Marin lawyers split on state bill to curb diversion

Marin County lawyers have divided views on an Assembly bill to make attempted murder defendants ineligible for mental health treatment in lieu of incarceration.

Marin County District Attorney Lori Frugoli backs Assembly Bill 2576 and says it will shore up gaps in the legal system.

“I wholeheartedly support this bill,” she said. “It serves to close a major loophole, which currently can allow someone who nearly killed another person to be released back into society without being fully accountable. This bill is important for the public safety of our community and all of California.”

In contrast, Marin County Public Defender David Sutton opposes the legislation and said mental health diversion still needs to be an option for judges.

“Mental health diversion recognizes that people who suffer from mental health conditions need rehabilitation, not jail,” he said. “That mental health diversion is sought in one headline-grabbing case does not require legislative intervention. This type of diversion is adjudicated on a case-by-case basis, and discretion over whether to grant diversion is retained by the judge hearing each case. We should have faith in our judiciary to make fair and impartial decisions based on the facts and the law.”

Assemblymember Stephanie Nguyen, the author of AB 2576, said she wants to protect public safety. The California District Attorneys Association supports the legislation, she said.

“It’s about the victims for us and making sure they feel safe and their families feel safe,” the Elk Grove Democrat said.

AB 2576 was passed by the Assembly Public Safety Committee late last month. Nguyen expects an Assembly floor vote during the current legislative session.

Megan Myre, a spokesperson for Assemblyman Damon Connolly, D-San Rafael, said Connolly will evaluate the bill “if and when” it reaches the Assembly floor for a vote.

Under state law, a defendant is eligible for diversion — an option that can that suspend criminal proceedings — if that person was diagnosed with a mental disorder and if that disorder played a significant factor in the charged offense. The court is also required to ensure that the defendant will not pose a risk to public safety if that person is treated in the community.

Charged offenses that are not eligible for mental health diversion include murder, voluntary manslaughter and sexual assault.

The California Public Defenders Association opposes the bill. Margo George, an association member and an Alameda County public defender, wrote a letter to the Assembly Public Safety Committee last month to object to the bill.

“Because AB 2576 incentivizes prosecutors to overcharge cases, impairs the ability of trial judges to make individualized decisions on individual cases, and will necessarily result in more mentally disordered Californians going to prison instead of getting treatment, it is simply bad policy,” George wrote.

She also stated that prosecuting and imprisoning mentally ill Californians should always be the last choice.

“Imprisoning a mentally ill person is not only cruel, it is pointless because it does nothing to address the underlying causes of their actions,” George wrote.

Two Marin County defense attorneys also oppose AB 2576. Charles Dresow said mental health diversion is a critical program that allows a person to undergo treatment and rehabilitation rather than punishment.

“If this bill is passed you will see many district attorney offices charging attempted murder in cases where it shouldn’t be charged in order to disqualify an individual from receiving mental health diversion,” he said. “The discretion to allow mental health diversion for an attempted murder charge should remain with the judge.”

Mary Stearns, director of the San Rafael nonprofit Alternate Defenders Inc., said the mental health diversion option should not be amended. She said the law already bars a client from diversion if that person would pose a danger to public safety, based on opinions from the prosecution, defense and mental health professionals, and on the defendant’s history.

“The court decides based upon these safety criteria and other factors,” Stearns said. “The prosecution should not have the power to exclude someone based solely on its charging decision.”

Nguyen said she hopes her bill will become law.

“This will finally show victims that we hear them, we understand them, we see them, and also mental health is a big issue in the community,” she said. “We all understand that we don’t want to take away from those who truly need this service, but there has to be a balance where we can come together.”