BILL ANALYSIS Ó SENATE COMMITTEE ON PUBLIC SAFETY Senator Loni Hancock, Chair A 2011-2012 Regular Session B 2 0 1 AB 201 (Butler) As Introduced January 27, 2011 Hearing date: June 28, 2011 Penal Code MK:dl VETERANS COURTS HISTORY Source: Vietnam Veterans of America-California Council Student Veterans of California Prior Legislation: AB 1295 (Salas) - 2010, Vetoed AB 2671 (Salas) - 2008, Vetoed SB 851 (Steinberg) - 2007, Vetoed AB 1542 (Parra) - 2006, Vetoed AB 2586 (Parra) - Ch. 788, Stats. 2006 Support: National Association of Social Workers; American Legion-Department of California; AMVETS-Department of California; California Association of County Veterans Service Officers; Military Officers Association of America-California Council of Chapters; the State Independent Living Council; California Psychological Association; California Mental Health Directors Association; Commissioner of Veteran's Affairs City and County of San Francisco; California Council of Community Mental Health Agencies; Mental Health Association in California; Veterans of Foreign Wars of the United States Department of California; California State Commanders Veterans Council; California Attorneys for Criminal Justice; Vietnam Veterans of America; (More) AB 201 (Butler) Page 2 California State Council; California Commission on the Status of Women; Los Angeles County District Attorney's Office Opposition:None known Assembly Floor Vote: Ayes 74 - Noes 0 KEY ISSUE SHOULD SUPERIOR COURTS BE AUTHORIZED TO ESTABLISH SPECIAL VETERANS COURT PROGRAMS TO HANDLE CRIMINAL CASES INVOLVING VETERANS SUFFERING FROM MENTAL ILLNESS? PURPOSE The purpose of this bill is to authorize the establishment of and suggest standards and procedures for veterans' courts that would handle criminal cases involving mentally ill veterans. 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 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. (Penal 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 (More) AB 201 (Butler) Page 3 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. (Penal 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: 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 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. (Penal Code § 1000.) Existing law effectuates July 1, 2001, except as specified, a person convicted of a non-violent drug possession offense shall (More) AB 201 (Butler) Page 4 receive probation with completion of a drug treatment program as a condition of probation. (Penal 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 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; (More) AB 201 (Butler) Page 5 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 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 (More) AB 201 (Butler) Page 6 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 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).) This bill establishes standards and procedures for veterans (More) AB 201 (Butler) Page 7 courts and specifies that county participation in the veterans' courts program is voluntary. This bill specifically provides that a veteran court shall have the following objectives: 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 system and time in jail by making mental health service for veterans available in the least restrictive environment possible while promoting public safety. This bill specifies that a veterans court may 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. This bill provides that when establishing the veterans court the county and court may develop a plan and may use the section (More) AB 201 (Butler) Page 8 created by this bill as a guideline. This bill recommends that when creating a plan, at least one stakeholder should be a criminal justice client who is a veteran who has lived with the experience of mental illness. This bill provides that the plan should consider addressing 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 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 (More) AB 201 (Butler) Page 9 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. This bill provides that in developing a veterans program, each veterans court team, led by a judicial officer, may, to the extent feasible, include, but not be limited to, a judicial officer to preside over the court, prosecutor, public defender, county mental health liaison, substance abuse liaison, county veterans' service officer, probation officer, and Veterans Administration social worker to assist the court with screening veterans court candidates for eligibility and suitability in Veterans Administration funded programs. The veterans court team will determine the frequency of ongoing reviews of the progress of the offender in community treatment in order to ensure the offender adheres to the treatment plan as recommended, remains in treatment and completes treatment. This bill expresses Legislative intent that a veterans court judge use a variety of options for carrying out the goal to ensure long-term public safety and that veterans courts are intended to augment rather than replace other sections of the code. RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION For the last several years, severe overcrowding in California's prisons has been the focus of evolving and expensive litigation. As these cases have progressed, prison conditions have continued to be assailed, and the scrutiny of the federal courts over California's prisons has intensified. (More) AB 201 (Butler) Page 10 On June 30, 2005, in a class action lawsuit filed four years earlier, the United States District Court for the Northern District of California established a Receivership to take control of the delivery of medical services to all California state prisoners confined by the California Department of Corrections and Rehabilitation ("CDCR"). In December of 2006, plaintiffs in two federal lawsuits against CDCR sought a court-ordered limit on the prison population pursuant to the federal Prison Litigation Reform Act. On January 12, 2010, a three-judge federal panel issued an order requiring California to reduce its inmate population to 137.5 percent of design capacity -- a reduction at that time of roughly 40,000 inmates -- within two years. The court stayed implementation of its ruling pending the state's appeal to the U.S. Supreme Court. On May 23, 2011, the United States Supreme Court upheld the decision of the three-judge panel in its entirety, giving California two years from the date of its ruling to reduce its prison population to 137.5 percent of design capacity, subject to the right of the state to seek modifications in appropriate circumstances.
In response to the unresolved prison capacity crisis, in early 2007 the Senate Committee on Public Safety began holding legislative proposals which could further exacerbate prison overcrowding through new or expanded felony prosecutions. This bill does not appear to aggravate the prison overcrowding crisis described above. COMMENTS 1. Need for This Bill According to the author ÝThis bill] seeks to promote the development of special veterans' courts throughout the state of California. This measure is in response to the many (More) AB 201 (Butler) Page 11 returning veterans that fall through the cracks and end up entangled in the courts system due to Post Traumatic Stress Syndrome (PTSD), depression and mental health related issues. These veterans' courts would be able to develop locally coordinated court supervised diversion and treatment programs to those that qualify. Establishing special courts for veterans is one way to help these men and women who have served our nation as well as help reduce the financial and social cast to the state. 2. Authorization for the Establishment of Veterans Courts This bill authorizes counties to establish veterans courts. It sets objectives the courts shall have including increasing cooperation between the courts, criminal justice, veterans and substance abuse systems with the ultimate goal being improving supports of veterans and reducing recidivism and thus increasing public safety. Unlike prior bills, this bill sets forth characteristics for the veterans court that a county may consider but is not required to directly follow. This bill also suggests but does not require who shall take part in the collaborative process to develop the veterans court plan. 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 probation. The drug court model has been adapted to other circumstances, include parole reentry courts. (Penal Code § 3015.) This bill applies the model to the particular problems experienced by veterans in the criminal justice system. (More) AB 201 (Butler) Page 12 3. 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.) (More) 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).) Veterans appear to be 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.) 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).) 4. Argument in Support The State Independent Living Council supports this bill stating: Over the past decade the number of mentally ill veterans has greatly increased throughout the United States and the numbers continue to increase. (More) AB 201 (Butler) Page 14 Approximately 20% of returning forces are likely to suffer from Post-Traumatic Stress Disorder and additionally 320,000 returning veterans may have traumatic brain injuries. In addition, SILC has found that veterans with disabilities, specifically those with traumatic brain injuries, are an underserved and underrepresented group in California. With these findings it is important that issues that face returning veterans are addressed. The state authorizing the superior courts to develop a veterans' court with the objective of a court-supervised veteran's mental health program is a step in the right direction. The program would allow for treatment instead of punishment, for an illness/injury that these brave men and women obtained in service of our country. The Council considers this bill to be an important step in ensuring that we continue to support our veterans. ***************