I Had A Dream

Diversion & Restorative Justice as the Aim of Law

February 2, 2022
/ Author: Rick

A while back, I had a dream that involved a little school rivalry between towns. Imma sanitize it a little bit for purposes of this post.

The kids in my dream had taken to spray painting their school colors, and sometimes little pictograms relating to their school teams, at intersections in their opponents’ towns.

The opponents didn’t like this, of course. At first, they tried to interfere and stop them when they saw them. But then they started running each other down with cars. People were killed.

The Dream Had a Theme

I woke up several times during the night.

But each time I returned to sleep, the same dream either started again, or continued on from at least approximately where it had left off.

I think the reason this happened is that the dream I was having had a theme to it that greatly concerns me these days.

The theme related to restorative justice.

At one point in the dream — don’t ask me why, because I graduated high school so long ago that I am not even sure I ever went, though I must have, because today I’m a criminal defense lawyer who spent many years at Fresno State before going to law school — but at one point in the dream, I was out with some of the kids, spray painting school colors.

A car tried to run me down, and I was up on the front end of it, and it kept stopping suddenly, trying to throw me off. Somehow, it never really succeeded, which only made the car’s occupants madder.

Maybe they were destined to be judges before whom I would appear. With equally frustrating results for all concerned.

Nope. Probably not. Because at some point, I managed to get around to the side of the car, and, hanging onto the door, we started “having a discussion.” No. Really. We discussed the craziness of killing people for prankin’ and punkin’ and paintin’ school colors on a patch of pavement — something easily fixed with a pressure washer, or paint, or whatever — while I hung onto the side of the car.

Anyway, the point is, people did not have to die.

And eventually I got somewhere with them.

(I told you they weren’t destined to be judges!)

Then the Judges Got Involved

But at some point, judges got involved. Motions were made. Hearings were held. And, for some reason, I found myself, defending my attackers, trying to get them into Mental Health Diversion court.

Hey, it’s a dream, right? So it’s going to be a bit bizarre.

During one of the hearings in Mental Health Diversion court, the prosecutor opposing me made a technical error in his brief. It was not a major error. There was some argument about whether this meant his case should be dismissed.

Now, this was a dream, mind you. None of what I’m writing here would have really happened in a real courtroom. I doubt I would be representing my own attackers in court, and sometimes climbing up on — yes, climbing up on — the judge’s bench, with permission, to discuss quietly the finer points of the law and censored, censored, most definitely censored. (I told you Imma clean it up!)

And, lastly, I don’t need to be in Mental Health Diversion. I’m not crazy! You’re crazy!

But, anyway, we’re having this discussion, and I explain to the judge and opposing counsel how easily the technical error could be fixed, and why it didn’t make sense for me to be making a big deal out of it.

That’s how that censored part of it came up, by the way. The judge didn’t understand why I wasn’t using some Mumford case — to my knowledge, that’s just a name that appeared in my dream; not a real case — to get the case thrown out on the technicality.

I explained how Mumford was actually inapplicable. It wasn’t the law. And I was going to win on the law.

Now, the law had to do with diversion, and restorative justice.

What is Diversion?

Mental Health Diversion (MHD), at least as I know it, is primarily based on California Penal Code sections 1001.35, and 1001.36.

I say “primarily,” because that’s the law that makes it possible in California. But prosecutors and judges hate this law, and do everything possible to thwart the law, and to keep people out of Mental Health Diversion. The program as I know it is based, therefore, not so much on the legislation, but on the desire of the judges and prosecutors to limit its use.

Consequently, the idea of Mental Health Diversion is largely a legislative dream, and getting into it is a mental health sufferer’s judicial nightmare.

No doubt this is why my mind dwells on it so much at night: this isn’t the only time I’ve spent all night subconsciously working on it.

The Three-Pronged Purpose of MHD

The three-pronged purpose of MHD legislation is probably part of the problem. The first prong states a desire to increase diversion of people with mental health disorders to mitigate their entry and reentry into the criminal justice system while protecting public safety.

But judges and prosecutors make their livings off maintaining the misery of others. No surprise then, they throw up any roadblocks they can to such mitigation. Their preference is that people — whether with verifiable mental health issues, or not — keep getting into trouble, and coming back into court, so they can keep collecting their oversized government paychecks.

And, believe me, for banging a gavel and shouting “Off with his head!” we grossly overpay the average judge.

And, so, they take advantage of the “squishiness” of the second and third prongs. This squishiness allows counties — and thus judges — to decide how things are going to work. Although the aim is to provide diversion which will be flexible enough to meet the “unique” mental health and support needs of those with mental health disorders, the flexibility is what gives judges (and, to a lesser extent, prosecutors) the ability to keep people out of the program.

They only need to let in just enough people for their particular courtroom to look like they’re doing what the legislature wants, and like they’re busy. But, unsurprisingly, they don’t actually want to implement the legislature’s dream, or to be too busy.

