BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Mark Leno, Chair                A
                             2009-2010 Regular Session               B

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          AB 674(Salas)                                               
          As Amended January 25, 2010
          Hearing date: June 29, 2010
          Penal Code
          MK:dl

                             CRIMINAL PROCEDURE: VETERANS  

                                       HISTORY

          Source:  Vietnam Veterans of America, California State Council

          Prior Legislation: None

          Support: NAMI California; Vietnam Veterans of America,  
                   California State Council; American Legion, Department  
                   of California; AMVETS, Department of California;  
                   California Association of County Veterans Service  
                   Officers; Veterans of Foreign Wars of the United  
                   States, Department of California; Legal Services for  
                   Prisoners with Children; California Attorneys for  
                   Criminal Justice; California Public Defenders  
                   Association; California State Commanders Veterans  
                   Council; California Psychological Association;  
                   Taxpayers for Improving Public Safety

          Opposition:None known

          Assembly Floor Vote:  Ayes 73 - Noes 0



                                         KEY ISSUE




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                                                             AB 674 (Salas)
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          SHOULD A COURT BE PERMITTED TO ORDER A DEFENDANT, WHO COMMITTED  
          THE OFFENSE AS A RESULT OF SEXUAL TRAUMA OR TRAUMATIC BRAIN  
          INJURY RESULTING FROM MILITARY SERVICE, INTO A TREATMENT PROGRAM  
          OR VETERAN'S COURT FOR A PERIOD NOT TO EXCEED THAT WHICH THE  
          DEFENDANT WOULD HAVE SERVED IN STATE PRISON OR JAIL?


                                       PURPOSE

          The purpose of this bill is to allow a court to order a  
          defendant, who committed the offense as a result of sexual  
          trauma or traumatic brain injury resulting from military  
          service, into a treatment program or veteran's court for a  
          period not to exceed that which the defendant would  have served  
          in state prison or jail.
          
           Existing law  states that in the case of any person convicted of  
          a criminal offense who would otherwise be sentenced to county  
          jail or state prison and who alleges that he or she committed  
          the offense as a result of PTSD, substance abuse, or  
          psychological problems stemming from service in a combat theater  
          in the United States military, the court shall, prior to  
          sentencing,  hold a hearing to determine whether the defendant  
          was a member of the military forces of the United States who  
          served in combat and shall assess whether the defendant suffers  
          from post-traumatic stress disorder (PTSD), substance abuse, or  
          psychological problems as a result of that service.(Penal Code   
          1170.9(a).)

           This bill  provides that if the person alleges that he or she  
          committed the offense as a result of sexual trauma or traumatic  
          brain injury, PTSD, substance abuse or a mental health problem  
          the court shall make a determination as to whether the defendant  
          was, or currently is, a member of the Untied States military and  
          may request through the sue of existing resources and assessment  
          of whether the defendant may be suffering from sexual trauma,  
          traumatic brain injury, PTSD substance abuse, or mental health  
          problems as a result of that service.





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           Existing law  if a defendant who is found to have suffered PTSD  
          etc. as a result of his or her military service and if the  
          defendant is otherwise eligible for probation and the court  
          places the defendant on probation, the court may order the  
          defendant into a local, state, federal, or private nonprofit  
          treatment program or a veteran's court for a period not to  
          exceed that which the defendant would have served in state  
          prison or county jail, provided the defendant agrees to  
          participate in the program and the court determines that an  
          appropriate treatment program exists. (Penal Code  1170.9(b).)

           This bill  deletes the option of sending the person to veteran's  
          court.
           
           Existing law  provides that if the referral is made to the county  
          mental health authority, the county shall be obligated to  
          provide mental health treatment services only to the extent that  
          resources are available for that purpose.  If mental health  
          treatment services are ordered by the court, the county mental  
          health agency shall coordinate appropriate referral of the  
          defendant to the county veterans service officers.   The county  
          mental health agency shall not be responsible for providing  
          services outside its traditional scope of services.  (Penal Code  
           1170.9(c).)

