BILL ANALYSIS
AB 674
Page 1
Date of Hearing: April 21, 2009
Counsel: Nicole J. Hanson
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 674 (Salas) - As Introduced: February 25, 2009
SUMMARY : Establishes a deferred entry of judgment program and
a pre-conviction drug diversion program for veterans who suffer
from post-traumatic stress disorder (PTSD) or traumatic brain
injury. Specifically, this bill :
1)Excepts as otherwise required by the Substance Abuse and Crime
Prevention Act of 2000, this chapter shall apply whenever a
case is before any court upon an accusatory pleading charging
the defendant with a misdemeanor or felony and the defendant
is a veteran, of the Military and Veterans Code, who has been
diagnosed with service connected PTSD or traumatic brain
injury as a result of his or her military service or who has
undiagnosed symptoms of post-traumatic stress disorder or
traumatic brain injury as a result of stressors that he or she
was exposed to in a combat situation in the military service
as proven by his or her service record that includes the
veteran's service form DD214 (Certificate of Release or
Discharge from Active Duty) with Combat Infantry Badge, Combat
Action Ribbon, Purple Heart, Bronze Star, or any decoration
with a "V" for valor, Silver Star, Distinguished Service
Medal, Navy Cross, Distinguished Flying Cross, or
Congressional Medal of Honor and all of the following apply:
a) The offense charged did not involve a crime of violence
or threatened violence.
b) The crime charged is not a serious felony or violent
felony.
c) The defendant's record does not indicate that probation
or parole has ever been revoked without thereafter being
completed.
d) The defendant's record does not indicate that he or she
has successfully completed or been terminated from
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diversion or deferred entry of judgment pursuant to this
chapter within five years prior to the alleged commission
of the charged offense.
e) The defendant has no prior felony conviction within five
years prior to the alleged commission of the charged
offense.
2)Requires the prosecuting attorney to review his or her file to
determine whether or not the aforementioned apply to the
defendant. Upon the agreement of the prosecuting attorney, law
enforcement, the public defender, and the presiding judge of
the criminal division of the superior court or a judge
designated by the presiding judge, this procedure shall be
completed as soon as possible after the initial filing of the
charges. If the defendant is found eligible, the prosecuting
attorney shall file with the court a declaration in writing or
state for the record the grounds upon which the determination
is based, and shall make this information available to the
defendant and his or her attorney. This procedure is intended
to allow the court to set the hearing for deferred entry of
judgment at the arraignment. If the defendant is found
ineligible for deferred entry of judgment, the prosecuting
attorney shall file with the court a declaration in writing or
state for the record the grounds upon which the determination
is based, and shall make this information available to the
defendant and his or her attorney. The sole remedy of a
defendant who is found ineligible for deferred entry of
judgment is a post-conviction appeal.
3)Asks that all referrals for deferred entry of judgment granted
by the court pursuant to this chapter to be made only to
programs that have been certified by the county veterans
service officer, or other appropriate officer designated by
the county pursuant to this section, or to programs that
provide services at no cost to the participant and have been
deemed by the court and the county to be credible and
effective. The defendant may request to be referred to a
program in any county, as long as that program meets the
criteria set forth in this subdivision.
4)States that any defendant who is participating in a program
referred to in this section may be required to undergo
analysis of his or her urine for the purpose of testing for
the presence of any drug or alcohol as part of the program.
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However, urine analysis results shall not be admissible as a
basis for any new criminal prosecution or proceeding.
5)Provides that if the prosecuting attorney determines that this
chapter may be applicable to the defendant, he or she shall
advise the defendant and his or her attorney in writing of
that determination. This notification shall include the
following:
a) A full description of the procedures for deferred entry
of judgment.
b) A general explanation of the roles and authorities of
the probation department, the prosecuting attorney, the
program, and the court in the process.
c) A clear statement that in lieu of trial, the court may
grant deferred entry of judgment with respect to any crime
specified that is charged, provided that the defendant
pleads guilty to each charge and waives time for the
pronouncement of judgment, and that upon the defendant's
successful completion of a program, the positive
recommendation of the program authority and the motion of
the prosecuting attorney, the court, or the probation
department, but no sooner than 18 months and no later than
three years from the date of the defendant's referral to
the program, the court shall dismiss the charge or charges
against the defendant.
d) A clear statement that upon any failure of treatment or
condition under the program, or any circumstance, the
prosecuting attorney, the probation department, or the
court on its own may make a motion to the court for entry
of judgment and the court shall render a finding of guilt
to the charge or charges pled, enter judgment, and schedule
a sentencing hearing as otherwise provided in this chapter.
e) An explanation of criminal record retention and
disposition resulting from participation in the deferred
entry of judgment program and the defendant's rights
relative to answering questions about his or her arrest and
deferred entry of judgment following successful completion
of the program.
6)Provides that if the defendant consents and waives his or her
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right to a speedy trial or a speedy preliminary hearing, the
court may refer the case to the probation department or the
court may summarily grant deferred entry of judgment if the
defendant pleads guilty to the charge or charges and waives
time for the pronouncement of judgment. When directed by the
court, the probation department shall make an investigation
and take into consideration the defendant's age, employment
and service records, educational background, community and
family ties, prior controlled substance use, prior use of
alcoholic beverages, homelessness, treatment history, if any,
demonstrable motivation, and other mitigating factors in
determining whether the defendant is a person who would be
benefited by education, treatment, or rehabilitation. The
probation department shall also determine which programs the
defendant would benefit from and which programs would accept
the defendant. The probation department shall report its
findings and recommendations to the court. The court shall
make the final determination regarding education, treatment,
or rehabilitation for the defendant. If the court determines
that it is appropriate, the court shall grant deferred entry
of judgment if the defendant pleads guilty to the charge or
charges and waives time for the pronouncement of judgment.
7)Prohibits statements, or any information procured therefrom,
made by the defendant to any probation officer, drug or
treatment program worker, county veterans service officer, or
other assigned county employee that is made during the course
of any investigation conducted by the probation department or
treatment program, and prior to the reporting of the probation
department's findings and recommendations to the court, shall
be admissible in any action or proceeding brought subsequent
to the investigation. No statement, or any information
procured therefrom, with respect to the specific offense with
which the defendant is charged, that is made to any probation
officer, drug or treatment program worker, county veterans
service officer, or other assigned county employee subsequent
to the granting of deferred entry of judgment, shall be
admissible in any action or proceeding, including a sentencing
hearing.
8)Declares that a defendant's plea of guilty pursuant to this
chapter shall not constitute a conviction for any purpose
unless a judgment of guilty is entered pursuant to existing
law.
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9)Requires the court to hold a hearing and, after consideration
of any information relevant to its decision, shall determine
if the defendant consents to further proceedings under this
chapter and if the defendant should be granted deferred entry
of judgment. If the court does not deem the defendant a person
who would be benefited by deferred entry of judgment, or if
the defendant does not consent to participate, the proceedings
shall continue as in any other case.
10)Provides that at the time that deferred entry of judgment is
granted, any bail bond or undertaking, or deposit in lieu
thereof, on file by or on behalf of the defendant shall be
exonerated, and the court shall enter an order so directing.
11)Makes the period during which deferred entry of judgment is
granted shall be for no less than 18 months and no longer than
three years. Progress reports shall be filed by the probation
department with the court as directed by the court.
12)Provides that if the prosecuting attorney, the court, or the
probation department that the defendant is performing
unsatisfactorily in the assigned program, is not benefiting
from education, treatment, or rehabilitation, is convicted of
a misdemeanor that reflects the defendant's propensity for
violence, is convicted of a felony, or has engaged in criminal
conduct rendering him or her unsuitable for deferred entry of
judgment, the prosecuting attorney, the court on its own, or
the probation department may make a motion for entry of
judgment. After notice to the defendant, the court shall hold
a hearing to determine whether judgment should be entered.
13)States that if the court finds that the defendant is not
performing satisfactorily in the assigned program, is not
benefiting from education, treatment, or rehabilitation, has
been convicted of a crime as indicated above, or has engaged
in criminal conduct rendering him or her unsuitable for
deferred entry of judgment, the court shall render a finding
of guilt to the charge or charges pled, enter judgment, and
schedule a sentencing hearing as otherwise provided in this
chapter.
14)Affirms that if the defendant has performed satisfactorily
during the period in which deferred entry of judgment was
granted, at the end of that period, the criminal charge or
charges shall be dismissed. Prior to dismissing the charge or
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charges or rendering a finding of guilt and entering judgment,
the court shall consider the defendant's ability to pay and
whether the defendant has paid a diversion restitution fee, if
ordered, and has met his or her financial obligation to the
program, if any. As provided under existing law, the defendant
shall reimburse the probation department for the reasonable
cost of any program investigation or progress report filed
with the court as directed.
