2023 ANNUAL REPORT COMMITTEE ON REVISION OF THE PENAL CODE Recommendation 13
Relevant Statutes 13
Background and Analysis 13
Empirical Research 15
Insights from Other Jurisdictions 16
1. Support Law
Enforcement
Assisted Diversion
(LEAD)
PAGE 12 CLRC.CA.GOV
2023 ANNUAL REPORT COMMITTEE ON REVISION OF THE PENAL CODE CLRC.CA.GOV Driving under the influence
Assault and battery
MOST FREQUENT ADULT MISDEMEANOR ARRESTS (2022 )
Drugs
Drunk
Trespassing
0 20,000 40,000 60,000 80,000 100,000 120,000 140,000
Source: California Department of Justice, Crime in California 2022, Table 28.
SUPPORT LAW ENFORCEMENT ASSISTED DIVERSION (LEAD ) PAGE 13 Support Law
Enforcement
Assisted Diversion
(LEAD)
RECOMMENDATION
With LEAD, instead of jail, police officers take people directly to community-based service providers who deliver continuing care based on the person’s specific needs.
LEAD pilot projects in San Francisco and Los Angeles demonstrated that LEAD significantly reduces recidivism among participants. But state funding has expired and the COVID-19 pandemic may have also stalled momentum for the development of LEAD programs in additional cities.
The Committee therefore recommends the following:
1. Re-establish LEAD pilot programs with the following specifications:
• Eligible offenses include those in the original LEAD pilot (drug possession, subsistence sales, and prostitution), and offenses related to theft, burglary, and trespassing.
• Allow counties to further expand the list of eligible offenses.
2. Update Penal Code § 849 to encourage police officers in all jurisdictions (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.
RELEVANT STATUTES
Penal Code §§ 849, 1001.85–1001.88.
BACKGROUND AND ANALYSIS
Low-level offenses dominate California’s criminal legal system — 88% of current arrests are for misdemeanors and nonviolent felonies.28 Arrests for drug-related offenses continue to make up a large portion of all arrests even after Proposition 47 reduced the penalty for drug possession.29 Many arrests are of the same people who frequently come into contact with police for issues related to homelessness, mental illness, or substance abuse.
28 California Department of Justice, Crime in California 2022 , Tables 30 & 31.
29 California Department of Justice, Crime in California 2016, Tables 19 & 25; California Department of Justice, Crime in California 2022, Tables 19 & 25.
2023 ANNUAL REPORT COMMITTEE ON REVISION OF THE PENAL CODE CLRC.CA.GOV • •
ARRESTS FOR DRUG OFFENSES (2012 –2022 )
250,000
200,000
150,000
100,000
50,000
0 MISDEMEANORS FELONIES
Source: California Department of Justice, Crime in California 2016 & 2022, Tables 19 & 25. Includes adult and juvenile arrests. 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021 2022
SUPPORT LAW ENFORCEMENT ASSISTED DIVERSION (LEAD ) PAGE 14 30 Penal Code §§ 1001.85–1001.88.
31 Aili Malm, Dina Perrone, and Erica Magaña, Law Enforcement Assisted Diversion (LEAD) External Evaluation Report to the California State Legislature, 119, Table 7-3 (January 2020). See also Aili Malm and Dina Perrone, Law Enforcement Assisted Diversion (LEAD) External Evaluation Report to the California State Legislature — 2020 Addendum, 15, Table 2-3 (January 2021).
32 Aili Malm, Dina Perrone, and Erica Magaña, Law Enforcement Assisted Diversion (LEAD) External Evaluation Report to the California State Legislature , 14, 55 (January 2020). See also Aili Malm and Dina Perrone, Law Enforcement Assisted Diversion (LEAD) External Evaluation Report to the California State Legislature — 2020 Addendum, 13–14 (January 2021).
33 Committee on Revision of the Penal Code meeting on June 23, 2023, Part 1 of 4, 0:04:35–0:11:38.
34 Id. at 0:25:06–0:26:11.
35 Id. at 0:40:30–0:40:56. The initial LEAD pilot was limited to North Long Beach.
A unique approach first developed in Seattle — Law Enforcement Assisted Diversion (LEAD) — has shown that connecting this group of people with supportive services is better for public safety than the traditional jail booking and prosecution process.
In 2016, California established the LEAD Pilot Program which allotted $15 million in funding over 2.5 years.30 San Francisco and Los Angeles received funding, most of which was for housing, case management, and other health services for LEAD participants.31 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.32
Dr. Aili Malm of California State University Long Beach helped evaluate the pilot projects for the Legislature and told the Committee that the LEAD pilot programs were extremely effective, but also faced significant barriers, including lack of police officer enthusiasm, and disruption from the COVID-19 pandemic.33 While momentum may have stalled LEAD in some places, Los Angeles County has expanded its program to serve more people. Los Angeles County Sheriff’s Department Captain Geoffrey Deedrick, who supervised the implementation of LEAD in his department, told the Committee that LEAD enhanced community safety by putting frequently-arrested people on a path to success.34 Long Beach City Prosecutor Doug Haubert — who is responsible for prosecuting all misdemeanors in the city of Long Beach — told the Committee that his office is working on making LEAD operational in all of Long Beach instead of focusing on a specific area.35 2023 ANNUAL REPORT COMMITTEE ON REVISION OF THE PENAL CODE CLRC.CA.GOV
SUPPORT LAW ENFORCEMENT ASSISTED DIVERSION (LEAD ) PAGE 15 36 David Sjostedt, San Francisco Police Chief Pushes To Restart Program to Help Drug Users, The San Francisco Standard, June 23, 2023. 37 Penal Code § 1001.87(b).
