BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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SB 1227 (Hancock) 7
As Introduced: February 20, 2014
Hearing date: April 8, 2014
Penal Code
MK:sl
DIVERSION: MEMBERS OF THE MILITARY
HISTORY
Source: California Public Defenders Association
Prior Legislation: None
Support: California Attorneys for Criminal Justice; Taxpayers
for Improving Public Safety
Opposition:California District Attorneys Association (unless
amended)
KEY ISSUE
SHOULD A DIVERSION PROGRAM BE CREATED FOR VETERANS WHO COMMIT
MISDEMEANORS OR JAIL FELONIES AND WHO ARE SUFFERING FROM A FORM OF
TRAUMA OR SUBSTANCE ABUSE THAT IS RELATED TO THEIR SERVICE?
PURPOSE
The purpose of this bill is to create a diversion program for
veterans who commit misdemeanors or jail felonies and who are
suffering from service-related trauma or substance abuse.
Existing law provides for deferred entry of judgment for
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specified drug offenses. (Penal Code §1000 et seq.)
Existing law permits a court to create a "Back on Track"
deferred entry of judgment reentry program for first time
non-violent drug offenders. (Penal Code § 100.8 et seq.)
Existing law provides for diversion of non-DUI misdemeanor
offenses. (Penal Code § 1001 et seq. and Penal Code §1001.50 et
seq)
Existing law provides for diversion of misdemeanors when the
defendant is a person with cognitive disabilities. (Penal Code §
1001.20 et. seq)
This bill creates a diversion program when a member or former
member of the United States Military is accused of a misdemeanor
or jail felony and the defendant is suffering from sexual
trauma, traumatic brain injury, post-traumatic stress disorder,
substance abuse or mental health problems resulting from his or
her military service.
This bill provides that if the court determines the defendant is
eligible, and the defendant consents and waives his or her right
to a speedy trial, the court may place the defendant in a
pretrial diversion program.
This bill provides that if it appears to the court that the
defendant is performing unsatisfactorily in the assigned
program, or that the defendant is not benefiting from the
treatment and services provided under the diversion program,
after notice to the defendant the court shall hold a hear to
determine whether criminal proceedings shall be reinstated. If
the court finds that the defendant is not performing
satisfactorily or not benefiting from the program the court may
reinstate criminal proceedings. If the defendant has performed
satisfactorily during the period of diversion the criminal
charges shall be dismissed.
This bill provides that if the defendant is referred to county
mental health they are only obligated to provide services to the
extent that they have the resources and they are within their
scope of services. They county mental health shall coordinate
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with the county veterans' services officer.
This bill provides when determining the requirements of the
pretrial diversion program the court shall assess whether the
defendant should be ordered to participate in a federal or
community-based treatment program with a demonstrated history of
specializing in the type of treatment.
This bill provides that in making an order for treatment, the
court shall give preference to a treatment program that has a
history of successfully treating veterans including but not
limited to programs operated by the US Department of Defense or
the US Department of Veterans Affairs.
This bill provides that the court and the assigned treatment
program may collaborate with the Department of Veteran Affairs
and the United States Department of Veteran Affairs to maximize
benefits and services provided to the veteran.
This bill provides that the diversion period may be no longer
than 2 years with progress reports to the court and the
prosecutor not less than every 6 months.
This bill provides that upon completion of diversion, the arrest
upon which the diversion was based shall be deemed to have never
occurred and the defendant may indicate that he or she was not
arrested or diverted for an offense when asked for a criminal
record. However, the diversion may be disclosed in response to
a peace officer application request.
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
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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
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
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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.
In a status report to the Court dated February 18, 2014, the
state reported that as of February 12, 2014, California's 33
prisons were at 144.3 percent capacity, with 117,686 inmates.
8,768 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
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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
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1. Need for the bill .
According to the author:
California has nearly two million military veterans
living in the state, more than any other state in the
country. Many of these veterans suffer from service
related trauma, such as Post Traumatic Stress Disorder,
or Traumatic Brain Injury. Unfortunately, some veterans
find themselves entangled in the criminal justice
system.
Diversion programs and the benefits of these programs
are well established in California. These programs
reduce recidivism by targeting the underlying source of
criminal behavior. Diversion programs also reduce
court and incarceration costs, as well as connect
participants to services that help them resume positive
community participation.
Successfully completed diversion programs ensure that
the participant is able to avoid the consequences of a
conviction (such as difficulty in finding a job or
securing housing). Participation in these programs can
connect veterans to services that are available but
underutilized, including mental health treatment,
addiction treatment, housing and medication.
Existing veterans' courts are post-plea, probationary
programs. Veterans are eligible only after they have
been found guilty. While these courts have proven
effective, they do not afford participating veterans
the benefits of pre-plea diversion programs.
2. Diversion for Veterans
This bill creates a diversion program for active duty or
veterans of the military who commit misdemeanors or jail
felonies. Diversion will be available if the veteran may be
suffering from sexual trauma, traumatic brain injury,
post-traumatic stress disorder, substance abuse or mental health
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resulting from his or her service.
If a veteran defendant successfully completes his or her
diversion program then the arrest will be deemed never to have
occurred and he or she can say she was never arrested or
diverted, unless he or she is applying to be a peace officer.
When ordering diversion the court is encouraged to work with
local and US Veteran Affairs offices to develop the appropriate
treatment and to use established treatment programs with a
history in dealing with the type of trauma the veteran has
suffered and in dealing with veterans. The goal is to not just
put them in any program but to get them in a program that is
used to dealing with the issues that a veteran may have.
The point of the diversion program will be to get help for
veterans who may be suffering as a result of their service.
This will allow them to not only get the proper services but
also allow them to be more easily employed in the future by
keeping the crime off their record if they complete their
diversion program successfully.
3. Oppose Unless Amended
CDAA would like the bill to be amended to exclude jail felonies
from eligibility for the new diversion program.
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