BILL ANALYSIS Ó Senate Appropriations Committee Fiscal Summary Senator Kevin de León, Chair SB 1227 (Hancock) - Diversion: members of the military. Amended: As Introduced Policy Vote: Public Safety 6-0 Urgency: No Mandate: Yes Hearing Date: April 28, 2014 Consultant: Jolie Onodera This bill meets the criteria for referral to the Suspense File. Bill Summary: SB 1227 would authorize a pretrial diversion program for a current or former member of the military who may be suffering from service-related trauma, substance abuse, or mental health issues, as determined by the court, who is charged with a misdemeanor or jail felony offense, as specified. Fiscal Impact: Potential ongoing increased court workload (General Fund*) to conduct assessments to determine defendant eligibility, assess appropriate program placement, hold periodic hearings, review progress reports, and collaborate with various local, state, and federal agencies. Potentially significant county mental health services costs (Local/Federal), likely non-reimbursable, as court orders to county mental health agencies are authorized only if the agency has agreed to accept responsibility for the treatment of the defendant. Local county mental health agency costs, potentially state-reimbursable (General Fund), for referrals to county veteran services offices and periodic reporting on the progress of program participants to the court and local prosecutors. Potentially significant future cost savings to the criminal justice system, both to the courts in averted prosecutorial hearings and reduced local incarceration and supervision costs to the extent participation in diversion programs is successful. *Trial Court Trust Fund Background: Existing law provides for post-plea probationary programs for current or former members of the military convicted of criminal offenses who would otherwise be sentenced to county SB 1227 (Hancock) Page 1 jail or state prison. For a defendant determined by the court to be suffering from service-related trauma, substance abuse, or mental health problems, 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 the term the defendant otherwise would have served in state prison or county jail, provided the defendant agrees to participate in the program and the court determines an appropriate treatment program exists. (Penal Code § 1170.9(a)-(b)) This bill seeks to offer comparable treatment programs prior to prosecution to similarly affected current and former members of the military who have been charged with misdemeanor or jail felony offenses. Proposed Law: This bill would authorize placement in a pretrial diversion program for active duty and veterans of the military who may be suffering from service-related trauma, substance abuse, or mental health issues, and who are charged with misdemeanor or jail felony offenses. Specifically, this bill: Requires the court to determine 1) whether a defendant is a current or former member of the United States military, and, 2) whether the member may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder (PTSD), substance abuse, or mental health problems as a result of his or her military service. Authorizes the court to request, using existing resources, an assessment to aid in the determination that the defendant meets requirements 1) and 2) noted above. If the court determines that a defendant is eligible, with the consent of the defendant and a waiver of the defendant's speedy trial right, may place the defendant in a pretrial diversion program. 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, after notice to the defendant, the court must hold a hearing to determine whether the criminal proceedings should be reinstituted. If the defendant performs satisfactorily during the diversion period, at the end of the diversion period, the criminal charges shall be dismissed. SB 1227 (Hancock) Page 2 Specifies that an order shall be made referring a defendant to a county mental health agency only if that agency has agreed to accept responsibility for the treatment of the defendant. If referral is made to the county mental health authority as part of the pretrial diversion program, the county shall be obligated to provide mental health treatment services only to the extent that resources are available for that purpose, as specified. If mental health treatment services are ordered by the court, the county mental health agency is required to coordinate appropriate referral of the defendant to the county veterans service officer. Specifies that the county mental health agency is not responsible for providing services outside its traditional scope of services. Requires the court to assess whether the defendant should be ordered to participate in a federal or community-based treatment service program with a demonstrated history of specializing in the treatment of mental health problems, including substance abuse, PTSD, TBI, sexual trauma, and other mental health issues. Requires the court to give preference to an established treatment program with a history of successfully treating veterans suffering from service-related issues, including but not limited to programs operated by the United States Department of Defense or the U.S. Department of Veterans Affairs (DVA). Authorizes the court and the assigned treatment program to collaborate with the DVA and the U.S. DVA to maximize benefits and services provided to the veteran. Provides that the period during which criminal proceedings against the defendant may be diverted shall be no longer than two years. Requires the responsible agency or agencies to file reports on the defendant's progress in the diversion program with the court and with the prosecutor not less than every six months. Requires a record to be filed with the Department of Justice indicating the disposition of the cases diverted. Defines "pretrial diversion" as the procedure of postponing prosecution either temporarily or permanently, at any point in the judicial process from the point at which the accused is charged until adjudication. Specifies that a pretrial diversion program shall utilize existing resources available to current or former members of the U.S. military to address and treat those suffering from SB 1227 (Hancock) Page 3 sexual trauma, TBI, PTSD, substance abuse, or mental health problems as a result of military service. Related Legislation: AB 2098 (Levine) 2014 would require the court to consider a defendant's status as a veteran suffering