Thwarting Legislative Purpose

So one thing they do is to try to limit the accused they admit to those with fewer, more manageable, clearer mental health issues. The greater, or more complex, or more difficult for the court to understand the mental health issues, the greater the potential for tendency for the case to eat more time. Thus, the greater the tendency to block admission.

I can’t totally blame them on this point, by the way. I do the same in my practice. I only accept so many cases of a certain type. I can handle a certain number of cases that are highly complex, or where the risk is life imprisonment, for example, but no more. I can handle more cases where the complexity is less of a factor, and the potential outcome is not as serious.

But here’s the difference: people whose cases I don’t accept can find other defense attorneys; people who the MHD judges reject have nowhere else to go but, often, conviction, jail, or prison. Because everywhere we implement MHD, it’s a “special” court with a “special” judge, there’s usually only one.

Judges also reject people charged with certain crimes, even those explicitly allowed under the legislation. If the judge dislikes the crime, then damn the legislation. To me, this is the most reprehensible judicial behavior. In my mind, it makes those judges unfit for public service, worthy only of shame, and scorn.

Who died and made them the arbiters of what laws our Legislature could pass?

Yet, too many judges embrace their own tastes in their quest to balance what the Legislature ordained, with what the judges deign to overrule.

The Legislative Dream of MHD

So judges work toward their own preconceived goals, pushing beyond the fact of the stated purpose of MHD legislation, to just flat-out ignoring the aim of the law, unless the aim of the law already supports what the judges want to do.

And, as I’ve already noted, MHD legislation does not support what the judges want to do, which is to limit the use of MHD even where a case should be deemed to meet the criteria set forth in the legislation.

MHD legislation requires six conditions for admission to the MHD program:

  1. “The court is satisfied that the defendant suffers from a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders….”
  2. “The court is satisfied that the defendant’s mental disorder was a significant factor in the commision of the charged offense….”
  3. “In the opinion of a qualified mental health expert, the defendant’s symptoms of the mental disorder…would respond to treatment.”
  4. “The defendant consents to diversion” and gives up the right to a speedy trial (so that he or she can go through the program instead, which will take time — perhaps up to two years.
  5. “The defendant agrees to comply with treatment as a condition of diversion.”
  6. “The court is satisfied that the defendant will not pose an unreasonable risk of danger to public safety” as specifically defined in another part of the Penal Code.

Now, if we wanted to admit junk science — say Child Sexual Abuse Accommodation Syndrome — judges would gladly accept the word of the most biased and unqualified of psychology “experts.” But we’re talking about allowing people treatment, and the possibility of avoiding a criminal record, so….

How Judges Abuse the Dream

This repetitive “[t]he court is satisfied” language is what creates the problem. Judges, of course, are not mental health professionals. Too many of them probably should seek treatment from mental health professionals themselves. Thus, they should rely on the opinions of mental health experts.

At one point in my dream, a white rabbit popped up in front of the judge, pulled a stopwatch from his coat pocket, and shouted, “You’re late! The doctor is a defense expert!” The judge, who had not wanted to accept the expert opinion, agreed, and immediately appointed the rabbit as the court’s own expert.

The rabbit then stated that my clients were appropriate subjects for MHD based on different criteria. The judge said “the court is not sure it is satisfied” because one of the words the rabbit used contained similar letters of the alphabet to another word that would bar my clients from MHD.

The judge ordered the parties to brief the issue of whether the words were really two different words.

Believe it or not, that piece of the dream had a clear connection to something I actually saw happen in MHD.

Thus do judges (and sometimes prosecutors) void the legislative dream. The law requires the judge be satisfied as to the mental health expert’s opinion, and provides no unequivocal guideline for deciding when or how a non-mental-health-expert judge should overrule the qualified mental health expert.

And, until it does, my dream — and the legislative dream — is just that: a dream.

The result is that we don’t use diversion enough.

The legislature should actually make almost everything but the most heinous or violent crimes divertible as an initial point. They should provide clear criteria cabining judges’ conclusions on admissibility. We should then transfer those who don’t respond to diversion to a traditional criminal court.

What is Restorative Justice?

When I started this post, I wanted to talk about restorative justice, as well as mental health diversion. About “half way” through things, I realized if I did that, this was going to be a 5,000-to-7,000 word post. And nobody (not even me) has time for that. I didn’t change the subtitle, though, because of what I’m about to say. As for “What is restorative justice?,” I’m going to come back to that in a future post.

Suffice it to say that mental health diversion, mitigation, and restorative justice are all alternatives to our current sociopathic criminal injustice system, which actually carry with them the promise to make the world a better place. They not only help to get at the root issues that lead to criminal behavior, but after crimes have been committed, they all are positive, rather than negative, influences on our world. They don’t just help us learn; they help us heal.

