The Primary Caregiver Pretrial Diversion Act – SB 394

In recognizing the impact of parental incarceration on children in the United States, legislators are listening to those directly impacted by incarceration in order to find solutions to prevent the separation of children from their parents. SB 394 , the Primary Caregiver Pretrial Diversion Act, is a new bill signed into law on October 8, 2019 by Governor Gavin Newson and sponsored by Senator Nancy Skinner, D-Berkeley. The new law will give counties the option to establish a pretrial diversion program for parents and caregivers charged with a misdemeanor or a nonserious, nonviolent felony who:

• Live in the same household as the child(ren),
• Provide care and support,
• Can show that their absence will be detrimental to the child(ren),
• Are not a threat to public safety, and
• The alleged crime was not committed against the custodial child(ren).

Under this new law, the diversion program is optional for counties requiring the presiding judge, district attorney, and public defender to agree to establish the program in a county. This follows in California’s style of creating various pretrial diversion courts—they already have for drug courts, DUI Courts, veterans courts, mental health courts, and Community/Homeless Courts (for resolving misdemeanor criminal warrants). Similar to these other courts, SB 394 allows courts to offer rehabilitative, rather than punitive responses to help families with mental health, drug/alcohol treatment, anger management, financial literacy courses, vocational, educational and job training services. If the parent or caregiver completes the program successfully, their original charges are dismissed. The program sets the period of diversion to not less than 6 months, but not more than 24 months. This means parents can not only maintain their bonds and custody of their children, they are also likely to maintain their employment, housing, and education. It also means that children will be less likely to enter foster care that is triggered solely due to their parents absence.

The success of the bill can be attributed to the strong voices of formerly incarcerated individuals and strong support by Sen. Skinner. Ashleigh Carter, a formerly incarcerated mother, and her daughter Asia powerfully testified in support of the bill and urged the legislators to invest in parents, not prison. Sen. Skinner focused on the underlying reasons to support a law such as this, first for families as “SB 394 provides a constructive option to maintain the well-being of both parents and kids,” but also in order to create a less punitive criminal justice system as the bill “establishes a path for rehabilitation from a wrongdoing that minimizes the negative outcomes on families and children.” SB 394 was a bipartisan bill supported by formerly justice involved individuals and various groups involved in advocacy included #Cut50, Ella Baker Center, and the California American Academy of Pediatrics.

Opposition from the California District Attorney’s Association tried unsuccessfully to argue that the bill would not provide accountability and prevent victim’s restitution. They also claim that it would single out one class of individuals—custodial parents—for disparate treatment allowing those who provide primary care for their children to be diverted while non-custodial parents are left out of the law. As non-custodial parents are not a protected class, this argument would likely fail under a rational basis scrutiny test in a court of law. However, there is much to be said that this bill should extend to all parents not just custodial parents. Justice Strategies see this an argument for expansion of the bill in the future to include non-custodial parents, and not as reason to have prevented the bill’s passage. In fact, Washington State is looking to expand their alternative sentencing bill that currently only applies to primary caregivers, recognizing the important contributions non-custodial parents make to their children and also recognizing the reality that fathers are often non-custodial parents. There is a need recognize the myriad of ways families exist to parent children, and that not all families have two parents in the home.

As far as our research could find, this is the first bill of its kind to create the option of a state-wide pretrial parental diversion program. Other states have alternative sentencing bills such as  Washington’s Substitute Senate Bill 6639 (2010)  and Oregon’s House Bill 3503 (2015) (creating a pilot program), amended in 2017 as House Bill HB 3078 (2017) (expanding the pilot), that provide options for the court to waive a prison sentence (a sentence of 12 months or more) and instead impose community supervision along with various other treatment and programming that may be necessary. The Oregon 2017 amended bill allowed pregnant parents to be eligible and required the Department of Corrections to establish a process for selecting and expanded participating counties.

As we move towards advocating for diversion and alternative sentencing, we need to recognize the huge and important contributions that non-custodial parents make to their children’s lives, and the reality that their absence is as detrimental. Washington’s Primary Caretaker bill (Family Offender Sentencing Alternative) was implemented statewide upon enactment of the law; however, advocates have been pushing a bill to expand eligibility as it relates to more expansive custody definitions, support access for immigrant parents, and to provide alternatives beyond non-violent crimes.

Most recently, Tennessee proposed Senate Bill 0985 which originally proposed a new alternative sentence that would require the court to determine prior to sentencing someone convicted of an offense, whether the offense was nonviolent and whether the convicted person is a primary caretaker of a dependent child. This is an improvement upon the language passed in Washington’s, as the court is not required to consider whether a person is a parent and depends on the defense or prosecution to bring forth a request for the alternative. Not being required to make an assessment could be why different jurisdictions in Washington State use the alternative sentencing program more often than others. Unfortunately, the Tennessee legislature amended the bill before its passage. Instead of creating a new alternative sentencing program, it created a sentencing consideration specific to the principles that existing alternatives should be considered for primary caregivers charged with non-violent offenses.

Overall, Justice Strategies commends this amazing work by advocates in California and continues to follow and support parental diversion and alternative sentencing bills that not only keep families together, but that keep people out of prison altogether. source