BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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AB 2611 (Butler)
As Introduced February 24, 2012
Hearing date: June 19, 2010
Penal Code
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VETERANS COURTS
HISTORY
Source: American Legion-Department of California
AMVETS-Department of California
California Association of County Veterans Service
Officers
Vietnam Veterans of America-California Council
Prior Legislation: AB 201 (Butler) 2011 Vetoed
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: California Attorneys for Criminal Justice; California
Psychiatric Association; the California Public
Defenders Association; the California State Sheriffs'
Association; Legal Services for Prisoners with
Children; The National Association of Social Workers,
California Chapter (NASW-CA); Office of the Deputy
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Assistant of the Secretary of Defense; Veterans of
Foreign Wars of the United States Department of
California
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
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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
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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;
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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
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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
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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
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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
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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.
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
("ROCA")
In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
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overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code section 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
ineligible for jail and therefore subject to state prison.
Under these principles, ROCA has been applied as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress towards reducing prison
overcrowding by passing legislation which could increase the
prison population. ROCA will continue until prison overcrowding
is resolved.
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
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.
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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. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
than the following:
167 percent of design capacity by December 27, 2011
(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
COMMENTS
1. Need for This Bill
According to the author
ÝThis bill] will promote the development of Veterans
Courts throughout the state by strongly encouraging the
Judicial Council to develop practices and identify
resources for the purposes of facilitating veterans'
court in counties. In addition, this bill strongly
encourages the Judicial Council to develop a compendium
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of resources to assist all collaborative courts to
understand the unique circumstances that affect
veterans.
2. Authorization for the Establishment of Veterans Courts
This bill, which is identical to AB 201 (Butler) which was
vetoed in 2011, 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.
3. UCSF and San Francisco VA Medical Center Study on Veterans and
PTSD
An article appearing in Science Daily (online) on March 13,
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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.)
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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
In support the California Psychiatric Association:
Establishing specialized courts for veterans who are
experiencing psychiatric symptoms would help stem the
effects of an epidemic of depression, anxiety, stress
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disorders and suicidal thought and acts among those
returning from Iraq and Afghanistan. When psychiatric
disorders in general go untreated it is common for
symptomatic individuals to commit crimes-usually
non-violent crimes. Untreated mental disorders also
result in many needless emergency room trips,
hospitalizations, and a high rate of health
disorders-all of which are very costly to communities,
the state, and society at large. Mental health Court
data generally demonstrates a reduction in criminal
activity as well as a stabilization of mental illness.
Veterans need access to evidence based programs.
5. Veto message to AB 201
This bill is identical to AB 201(Butler) which was vetoed by the
Governor last year. His message stated:
This measure would authorize superior courts to
establish dedicated
programs to serve eligible veterans of the United
States military.
While the provisions of this bill are well-intended,
they create a
clear expectation that our courts-already struggling
with painful
budget cuts--will establish a new program.
Given current budgetary constraints, the decision to
adopt this kind
of program-something already within the courts'
authority--is better
left to the sound discretion of the judiciary.
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