BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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AB 674 (Salas)
As Amended January 25, 2010
Hearing date: June 29, 2010
Penal Code
MK:dl
CRIMINAL PROCEDURE: VETERANS
HISTORY
Source: Vietnam Veterans of America, California State Council
Prior Legislation: None
Support: NAMI California; Vietnam Veterans of America,
California State Council; American Legion, Department
of California; AMVETS, Department of California;
California Association of County Veterans Service
Officers; Veterans of Foreign Wars of the United
States, Department of California; Legal Services for
Prisoners with Children; California Attorneys for
Criminal Justice; California Public Defenders
Association; California State Commanders Veterans
Council; California Psychological Association;
Taxpayers for Improving Public Safety
Opposition:None known
Assembly Floor Vote: Ayes 73 - Noes 0
KEY ISSUE
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SHOULD A COURT BE PERMITTED TO ORDER A DEFENDANT, WHO COMMITTED
THE OFFENSE AS A RESULT OF SEXUAL TRAUMA OR TRAUMATIC BRAIN
INJURY RESULTING FROM 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?
PURPOSE
The purpose of this bill is to allow a court to order a
defendant, who committed the offense as a result of sexual
trauma or traumatic brain injury resulting from 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.
Existing law 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 post-traumatic stress disorder (PTSD), substance abuse, or
psychological problems as a result of that service.(Penal Code
1170.9(a).)
This bill provides that if the person alleges that he or she
committed the offense as a result of sexual trauma or traumatic
brain injury, PTSD, substance abuse or a mental health problem
the court shall make a determination as to whether the defendant
was, or currently is, a member of the Untied States military and
may request through the sue of existing resources and 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.
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Existing law if a defendant who is found to have suffered PTSD
etc. as a result of his or her military 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 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. (Penal Code 1170.9(b).)
This bill deletes the option of sending the person to veteran's
court.
Existing law provides that if the referral is made to the county
mental health authority, the county shall be obligated to
provide mental health treatment services only to the extent that
resources are available for that purpose. If mental health
treatment services are ordered by the court, the county mental
health agency shall coordinate appropriate referral of the
defendant to the county veterans service officers. The county
mental health agency shall not be responsible for providing
services outside its traditional scope of services. (Penal Code
1170.9(c).)
Existing law provides that when determining the "needs of the
defendant," for purposes of treatment while on probation, the
court shall consider the fact that the defendant is a person who
has suffered PTSD etc. in assessing whether the defendant should
be placed on probation by being ordered into a private nonprofit
treatment program with a demonstrated history of specializing in
the treatment of military service-related issues, such as post
traumatic stress disorder, substance abuse or psychological
problems. (Penal Code 1170.9(d).)
This bill provides instead that the person can be ordered into a
federal or community-based treatment service program with a
demonstrated history of specializing in the treatment of mental
health problems, including substance abuse post-traumatic stress
disorder, traumatic brain injury, military sexual trauma, and
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other related mental health problems.
Existing law provides that a defendant granted probation under
this section and committed to a residential treatment program
shall earn sentence credits for the actual time the defendant
serves in residential treatment. . (Penal Code 1170.9(e).)
Existing law provides that the court, in making an order to
commit a defendant to an established treatment program, shall
give preference to a treatment program that has a history of
successfully treating combat veterans who suffer from
post-traumatic stress disorder, substance abuse or psychological
problems as a result of that service. (Penal Code 1170.9(f).)
This bill clarifies that the programs that shall receive
preference include, but are not limited to, programs operated by
the United States Department of Defense or the United States
Veterans Administration.
This bill provides that the court and assigned treatment program
shall collaborate with the Department of Veterans Affairs and
the United States Veterans Administration to maximize benefits
and services provided to the veteran.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
The severe prison overcrowding problem California has
experienced for the last several years has not been solved. In
December of 2006 plaintiffs in two federal lawsuits against the
Department of Corrections and Rehabilitation sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
federal three-judge panel issued an order requiring the state to
reduce its inmate population to 137.5 percent of design capacity
-- a reduction of roughly 40,000 inmates -- within two years.
In a prior, related 184-page Opinion and Order dated August 4,
2009, that court stated in part:
"California's correctional system is in a tailspin,"
the state's independent oversight agency has reported.
