BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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AB 1925 (Salas) 5
As Amended May 28, 2010
Hearing date: June 29, 2010
Penal Code
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VETERANS COURTS
HISTORY
Source: Vietnam Veterans of America, California State Council
Prior Legislation: AB 2671 (Salas) - 2008, vetoed
SB 851 (Steinberg) - 2007, vetoed
AB 1542 (Parra) - 2006, vetoed
AB 2586 (Parra) - Ch. 788, Stats. 2006
Support: American Legion, Department of California; AMVETS,
Department of California; AMVETS Post 40 of Sonoma
County; California Association of County Veterans
Service Officers; California Public Defenders
Association; Public Counsel Law Center of Los Angeles;
Swords to Plowshares; Veterans Village of San Diego;
Veterans of Foreign Wars, Department of California;
California State Commanders Veterans Council; National
Alliance on Mental Illness, California; California
Attorneys for Criminal Justice; California Psychiatric
Association; California Psychological Association;
Michael Ottolini AMVETS Post 40 of Sonoma County
Opposition:Crime Victims United of California
Assembly Floor Vote: Ayes 76 - Noes 0
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KEY ISSUES
SHOULD SPECIAL VETERANS COURT PROGRAMS BE ESTABLISHED TO HANDLE
CRIMINAL CASES INVOLVING VETERANS SUFFERING FROM MENTAL ILLNESS, AS
SPECIFIED?
SHOULD THE UNDERLYING PURPOSE OF VETERANS COURTS BE TO PLACE
MENTALLY ILL VETERANS IN COMMUNITY TREATMENT, TO THE EXTENT SUCH
PLACEMENTS ARE FEASIBLE AND CONSISTENT WITH PUBLIC SAFETY?
SHOULD PARTICIPATION BY ANY COUNTY IN THE VETERANS COURT PROGRAM BE
VOLUNTARY?
SHOULD ANY COUNTY THAT DOES PARTICIPATE BE REQUIRED TO COMPLY WITH
SPECIFIED STANDARDS AND PROCEDURES?
PURPOSE
The purposes of this bill are to 1) establish standards and
procedures for veterans courts that would handle criminal cases
involving mentally ill veterans, as specified; 2) provide that
county participation is voluntary; and 3) provide that the
underlying purpose of a veterans court is to provide treatment
for mentally ill veterans and thereby reduce recidivism and the
involvement of veterans in the criminal justice system, to the
extent consistent with public safety.
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 post-traumatic stress disorder
(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
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United States who served in combat and shall assess whether the
defendant suffers from PTSD, substance abuse, or psychological
problems as a result of that service. (Pen. Code 1170.9,
subd. (a).)
Existing law allows a defendant convicted of a criminal offense
who 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, 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
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. (Pen. Code
1170.9, subd. (b).)
Existing law provides for diversion from criminal prosecution
through a deferred entry of judgment (DEJ) and sentence when an
open case is before any court for specified violations of drug
possession, paraphernalia possession, being in the presence of
drug use, misdemeanor transportation of marijuana, or harvesting
of marijuana for personal use and it appears to the prosecuting
attorney that, all of the following apply to the defendant
(Penal Code 1000):
The defendant has no conviction for any offense involving
controlled substances prior to the alleged commission of the
charged offense;
The offense charged did not involve a crime of violence or
threatened violence;
There is no evidence of a violation relating to narcotics or
restricted dangerous drugs other than a violation of the
sections listed in this subdivision;
The defendant's record does not indicate that probation or
parole has ever been revoked without thereafter being
completed;
The defendant's record does not indicate that he or she has
successfully completed or been terminated from diversion or
DEJ pursuant to this chapter within five years prior to the
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alleged commission of the charged offense; and,
The defendant has no prior felony conviction within five years
prior to the alleged commission of the charged offense.
Existing law effectuates July 1, 2001, except as specified, a
person convicted of a non-violent drug possession offense shall
receive probation with completion of a drug treatment program as
a condition of probation. (Pen. Code 1210, 1210.1, added by
Prop. 36, approved November 7, 2000.)
Existing law provides that certain defendants and parolees are
ineligible for the Substance Abuse Treatment Crime Prevention
Act of 2000 (SACPA), enacted by Proposition 36. These
ineligible persons include persons who possessed drugs other
than for personal use; committed other offenses along with a
drug possession offense; used a firearm while in possession or
under the influence of heroin, cocaine or PCP; previously
convicted of a serious felony and have not been free of custody
or commission of felonies or dangerous misdemeanors within five
years (parolees may not have ever been convicted of a serious
felony); participated in two prior Proposition 36 treatment
programs; and refused treatment. (Pen. Code 1210.03.)
