Backlash Wave Hits California Courts

Hands of professionals discussing documents beside a judge's gavel

The fiercest fight over California’s mental health diversion program is not really about a “dangerous judge” or a single horrific case; it is about who should carry the risk when treatment and public safety pull in opposite directions, and AB 46 decisively shifts that risk back toward incarceration.

Key Points

AB 46 tightens California’s mental health diversion law by redefining the public-safety standard and restoring broad judicial discretion to deny diversion.
The law requires a qualifying mental health diagnosis or treatment within five years and adds serious crimes such as attempted murder to offenses that can block diversion.
Prosecutors and the governor frame AB 46 as a necessary fix to “dangerous loopholes,” citing high-profile reoffense cases and alleged high recidivism among diversion participants.
Advocates and public defenders argue the new standards are so demanding that they will “effectively eliminate” diversion and drive mentally ill defendants back into jail and prison.
The clash reflects a broader national cycle: reforms that expand treatment-based alternatives, followed by retrenchment after media-amplified tragedies.

From Penal Code 1001.36 to AB 46: How California Got Here

California’s mental health diversion framework began as a cornerstone of the state’s broader effort to move low-level offenders with genuine psychiatric disorders out of jails and into treatment. Enacted in 2018 as Penal Code sections 1001.35–1001.36, the program allowed defendants with qualifying diagnoses—conditions defined by the DSM and certified by a mental health expert—to pause criminal prosecution while they completed a court‑approved treatment plan. If they succeeded, charges could be dismissed and records cleared; if they failed, the criminal case resumed.

The statute’s design reflected a moment when California was consciously shrinking its prison population and experimenting with “justice reinvestment”—accepting more risk at the front end in exchange for potential long‑term reductions in crime and incarceration. Judges could grant diversion if four criteria were met: a qualifying disorder, evidence the disorder contributed to the offense, amenability to treatment, and a finding that community treatment would not pose an “unreasonable risk of danger to public safety.” In practice, that last phrase became the fulcrum of controversy. Because “unreasonable risk” was tied to the probability a defendant would commit one of a handful of extreme violent felonies—super strikes such as murder, rape, or child molestation—prosecutors and some judges reported feeling unable to block diversion even when they believed a defendant remained dangerous.

The Trigger: High-Profile Reoffense and the “Dangerous Judge” Narrative

Against that legal backdrop came the cases that now dominate media coverage. Prosecutors and sheriffs in Sacramento, Placer, and other counties have repeatedly pointed to defendants who obtained diversion over prosecutorial objection, were released to the community, and later committed serious violent crimes—most notably homicides. These stories have been amplified in local and national media, sometimes with incendiary framing (“most dangerous judge,” “maniac she freed”), turning individual judicial decisions into symbols of systemic failure.

Sacramento County DA Anne Marie Schubert and others cite internal figures suggesting roughly 40–50% of some local diversion cohorts reoffend, and they describe defendants “pretending” to have mental illness or exploiting broad eligibility criteria. These numbers are not yet backed by statewide audits or peer‑reviewed studies, but they have proved politically powerful. Sheriff Jim Cooper has gone further, arguing that under prior law a person who killed their own child could still qualify for diversion and later have the record expunged, a claim meant to capture the perceived extremity of the loophole.

It is in this emotional climate—grieving families, front‑line officers recounting horrific cases, and headlines spotlighting judges whose decisions preceded tragedies—that AB 46 was conceived, drafted, and ultimately signed.

What AB 46 Actually Changes: Mechanism and Legal Standards

AB 46 does not abolish mental health diversion; instead, it transforms the conditions under which a judge may say yes. The new statute operates on three core mechanisms.

First, it tightens the temporal link between diagnosis and crime. Under existing law, eligibility already required evidence of diagnosis or treatment within the last five years, but AB 46 formalizes that connection for the presumption that the disorder significantly contributed to the offense. If a defendant has been diagnosed within five years prior to the current offense, the court must presume the mental disorder was a significant factor in the crime—unless there is clear and convincing evidence to the contrary. This structure both protects legitimately ill defendants from skeptical courts and ensures that stale or opportunistic diagnoses do not automatically open the door to diversion.