15)Requires records filed with the Department of Justice shall
indicate the disposition in those cases deferred pursuant to
this chapter. Upon successful completion of a deferred entry
of judgment program, the arrest upon which the judgment was
deferred shall be deemed to have never occurred. The defendant
may indicate in response to any question concerning his or her
prior criminal record that he or she was not arrested or
granted deferred entry of judgment for the offense, except as
specified. A record pertaining to an arrest resulting in
successful completion of a deferred entry of judgment program
shall not, without the defendant's consent, be used in any way
that could result in the denial of any employment, benefit,
license, or certificate.
16)Advises that the defendant that, regardless of his or her
successful completion of the deferred entry of judgment
program, the arrest upon which the judgment was deferred may
be disclosed by the Department of Justice in response to any
peace officer application request and this section does not
relieve him or her of the obligation to disclose the arrest in
response to any direct question contained in any questionnaire
or application for a position as a peace officer.
17)Excepts as otherwise required by the Substance Abuse and
Crime Prevention Act of 2000, the presiding judge of the
superior court, or a judge designated by the presiding judge,
together with the district attorney and the public defender,
may agree in writing to establish and conduct a preguilty plea
drug court program pursuant to the provisions of this chapter,
wherein criminal proceedings are suspended without a plea of
guilty for designated defendants. The drug court program shall
include a regimen of graduated sanctions and rewards,
individual and group therapy, urine analysis testing
commensurate with treatment needs, close court monitoring and
supervision of progress, educational or vocational counseling
as appropriate, and other requirements as agreed to by the
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presiding judge or his or her designee, the district attorney,
and the public defender. If there is no agreement in writing
for a preguilty plea program by the presiding judge or his or
her designee, the district attorney, and the public defender,
the program shall be operated as a deferred entry of judgment
program as provided in this chapter.
18)Applies satisfactory and unsatisfactory performance
measurements to preguilty plea programs. If the court finds
that the defendant is not performing satisfactorily in the
assigned program, is not benefiting from education, treatment,
or rehabilitation, has been convicted of a crime specified
under existing law, or has engaged in criminal conduct
rendering him or her unsuitable for the preguilty plea
program, the court shall reinstate the criminal charge or
charges. If the defendant has performed satisfactorily during
the period of the preguilty plea program, at the end of that
period, the criminal charge or charges shall be dismissed.
EXISTING LAW :
1)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 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 Section 1170.9(a).]
2)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
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 Section 1170.9(b).]
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3)Defines a "violent felony" as any of the following [Penal Code
Section 667.5(c)]:
a) Murder or voluntary manslaughter;
b) Mayhem;
c) Rape or spousal rape accomplished by means of force or
threats of retaliation;
d) Sodomy by force or fear of immediate bodily injury on
the victim or another person;
e) Oral copulation by force or fear of immediate bodily
injury on the victim or another person;
f) Lewd acts on a child under the age of 14 years, as
defined;
g) Any felony punishable by death or imprisonment in the
state prison for life;
h) Any felony in which the defendant inflicts great bodily
injury on any person other than an accomplice, or any
felony in which the defendant has used a firearm, as
specified;
i) Any robbery;
j) Arson of a structure, forest land, or property that
causes great bodily injury;
aa) Arson that causes an inhabited structure or property to
burn;
bb) Sexual penetration accomplished against the victim's
will by means of force, menace or fear of immediate bodily
injury on the victim or another person;
cc) Attempted murder;
dd) Explosion or attempted explosion of a destructive device
with the intent to commit murder;
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ee) Explosion or ignition of any destructive device or any
explosive which causes bodily injury to any person;
ff) Explosion of a destructive device which causes death or
great bodily injury;
gg) Kidnapping;
hh) Assault with intent to commit mayhem, rape, sodomy or
oral copulation;
ii) Continuous sexual abuse of a child;
jj) Carjacking, as defined;
aaa) Rape or penetration of genital or anal openings by a
foreign object;
bbb) Felony extortion;
ccc) Threats to victims or witnesses, as specified;
ddd) First degree burglary, as defined, where it is proved
that another person other than an accomplice, was present
in the residence during the burglary;
eee) Use of a firearm during the commission of specified
crimes; and,
fff) Possession, development, production, and transfers of
weapons of mass destruction.
