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.


The court (judge) will consider those for whom a mental disorder played a significant role in the offense. Furthermore, there must be an indication, in the opinion of a mental health expert, that the offender will respond positively to treatment. If the court offers the diversion to the offender, he or she must waiver speedy trial rights and agree to comply with the treatment program.


The pretrial diversion does not mean the defendant is no longer charged with the crime; rather, it means that prosecution for the crime is diverted. The defendant gets a maximum of two years to comply with the diversion treatment. If the defendant completes the prescribed treatment program satisfactorily and has a long-term plan in place for continuing mental health care, the charges must be dismissed by the court. Dismissal of the charges will, under the law, make the entire case, from the arrest to dismissal, as if it never occurred (with certain exceptions). If the defendant fails to comply with the program or is charged with certain misdemeanors or any felony, the court must hold a hearing where the criminal proceedings may be reinstated.


It is no secret that many individuals languishing in our jails and prisons suffer from mental disorders. Hopefully, this new law will help those who can be helped address their disorder so that they are able to function as law-abiding citizens and decrease the high cost to the taxpayer of incarcerating these individuals.


If you or a loved one may qualify for this pretrial diversion, it is important that you consult with an experienced criminal law attorney before agreeing to plea or the initiation of trial. Attorney William Weinberg, who has practiced criminal defense for 25 years, can help you navigate and utilize this new law. He is available for a free consultation regarding your eligibility and options. You may contact him at his Irvine office at 949-474-8008 or by emailing him at