           Existing law  provides that when determining the "needs of the  
          defendant," for purposes of treatment while on probation, the  
          court shall consider the fact that the defendant is a person who  
          has suffered PTSD etc. in assessing whether the defendant should  
          be placed on probation by being ordered into a private nonprofit  
          treatment program with a demonstrated history of specializing in  
          the treatment of military service-related issues, such as post  
          traumatic stress disorder, substance abuse or psychological  
          problems.  (Penal Code  1170.9(d).)

           This bill  provides instead that the person can be ordered into a  
          federal or community-based treatment service program with a  
          demonstrated history of specializing in the treatment of mental  
          health problems, including substance abuse post-traumatic stress  
          disorder, traumatic brain injury, military sexual trauma, and  




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          other related mental health problems.
           
           Existing law  provides that a defendant granted probation under  
          this section and committed to a residential treatment program  
          shall earn sentence credits for the actual time the defendant  
          serves in residential treatment. .  (Penal Code  1170.9(e).)

           Existing law  provides that the court, in making an order to  
          commit a defendant to an established treatment program, shall  
          give preference to a treatment program that has a history of  
          successfully treating combat veterans who suffer from  
          post-traumatic stress disorder, substance abuse or psychological  
          problems as a result of that service.  (Penal Code  1170.9(f).)
           
          This bill  clarifies that the programs that shall receive  
          preference include, but are not limited to, programs operated by  
          the United States Department of Defense or the United States  
          Veterans Administration.

           This bill  provides that the court and assigned treatment program  
          shall collaborate with the Department of Veterans Affairs and  
          the United States Veterans Administration to maximize benefits  
          and services provided to the veteran.

              RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
          
          The severe prison overcrowding problem California has  
          experienced for the last several years has not been solved.  In  
          December of 2006 plaintiffs in two federal lawsuits against the  
          Department of Corrections and Rehabilitation sought a  
          court-ordered limit on the prison population pursuant to the  
          federal Prison Litigation Reform Act.  On January 12, 2010, a  
          federal three-judge panel issued an order requiring the state to  
          reduce its inmate population to 137.5 percent of design capacity  
          -- a reduction of roughly 40,000 inmates -- within two years.   
          In a prior, related 184-page Opinion and Order dated August 4,  
          2009, that court stated in part:

               "California's correctional system is in a tailspin,"  
               the state's independent oversight agency has reported.  




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               . . .  (Jan. 2007 Little Hoover Commission Report,  
               "Solving California's Corrections Crisis: Time Is  
               Running Out").  Tough-on-crime politics have increased  
               the population of California's prisons dramatically  
               while making necessary reforms impossible. . . .  As a  
               result, the state's prisons have become places "of  
               extreme peril to the safety of persons" they house, .  
               . .  (Governor Schwarzenegger's Oct. 4, 2006 Prison  
               Overcrowding State of Emergency Declaration), while  
               contributing little to the safety of California's  
               residents, . . . .   California "spends more on  
               corrections than most countries in the world," but the  
               state "reaps fewer public safety benefits." . . .  .   
               Although California's existing prison system serves  
               neither the public nor the inmates well, the state has  
               for years been unable or unwilling to implement the  
               reforms necessary to reverse its continuing  
               deterioration.  (Some citations omitted.)

               . . .

               The massive 750% increase in the California prison  
               population since the mid-1970s is the result of  
               political decisions made over three decades, including  
               the shift to inflexible determinate sentencing and the  
               passage of harsh mandatory minimum and three-strikes  
               laws, as well as the state's counterproductive parole  
               system.  Unfortunately, as California's prison  
               population has grown, California's political  
               decision-makers have failed to provide the resources  
               and facilities required to meet the additional need  
               for space and for other necessities of prison  
               existence.  Likewise, although state-appointed experts  
               have repeatedly provided numerous methods by which the  
               state could safely reduce its prison population, their  
               recommendations have been ignored, underfunded, or  
               postponed indefinitely.  The convergence of  
               tough-on-crime policies and an unwillingness to expend  
               the necessary funds to support the population growth  
               has brought California's prisons to the breaking  




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               point.  The state of emergency declared by Governor  
               Schwarzenegger almost three years ago continues to  
               this day, California's prisons remain severely  
               overcrowded, and inmates in the California prison  
               system continue to languish without constitutionally  
               adequate medical and mental health care.<1>

          The court stayed implementation of its January 12, 2010 ruling  
          pending the state's appeal of the decision to the U.S. Supreme  
          Court.  On Monday, June 14, 2010, The U.S. Supreme Court agreed  
          to hear the state's appeal in this case.   