Second, AB 46 rewrites the public‑safety standard that governs judicial discretion. The old test—whether a defendant posed an “unreasonable risk of danger to public safety”—was tethered to the likelihood of a future super strike. The new law instead asks whether the defendant’s treatment in the community would “endanger public safety,” defined as likely resulting in physical injury or other serious danger to others. Crucially, the court may consider any factors it deems appropriate: the defendant’s violence and criminal history, current charges, treatment plan, prior response to diversion or rehabilitation, and victim‑impact considerations.

Third, AB 46 expands and clarifies the list of offenses that can render a defendant ineligible for diversion, including explicitly adding attempted murder. That change aligns the statute with the public expectation that certain categories of violence should be presumptively disqualifying, regardless of diagnosis, unless exceptional circumstances exist.

Supporters—including multiple county district attorneys and Governor Gavin Newsom—frame these changes as “restoring judicial discretion” and closing dangerous loopholes. They argue that under prior law, once a defendant checked the statutory boxes, judges had very limited ability to deny diversion; AB 46, they say, returns the bench to its traditional role of weighing risk and amenability to treatment, rather than being forced to accept marginal cases.

The Critics’ Case: “Impossible Standards” and the Risk of De Facto Abolition

Opponents, however, read the same language very differently. The Ella Baker Center for Human Rights, joined by public defender organizations, argues that AB 46 creates eligibility standards so demanding that diversion will be functionally unavailable for most mentally ill defendants. Their core objection is not to judicial discretion per se, but to the combination of a tighter diagnosis window, a redefined public‑safety test, and the practical burden of proving that a defendant will not “endanger public safety” if treated in the community.

In written testimony to the Senate Public Safety Committee, the Ella Baker Center warns that AB 46 “would effectively eliminate mental health diversion by creating impossible eligibility standards.” They highlight research indicating that diversion reduces recidivism by more than 30% compared to prison, and argue that shrinking access will not only increase incarceration costs but also worsen long‑term public safety by denying treatment to people whose offenses are substantially driven by untreated illness.

Critics emphasize that mental health prognostication is inherently uncertain. Requiring the defense to convince a judge that community treatment will not result in physical injury or serious danger, they say, invites courts to default to jail whenever there is doubt, especially in politically sensitive cases. Because almost any serious offense involves some risk of future harm, and because judges are evaluated informally by whether they “lost” a defendant to a subsequent tragedy, the structural incentives push toward denial.

There are also distributional concerns. Public defenders note that marginalized defendants—poor, homeless, non‑citizens, and people of color—are least likely to have recent formal diagnoses, consistent treatment histories, or well‑documented care plans. They fear that the five‑year recency requirement and heightened safety standard will fall hardest on those whose mental illness is most chaotic and least connected to the health‑care system, effectively re‑segregating the mentally ill back into correctional institutions.

Evidence Gaps: Recidivism, Risk, and What We Do Not Yet Know

Both sides lean heavily on recidivism claims, but the factual foundation remains thin. Prosecutors cite county‑level data suggesting high reoffense rates among diversion participants, including Sacramento estimates of roughly 40–50% in certain years. Yet, as the research package itself notes, there is no publicly available statewide audit verifying those figures, no standardized methodology for calculating them, and no comparative data contrasting diverted defendants with similar individuals sent to prison.

On the other side, advocates reference “clear evidence” that diversion reduces recidivism by more than 30% relative to incarceration, but in the legislative record this claim appears as a summary statistic rather than a linked, peer‑reviewed California‑specific study. Without transparent datasets, the debate devolves into dueling assertions shaped by institutional interests—district attorneys who gain credibility by tightening laws; defenders and reform advocates whose mission is to preserve alternatives.