Existing law allows a superior court, with the concurrence of
the prosecuting attorney of the county, may create a "Back on
Track" deferred entry of judgment reentry program aimed at
preventing recidivism among first-time nonviolent felony drug
offenders. No defendant who has been convicted of a violation
of a sex offense shall be eligible for the program established
in this chapter. When creating this program, the prosecuting
attorney, together with the presiding judge and a representative
of the criminal defense bar selected by the presiding judge of
the superior court may agree to establish a "Back on Track"
deferred entry of judgment program pursuant to
the provisions, as specified. The agreement shall specify which
low-level nonviolent felony drug offenses under the Health and
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Safety Code will be eligible for the program and a process for
selecting participants. The program shall have the following
characteristics:
A dedicated calendar;
Leadership by a superior court judicial officer who is
assigned by the presiding judge;
Clearly defined eligibility criteria to enter the program and
clearly defined criteria for completion of the program;
Legal incentives for defendants to successfully complete the
program, including dismissal or reduction of criminal charges
upon successful completion of the program; and,
Close supervision to hold participants accountable to program
compliance, including the use of graduated sanctions and
frequent, ongoing appearances before the court regarding
participants' program progress and compliance with all program
terms and conditions. The court may use available legal
mechanisms, including return to custody if necessary, for
failure to comply with the supervised plan.
Appropriate transitional programming for participants, based
on available resources from county and community service
providers and other agencies. The transitional programming
may include, but is not limited to, any of the following:
Vocational training, readiness, and placement;
Educational training, including assistance with acquiring a
GED or high school diploma and assistance with admission to
college;
Substance abuse treatment;
Assistance with obtaining identification cards and driver's
licenses;
Parenting skills training and assistance in becoming compliant
with child support obligations; and,
The program may develop a local, public-private partnership
between law enforcement, government agencies, private
employers, and community-based organizations for the purpose
of creating meaningful employment opportunities for
participants and to take advantage of incentives for hiring
program participants. (Pen. Code 1000.8.)
Existing law applies this chapter whenever a case is before any
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court upon an accusatory pleading at any stage of the criminal
proceedings, for any person who has been evaluated by a regional
center for the developmentally disabled and who is determined to
be a person with a cognitive developmental disability by the
regional center, and who therefore is eligible for its services.
This chapter applies to any offense which is charged as or
reduced to a misdemeanor, except that diversion shall not be
ordered when the defendant previously has been diverted under
this chapter within two years prior to the present criminal
proceedings. (Pen. Code 1001.21, subd. (a) and (b).)
Existing law mandates in any case in which a defendant has
fulfilled the conditions of probation for the entire period of
probation, or has been discharged prior to the termination of
the period of probation, or in any other case in which a court,
in its discretion and the interests of justice, determines that
a defendant should be granted the relief available under this
section, the defendant shall, at any time after the termination
of the period of probation, if he or she is not then serving a
sentence for any offense, on probation for any offense, or
charged with the commission of any offense, be permitted by the
court to withdraw his or her plea of guilty or plea of nolo
contendere and enter a plea of not guilty; or, if he or she has
been convicted after a plea of not guilty, the court shall set
aside the verdict of guilty; and, in either case, the court
shall thereupon dismiss the accusations or information against
the defendant and except as noted below, he or she shall
thereafter be released from all penalties and disabilities
resulting from the offense of which he or she has been
convicted, except as provided in existing law. The probationer
shall be informed, in his or her probation papers, of this right
and privilege and his or her right, if any, to petition for a
certificate of rehabilitation and pardon. The probationer may
make the application and change of plea in person or by
attorney, or by the probation officer authorized in writing.
However, in any subsequent prosecution of the defendant for any
other offense, the prior conviction may be pleaded and proved
and shall have the same effect as if probation had not been
granted or the accusation or information dismissed. The order
shall state, and the probationer shall be informed, that the
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order does not relieve him or her of the obligation to disclose
the conviction in response to any direct question contained in
any questionnaire or application for public office, for
licensure by any state or local agency, or for contracting with
the California State Lottery. (Pen. Code 1203.4, subd. (a).)