           This bill  does not appear to aggravate the prison overcrowding  
          crisis described above.


                                      COMMENTS

          1.  Need for This Bill  

          According to the author:

              Increasing numbers of Iraq and Afghan War veterans are  
              returning home with psychological injuries.  Many of  
              them are going untreated and unfortunately falling into  
              criminal behavior.  Our country has a duty to our most  
              troubled veterans.  Regardless of our individual stance  
              on the war, we must recognize that these veterans'  
              psychological injuries were sustained on our society's  
              behalf.  They must be embraced and ensured that they  
              will receive the help they need to successfully  
              transition from war to peace.  Ensuring these young men  
              and women receive the care they need will also enhance  
              -----------------------
          <1>   Three Judge Court Opinion and Order, Coleman v.  
          Schwarzenegger, Plata v. Schwarzenegger, in the United States  
          District Courts for the Eastern District of California and the  
          Northern District of California United States District Court  
          composed of three judges pursuant to Section 2284, Title 28  
          United States Code (August 4, 2009).




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              public safety in the long run.

              AB 674 protects society from the worst offenders while  
              enabling treatment for the typical veteran suffering  
              from sexual trauma, traumatic brain injury,  
              post-traumatic stress disorder (PTSD), substance abuse  
              or mental health problems stemming from military service  
              in the United States military.   Additionally, the bill  
              promotes collaboration between the Department of  
              Veterans Affairs and the United States Veterans  
              Administration to maximize benefits and services for  
              veterans.

          2.   PTSD and Other Mental Health Issues in Veterans  

          A study conducted by the University of California-San Francisco  
          and the San Francisco Veterans Affairs Medical Center has shown  
          that approximately one-third of veterans returning from Iraq  
          received one or more mental health or psychosocial diagnoses.   
          (JAMA and Archives Journals, Mental Illnesses Appear Common  
          Among Veterans Returning From Iraq and Afghanistan (Mar. 13,  
          2008) ScienceDaily  (as of Mar. 27, 2009).)   
          Another study reported in the New England Journal of Medicine  
          indicates that the rate of post-traumatic stress disorder (PTSD)  
          among veterans of the wars in Iraq and Afghanistan increased in  
          a linear manner with increased exposure to combat.  [See Hoge,  
          M.D., Combat Duty in Iraq and Afghanistan, Mental Health  
          Problems, and Barriers to Care (2004) 351 N. Engl. J. Med.  
          13-22.]  Studies also indicate that  PTSD  may result in drug  
          and alcohol abuse by veterans.   )  See Stress & Substance  
          Abuse:  A Special Report, National Institute on Drug Abuse  
          (Sept. 12, 2005)  
           (as of Mar.  
          27, 2009).)

          Mental health and substance abuse problems experienced by  
          veterans are linked to future incarceration.  In a Bureau of  
          Justice study, 35% to 45% of incarcerated veterans  reported  
          symptoms of mental health disorders in the previous 12 months,   




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          including mania, psychotic disorders, and major depressive  
          episodes.  (Noonan & Mumola, U.S. Dep't of Just., Veterans in  
          State and Federal Prison, 2004 (2007), p. 6.)  Three-quarters of  
          veterans in state prisons reported past drug use and one-quarter  
          reported being on drugs at the time of the offense for which  
          they were incarcerated.  (Id. at 5.)   Veterans  are also more  
          likely than non-veterans to report past intravenous  drug use.   
          (Ibid.)  Veterans are also more likely than non-veterans to  
          report past intravenous drug use.  (Ibid., See  also Badkhen,  
          Shelters Take Many Vets of Iraq, Afghan Wars,  Boston Globe  
          (Aug. 7, 2007) (detailing the experience of an Iraq veteran who  
          suffered a traumatic brain injury and mental health issues as a  
          result of his combat experience, who reported that he was using  
          heroin and engaging in criminal activity to support his drug  
          habit within two months of his return home from the war).)  It  
          is likely that a significant number of veterans with substance  
          abuse issues may be self-medicating as a means of dealing with  
          mental 

          illness.  (See Wynn, Dual Diagnosis, Journal of Addictive  
          Disorders (2002),  (as of  
          March 23,  2009).)
           