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. . . (Jan. 2007 Little Hoover Commission Report,
"Solving California's Corrections Crisis: Time Is
Running Out"). Tough-on-crime politics have increased
the population of California's prisons dramatically
while making necessary reforms impossible. . . . As a
result, the state's prisons have become places "of
extreme peril to the safety of persons" they house, .
. . (Governor Schwarzenegger's Oct. 4, 2006 Prison
Overcrowding State of Emergency Declaration), while
contributing little to the safety of California's
residents, . . . . California "spends more on
corrections than most countries in the world," but the
state "reaps fewer public safety benefits." . . . .
Although California's existing prison system serves
neither the public nor the inmates well, the state has
for years been unable or unwilling to implement the
reforms necessary to reverse its continuing
deterioration. (Some citations omitted.)
. . .
The massive 750% increase in the California prison
population since the mid-1970s is the result of
political decisions made over three decades, including
the shift to inflexible determinate sentencing and the
passage of harsh mandatory minimum and three-strikes
laws, as well as the state's counterproductive parole
system. Unfortunately, as California's prison
population has grown, California's political
decision-makers have failed to provide the resources
and facilities required to meet the additional need
for space and for other necessities of prison
existence. Likewise, although state-appointed experts
have repeatedly provided numerous methods by which the
state could safely reduce its prison population, their
recommendations have been ignored, underfunded, or
postponed indefinitely. The convergence of
tough-on-crime policies and an unwillingness to expend
the necessary funds to support the population growth
has brought California's prisons to the breaking
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point. The state of emergency declared by Governor
Schwarzenegger almost three years ago continues to
this day, California's prisons remain severely
overcrowded, and inmates in the California prison
system continue to languish without constitutionally
adequate medical and mental health care.<1>
The court stayed implementation of its January 12, 2010 ruling
pending the state's appeal of the decision to the U.S. Supreme
Court. On Monday, June 14, 2010, The U.S. Supreme Court agreed
to hear the state's appeal in this case.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
Increasing numbers of Iraq and Afghan War veterans are
returning home with psychological injuries. Many of
them are going untreated and unfortunately falling into
criminal behavior. Our country has a duty to our most
troubled veterans. Regardless of our individual stance
on the war, we must recognize that these veterans'
psychological injuries were sustained on our society's
behalf. They must be embraced and ensured that they
will receive the help they need to successfully
transition from war to peace. Ensuring these young men
and women receive the care they need will also enhance
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<1> Three Judge Court Opinion and Order, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (August 4, 2009).
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public safety in the long run.
AB 674 protects society from the worst offenders while
enabling treatment for the typical veteran suffering
from sexual trauma, traumatic brain injury,
post-traumatic stress disorder (PTSD), substance abuse
or mental health problems stemming from military service
in the United States military. Additionally, the bill
promotes collaboration between the Department of
Veterans Affairs and the United States Veterans
Administration to maximize benefits and services for
veterans.
2. PTSD and Other Mental Health Issues in Veterans
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 post-traumatic stress disorder (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 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,
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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).)
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.)
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Veterans are more likely than non-veterans to be incarcerated
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.)
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.) Furthermore,
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.)
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3. Treatment for Veterans Given Probation
Existing law provides that when a court places on probation a
criminal defendant who is suffering from PTSD, substance abuse
or mental health problems because of military service the court
may order the defendant to attend a treatment program.
This bill would allow a court to also order a defendant who
committed the offense as a result of sexual trauma or traumatic
brain injury resulting from 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.
The bill further clarifies that court shall consider the
defendant's status as a veteran with one of the listed problems
when assessing whether or not he or she should be placed on
probation and ordered into a federal or community-based
treatment service program. Programs with a demonstrated history
of dealing with these types of problems such have preference for
referrals.
Supporters believe that placing these veteran defendants on
probation will enhance public safety by directing them to
appropriate services. The Veterans of Foreign Wars states that
they:
[H]elp to process thousands of claims for those who have
returned from combat operations in Iraq and Afghanistan
with these medical conditions. We are well aware that
many of these veterans who run afoul of the law would be
much better served by proper medical treatment than by
imprisonment.
.
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