Function, Purpose and Operation of a Veterans Court
This bill establishes standards and procedures for veterans
courts and specifies that county participation in the veterans
courts program is voluntary.
This bill provides that any county that chooses to participate
in the program shall conform to the procedures and standards in
this bill.
This bill requires any veterans court to be led by a judicial
officer. A veterans court shall also include, but not be
limited to, the judge, a prosecutor, public defender, county
mental health liaison, substance abuse liaison, county veterans'
service officer, and probation officer. The court team will set
the frequency of reviews of the offender's progress in treatment
so as to ensure the offender follows the treatment plan, remains
in treatment, and completes treatment.
This bill specifically provides that a veterans court shall do
the following:
Increase cooperation between the courts, criminal justice,
veterans, and substance abuse systems;
Use a dedicated calendar or a collaborative mental health
program that will place as many mentally ill offenders who are
United States veterans in treatment as is consistent with
public safety. The veterans served may include those with
post-traumatic stress disorder (PTSD), traumatic brain injury,
military sexual trauma, substance abuse, or other mental
health problems stemming from military service.
Improve access to necessary services and support;
Reduce recidivism; and,
Reduce the involvement of veterans in the criminal justice
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system and time in jail by making mental health service for
veterans available in the least restrictive environment
possible while promoting public safety.
Procedures and Characteristics of a Veterans Court
This bill specifies that a veterans court shall have the
following characteristics and procedures:
Leadership by a superior court judicial officer assigned by
the presiding judge;
Enhanced accountability by combining judicial supervision with
rehabilitation services that are rigorously monitored and
focused on recovery;
A problem-solving focus;
A team approach to decision making;
Integration of social and treatment services;
Judicial supervision of the treatment process, as appropriate;
Community outreach efforts; and,
Direct interaction between defendant and judicial officer.
Required Plans for Veterans Courts
This bill provides that veterans courts shall operate pursuant
to a defined plan. Specifically, the presiding judge or his or
her designee shall contact the county board of supervisors, the
county administrative officer, or their designee to convene the
county and court stakeholders and, through a collaborative
process with these stakeholders, develop a plan that is
consistent with this section. At least one stakeholder should
be a criminal justice client who is a veteran who has lived with
the experience of mental illness. The plan shall address at a
minimum all of the following components:
The method by which the veterans court ensures that the target
population of defendants are identified and referred to the
veterans court.
The method for assessing defendants who are veterans for
serious mental illness and co-occurring disorders.
Eligibility criteria specifying what factors make the
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defendant eligible to participate in the veterans court,
including service in the United States military, the
amenability of the defendant to treatment and the facts of the
case, as well as prior criminal history, United States
military service history, and mental health and substance
abuse treatment history.
The elements of the treatment and supervision in programs.
Standards for continuing participation in, and successful
completion of, the veterans court program.
The need for the county mental health department and the drug
and alcohol department to provide initial and ongoing training
for designated staff on the nature of serious mental illness
and on the treatment and supportive services available in the
community.
The process to ensure defendants will receive the appropriate
level of treatment services, the county and other local
agencies shall be obligated to provide mental health treatment
services only to the extent that resources are available for
that purpose.
The process for developing or modifying a treatment plan for
each defendant, based on a formal assessment of the
defendant's mental health, United States military service
history, and substance abuse treatment needs. Participation
in the veterans court shall require defendants to complete the
recommended treatment plan, and comply with any other terms
and conditions that optimize the likelihood that the defendant
completes the program.
The process for referring cases to the veterans court.
A defendant's voluntary entry into the veterans court, the
right of a defendant to withdraw from the veterans court, and
the process for explaining these rights to the defendant.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
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
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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.
. . . (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
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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
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:
Veterans with combat-related mental illness in the
criminal justice system often face unique challenges
which traditional courts are often ill-equipped to
address. AB 1925 modifies the California Penal Code
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<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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to better address the particular needs of veterans by
providing a template for the creation of new veterans'
courts throughout the state. AB 1925 sets the stage
for the formalization of relationships between judges,
district attorneys, public defenders, veterans'
service agencies, residential treatment organizations,
and others. AB 1925 standardizes the structure of
veterans' courts and establishes a clear process for
the formation of new courts, while maintaining local
control over the establishment of these courts.
2. Amendment to Which the Author Agreed in Senate Veterans
Affairs
This bill was heard in and passed by Senate Veterans Affairs on
June 22, 2010. In Veterans Affairs the author agreed to take an
amendment to clarify and explain the intent of the Legislature
in this bill. This Committee will process these amendments.
