD programs) to release people arrested for low-level offenses to community-based supportive services in lieu of jail booking and referral to prosecution.” (Com. Revision of Pen. Code, 2023 Annual Report and Recommendations (Dec. 2023), p. 13 <http://www.clrc.ca.gov/CRPC/Pub/Reports/CRPC_AR2023.pdf> [last visited Mar. 26, 2024].) This bill does just that.
   
2. Argument in Support: According to Californians for Safety and Justice, the bill’s sponsor, “This bill will update the Penal Code to make it clear that police officers in all jurisdictions, even those without Law Enforcement Assisted Diversion (LEAD) programs, connect people arrested for low-level offenses directly to supportive services and treatment if they feel that is in the best interest to public safety.
   
   “In 2016, California established the LEAD Pilot Program, which allotted $15 million in funding over 2.5 years. San Francisco and Los Angeles received funding, most of which was for housing, case management, and other health services for LEAD participants. In each county, the pilots proved successful in reducing future arrests of people who received LEAD intervention compared to similar people who were arrested and brought to jail.
   
   “While long term funding may have stalled LEAD programs in some areas, it has not slowed down jurisdictions like Los Angeles County and the City of Long Beach, who have expanded their programs to serve more people. California’s Committee on the Revision of the Penal Code highlighted the lower recidivism for LEAD clients in their annual 2023 report.
   
   “Many states including Colorado, Maryland, New Mexico, and Washington have established state-funded LEAD programs. Other states, including New Jersey, have secured private funding to establish LEAD programs. In Chicago, a program like LEAD allows police officers to connect people arrested for drug possession directly with a substance use counselor. Researchers from the University of Chicago Crime Lab found that over 79% of people who are diverted go on to start treatment, and that nearly half of those who start treatment remain engaged 60 days after with increasingly positive outcomes.
   
   “Current law is silent on the use of pre-booking diversion by law enforcement, and jurisdictions that have a thriving LEAD program have asked for explicit legislative language codifying the authority their officers are already wielding. AB 2215 will add clear language to the penal code empowering law enforcement with additional pre-booking diversion tools that codify their discretionary authority to connect people to supportive services in the interest of community safety.”
   
3. Argument in Opposition: According to the Los Angeles County Professional Peace Officers Association, “Releasing individuals without proper judicial oversight could pose risks to public safety. Without proper assessment of the individual’s potential threat to society, there’s a possibility that releasing them directly to a health or social service organization could put the community at risk.
   
   “While providing access to health and social services is important, it should not come at the expense of proper legal proceedings. Bringing individuals before a magistrate ensures that they can access rehabilitation programs within the framework of the legal system, potentially leading to more effective outcomes in addressing underlying issues such as substance abuse or mental health disorders.”
   
4. Related Legislation:
   
   1. AB 2267 (Jones-Sawyer), would re-establish the Youth Reinvestment Grant Program (YRGP), designating the Office of Youth and Community Restoration (OYCR) to administer it, and would require that a percent of YRGP funds be allocated for youth diversions programs. AB 2267 is currently pending hearing in the Assembly Appropriations Committee.
      
   2. SB 1025 (Eggman), would expand eligibility for the Military Diversion Program to felonies, subject to specified exceptions. SB 1025 is pending hearing in the Senate Appropriations Committee.
      
   3. SB 1282 (Smallwood-Cuevas), would require a court, if diversion is offered, to consider ordering drug treatment for individuals suffering from addiction, and consider a referral to housing services for unhoused individuals. SB 1282 is pending referral in the Senate Rules Committee.
      
5. Prior Legislation:
   
   1. SB 238 (Hertzberg), Chapter 566, Statutes of 2017, re-established peace officer authority to release from custody, instead of taking the person before a magistrate, a person arrested without a warrant by delivering the person to a hospital or other urgent care facility, as specified.
      
   2. SB 843 (Public Safety), Chapter 33, Statutes of 2016, established the LEAD pilot program with the goal of improving public safety and reducing recidivism by increasing the availability and use of social service resources by reducing costs to law enforcement agencies and courts stemming from repeated incarceration.
      
   3. SB 238 (Public Safety), Chapter 499, Statutes of 2015, removed the authority of a peace officer to release from custody, instead of taking the person before a magistrate, a person arrested without a warrant by delivering the person to a hospital or other urgent care facility, as specified.
      

REGISTERED SUPPORT / OPPOSITION:

Support

ACLU California Action
California Immigrant Policy Center
Californians for Safety and Justice
Californians United for A Responsible Budget
Communities United for Restorative Youth Justice (CURYJ)
Ella Baker Center for Human Rights
Initiate Justice
Lawyers' Committee for Civil Rights of The San Francisco Bay Area
Legal Services for Prisoner With Children
Peace Officers Research Association of California (PORAC)
Prosecutors Alliance of California, a Project of Tides Advocacy
Rubicon Programs
San Francisco Public Defender
Smart Justice California, a Project of Tides Advocacy
Steinberg Institute
The Transformative In-prison Workgroup
Uncommon Law
Vera Institute of Justice
Young Women's Freedom Center

Opposition

Los Angeles County Professional Peace Officers Association

Analysis Prepared by: