BILL ANALYSIS Ó SENATE COMMITTEE ON PUBLIC SAFETY Senator Loni Hancock, Chair A 2013-2014 Regular Session B 2 0 9 AB 2098 (Levine) 8 As Amended May 29, 2014 Hearing date: June 10, 2014 Penal Code MK:mc MILITARY PERSONNEL: VETERANS: SENTENCING: MITIGATING CIRCUMSTANCES HISTORY Source: Author Prior Legislation:SB 769 (Block) - Chapter 46, Statutes of 2013 AB 2371 (Butler) - Chapter 403, Statutes of 2012 AB 201 (Butler) - 2011, vetoed AB 2611 (Butler) - 2012, vetoed AB 674 (Salas) - Chapter 347, Statutes of 2010 AB 2586 (Parra) - Chapter 788, Statutes of 2006 Support: California Council of Community Mental Health Agencies; National Association of Social Workers, California Chapter; Taxpayers for Improving Public Safety; California Public Defenders Association; California Attorneys for Criminal Justice Opposition:None known Assembly Floor Vote: Ayes 73 - Noes 0 (More) AB 2098 (Levine) Page 2 KEY ISSUE SHOULD THE LAW REQUIRE THE COURT TO CONSIDER A DEFENDANT'S STATUS AS A VETERAN SUFFERING FROM POST-TRAUMATIC STRESS DISORDER (PTSD) OR OTHER FORMS OF TRAUMA WHEN MAKING SPECIFIED SENTENCING DETERMINATIONS? PURPOSE The purpose of this bill is to require the court to consider a defendant's status as a veteran suffering from post-traumatic stress disorder (PTSD) or other forms of trauma when making specified sentencing determinations. Existing law requires the court, in the case of a 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 the United States military, to determine whether the defendant was a member of the military who served in combat and to assess whether the defendant suffers from PTSD, substance abuse, or psychological problems as a result of that service. (Penal Code § 1170.9 (a).) Existing law states that if the court concludes that a defendant convicted of a criminal offense was a member of the military suffering from PTSD, substance abuse, or psychological problems stemming from 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, non-profit 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 (b).) (More) AB 2098 (Levine) Page 3 Existing law requires the court, in any case involving a felony for which the defendant is eligible for probation, to refer the matter to the probation officer to prepare a report "including his or her recommendations as to the granting or denying of probation and the conditions of probation, if granted." (Penal Code § 1203 (b).) Existing law lists criteria affecting the decision to grant or deny probation include facts relating to the crime and facts relating to the defendant, as specified. (Cal. Rules of Court 4.414.) Existing law sets forth specified circumstances and offenses which make the defendant absolutely ineligible for probation. (See e.g., Penal Code §§ 66 (c)(2); 667.61(h); 1203(k).) Existing law sets forth specified circumstances and offenses in which the defendant is presumptively ineligible for probation and in which probation cannot be granted "except in unusual cases where the interests of justice would best be served." (See e.g., Penal Code §§ 1203 (e); 1203.065 (b); 1203.073(b).) Existing law lists factors that may indicate the existence of unusual circumstances warranting probation eligibility for offenses deemed presumptively ineligible. (Cal. Rules of Court 4.413.) Existing law provides that when a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term rests within the sound discretion of the court. (Penal Code § 1170 (b).) Existing law provides that, in exercising discretion to select one of the three authorized prison terms referred to in section (More) AB 2098 (Levine) Page 4 1170(b), "the sentencing judge may consider circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision. The relevant circumstances may be obtained from the case record, the probation officer's report, other reports and statements properly received, statements in aggravation or mitigation, and any evidence introduced at the sentencing hearing." (Cal. Rules of Court 4.420(b).) Existing law enumerates circumstances in aggravation, relating both to the crime and to the defendant, as specified. (Cal. Rules of Court 4.421.) Existing law enumerates circumstances in mitigation, relating both to the crime and to the defendant, as specified. (Cal. Rules of Court 4.423.) This bill requires the court to consider a defendant's status as a veteran suffering from sexual trauma, traumatic brain injury, PTSD, substance abuse, or other mental health problems as result of his or her military service, as a factor in favor of granting probation. This bill provides that if the court places a defendant because of his or her veteran status the court may order the defendant into a local, state, federal, or private nonprofit treatment program for a period not to exceed that period for which the defendant would have served in state prison r county jail, provided the defendant agrees to participate in the program and the court determines an appropriate program exists. This bill requires the court to consider a defendant's status as a combat veteran suffering from sexual trauma, traumatic brain injury, PTSD, substance abuse, or other mental health problems as a result of his or her military service, as a factor in mitigation when choosing whether to impose the lower, middle, or upper term. (More) AB 2098 (Levine) Page 5 This bill provides that this consideration does not preclude the court from considering similar trauma, injury, substance abuse, or mental health problems due to other causes, as evidence or factors in mitigation. RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION For the last several years, severe overcrowding in California's prisons has been the focus of evolving and expensive litigation relating to conditions of confinement. On May 23, 2011, the United States Supreme Court ordered California to reduce its prison population to 137.5 percent of design capacity within two years from the date of its ruling, subject to the right of the state to seek modifications in appropriate circumstances. Beginning in early 2007, Senate leadership initiated a policy to hold legislative proposals which could further aggravate the prison overcrowding crisis through new or expanded felony prosecutions. Under the resulting policy, known as "ROCA" (which stands for "Receivership/ Overcrowding Crisis Aggravation"), the Committee held measures that created a new felony, expanded the scope or penalty of an existing felony, or otherwise increased the application of a felony in a manner which could exacerbate the prison overcrowding crisis. Under these principles, ROCA was applied as a content-neutral, provisional measure necessary to ensure that the Legislature did not erode progress towards reducing prison overcrowding by passing legislation, which would increase the prison population. In January of 2013, just over a year after the enactment of the historic Public Safety Realignment Act of 2011, the State of California filed court documents seeking to vacate or modify the federal court order requiring the state to reduce its prison population to 137.5 percent of design capacity. The State submitted that the, ". . . population in the State's 33 prisons has been reduced by over 24,000 inmates since October 2011 when public safety realignment went into effect, by more than 36,000 (More) AB 2098 (Levine) Page 6 inmates compared to the 2008 population . . . , and by nearly 42,000 inmates since 2006 . . . ." Plaintiffs opposed the state's motion, arguing that, "California prisons, which currently average 150% of capacity, and reach as high as 185% of capacity at one prison, continue to deliver health care that is constitutionally deficient." In an order dated January 29, 2013, the federal court granted the state a six-month extension to achieve the 137.5 % inmate population cap by December 31, 2013. The Three-Judge Court then ordered, on April 11, 2013, the state of California to "immediately take all steps necessary to comply with this Court's . . . Order . . . requiring defendants to reduce overall prison population to 137.5% design capacity by December 31, 2013." On September 16, 2013, the State asked the Court to extend that deadline to December 31, 2016. In response, the Court extended the deadline first to January 27, 2014, and then February 24, 2014, and ordered the parties to enter into a meet-and-confer process to "explore how defendants can comply with this Court's June 20, 2013, Order, including means and dates by which such compliance can be expedited or accomplished and how this Court can ensure a durable solution to the prison crowding problem." The parties were not able to reach an agreement during the meet-and-confer process. As a result, the Court ordered briefing on the State's requested extension and, on February 10, 2014, issued an order extending the deadline to reduce the in-state adult institution population to 137.5% design capacity to February 28, 2016. The order requires the state to meet the following interim and final population reduction benchmarks: 143% of design bed capacity by June 30, 2014; 141.5% of design bed capacity by February 28, 2015; and 137.5% of design bed capacity by February 28, 2016. If a benchmark is missed the Compliance Officer (a position created by the February 10, 2016 order) can order the release of inmates to bring the State into compliance with that benchmark. (More) AB 2098 (Levine) Page 7 In a status report to the Court dated May 15, 2014, the state reported that as of May 14, 2014, 116,428 inmates were housed in the State's 34 adult institutions, which amounts to 140.8% of design bed capacity, and 8,650 inmates were housed in out-of-state facilities. The ongoing prison overcrowding litigation indicates that prison capacity and related issues concerning conditions of confinement remain unresolved. While real gains in reducing the prison population have been made, even greater reductions may be required to meet the orders of the federal court. Therefore, the Committee's consideration of ROCA bills -bills that may impact the prison population - will be informed by the following questions: Whether a measure erodes realignment and impacts the prison population; Whether a measure addresses a crime which is directly dangerous to the physical safety of others for which there is no other reasonably appropriate sanction; Whether a bill corrects a constitutional infirmity or legislative drafting error; Whether a measure proposes penalties which are proportionate, and cannot be achieved through any other reasonably appropriate remedy; and, Whether a bill addresses a major area of public safety or criminal activity for which there is no other reasonable, appropriate remedy. COMMENTS 1. Need for This Bill According to the author: There is a demonstrable link between veterans with mental health problems as a result of their service and (More) AB 2098 (Levine) Page 8 increased levels of incarceration. In spite of this link, California law currently fails to require the consideration of mental health problems associated with military service as a mitigating factor in certain criminal cases. AB 2098 remedies this deficiency. AB 2098 simply requires a court to consider military status and the presence of PTSD, TBI and other mental health problems induced by that service as factors of mitigation in determinate sentencing. AB 2098 is similar to precedent that was set in 1982 when the Legislature passed AB 2989, and later updated 1170.9 to allow courts to consider a treatment program in lieu of probation if the court makes a determination that defendant was, or currently is, a member of the United States military and may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of his or her service. AB 2098 does not require a judge to grant probation or to impose the lower prison term it simply directs the judge to consider such circumstances in determining whether or not to grant probation, or whether to impose the lower prison term for convictions and enhancements punished under the determinate sentencing law. 2. UCSF and San Francisco VA Medical Center Study on Veterans and PTSD The Journal of Traumatic Stress, Vol. 23, No. 1, February 2010, discussed a study conducted by the University of California-San Francisco and the San Francisco Veterans Affairs Medical Center. The study found that approximately one-third of the 238,000 veterans returning from Iraq and Afghanistan in the study population received one or more mental health or psychosocial diagnoses. The diagnoses include PTSD, depression, anxiety, (More) AB 2098 (Levine) Page 9 adjustment disorder, alcohol use disorder, and substance use disorder. (http://www.healthemotions.org/downloads/marmar4.pdf.) Other studies 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.) (More) 3. Consideration of Military Related Trauma When Determining Probation When imposing sentence for a defendant convicted of a felony, the trial court must first consider whether the defendant is eligible for probation. Probation is the suspension of the imposition or execution of the sentence and the conditional release of the defendant into the community under the supervision of a probation officer. If the defendant is eligible for probation, the court must decide whether to grant probation. The criteria affecting whether probation should be granted are set out in rule 4.414 of the California Rules of Court. There are two categories of factors: those relating to the nature of the crime and those relating to the defendant. Factors relating to the defendant include any prior record of criminal conduct; prior performance on probation or parole; willingness and ability to comply with the terms of probation; the likely effect of imprisonment on the defendant and his or her dependents; adverse collateral consequences on the defendant's life resulting from the felony conviction; remorsefulness; and the likelihood that if not imprisoned the defendant will be a danger to others. This bill would require the court to consider a defendant's status as a veteran suffering from sexual trauma, traumatic brain injury, PTSD, substance abuse, or other mental health problems as result of his or her military service as a factor in favor of granting probation. 4. Military Related Trauma as a Consideration in Sentencing A typical determinate felony sentence is a triad with a lower middle and upper term. Until 2007 the middle term was the presumptive term unless the judge determined there were factors of aggravation or mitigation to enhance or reduce the punishment. However, in Cunningham v. California (2007) 549 U.S. 270, the United States Supreme Court held California's Determinate Sentencing Law (DSL) violated a defendant's right to (More) AB 2098 (Levine) Page 11 trial by jury by placing sentence-elevating fact finding within the judge's province. (Id. at p. 274.) The DSL authorized the court to increase the defendant's sentence by finding facts not reflected in the jury verdict. Specifically, the trial judge could find factors in aggravation by a preponderance of evidence to increase the offender's sentence from the presumptive middle term to the upper term and, as such, was constitutionally flawed. The Court stated, "Because the DSL authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the sentence cannot withstand measurement against our Sixth Amendment precedent." (Id. at p. 293.) SB 40 (Romero) - Chapter 3, Statutes of 2007, changed the DSL so that the middle term is no longer the required term in absence of mitigating or aggravating factors. Now the judge is free to choose any of the three terms, using valid discretion. The judge must still state reasons for the term selected. (Penal Code § 1170 (b); see also Cal. Rules of Court 4.406(b)(4); 4.420(e).) "[T]he sentencing judge may consider circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision. The relevant circumstances may be obtained from the case record, the probation officer's report, other reports and statements properly received, statements in aggravation or mitigation, and any evidence introduced at the sentencing hearing." (Cal. Rules of Court 4.420(b), see also Penal Code § 1170, subd. (b).) The Rules of Court list both aggravating factors and mitigating factors. In each category there are factors relating to the crime and factors relating to the defendant. (See, Cal. Rules of Court 4.421 and 4.423.) This bill would require the court to consider a defendant's status as a veteran suffering from sexual trauma, traumatic brain injury, PTSD, substance abuse, or other mental health problems as result of his or her military service as a factor in mitigation when determining the appropriate sentence. This bill also provides that consideration of trauma from military status does not preclude the court considering similar AB 2098 (Levine) Page 12 trauma that may have occurred due to other causes. ***************