Californian criminal suspects can trade prison for psychiatric care. Is it working?

Four years ago, Jerome Grayson was arrested on suspicion of shooting another Sonoma County man in the chest. But his mother, Monique Sexton, believed he could avoid prison. Grayson’s father had died of cancer and a forensic psychologist diagnosed Grayson with post-traumatic stress disorder. 

Under a California law enacted in 2018, defendants with qualifying mental health diagnoses can receive treatment instead of going to prison and have their records wiped clean if they finish. The process, known as mental health diversion, is unavailable to people accused of murder and certain sex-related offenses. Grayson was eligible.  

 But when the family appeared in Sonoma County Superior Court, a judge denied him diversion and concluded he posed a risk to public safety. Two weeks later, Sexton’s daughter took her own life.

“That is not justice,” said Sexton, who works at the Sonoma County Superior Courthouse and has become familiar with the diversion system.

Sexton’s experience is an example of what’s at stake this spring as the Legislature advances a measure that would change the rules for mental health diversion in ways that would give judges more discretion to deny it. It was shaped by lawmakers from both parties responding to reports of people committing serious crimes after receiving diversion.

 Currently, once someone qualifies for diversion, a judge can stop it if they find the defendant poses “an unreasonable risk of danger to public safety,” as stated in the 2018 law. Critics say that threshold essentially forces judges to grant diversion when they don’t think it’s appropriate; supporters say it appropriately defers to decisions by mental health experts. The new measure would allow judges to block diversion if they think it would pose a “a substantial and undue risk” to anyone’s physical safety, an easier threshold for denial.

With her son in prison on a six-year sentence, Sexton says judges already have enough power to reject diversion.  “I don’t believe that judicial officers should have any more discretion than they already have right now because it’s already being abused,” Sexton said.  

The measure,  Assembly Bill 46, is from Democrat Stephanie Nguyen of Elk Grove. It passed the Assembly last year and is now moving forward in the Senate, where it cleared the Public Safety Committee last month by a 5-1 vote. 

It’s overwhelmingly supported by the state’s police unions and law enforcement leaders, who frame the “unreasonable risk”threshold as a dangerous loophole that lets violent offenders walk free. Public defenders and civil liberties organizations are fighting the bill, saying the 2018 law is working as intended and the changes would strip vulnerable people of the treatment they need, particularly people of color and lower-income Californians who are not represented by private attorneys .

“Judges already make these decisions,” Nyugen said. “This just gives them a clearer standard to apply. It doesn’t expand their role, it clarifies it.”.

The bill would also make it more difficult for  mental health experts to conclude that the defendant’s mental disorder caused or contributed to the offense. Under current law, the experts must conclude there is a “preponderance of evidence” that the disorder caused or contributed to the crime. Under the proposed law, they must conclude there is “clear and convincing evidence” it did so.

UC Berkeley School of Law Professor Andrea Crider called the bill unnecessary. “From my understanding, the people who have been touting this legislation are largely conservative district attorneys, and they have used what I would describe as ‘extreme outlier cases’,” Crider said. 

At the same time, Crider also recognized there are real victims in those cases who have experienced real harm. “There certainly are a lot of gaps within mental health diversion, but it’s not completely broken,” Crider said. “There’s been a lot of success through mental health diversion.”

Law enforcement leaders point to violent offenses

Sacramento County District Attorney Thien Ho is supporting Nguyen’s Assembly Bill 46 because he believes the current system puts too much onus on prosecutors opposing diversion to prove that someone will not commit a violent crime in the future.

“You walk into a bank, and you rob that bank, or you shoot the teller who survives. So it’s an attempted murder. You are eligible to get a mental health diversion for that bank robbery,” said Ho, a Democrat who is running for Congress. “Then, if the doctor says that you have insomnia, the judge must assume that you committed your bank robbery and attempted murder because of your insomnia.” 

Under current law, the court must find that a mental health disorder played a significant role in the commission of the charged offense, according to an analysis of Nguyen’s bill by the state senate committee on appropriations.

But once that happens, the judge will almost always give the defendant mental health diversion, Ho said, “Unless I, the prosecutor, can prove that you, in the future, will commit a rape, a murder, or child molestation.” 

Sacramento County Sheriff Jim Cooper, a former Democratic Assemblymember, has joined Ho in supporting the new bill. Both of them have shared recordings of jail inmates talking about mental health diversion as a way to avoid prison time.

Ho cited three cases from Sacramento County in which mental health diversion was granted, and then the suspects committed serious offenses. 

In May 2025, Sacramento County deputies arrested 40-year-old Jordon Murray for the alleged fatal stabbing of Carlos Romero in Fair Oaks. Murray was previously released from jail under a mental health diversion.  

In March 2026, 47-year-old Willie King was charged with murder after being allegedly involved in a deadly shooting in Sacramento. According to the prosecutors, King had three prior strike convictions for burglary and was released from jail before shooting under the state’s mental health diversion program, despite objections from prosecutors. 

In December 2023, Fernando Jimenez was arrested on murder charges in Placer County.  He was under mental health diversion on a Sacramento County case for battery with serious bodily injury and terrorist threats when he allegedly reoffended in Placer County and now has a pending case in that county.

In 2025, the Sacramento County District Attorney’s office received more than 1,300 motions for mental health diversion.  Of those, 689 motions were granted on felony cases alone.  As of the end of this March, of those granted mental health diversion in 2025 alone, 247 — nearly 36% —were arrested on new charges.

For comparison, 39% of people leaving California state prisons are convicted of new offenses within three years of release, according to state data. 

Mental health diversion in LA courts

Opponents of Nguyen’s bill counter that the diversion has proven effective in getting treatment to people who need it and that crime rates have continued to fall since it took effect. They also say it shifts too much power away from clinicians and toward judges, who are more susceptible to political pressure.

The California Public Defenders Association cited the Judicial Council of California’s data that more than 17,000 people have been granted mental health diversion from 2019 to 2025, excluding Los Angeles and San Diego counties. Over the same period, crime rates in California have dropped, and continue to drop, to historic lows A total of 188,146 crimes were tallied in California in 2024.

“If mental health diversion were the public safety catastrophe its critics claim, the data would show it. It does not,” the public defender’s association said in its newsletter. 

Los Angeles County Public Defender Ricardo García  in a letter to lawmakers wrote that fewer than 10% of graduates from Los Angeles County’s mental health diversion program have new cases filed against them after release.

“The Mental Health Diversion Courts in Los Angeles County are highly successful,” he wrote.

In contrast to the cases Ho has cited, a judge in Los Angeles granted prominent, genre-bending singer Lil Nas X entry into a mental health diversion program after an August arrest. He had been found wandering Ventura Boulevard in the early morning hours, nearly naked, in cowboy boots. 

When officers arrived, they say he charged at them. Lil Nas X — the stage name of Montero Lamar Hill — faced four felony counts and up to five years in prison.

Granting him a two-year diversion program, the court said: “When treated, he is much better off and society is much better off.”

“You all know something that is easy to lose in the political debate around these bills: that diversion is not a loophole,” California Public Defenders Association Executive Director Kate Chatfield wrote. “It is a promise that the system will respond to human beings as human beings, that treatment is possible, that a crisis does not have to define a life.”