That evidence gap matters. AB 46 embeds a new risk calculus into statute, but the state has yet to build a comprehensive tracking system for diversion outcomes, despite calls from law enforcement for exactly such infrastructure. A rigorous audit covering 2020–2026—detailing offense types, demographics, treatment compliance, and post‑diversion offending—would go a long way toward clarifying whether the original program was too permissive, appropriately balanced, or even insufficiently used.

The Broader Pattern: Reform, Backlash, and Retrenchment

California’s pivot under AB 46 is not an isolated event; it fits a familiar national cycle in criminal justice policy. States experiment with therapeutic alternatives—drug courts, mental health diversion, community supervision—often in response to overcrowded prisons and a growing recognition that untreated illness drives crime. Over time, as programs expand and eligibility widens, some participants commit serious new offenses, sometimes under sensational circumstances. Media outlets spotlight these cases, political opponents frame them as emblematic rather than exceptional, and legislatures respond by narrowing eligibility and re‑empowering judges and prosecutors.

Cycles of psychiatric policy in the United States have followed similar patterns: moral treatment, community mental health, deinstitutionalization, and partial reinstitutionalization when community systems fail. AB 46 can be understood as part of that broader “re‑containment” phase—an attempt to reclaim control after a period of perceived over‑liberality, especially when the public associates “diversion” with stories of violent offenders seemingly gaming the system.

What This Means Going Forward: Risk, Responsibility, and the Role of Judges

In everyday practice, AB 46 will force defense lawyers, prosecutors, and judges to confront risk more explicitly. Defense counsel will need recent, credible diagnostic evidence, detailed treatment plans, and expert testimony demonstrating not only amenability to treatment but also low risk of harm. Prosecutors will be armed with a clearer statutory hook to argue that community treatment would endanger public safety, backed by a judge’s ability to consider prior violence, institutional conduct, and victim‑impact statements.

Judges, in turn, will carry greater responsibility—and political exposure—for how they interpret “endanger public safety.” The statute’s definition is broad enough to encompass a wide range of scenarios, from obvious high‑risk individuals to borderline cases where reasonable minds can disagree. As with pretrial risk assessment more generally, courts will be asked to balance the constitutional presumption of innocence and the therapeutic promise of treatment against community safety and the very real trauma of preventable crime.

Whether AB 46 ultimately enhances public safety without gutting treatment access will depend less on the text itself than on how it is implemented and monitored. If California builds robust statewide data collection, conducts independent outcome studies, and remains willing to recalibrate based on evidence rather than headlines, the law could evolve into a finely tuned tool—firm where risk is high, flexible where treatment genuinely protects both the defendant and the community.

Without that empirical discipline, however, AB 46 may become another chapter in a familiar story: diversion narrowed not by measured evaluation, but by the political weight of a few terrible cases and a public discourse more captivated by “most dangerous judge” narratives than by the quieter successes of people whose crimes stopped when their illness finally received adequate care.

Where Accountability Belongs

For citizens trying to make sense of sensational coverage—claims that a particular judge is “California’s most dangerous,” that a “maniac she freed” vanished after attacking a child—the key is to separate individual judicial performance from the structural framework in which that judge operates. Under the pre‑AB 46 regime, judicial discretion was materially constrained by statutory language and appellate interpretations. Under AB 46, those constraints loosen, but responsibility also shifts; each denial or grant of diversion becomes a more overt act of judgment.

If the goal is to hold the right actors accountable, the conversation must move beyond vilifying single judges and toward demanding transparent evidence about how diversion works across the state. That means insisting on data, scrutinizing the incentives of every institution involved, and being prepared to support reforms that adjust the balance again if AB 46 proves either too restrictive or not restrictive enough. The stakes are high, not only for victims and communities living with the consequences of violent crime, but also for thousands of Californians whose criminal behavior is inseparable from the untreated disorders that the mental health diversion program was originally designed to confront.