BILL ANALYSIS
AB 674
Page 1
Date of Hearing: January 12, 2010
Counsel: Nicole J. Hanson
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 674 (Salas) - As Amended: January 4, 2010
SUMMARY : Allows a court to order a defendant who suffers from
sexual trauma, traumatic brain injury, post-traumatic stress
disorder (PTSD), substance abuse, or mental health problems as a
result of military service 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. Specifically, this bill :
1)Provides 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 sexual trauma, traumatic brain
injury, PTSD, substance abuse, or mental health problems
stemming from service in the United States military, the court
shall, prior to sentencing, make a determination as to whether
the defendant was, or currently is, a member of the United
States military and may request through the use of existing
resources an assessment of whether the defendant may be
suffering from sexual trauma, traumatic brain injury, PTSD,
substance abuse, or mental health problems as a result of that
service.
2)States that if the defendant convicted of a criminal offense
is a person who committed the offense as a result of sexual
trauma, traumatic brain injury, PTSD, substance abuse, or
mental health problems stemming from service 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, private nonprofit treatment program, or a veteran's
court 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.
3)Requires courts to give preference to treatment programs that
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have a history of successfully treating veterans who suffer
from sexual trauma, traumatic brain injury, PTSD, substance
abuse, or mental health problems as a result of that service,
including but not limited to, programs operated by the United
States Department of Defense or the United States Veterans
Administration.
4)Mandates the court and assigned treatment program to
collaborate with the Department of Veterans Affairs and the
United States Veterans Administration to maximize benefits and
services provided to the veteran.
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).]
3)Declares that the safety of the public, shall be a primary
goal through the enforcement of court-ordered conditions of
probation; the nature of the offense; the interests of
justice, including punishment, reintegration of the offender
into the community, and enforcement of conditions of
probation; the loss to the victim; and the needs of the
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defendant shall be the primary considerations in the granting
of probation. (Penal Code Section 1202.7.)
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)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
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
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constitutional. It must be noted however, that this case
actually addressed the question of 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, which 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
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.)
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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.
This bill allows veterans to be sent to a special veteran's
court. While specialty courts have been in existence since
the 1980's, their focus has been on specific crimes (drug use
and addiction) or health issues (mental illnesses or
disabilities) that can be better addressed through proven
treatment methods and programs rather than incarceration.
Veteran's courts focus on a specific population. Although
this bill is aimed at a specific population, it focuses on
obtaining post-conviction treatment. Veterans are not
obtaining dismissals, diversions, reduced sentences, or any
other pre-plea discount based upon a preferred status.
As the California Legislature has declared, the primary goal of
probation is to ensure " '[t]he safety of the public . . .
through the enforcement of court-ordered conditions of
probation.' (Pen. Code, 1202.7.)" [People v. Carbajal
(1995) 10 Cal.4th 1114, 1120.] Accordingly, the court, in
making a probation determination, may to impose any
"reasonable conditions, as it may determine are fitting and
proper to the end that justice may be done, that amends may be
made to society for the breach of the law, for any injury done
to any person resulting from that breach, and generally and
specifically for the reformation and rehabilitation of the
probationer . . . . " [Penal Code Section 1203.1(j).]
4)Guidelines Are Necessary for Establishing Uniform Veteran's
Courts : This bill states that a judge may order a defendant
into a veteran's court; however, there is no language or
guidelines as to the creation and operation of such courts.
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It is important that in seeking treatment for veterans that a
separate, more lenient standard of justice in violation of the
equal protection clause is not created. Although the concept
of a veteran's court is valiant, many questions remain
unanswered in this bill. What crimes are eligible for
veteran's court (misdemeanors, nonviolent felonies, drug
charges, etc.)? Who performs the assessment to determine
whether one suffers from sexual trauma, PTSD, brain injury,
mental health or substance abuse problem stems from military
service? How can it be ensured that the crime committed is a
result of the veteran's service? What tenutation must be
shown between the crime and the truama received during
military service? Are knowledgeable persons available to
ensure these veterans receive programs via the Veteran's
Administration (VA)? How is making veteran's court a
different and better alternative to drug court and mental
health court for veterans? Is volunteer veteran mentorship
going to be utilized? What training and education is being
given to criminal justice officials on veteran's issues and
programs? How much will this cost? Who is going to pay for
it?
New York developed the first veteran's treatment court in
January 2008. The court diverts eligible veteran defendants
with substance dependency and mental illness to the
specialized Veterans Treatment Court docket. Eligible
veterans are identified through evidence-based screening and
assessments. There were two key elements to the Buffalo plan:
First, a VA medical center representative is present in the
courtroom when the veteran's court convenes. The VA employee
brings a secure department laptop computer that permits
instant access to the VA's records for any veteran. The VA
employee can see whether the veteran is registered with the VA
and, if not, enroll him or her. Once the veteran commits to a
treatment program, the court can learn during a court session
if the defendant has kept VA appointments and is making
progress.
The second crucial element is the presence of other veterans in
the courtroom, who serve as informal advisors to veterans when
they are in court. A mentor does not take the place of a case
manager but does keep a running log of his or her contacts
with the defendant so a colleague can pick up whenever the
defendant returns to court. There 22 active volunteer
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mentors. Four or five are present at each court date and are
available to speak with defendants one-on-one. Mentors may
help with nonlegal issues such as VA paperwork or benefits or
they may just help defendants with their uneasiness about
starting treatment. Male and female mentors have all served
in conflicts from Vietnam to Iraq and Afghanistan and can
understand the feelings and emotions of those who have also
served there.
Not every veteran accused of a crime is eligible for the
veterans court - only misdemeanors and nonviolent felonies are
allowed. Sex crimes and most weapons charges are not elgible.
5)Argument in Support : According to Taxpayers for Improving
Public Safety (TiPS), "There is no doubt that rehabilitation
is preferential to incarceration. Already, California Prisons
and many County jails are subject to court imposed or
voluntary inmate population limitations. Regretfully, too
many members of the military return with undiagnosed and
untreated Post Traumatic Stress Disorder and as a result,
become involved in the penal system. We as a State and County
have a duty to assist these men and women in any way possible.
"Regretfully, there are other individuals in our State who also
suffer from PTSD, i.e. abused children, abused spouses, rape
and assault victims, to name but a few. Should not this
legislation be expanded to provide for these individuals as
well? Don't we owe the same duty to these California
citizens? There can be but one response, as a resounding yes.
Although TiPS supports this legislation, we would hope that
the committee and the author expand the identified group for
whom the benefits are offered to all who suffer from PTSD."
6)Argument in Opposition :
7)Related Legislation : AB 1013 (Block) requires the California
Department of Corrections and Rehabilitation to conduct
interdisciplinary assessments of new inmates who are veterans
and to develop a specialized treatment protocol which includes
PTSD. AB 1013 was held in the Assembly Committee on
Appropriations.
REGISTERED SUPPORT / OPPOSITION :
Support
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American Legion, Department of California
California County Veterans Service Officers
Taxpayers for Improving Public Safety
Vietnam Veterans of America, California State Council
Opposition
None
Analysis Prepared by : Nicole J. Hanson / PUB. S. / (916)
317-3744