4)Defines a "serious felony" as any of the following: murder or
manslaughter; mayhem; rape; sodomy; oral copulation; lewd acts
on a child under the age of 14; any felony punishable by death
or imprisonment for life; any felony in which the defendant
inflicts great bodily injury; attempted murder; assault with
the intent to commit rape or robbery; assault with a deadly
weapon or instrument on a peace officer; assault by a life
prisoner on a non-inmate; assault with a deadly weapon by an
inmate; arson; exploding a destructive devise with the
intention to commit murder or great bodily injury;
first-degree burglary; armed robbery or bank robbery;
kidnapping; holding of a hostage by a person confined to a
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state prison; attempting to commit a felony punishable by
death or life in prison; any felony where the defendant
personally used a dangerous or deadly weapon; selling or
otherwise providing heroin, PCP or any type of
methamphetamine-related drug; forcible sexual penetration;
grand theft involving a firearm; carjacking; assault with the
intent to commit mayhem, rape, sodomy or forcible oral
copulation; throwing acid or other flammable substance;
assault with a deadly weapon on a peace officer; assault with
a deadly weapon on a member of the transit authority;
discharge of a firearm in an inhabited dwelling or car; rape
or sexual penetration done in concert; continuous sexual abuse
of a child; shooting from a vehicle; intimidating a victim or
witness; any attempt to commit the above-listed crimes except
assault or burglary; and using a firearm in the commission of
a crime and possession of weapons of mass destruction. [Penal
Code Section 1192.7(c).]
5)Provides for diversion from criminal prosecution through a
deferred entry of judgment 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
(Penal Code Section 1000):
a) The defendant has no conviction for any offense
involving controlled substances prior to the alleged
commission of the charged offense.
b) The offense charged did not involve a crime of violence
or threatened violence.
c) 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.
d) The defendant's record does not indicate that probation
or parole has ever been revoked without thereafter being
completed.
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e) The defendant's record does not indicate that he or she
has successfully completed or been terminated from
diversion or deferred entry of judgment pursuant to this
chapter within five years prior to the alleged commission
of the charged offense.
a) The defendant has no prior felony conviction within five
years prior to the alleged commission of the charged
offense.
6)Provides that effective July 1, 2001, except as specified, a
person convicted of a non-violent drug possession offense
(NOVIDPO) shall receive probation with completion of a drug
treatment program as a condition of probation. (Penal Code
Section 1210, 1210.1, added by Proposition 36, approved
November 7, 2000.)
7)Provides that, except as specified, a person's parole may not
be suspended or revoked for commission of a NOVIDPO or for
violating a drug-related condition of parole, but that an
additional condition of parole for those offenses or
violations shall be completion of a drug treatment program.
(Penal Code Section 3063.1.)
8)Provides that if a person on parole, or placed on probation
for a NOVIDPO, violates a drug-related condition of
supervision, a misdemeanor for simple possession or use of
drugs or drug paraphernalia, being present where drugs are
used, or failure to register as a drug offender, the court may
not revoke probation or parole for a first drug-related
violation unless the State proves that the person is a danger
to the safety of others. [Penal Code Sections 1210.1(e)(3)
and 3063.1(d)(3).]
9)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
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programs; and refused treatment. (Penal Code Section 1210.03.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "AB 674 protects
society from the worst offenders while enabling mercy and
treatment for the typical vet suffering from PTSD or TBI and
aggravated pre-existing disorders that result from their
combat related service."
2)Background : According to information provided by the author,
"Existing law does not allow for Veterans who commit crimes as
a result of combat service to have their records changed
because of that service."
3)PTSD Explained : PTSD may develop after one experiences a
life-threatening or highly traumatic event, such as military
combat, rape, abuse (sexual or physical), natural disaster,
serious accident, or terrorist attacks. [U.S. Department of
Veterans Affairs, National Center for PTSD, What is PTSD?
(as of Mar. 26, 2009).] When an
individual experiences such an event, the body produces a
stress response which begins in the reticular activating
system and continues to the hypothalamus. [Garcia-Rill &
Beecher-Monas, Gatekeeping Stress: The Science and
Admissibility of Post-Traumatic Stress Disorder (2001) 24 U.
Ark. Little Rock L. Rev. 9, 18.] The hypothalamus signals the
pituitary gland to secrete the adrenocorticotropic hormone
(ACTH), which eventually causes the production of adrenaline.
(Ibid.) The adrenaline causes the stress response of rapid
heartbeat, pain desensitizing and hyper-alertness. (Ibid.)
The brain then terminates the stress response when needed in a
negative feedback process where more ACTH is released in order
to stop the ACTH production. (Ibid.) The problem in persons
with PTSD is that they experience a stress response every time
there is a reminder of the stressor (i.e. a flashback,
triggering image or related incident). The person is, thus,
under continuous stress, which can have a "deleterious effect
on the brain." (Ibid.)
