Most criminal convictions require a showing of intent or an understanding that an act or omission will result in the commission of a crime. This is expressed by the Latin term “mens rea,” which as “guilty mind.” In common law and up to this day, this standard has been applied, even when it is clear that the defendant suffers from a mental disorder. (There is an insanity defense, but that is a very difficult defense to prove and can result in indefinite detention.)
As our scientific understanding of the brain and the disorders that affect it advances and, indeed, as we reevaluate the concept of free will, it has become increasingly clear to many that not all criminal actors have a guilty mind. Recognizing that mental disorders often have a significant relationship to criminal offenses, the California Legislature passed a law that is effective immediately which attempts to make headway in how offenders with certain mental disorders including (but not limited to) bipolar disorder, schizophrenia, and PTSD are dealt with in the criminal justice system. The new law, codified as Penal Code section 1001.66 seeks a more effective way to address these defendants both in terms of rehabilitating the offender and as a way to reduce the financial costs borne by taxpayers to incarcerate these individuals, often through the criminal justice “revolving door.”
Not every offender with a mental disorder will be eligible; the statute specifically excludes those diagnosed with antisocial personality disorder, borderline personality disorder, or pedophilia, but, in the discretion of the judge presiding over the case, a defendant with other mental disorders may be granted a pre-trial diversion. This diversion is available to all eligible defendants regardless of whether they are charged with a misdemeanor or felony and those with prior convictions are eligible. However, if the court finds the defendant poses an unreasonable danger to the public, the diversion will not be granted. The diversion is only available to those defendants who have not yet been convicted.