The amendments provide that this bill should augment, not
replace, other programs to help veterans. The amendments
specifically provide that courts should "exercise discretion and
use all tools available to ensure public safety and assist
defendants to successfully complete appropriate treatment ?"
The amendments noted examples such as domestic violence programs
and first-conviction treatment programs for persons convicted of
driving under the influence. Such an approach would ensure that
offense-specific programs are employed within the context of a
veterans court.
3. Drug-Court, Collaborative Model
This bill is largely modeled on the drug-court, collaborative
courts model. In such a model, the court, prosecutors, counsel,
probation, service providers and the defendant work as a
collaborative team to solve problems presented by a defendant's
case. The court provides close supervision of the defendant
through relatively numerous court appearances. In a usual
probation matter, the court places the defendant on probation
and only sees the defendant again if he or she has failed on
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probation. The drug court model has been adapted to other
circumstances, include parole reentry courts. (Pen. Code
3015.) This bill applies the model to the particular problems
experienced by veterans in the criminal justice system.
SHOULD A PROGRAM OF VETERANS COURTS, GENERALLY MODELED ON DRUG
COURTS, BE ENACTED?
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4. UCSF and San Francisco VA Medical Center Study on Veterans and
PTSD
An article appearing in Science Daily (online) on March 13,
2007, discussed a study conducted by the University of
California-San Francisco and the San Francisco Veterans Affairs
Medical Center finding that approximately one-third of veterans
returning from Iraq received one or more mental health or
psychosocial diagnoses. The study appeared in the Journal of
the American Medical Association and Archives Journals. Another
study reported in the New England Journal of Medicine in 2004
stated that the rate of post-traumatic stress syndrome (PTSD)
among Iraq and Afghanistan veterans increased in a linear manner
with increased exposure to combat. (Hoge, 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 drive or exacerbate drug and
alcohol abuse by veterans. (Stress & Substance Abuse: A Special
Report, National Institute on Drug Abuse (Sept. 12, 2005).)
Mental health and substance abuse problems are linked to future
incarceration in veterans. In a Bureau of Justice study, 35% to
45% of incarcerated veterans reported symptoms of mental health
disorders in the previous 12 months, including mania, psychotic
disorders, and major depressive episodes. (Noonan & Mumola,
U.S. Dep't of Justice, 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 p. 5.) 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).)
It appears that veterans are disproportionately represented in
the prison population. Veterans make up 10% of state prisoners.
(Noonan & Mumola, supra, at p. 1.) By 2004, veterans of the
current conflicts in Iraq and Afghanistan already comprised 4%
of the veterans in state and federal prisons. (Ibid.)
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Studies have concluded approximately two-thirds of mentally ill
prisoners receive no 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.) Providing meaningful
mental health treatment has been shown to significantly reduce
recidivism rates, with studies showing decreases of over 20%.
(Wash. State Inst. For Pub. Policy, Evidence-Based Policy
Options to Reduce Future Prison Construction, Criminal Justice
Costs, and Crime Rates (2006).)
5. Argument in Support
The California Public Defenders Association argues in support:
A recent Rand Corp. study found that almost 20% of
Iraq and Afghanistan veterans report PTSD or
depression. AB 1925 would allow creation of a
dedicated calendar or collaborative court-supervised
veterans mental health program with direct contact
between the court and the defendant. These programs
will lead to placement of as many mentally ill
offenders who are veterans in community treatment, as
is feasible and consistent with public safety.
A February 2009 Department of Veterans Affairs Fact
Sheet ? states that the controlling offense for 70% of
all veterans in the jail population was a non-violent
crime. Three in five of these veterans have [drug]
problems, almost one in three have serious mental
illness, one in five was homeless, and 60% had a
serious medical problem. ? [M]any veterans are
potentially eligible for referral to, and are good
candidates for, drug or mental health court
intervention as an alternative to incarceration.
[Veterans are] trained not to show weakness or admit
that they are overwhelmed by the gravity of the life
threatening and all consuming situations in which they
are placed. Military suicides are soaring - last
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year, the Army reported a record 133, and the suicide
rate among soldiers in Iraq is 11% higher than in
Vietnam. AB 1925 offers a beacon of light for those
whose training and experience in the military has
often left them feeling at times utterly hopeless and
with no will to live.
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