The American Psychiatric Association lists the diagnostic
criteria for PTSD in the Diagnostic & Statistical Manual of
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Mental Disorders as follows:
"The traumatic event is persistently re-experienced in one (or
more) of the following ways:
"(1) Tecurrent and intrusive distressing recollections of the
event, including images, thoughts, or perceptions . . . .
"(2) Recurrent distressing dreams of the event . . . .
"(3) Acting or feeling as if the traumatic event were recurring
(includes a sense of reliving the experience, illusions,
hallucinations, and dissociative flashback episodes, includes
those that occur on awakening or when intoxicated) . . . .
"(4) Intense psychological distress at exposure to internal or
external cues that symbolize or resemble an aspect of the
traumatic event.
"(5) Physiological reactivity on exposure to internal or
external cues that symbolize or resemble an aspect of the
traumatic event.
"Persistent avoidance of stimuli associated with the trauma and
numbing of general responsiveness (not present before the
trauma), as indicated by three (or more) of the following:
"(1) Efforts to avoid thoughts, feelings, or conversations
associated with the trauma.
"(2) Efforts to avoid activities, places, or people that arouse
recollections of the trauma.
"(3) Inability to recall an important aspect of the trauma.
"(4) Markedly diminished interest or participation in
significant activities.
"(5) Feeling of detachment or estrangement from others.
"(6) Restricted range of affect (e.g., unable to have loving
feelings).
"(7) Sense of a foreshortened future (e.g., does not expect to
have a career, marriage, children, or a normal life span).
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"Persistent symptoms of increased arousal (not present before
trauma), as indicated by two (or more) of the following:
"(1) Difficulty falling or staying asleep.
"(2) Irritability or outbursts of anger.
"(3) Difficulty concentrating.
"(4) Hypervigilance.
"(5) Exaggerated startle response.
"Duration of the disturbance (symptoms above) is more than one
month.
"The disturbance causes clinically significant distress or
impairment of social, occupational, or other important areas
of functioning." [American Psychiatric Association,
Diagnostic and Statistical Manual of Mental Disorders (4th ed.
2000) p. 468.]
Using the above criteria in diagnosing patients, the American
Psychiatric Association concluded that 8% of the American
population suffers from PTSD who will have lifetime
prevalence, with the highest rates among those who have served
in military combat. (Id. at p. 466.)
4)Veterans and PTSD : A study conducted by the University of
California-San Francisco and the San Francisco Veterans
Affairs Medical Center has shown that approximately one-third
of veterans returning from Iraq received one or more mental
health or psychosocial diagnoses. [JAMA and Archives
Journals, Mental Illnesses Appear Common Among Veterans
Returning From Iraq and Afghanistan (Mar. 13, 2008)
ScienceDaily (as of Mar. 27, 2009).]
Another study reported in the New England Journal of Medicine
indicates that the rate of PTSD among veterans of the wars in
Iraq and Afghanistan increased in a linear manner with
increased exposure to combat. [See Hoge, M.D., Combat Duty in
Iraq and Afghanistan, Mental Health Problems, and Barriers to
Care (2004) 351 N. Engl. J. Med. 13-22.] Studies also
indicate that PTSD may result in drug and alcohol abuse by
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veterans. [See Stress & Substance Abuse: A Special Report,
National Institute on Drug Abuse (Sept. 12, 2005)
(as of Mar.
27, 2009).]
Mental health and substance abuse problems experienced by
veterans are linked to future incarceration. 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 Just., 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 5.) Veterans are
also more likely than non-veterans to report past intravenous
drug use. (Ibid.) 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) (detailing the experience of an
Iraq veteran who suffered a traumatic brain injury and mental
health issues as a result of his combat experience, who
reported that he was using heroin and engaging in criminal
activity to support his drug habit within two months of his
return home from the war).] It is likely that a significant
number of veterans with substance abuse issues may be
self-medicating as a means of dealing with mental illness.
[See Wynn, Dual Diagnosis, Journal of Addictive Disorders
(2002), (as of March 23,
2009).]
The reality is that veterans are disproportionately represented
in the prison population as compared to the population of the
United States as a whole. According to the Department of
Veterans Affairs, in July 2007, there were an estimated
23,977,000 veterans in the United States. [See United States
Department of Veterans Affairs (Jul. 25, 2007) table
(as of March 23, 2009).] In contrast, veterans make up 10% of
state prisoners. (See Noonan & Mumola, supra, at p. 1.) By
2004, veterans of the current conflicts in Iraq and
Afghanistan already comprised for 4% of veterans in state and
federal prisons. (Ibid.)
