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Primary Caregiver Diversion: How This California Law Looks Towards the Next Generation

May 28, 2021

When California Penal Code 1001.83 went into effect in January 2020, it was met with little fanfare. In some ways, this was surprising – the passage of 1001.83, or Primary Caregiver Diversion, was – and continues to be –  transformative piece of legislation.  Why? Because it authorizes local governments to create diversion programs for parents and other legal guardians responsible for providing care to children under 18. Thus, criminal defendants can participate in needed programming to address underlying issues, such as drug addiction or housing insecurity, instead of being incarcerated.

Requirements for Primary Caregiver Diversion

The statute sets out several requirements for Primary Caregiver Diversion:

The defendant[‘s]:

    1. Is a custodial parent or legal guardian of a minor child under 18;
    2. Resides in the same household as that child;
    3. Provides care or financial support for that child;
    4. Absence in the child’s life would be detrimental;
    5. Has been advised of and waived the right to a speedy trial and a speedy preliminary hearing;
    6. Has been informed of and agrees to comply with the requirements of the program;
    7. Will not pose an unreasonable risk of danger to public safety or to the child;
    8. Is not being placed into this program for any serious or violent felony; and
    9. Is not being placed into a diversion program for a crime alleged to have been committed against a person for whom the defendant is the primary caregiver.

Establishing eligibility for this diversion program can be difficult: because this law is new, information, including establishing program eligibility, remains scarce. Additionally, each county implementing the program will likely set-up the referral and completion process differently. As a result, it’s important to work with an experienced criminal defense attorney who understands the nuances of both the law and the applicable jurisdiction.

Why Caregiver Diversion is Important

Children separated from their parents due to incarceration experience significant trauma and harm. When San Francisco District Attorney, Chesa Boudin, announced San Francisco’s implementation of the program, he offered a first-hand account of his own trauma as the child of parents who were repeatedly incarcerated:

I grew up visiting my parents behind bars. I know the kind of trauma the sudden loss of a parent can have on a child and the kind of resources that are needed to make that child whole again. This is about taking responsibility, protecting the sanctity of the family, and ensuring innocent children are not condemned to repeat the mistakes of their parents.

Conclusion

Ultimately, prioritizing programming that maintains family and community unity is crucial to reducing recidivism, as well as increasing community safety. Primary Caregiver Diversion furthers these goals and in doing so, offers both parents and children a pathway to future success.

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