Fri. Jul 12th, 2024

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 courtsDUI Courtsveterans courtsmental 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 #Cut50Ella 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


Senate Bill No. 394



An act to add Chapter 2.9E (commencing with Section 1001.83) to Title 6 of Part 2 of the Penal Code, relating to criminal procedure.


[ Approved by Governor  October 08, 2019. Filed with Secretary of State  October 08, 2019. ]



SB 394, Skinner. Criminal procedure: diversion for primary caregivers of minor children.
Existing law allows individuals charged with a specified crime to qualify for a pretrial diversion program based upon various circumstances and qualifications, including mental health disorders, military service, or drug addiction. Existing law generally requires, if the defendant performs satisfactorily in one of these diversion programs, that the court dismiss the defendant’s criminal charges and seal the record of arrest, as specified.
This bill would authorize the presiding judge of the superior court, in consultation with the presiding juvenile court judge and criminal court judges and together with the prosecuting entity and the public defender, to create a pretrial diversion program for defendants who are primary caregivers of a child under 18 years of age, as specified, who are charged with a misdemeanor or a nonserious, nonviolent felony, and who are not being placed into diversion for a crime alleged to have been committed against a person for whom the defendant is the primary caregiver. The bill would set the period of diversion at not less than 6 months, but not more than 24 months. The bill would require the defendant to participate in classes relating to subjects that may include parenting, anger management, and financial literacy, and to receive services relating to housing, employment, and drug, alcohol, and mental health treatment, among others.




Chapter 2.9E (commencing with Section 1001.83) is added to Title 6 of Part 2 of the Penal Code, to read:

CHAPTER  2.9E. Primary Caregiver Diversion


(a) The presiding judge of the superior court, or a judge designated by the presiding judge, in consultation with the presiding juvenile court judge and criminal court judges, and together with the prosecuting entity and the public defender or the contracted criminal defense office that provides the services of a public defender, may agree in writing to establish and conduct a pretrial diversion program for primary caregivers, pursuant to the provisions of this chapter, wherein criminal proceedings are suspended without a plea of guilty for a period of not less than 6 months and not more than 24 months. If the defendant is also participating in juvenile court proceedings, the juvenile and criminal courts shall not duplicate efforts.

(b) The program described in this section may include, but not be limited to, all of the following components:
(1) Parenting classes.
(2) Family and individual counseling.
(3) Mental health screening, education, and treatment.
(4) Family case management services.
(5) Drug and alcohol treatment.
(6) Domestic violence education and prevention.
(7) Physical and sexual abuse counseling.
(8) Anger management.
(9) Vocational and educational services.
(10) Job training and placement.
(11) Affordable and safe housing assistance.
(12) Financial literacy courses.
(c) The defendant may be referred to supportive services and classes in already existing diversion programs and county outpatient services. Before approving a proposed treatment program, the court shall consider the request of the defense, the request of the prosecution, the needs of the defendant and the dependent child or children, and the interests of the community. The programming may be procured using public or private funds. A referral may be made to a county agency, existing collaborative court, or assisted outpatient treatment or services, if the entity agrees to provide the required programming.
(d) On an accusatory pleading alleging the commission of a misdemeanor or felony offense, the court may, after considering the positions of the defense and prosecution, grant pretrial diversion to a defendant pursuant to this section if the defendant meets all of the following requirements:
(1) The defendant is a custodial parent or legal guardian of a minor child under 18 years of age, presently resides in the same household as that child, presently provides care or financial support for that minor child either alone or with the assistance of other household members, and the defendant’s absence in the child’s life would be detrimental to the child.
(2) The defendant has been advised of and waived the right to a speedy trial and a speedy preliminary hearing.
(3) The defendant has been informed of and agrees to comply with the requirements of the program.
(4) The court is satisfied that the defendant will not pose an unreasonable risk of danger to public safety, as defined in Section 1170.18, or to the minor child in their custody, if allowed to remain in the community. The court may consider the positions of the prosecuting entity and defense counsel, the defendant’s violence and criminal history, the recency of the defendant’s criminal history, the defendant’s history of behavior towards minors, the risk of the dependent minor’s exposure to or involvement in criminal activity, the current charged offense, child welfare history involving the defendant, and any other factors that the court deems appropriate.
(5) The defendant is not being placed into a diversion program, pursuant to this section, for any serious felony as described in Section 1192.7 or 1192.8 or violent felony as described in subdivision (c) of Section 667.5.
(6) The defendant is not being placed into a diversion program pursuant to this section for a crime alleged to have been committed against a person for whom the defendant is the primary caregiver.
(e) The provider of the pretrial diversion services in which the defendant has been placed shall provide regular reports to the court, the defense, and the prosecutor on the defendant’s progress in the programming.
(f) (1) If it appears to the prosecuting attorney, the court, pretrial services, or the probation department that the defendant is performing unsatisfactorily in the assigned program, or if the defendant is, subsequent to entering the program, convicted of a felony or any offense that reflects a propensity for violence, the prosecuting attorney or the probation department may make a motion to reinstate criminal proceedings. The court may also reinstate criminal proceedings on its own motion.
(2) After notice to the defendant, the court shall hold a hearing to determine whether to reinstate criminal proceedings.
(3) If the court finds that the defendant is not performing satisfactorily in the assigned program, or the court finds that the defendant has been convicted of a crime as indicated in paragraph (1), the court may end the diversion program and order the resumption of criminal proceedings.
(g) If the defendant has performed satisfactorily in diversion, at the end of the period of diversion, the court shall dismiss the defendant’s criminal charges that were the subject of the criminal proceedings at the time of the initial diversion. A court may conclude that the defendant has performed satisfactorily if the defendant has substantially complied with the requirements of diversion, and has avoided significant new violations of law. If the court dismisses the charges, the clerk of the court shall file a record with the Department of Justice indicating the disposition of the case diverted pursuant to this section. Upon successful completion of diversion, if the court dismisses the charges, the arrest upon which the diversion was based shall be deemed never to have occurred, and the court shall order access to the record of the arrest restricted in accordance with Section 1001.9, except as specified in subdivision (i). The defendant who successfully completes diversion may indicate in response to any question concerning the defendant’s prior criminal record that they were not arrested or diverted for the offense, except as specified in subdivision (i).
(h) A record pertaining to an arrest resulting in successful completion of diversion, or any record generated as a result of the defendant’s application for or participation in diversion, shall not, without the defendant’s consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate.
(i) The defendant shall be advised that, regardless of the defendant’s completion of diversion, both of the following apply:
(1) The arrest upon which the diversion was based may be disclosed by the Department of Justice to any peace officer application request and that, notwithstanding subdivision (h), this section does not relieve the defendant of the obligation to disclose the arrest in response to any direct question contained in any questionnaire or application for a position as a peace officer, as defined in Section 830.
(2) An order to seal records pertaining to an arrest made pursuant to this section has no effect on a criminal justice agency’s ability to access and use those sealed records and information regarding sealed arrests, as described in Section 851.92. SB 394