NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A1263B
SPONSOR: Forrest TITLE OF BILL:
An act to amend the criminal procedure law and the judiciary law, in
relation to judicial diversion programs; and to repeal certain
provisions of the criminal procedure law relating thereto
PURPOSE OR GENERAL IDEA OF BILL:
SUMMARY OF PROVISIONS:
Section 1 amends the title of Article 216 of the criminal procedure law.
Section 2 amends the opening paragraph of subdivision 1 of section
216.00 of the criminal procedure law to include within the definition of
"Eligible defendant": Misdemeanor complaint or felony complaint with any
offense and has a functional impairment.
Section 3 amends the opening paragraph of subdivision 1 of section
216.00 of the criminal procedure law to include within the definition of
Eligible defendant: Misdemeanor complaint or felony complaint with any
offense and has a functional impairment.
Section 4 repeals paragraphs (a) and (b) and the closing paragraph 'of
subdivision 1 of section 216.00 of the criminal procedure law.
Section 5 amends existing definitions for judicial diversion courts.
Section 6 amends the court procedures for judicial diversion programs in
article 216 of the criminal procedure law.
Section 7 creates a new subsection that clarifies that each county shall
have a diversion part and judges in that part must have additional
training, that treatment must come at no cost to the defendant and
requires annual reporting by the office of court administration on
diversion part outcomes.
Section 8 amends section 170.15 of the criminal procedure law to explic-
itly authorize judicial diversion court judges to transfer misdemeanor
cases in treatment court to the treatment court in the county in which
the participant resides so that treatment court participants can receive
treatment in the county in which they reside.
Section 9 amends section 180.20 of the criminal procedure law to explic-
itly authorize judicial diversion court judges to transfer unindicted
felonies in treatment court to the treatment court in the county in
which the participant resides so that treatment court participants can
receive treatment in the county in which they reside.
Section 10 amends the title of section 230.21 of the criminal procedure
law and amends section 230.21 of the criminal procedure law to explicit-
ly authorize judicial diversion court judges to transfer indicted felo-
nies in treatment court to the treatment court in the county in which
the participant resides so that treatment court participants can receive
treatment in the county in which they reside.
Section 11 amends section 212 of the judiciary law to reflect the change
in the nature of judicial diversion pursuant to the proposed amendments
to article 216.
Section 12 states that the bill becomes effective within 180 days of
signature.
LEGISLATIVE INTENT:
The legislative intent of the provisions of this article are:
1. To create a judicial diversion program that provides an appropriate
therapeutic and trauma-informed response for people with functional
impairments;
2. To ensure that treatment provided through the court's judicial diver-
sion program is grounded in scientifically validated best practices for
recovery and rehabilitation that incorporate harm reduction principles
and make harm reduction opportunities in the community available to the
participant;
3. To acknowledge that treatment and long-term recovery are most
successful when the person seeking treatment is an active and willing
participant in their own recovery and that treatment plans are flexible
and can be modified throughout the treatment process to meet the partic-
ipant's needs;
4. To minimize the harm of incarceration for people with functional
impairments by limiting the ability of courts to incarcerate or sanction
people who qualify for judicial diversion; and
5. To make judicial diversion programs and treatment accessible to all
people with functional impairments who qualify, regardless of where
someone lives, their ability to pay for treatment, whether they have
attempted treatment in the past or any other barrier to access.
DIFFERENCE BETWEEN ORIGINAL AND AMENDED VERSION (IF APPLICABLE):
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JUSTIFICATION:
The Treatment Not Jail Act will ensure that New Yorkers with substance
use disorders, mental health concerns, and other disabilities have an
off-ramp from the criminal legal system to obtain treatment and support
in their communities. Currently, mental health or other treatment courts
are not available in most counties in the state, and many treatment
courts have significant barriers to access that ensure that, often, the
people most in need of treatment and support are not able to get them.
This bill will expand existing law authorizing drug treatment courts to
accept people with mental health concerns, intellectual disabilities and
other disabilities that impair their functioning in society. Important-
ly, the bill also requires state courts to ensure that people with disa-
bilities (as defined by the federal Americans with Disabilities Act) who
participate in judicial diversion programs are afforded the protections
they are entitled to, pursuant to OLMSTEAD V. L.C., 527 U.S. 581 (1999),
while undergoing treatment.
This legislation amends Criminal Procedure Law Article 216 to create
treatment court alternatives for people with disabilities. This means
not only people with substance use disorders or mental illness, but also
people with intellectual disabilities, traumatic brain injury, dementia,
chronic diseases, significant physical impairments or other conditions
that may have contributed to the defendant's involvement in the criminal
legal system or that would make jail or prison a crueler outcome than
for people without disabilities. The bill also removes significant
barriers to entry that ensure that the people most in need of help can
get it. The bill increases due process protections for people with cases
in these courts to ensure that they are not jailed or remanded summar-
ily. Finally, the bill extends treatment courts to people charged with
misdemeanor offenses. There are thousands of people who are frequently
targeted by police and/or arrested for low-level misdemeanors or
violations. To the extent that people are likely to serve jail time
related to these charges, these people should also have access to treat-
ment courts if they so desire. All participants in judicial diversion
programs will be entitled to robust privacy protections afforded by
federal law with only limited exceptions.
The Treatment Not Jail Act clarifies that admission to a judicial diver-
sion program will no longer require a plea of guilty in New York State.
A pre-plea, pre-adjudication program preserves due process rights,
allows accused people an opportunity to seek treatment, and provides a
strong incentive for successful completion. If the participant success-
fully completes the program, the charge is dismissed. If the participant
does not succeed, the traditional court process can be pursued. This
change recognizes the strong body of scientific evidence that shows that
long-term success for treatment of addiction or mental illness requires
buy-in from the participant. Courts that rely on coercive methods will
not achieve the legislature's long-term goal of fostering lasting treat-
ment success.
Finally, the Treatment Not Jail Act does not exclude participants based
on alleged offenses. Data indicates that a person with mental illness is
more likely to be a victim of violent crime than the perpetrator. See
Noman Ghiasi, Yusra Azhar & Jasbir Singh, "Psychiatric Illness and
Criminality," StatPearls (2020). Additionally, studies show that diver-
sion programs promote public safety and that people charged with
"violent" offenses do just as well in treatment as those charged with
"non-violent" ones. Michelle Naples & Henry J. Steadman "Can Persons
with Co-occurring Disorders and Violent Charges Be Successfully
Diverted?" 2 International Journal of Forensic Mental Health 137-143
(2003). Indeed, most acts of violence committed by people with serious
mental illness are carried out when they are not being treated. Treat-
ment Advocacy Center, Office of Research and Public Affairs, "Risk
Factors For Violence" (June 2016). This bill adopts a smart-on-crime
approach to ensuring that people most in need of treatment have access
to specialized services they need while also making our communities
safer and more resilient.
PRIOR LEGISLATIVE HISTORY:
2020-2021: S.8687 was referred to rules.
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
EFFECTIVE DATE:
This act shall take effect within 180 days of being signed into law.