Veterans are more likely than non-veterans to be incarcerated
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for a violent offense, "including over a third who were
serving sentences for homicide (15%) or rape/sexual assault
(23%)." (Id. at 4.) Veterans were also more likely to have
victimized women and children than were other offenders.
(Ibid.)
The current reality is that, once incarcerated, almost
two-thirds of mentally ill prisoners do not receive any form
of 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.] Mentally ill prisoners who
receive little or no treatment are at great risk of harm, are
particularly "vulnerable to assault, sexual abuse,
exploitation, and extortion," and are more likely to engage in
self-harm, such as self-mutilation and suicide. [Abramsky &
Fellner, Ill- Equipped: U.S. Prisons and Offenders with Mental
Illness, Human Rights Watch (Oct. 21, 2003) p. 56
(as of March 23,
2009).] Mentally ill prisoners are often severely punished
for behaviors that stem from their mental illnesses, including
placement in solitary confinement. (Id. at 56-69.) Isolation
can cause the mentally ill to rapidly decompensate and has
been described as "the mental equivalent of putting an
asthmatic in a place with little air to breathe." [Madrid v.
Gomez (N.D. Cal. 1995) 889 F. Supp. 1146, 1265.]
Providing meaningful mental health treatment has been shown to
significantly reduce recidivism rates, with studies showing
decreases of over 20%. [Aos, Wash. State Inst. For Pub.
Pol'y, Evidence-Based Policy Options to Reduce Future Prison
Construction, Criminal Justice Costs, and Crime Rates (2006).]
Likewise, studies have shown a reduction of more than 6% in
recidivism rates where meaningful chemical dependency services
are provided to prisoners. (Id. at pp. 3, 19.) Chemical
dependency treatment has also been shown to decrease, at least
in the short term, the probability of alcohol dependency by
15% and drug dependency by 22%. (Id. at p.4.)
This bill establishes a deferred entry of judgment program and a
pre-conviction drug diversion program for veterans who suffer
from PTSD or traumatic brain injury. As the research
indicates many veterans are in need of this treatment and such
treatment reduces recidivism rates. In addition, the research
shows that, but for, the PTSD these veterans would not be
committing these crimes.
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With that in mind, however, it is important that there is a
significant nexus between the drug dependency issue, the PTSD,
and the crime committed by the veteran. This bill casts a
wide net of crimes eligible for diversion. It would be
prudent to narrow the list of crimes that are available for
diversion to veterans with PTSD. For example, it does not
make sense for a veteran who has PTSD to receive diversion if
he or she was charged with manufacturing methamphetamine,
second-degree burglary, growing marijuana, felony driving
under the influence (DUI), DUI causing bodily injury,
vehicular manslaughter with gross negligence, pimping and
pandering, prostitution, forgery, extortion, vehicle theft,
hit and run. The nexus between those crimes and PTSD is too
attenuated. A suggestion would be to limit the list of
divertible crimes to non-violent, drug-related offenses, such
as those proscribed under Proposition 36. To expand the list
of crimes beyond those where there is a clear nexus between
the PTSD stemming from service and the resultant crime treats
veterans as a specialized class of people receiving favorable
treatment and dismissals based upon their veteran status
rather than their mental health. This is not to say that PTSD
should not be considered as a factor in crimes other than
non-violent drug offenses, but it should not automatically
warrant a diversion. PTSD has been used to prove existing
criminal law defenses since 1978. [Menefee, The "Vietnam
Syndrome" Defense: A "G.I. Bill of Criminal Rights"? (1985)
1985 Army Law. 1, 27.] PTSD can be used to prove a defense of
insanity, diminished capacity, or self-defense and can also be
used as a mitigating factor in sentencing proceedings.
5)Equal Protection and Purposeful Discrimination : The Equal
Protection Clause of the Fourteenth Amendment, 1, commands
that no state shall "deny to any person within its
jurisdiction the equal protection of the laws." Despite this,
however, many federal and state laws give veterans preference
in hiring and promotion decisions for civil service jobs.
[E.g., 38 U.S.C.A. 4214 (1998) (noting in subsection (a)(1)
that the United States "has an obligation to assist veterans
of the Armed Forces in readjusting to civilian life" and
advancing the policy of "promit[ing] the maximum employment
and job advancement opportunities [for qualified veterans]
within the Federal Government."] Generally, these laws
provide that a specified number of points be added to the test
scores of veterans thereby allowing lower scoring veterans to
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be hired ahead of higher scoring non-veterans. [E.g., AZ.