Instead, We Make the World a Worse Place

Making the world a better place is my primary reason for existing. I think it should be everyone’s primary reason for existing. Frankly, if you’re not making the world a better place, then why are you here?

Of course, we don’t all agree on what that means. But there’s a saying that goes:

Insanity is doing the same thing over and over again and expecting different results.

— Quote Investigator, “Insanity is doing the Same Thing Over and Over Again and Expecting Different Results” (updated July 31, 2019)

People often misattribute the quote to Einstein. But it doesn’t take a genius to understand the truth that underlies the saying.

Yet our criminal “justice” system continues doing the same thing over and over and expecting different results. As if there weren’t enough crimes on the books already, we’re constantly creating new crimes. This provides multiple different ways to criminalize the same behavior. It does nothing to make the world safer, or otherwise improve our world.

When we aren’t creating new crimes, we’re increasing the penalties on already-existing crimes. Again, this does nothing to improve the world. In addition to ruining more lives, for a longer period of time, it simply increases the taxes all of us must pay to keep people locked up.

We Need to Deal with the Mental Health Issues in Our Society

According to the National Alliance on Mental Illness (NAMI),

When researching mental illness and incarceration, one very startling statistic pops up: 1 in 5 people currently incarcerated in jails or prisons across the United States are living with a diagnosed mental illness. When one looks at the juvenile justice system, the numbers grow even more staggering, with a whopping 70% of kids going through the system having some form of mental health problem. What does this mean for those with mental illnesses going through the justice system? Rather than getting the proper care they need, they will instead be in a place that will more than likely continue to worsen their condition.

— National Alliance on Mental Illness, “Mental Illness is Not a Crime” (Undated)

Our legislature has recognized this problem. They pass laws to try a different approach. But our judges and prosecutors prefer to embrace insanity: “Let’s just keep doing the same thing over and over again.”

Meanwhile, screw the Legislature. Who are lawmakers that they think they can tell judges what the law will be?

The Judiciary has Overthrown the Legislature

The other day, I wrote a post — “Supreme Dishonesty” — explaining how the United States Supreme Court’s dishonesty on “interpreting” the Constitution had essentially eradicated our “unalienable” rights.

But it’s not just the Supreme Court. Judicial dishonesty rears its ugly head throughout our criminal “justice” system.

In “Supreme Dishonesty,” I talked of the dishonest dismantling of section 1983. There, Congress passed legislation to hold government agents accountable for violations of constitutional rights. The Supreme Court, however, has all-but-completely gutted section 1983 protections. The Supreme Court preferred to protect the police. They knew better than Congress, and repeatedly substituted their own desires for those of our elected legislators.

In California, the Legislature repeatedly passes legislation to try something different. They created numerous diversion programs in the last few years. We have laws — a new one became effective January 1, 2022 — aimed at recognizing ameliorating factors, such as youth of the offender. Or laws to prevent the extreme punishment of deportation as a consequence of a crime when possible.

But — particularly in Central California, where I practice — our judges and prosecutors do not appreciate these efforts. Whenever possible, they interpret the laws so as to prevent their implementation.

Our judges and prosecutors would rather do the same thing over and over again. Keep locking people up. Keep ratcheting the lengths of sentences. Keep hiking both the misery in our State, and our taxes.


In the end, my dream is to try something different. More diversion, more restorative justice, and judges and DAs who are not hypocrites, with their only goal the destruction of more lives, and the coarsening of society.

But my dream is not likely to become a reality.

After all, the same black hearts give us judges, and prosecutors, cut from — and destined for — the same black cloth. Most judges are former prosecutors. Defense attorneys seldom make the cut to become judges. And, when they do, they feel they must prove they “aren’t just defense attorneys.” So, sadly, former defense attorneys often make the worst judges.

And me? Well, I don’t work for the government. People targeted by the government hire me. So, naturally, I — and my clients — have a tough row to hoe, as they say.

Because the government is to my clients as “the House” is to casinos in Las Vegas. We roll the dice at the table of “justice.” But the House lets us win only often enough to make the system seem fair to those who are so inclined.

That’s not only immoral, and contrary to law, it’s also a sick and twisted take on “justice.”

But, to quote William Kunstler, at least it has this aura of legitimacy, this aura of legality.

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One Comment

  1. Steve Rease says:

    Hi Rick,
    My experience with MH diversion has been much different than yours. Out of 3 cases of MH diversion I have had 2 granted and the only loss was because the judge wasn’t satisfied with the drug treatment plan my expert had put forward. Part of that was probably my failure to demand more detail re: the treatment plan for my client’s meth addiction. I agree with you that it is a real struggle to get the DA and then the judge to accept that diversion in the right answer. (Yes, I know that the DA doesn’t have to agree but you know in reality that it’s a lot tougher when the DA says “no.”) The way I look at it is this: If the only tool you’ve ever known is a hammer, every problem looks like a nail. The judges and DA’s only have hammers; they look at our clients, no matter what, as a nail.

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