38 Id.
39 Committee on Revision of the Penal Code meeting on June 23, 2023, Part 1 of 4, 0:22:53–0:24:12.
40 See Sara Bastomski, Lindsey Cramer, and Emily Reimal, Evaluation of the Contra Costa County Law Enforcement Assisted Diversion Plus Program, Urban Institute (August, 2019); City Response, City of Stockton.
41 Penal Code § 849.
42 Committee on Revision of the Penal Code meeting on June 23, 2023, Part 1 of 4, 1:07:10–1:07:43. An example of this type of provision can be found in Washington state, which in addition to establishing grant funding for LEAD programs, directs police officers to offer any person arrested for possession of drugs a referral to supportive services, including but not limited to LEAD, in lieu of booking. RCWA §§ 10.31.115, 36.28A.450.
43 Aili Malm, Dina Perrone, and Erica Magaña, Law Enforcement Assisted Diversion (LEAD) External Evaluation Report to the California State Legislature, 8 (January 2020).
44 Aili Malm and Dina Perrone, Law Enforcement Assisted Diversion (LEAD) External Evaluation Report to the California State Legislature — 2020 Addendum, 6 (January 2021). This data has been updated from this Report’s original release on December 19, 2023, to more precisely reflect how it was presented in the research.
45 Aili Malm, Dina Perrone, and Erica Magaña, Law Enforcement Assisted Diversion (LEAD) External Evaluation Report to the California State Legislature, 8 (January 2020); Aili Malm and Dina Perrone, Law Enforcement Assisted Diversion (LEAD) External Evaluation Report to the California State Legislature — 2020 Addendum, 6 (January 2021).
This data has been updated from this Report’s original release on December 19, 2023, to more precisely reflect how it was presented in the research.
While the LEAD program in San Francisco was terminated after the completion of the pilot, San Francisco Chief of Police Bill Scott has recently said he wants to reintroduce the program to help address the city’s drug problem.36
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.37 Other low-level felonies such as burglary and theft were not eligible, nor were many common misdemeanors like theft and trespassing.38 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.39 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.40
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.41 But this law does not authorize release to LEAD or similar programs. As explained to the Committee by Los Angeles Sheriff’s Department Captain Geoffrey 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.42
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.
Recognizing that LEAD has proven to be a more effective and efficient model for addressing minor offenses than arrest and prosecution, the state should increase the use of LEAD and similar programs throughout the state.
EMPIRICAL RESEARCH
An evaluation by researchers from California State University, Long Beach of the LEAD pilot project in San Francisco and Los Angeles showed the following results:
• In San Francisco, at the 12-month follow-up period, felony arrests for non- LEAD participants were 257% higher and misdemeanor arrests were 623% higher compared to similarly-situated people who did participate in LEAD.43 • In Los Angeles, at the 12-month follow-up period, felony arrests for non-LEAD participants were 537% higher and misdemeanor arrests were 153% higher.44 • The lower recidivism for LEAD clients translated into significant cost savings over system-as-usual individuals.45
2023 ANNUAL REPORT COMMITTEE ON REVISION OF THE PENAL CODE CLRC.CA.GOV
SUPPORT LAW ENFORCEMENT ASSISTED DIVERSION (LEAD ) PAGE 16
INSIGHT FROM OTHER JURISDICTIONS
Former Albany, New York Police Chief and Director of Policing Strategies for the LEAD National Support Bureau, Brendan Cox told the Committee that his organization assists many states and localities in the development and implementation of LEAD programs.46 States including Colorado, Maryland, New Mexico, and Washington have established state-funded LEAD programs.47 Other states, including New Jersey, have secured grant funding to establish LEAD programs.48
Notably, in New Jersey, the list of LEAD-eligible offenses is more expansive than what was included in California’s pilot program and includes theft, fraud, and trespass offenses.49
The Narcotics Arrest Diversion Program in Chicago, Illinois is a program similar to LEAD that allows police officers to connect people arrested for drug possession with a substance use counselor in lieu of proceeding with the traditional criminal process.50 Unlike in LEAD, arrested people are taken to jail to be connected with a service provider stationed in the facility, though once the person is connected to the program they face no prosecution related to the arrest.51 Researchers from the University of Chicago Crime Lab and Vanderbilt University 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.52
46 Committee on Revision of the Penal Code meeting on June 23, 2023, Part 1 of 4, 0:45:33–0:45:39.
47 Colorado Senate Bill 17-207 (2017 Regular Session); Maryland House Bill 432 (2018 Regular Session); New Mexico House Bill 453 (First Session, 2019); Washington Substitute Senate Bill 5380 (2019 Regular Session).
48 See State of New Jersey Department of Law & Public Safety, Law Enforcement Assisted Diversion.
49 Committee staff received this information from the New Jersey Office of Attorney General.
50 See Ashna Arora and Pankla Bencsik, Policing Substance Use:
Chicago’s Treatment Program for Narcotics Arrests , University of Chicago Crime Lab (November 2021).
51 Id. at 2.
52 Id. at 3.