Rev. Stats. 38-492 (authorizing the addition of five points
to civil service examinations of veterans achieving passing
scores); AR. Code Ann. 21-3-302 (same); Colo. Rev. Stat.
Ann. Const. Art. 12, 15 (same); Conn. Gov. Stat. Ann. 7-415
(same).] These preference programs are instances of
discrimination - using the term "discrimination" in the
non-pejorative sense. The law targets the veteran qua veteran
and treats him or her differently than the civilian.
The defining constitutional case in this area, Personnel
Administrator v. Feeney (1979) 42 U.S. 256, has been taken as
the authoritative statement that veterans' preferences are
constitutional. It must be noted however, that this case
actually addressed the question whether such a preference
unconstitutionally discriminates on the basis of sex. The
Court held that the distinction in the law was "simply between
veterans and non veterans, not between men and women." (Id.
at 275.) The Court upheld the preference on this ground, not
on whether the veteran versus non-veteran preferential
treatment violated equal protection.
The Court did recognize that a status-based distinction between
veterans and non-veterans was in play, noting that it was an
"unusual" case because it involved a law, that by design was
not neutral. (Id. at 277.) The statute "overtly preferr[ed]
veterans as such." (Ibid.) The Court did not address whether
this status distinction itself was permissible because "the
appellee ha[d] not disputed, that this legislative choice was
legitimate." (Ibid.)
Absent from the case law is an analysis of whether and on what
basis the "headstart" for a "specifically described" and
"particularly deserving" group described in Feeney is
permissible. So far, this gap in the case law has evaded
notice.
In the 1983 case Regan v. Taxation with Representation (1983)
461 U.S. 540, the Court upheld a tax provision giving
favorable treatment to veterans groups engaged in lobbying
while denying such favor to other charitable groups that lobby
on the basis that "our country has a longstanding policy of
compensating veterans for their past contributions by
providing them with numerous advantages." (Id. at 551.) In
the Court's view, review of this "longstanding" status
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discrimination was unnecessary because, quoting Feeney, "this
policy has 'always been deemed to be legitimate.' " (Ibid.)
Using the language of the case law as a guide, it appears that
the meaning of veterans' preferences to judges is an
expression of honor, gratitude, and compensation. As the
Court explains in Feeney, "the veterans' hiring preference in
Massachusetts, as in other jurisdictions, has traditionally
been justified as a measure designed to reward veterans for
the sacrifice of military service." (Feeney, supra, 42 U.S.
256, p. 265.) The Court in Regan emphasizes the hardships of
military service that warrant "compensating veterans for their
past contributions." (Regan, supra, 461 U.S. 540, p. 551.)
Not only do the hardships of military service, particularly
wartime service, require honor and compensation, in the words
of the Pennsylvania Supreme Court, "it is the greatest service
a citizen can perform, and it comes with ill grace for those
of us not in such wars to deny them just consideration."
[Commonwealth ex rel. Graham v. Schmid (Pa. 1939) 3 A.2d 701,
704.]
The laws above express the country's appreciation for the
sacrifices of military service. They mark the fact that this
contribution to the country is different from the
contributions to the economy and communal life that civilians
make. By enacting this preference, the country expresses
gratitude to the veteran for this contribution while
disregarding others. Status distinctions that honor one
particular group may be problematic. It is also important to
note that the aforementioned cases did not involve crime, but
were advantages given to law abiding citizens. There are no
victims as a direct result of the veteran's actions. It is
questionable whether a veteran would be given the same
preferential treatment after the commission of a crime.
6)The Insanity Defense, Diminished Capacity, and Imperfect
Self-Defense : California follows the test of insanity laid
down in M'Naghten's Case (1843) 8 Eng.Rep. 718, under which
the accused must have been "incapable of knowing or
understanding the nature and quality of his or her act and of
distinguishing right from wrong at the time of the commission
of the offense." [Cal. Pen. Code 25, subd. (b).] It has
long been the rule in California that "insanity may not be
used as a basis for extending leniency. It is either a
complete defense or none at all. There is no degree of
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insanity which may be established to affect the degree of
crime." [People v. Cordova (1939) 14 Cal.2d 308, 311.] Thus,
" 'there is no degree of insanity sufficient to acquit of
murder but not of manslaughter.' " [People v. Phillips (1929)
102 Cal.App. 705, 708.]
At least in part to "ameliorate the law governing criminal
responsibility" prescribed by the M'Naghten rule two doctrines
emerged: diminished capacity and imperfect self-defense [See
People v. Saille (1991) 54 Cal.3d 1103, 1109 (reviewing
history of diminished capacity doctrine); People v. Flannel
(1979) 25 Cal.3d 668, 675-677 (reviewing history of imperfect
self-defense doctrine).]. Under the diminished capacity
doctrine, "evidence of diminished mental capacity, whether
caused by intoxication, trauma, or disease, [could] be used to
show that a defendant did not have a specific mental state
[including malice] essential to an offense." [People v.