          Veterans are disproportionately represented in the prison  
          population as compared to the population of the United States as  
          a whole.  According to the Department of Veterans Affairs, in  
          July 2007, there were an estimated 23,977,000 veterans in the  
          United States.  
          (See United States Department of Veterans Affairs (Jul. 25,  
          2007) table  
            
          (as of March 23, 2009).) In contrast, veterans make up 10% of   
          state prisoners.  (See Noonan & Mumola, supra, at p. 1.)  By  
          2004, veterans of the current conflicts in Iraq and Afghanistan  
          already comprised for 4% of veterans in state and federal  
          prisons.  (Ibid.)
           







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          Veterans are more likely than non-veterans to be incarcerated  
          for a violent offense, "including over a third who were serving  
          sentences for homicide (15%) or rape/sexual assault (23%)."   
          (Id. at 4.)  Veterans were also more likely to have victimized  
          women and children than were other offenders. (Ibid.)
           
          Once incarcerated, almost two-thirds of mentally ill prisoners  
          do not receive any form of treatment.  (James & Glaze, U.S.  
          Dep't of Just., Bureau of Just. Stats., Mental Health Problems  
          of Prison and Jail Inmates (Sept. 2006) pp. 1, 9.)  Mentally ill  
          prisoners who receive little or no treatment are at great risk  
          of harm, are particularly "vulnerable to assault, sexual abuse,  
          exploitation, and extortion," and are more likely to engage in  
          self-harm, such as self-mutilation and suicide.  (Abramsky &  
          Fellner, Ill- Equipped: U.S. Prisons and Offenders with Mental  
          Illness, Human Rights Watch (Oct. 21, 2003) p. 56  
           (as of March 23,  
          2009).)  Mentally ill prisoners are often severely punished for  
          behaviors that stem from their mental illnesses, including  
          placement in solitary confinement.  (Id. at 56-69.)  Isolation  
          can cause the mentally ill to rapidly decompensate and has been  
          described as "the mental equivalent of putting an asthmatic in a  
          place with little air to breathe."  (Madrid v. Gomez (N.D. Cal.  
          1995) 889 F. Supp. 1146, 1265.)
           
          Providing meaningful mental health treatment has been shown to  
          significantly reduce recidivism rates, with studies showing  
          decreases of over 20%.  (Aos, Wash. State Inst. For Pub. Pol'y,  
          Evidence-Based Policy Options to Reduce Future Prison  
          Construction, Criminal Justice Costs, and Crime Rates (2006).])  
          Likewise, studies have shown a reduction of more than 6% in  
          recidivism rates where meaningful chemical dependency services  
          are provided to prisoners.  (Id. at pp. 3, 19.)  Furthermore,  
          chemical dependency treatment has also been shown to decrease,  
          at least in the short term, the probability of alcohol  
          dependency by 15% and drug dependency by 22%.  (Id. at p.4.)
           







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          3.  Treatment for Veterans Given Probation  

          Existing law provides that when a court places on probation a  
          criminal defendant who is suffering from PTSD, substance abuse  
          or mental health problems because of military service the court  
          may order the defendant to attend a treatment program.

          This bill would allow a court to also order a defendant who  
          committed the offense as a result of sexual trauma or traumatic  
          brain injury resulting from military service, into a treatment  
          program or veteran's court for a period not to exceed that which  
          the defendant would have served in state prison or jail.

          The bill further clarifies that court shall consider the  
          defendant's status as a veteran with one of the listed problems  
          when assessing whether or not he or she should be placed on  
          probation and ordered into a federal or community-based  
          treatment service program.  Programs with a demonstrated history  
          of dealing with these types of problems such have preference for  
          referrals.
           
          Supporters believe that placing these veteran defendants on  
          probation will enhance public safety by directing them to  
          appropriate services.  The Veterans of Foreign Wars states that  
          they:

              [H]elp to process thousands of claims for those who have  
              returned from combat operations in Iraq and Afghanistan  
              with these medical conditions. We are well aware that  
              many of these veterans who run afoul of the law would be  
              much better served by proper medical treatment than by  
              imprisonment.  
               
          .
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