from PTSD or other forms of trauma when making specified sentencing determinations. This bill is pending hearing in the Senate Committee on Public Safety. Prior Legislation: SB 769 (Block) Chapter 46/2013 clarifies that dismissal of a case under provisions for veteran defendants who had service-related mental health issues does not restore a defendant's right to possess a firearm and does not prevent conviction for being a felon or drug addict in possession of a firearm. AB 2371 (Butler) Chapter 403/2012 provides restorative relief to a veteran defendant who acquires a criminal record due to a mental disorder stemming from military service. AB 674 (Salas) Chapter 347/2010 authorizes a court to order a defendant who suffers from service-related trauma, substance abuse, or mental health problems into a treatment program or veteran's court for a period not to exceed that which the defendant would have served in state prison or jail. AB 2586 (Parra) Chapter 788/2006 allows the court to consider a treatment program in lieu of incarceration as a condition of probation in cases involving military veterans who suffer from PTSD, substance abuse, or psychological issues stemming from their military service. Staff Comments: This bill would potentially create significant new and ongoing workload to the courts to administer the pretrial diversion program. While it is unknown how many current and former members of the military who have been charged with misdemeanors or jail felonies would present themselves before the court on an annual basis, the California Veterans Legal Task Force indicates from its 2013 San Diego Veterans Court Report on its website, "San Diego County is home to the largest concentration of military activity in the world, with 137,000 active duty military personnel, 250,000 veteran residents. About 38,000 veterans in the county have recent combat service, the highest concentration of any county in the U.S. and almost SB 1227 (Hancock) Page 4 double the number residing in Los Angeles. Of that number, research by the DVA indicates that approximately 13,300 (35 percent) will suffer a diagnosable mental condition related to that service. Studies from the Bureau of Justice Administration can be used to predict that almost 5,800 will be incarcerated for criminal activity, 1,900 for felony crimes. At present, an average of 100 self-identified military veterans are booked into San Diego County jail each week." ( http://www.cvltf.org ) The bill authorizes the court to use existing resources to conduct assessments of defendants to determine eligibility for a pretrial diversion program, but to the extent current resources are redirected from existing court duties would potentially result in at minimum a delay in daily operations. While the bill does not mandate these activities on the courts, to the extent more time is spent by existing staff to make these assessments of military veterans and active duty members, could result in new costs. In addition to conducting mental health assessments, the courts offering pretrial diversion programs would need to assess appropriate program placement, notice defendants of hearings, hold periodic hearings to monitor progress and determine whether prosecutorial hearings should resume, review progress reports submitted by agencies, file disposition records, and collaborate with various local, state, and federal agencies. Ongoing costs for these activities are unknown but would be significant. This bill expands the responsibility of county mental health agencies to provide treatment services to these defendants to the extent that resources are available for that purpose, and provided the services provided are within its traditional scope of services. Importantly, because the bill provides that an order from the court referring a defendant to a county mental health agency is allowable only if that agency has agreed to accept responsibility for the treatment of the defendant, all treatment costs incurred by the agency are estimated to be non-reimbursable by the state. Staff notes this bill cross references Welfare and Institutions Code section 5600.3(b)(5), which provides the authority for county mental health agencies to provide services to California veterans. Because there is no existing statutory reference to active duty military personnel in this section of law, it is unclear whether the provision of mental health services would be authorized for active duty SB 1227 (Hancock) Page 5 military personnel who otherwise meet the eligibility requirements for diversion created by this measure. This bill also requires the responsible agency or agencies to file reports on a defendant's progress in the diversion program with the court and the prosecutor at least every six months for up to two years (the maximum term of diversion). While the "responsible" agency is undefined, it is assumed county mental health agencies would be tasked with submitting the periodic reports to courts and local prosecutors, who would in turn be required to review the reports. By increasing the duties of county mental health agencies and local prosecutors, this bill imposes a higher level of service, the costs of which could potentially be state-reimbursable. The magnitude of costs would be dependent on the volume of defendants participating in these programs, the frequency of reports submitted, and the time required to compile and review the reports. To the extent the provisions of this bill result in the successful completion of the diversion program by defendants, could result in significant future cost savings to the criminal justice system. By diverting misdemeanor and jail felony offenders from prosecution and keeping potential convictions off their records, this bill not only potentially avoids prosecutorial hearings and saves local incarceration and supervision costs, but also removes barriers to community participation and the ability to potentially secure stable employment for these individuals. Recommended Amendments: To address the issue of imposing new duties on county mental health agencies, staff recommends the following amendment: 1001.80(d) An order shall be made referring a defendant to a county mental health agency only if that agency has agreed to accept responsibility for the treatment of the defendant, coordination of appropriate referral to a county veterans service officer, and the filing of reports pursuant to subdivision (h) . SB 1227 (Hancock) Page 6