California has two new significant laws, AB 124 and SB 81, changing determinate sentencing and listing mitigating factors in criminal cases. Both AB 124 and SB 81 began January 1, 2022. AB 124 and SB 81 each have sections concerning mitigating sentencing considerations for:
- mental illness
- victimization
- childhood trauma
- juvenile/ youthful offenses
These laws make mental health and trauma history evaluation a key aspect to consider in criminal cases.
AB 124 Breakdown of Key Points
AB 124 creates a presumptive low term in determinate sentencing for many individuals. AB 124 does this by listing mitigating factors that now must be considered by a Judge and prosecutor in criminal sentencing. AB 124 allows a sentencing judge to give a lower or lesser term to an individual who meets any of the following criteria:
- had psychological, physical or childhood trauma when any of these was a contributing factor to the current offense. This includes, but is not limited to abuse, neglect, exploitation, or sexual violence.
- was a victim of intimate partner violence (sometimes referred to as domestic violence) or human trafficking during or prior to the time of the offense
- was a youth under 26 years old at the time of the offense
AB 124 also adds a new Penal Code section 1016.7 that requires prosecutors to consider for plea-bargaining these same mitigating factors: the psychological, physical, or childhood trauma including abuse, neglect, exploitation or sexual violence; being a victim of intimate partner violence (sometimes referred to as domestic violence) or human trafficking; and youthfulness, under 26 years of age.
SB 81 Breakdown of Key Points
SB 81 makes new changes concerning a Judge’s ability to dismiss many enhancements in criminal sentencing when certain mitigating factors are established. SB 81 requires a Court to dismiss an enhancement when a mitigating factor exists if it is in the interest of justice to do so. SB 81 lists certain mitigating factors for the Judge to consider in dismissing an enhancement. Additionally, SB 81 says that the following mental-health related mitigating factors are to be given great weight in the Court’s decision to dismiss an enhancement:
- the current offense is connected to mental illness
- the current offense is connected to prior victimization or childhood trauma
Under SB 81, if any of the mitigating factors, the mental illness or prior victimization or childhood trauma substantially contributed to the current offense the Court must dismiss the enhancement.
Psychological Evaluation of Criminal Defendants
SB 81 refers to the Diagnostic and Statistical Manual of Mental Disorders (DSM) to identify mental illness and includes but is not limited to, bipolar disorder, schizophrenia, schizoaffective disorder, or post-traumatic stress disorder (PTSD).
The mental illness, childhood trauma, or prior victimization may be proven in several ways including with medical or opinion. Thus, psychological evaluation for trauma or mental illness will likely play an increasingly important role in the California criminal justice system.
About the author: Dr. Kimberly Miller is a neuropsychologist and California licensed psychologist who conducts criminal and civil evaluations. To contact Dr. Miller’s office, please click here, or call 916-694-2969.