Conley (1966) 64 Cal.2d 310, 316.] Under the doctrine of
imperfect self-defense, a defendant can seek to negate malice
by introducing evidence that he or she actually, albeit
unreasonably, believed it was necessary to defend himself or
herself from imminent peril to life or great bodily injury.
(Flannel, supra, 25 Cal.3d at p. 674.)
The insanity defense and the doctrines of diminished capacity,
and imperfect self-defense may be used by veterans with PTSD
when faced with criminal charges. These doctrines have been
used for centuries. Since the criminal justice system
currently mitigates for those suffering from a mental disease
or disorder, we should caution further expansion by
specifically offering veterans with PTSD a deferred entry of
judgment.
7)Argument in Support : According to the California
Psychological Association , "AB 674 would establish a deferred
entry of judgment program and a pre-conviction diversion
program for veterans who suffer from PTSD or traumatic brain
injury and who have committed specified offenses. This bill
targets a very specific population of veterans and aims to
divert them from jail into a rehabilitation program. The bill
calls specifically for veterans who have a service-connected
PTSD or traumatic brain injury as the result of his or her
military service or who has undiagnosed symptoms of PTSD or
traumatic brain injury as a result of stressors that he or she
was exposed to in a combat situation in the military service.
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The bill also calls for the crime being charged to be
non-violent, non-serious misdemeanor or felony and the
defendant cannot possess any prior convictions or diversion
opportunities for the past five years. The veteran will be
eligible for diversion to a county program proven to be
credible and effective.
"This diversion program is a smart and sensitive solution to
address service needs for our returning veterans. PTSD is
under diagnosed in our returning veterans and treatment is key
for these men and women. Jail time will do nothing to
rehabilitate them. The VA estimates that there have been
nearly one million troops eligible for services since 2002
(though half of those eligible have not been served). Of
those who have received services, nearly 100,000 have been
diagnosed with PTSD. Depressive and neurotic disorders have
also been diagnosed at high levels. This bill will ensure
that those men and women who have not received mental health
treatment will be able to seek rehabilitation and not get lost
in our prison system."
8)Argument in Opposition : According to Mothers Against Drunk
Driving (MADD), "If enacted into law, AB 674 would allow
veterans who suffer from PSTD or traumatic brain injury and
are guilty of certain offenses, including non-felony DUI
offenses, to forego having an entry of judgment on their
criminal records. MADD believes that all persons who commit a
DUI should be held accountable for their actions.
"AB 674's effect would be to defer the entry of judgment for a
veteran who commits a crime not categorized as a serious
felony or crime of violence. In 2007, the most recent year
for which data is available, the United States Department of
Justice reported that California had 204,000 DUI arrests.
With AB 674's enactment, a veteran charged with a DUI could
have his arrest effectively eliminated from his criminal
record upon satisfying conditions to receiving a deferred
entry of judgment. MADD commends veterans' service to the
United States, but it does not believe respect for veterans'
service should result in excusing the actions of veterans who
violate the public trust.
"Though not always 'officially' classified as a violent crime,
the effects of DUI are tremendously violent. In 2007, DUIs in
California alone were the catalyst for hundreds of thousands
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of injuries and 1,155 deaths. To allow deferred entry of
judgment for some subset of offenders its to deny the gravity
of the DUI crime, along with the gravity of crimes not defined
in Section 1192.7 or 1192.8 and subdivision (c) of Section
667.5 and give veterans license to commit a serious of
offenses, including DUI."
9)Related Legislation : AB 1013(Block), requires CDCR to conduct
interdisciplinary assessments of new inmates who are veterans
and to develop a specialized treatment protocol which includes
PTSD. AB 1012 was passed out of this Committee on April 14,
2009.
REGISTERED SUPPORT / OPPOSITION :
Support
American Legion, Department of California
California Attorneys for Criminal Justice
California Psychological Association
Vietnam Veterans of America, California State Council
Opposition
California District Attorneys Association
California Mental Health Directors Association
California State Association of Counties
Legal Services for Prisoners with Children
Los Angeles County District Attorney
Mothers Against Drunk Driving
Analysis Prepared by : Nicole J. Hanson / PUB. S. / (916)
319-3744