BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
2
3
7
1
AB 2371(Butler)
As Amended April 19, 2012
Hearing date: June 19, 2012
Penal Code
MK:dl
VETERANS: CRIMINAL DEFENDANTS:
MENTAL HEALTH ISSUES AND RESTORATIVE RELIEF
HISTORY
Source: AMVETS Department of California
Vietnam Veterans of America, California State Council
American Legion, Department of California
Prior Legislation: AB 201 (Bulter) - Vetoed 2011
AB 1295 (Salas) - 2010 Vetoed
AB 2671 (Salas) - 2008, Vetoed
SB 851 (Steinberg) - 2007, Vetoed
AB 1542 (Parra) - 2006, Vetoed
AB 2586 (Parra) - Ch. 788, Stats.
2006
Support: California Psychological Association; The Drug Policy
Alliance; California Attorneys for Criminal Justice;
Lawyers' Committee for Civil Rights of the San
Francisco Bay Area; Legal Services for Prisoners with
(More)
AB 2371 (Butler)
Page 2
Children; The California Public Defenders Association;
Office of the Deputy Assistant Secretary of Defense;
Veterans of Foreign Wars of the United States
Department of California
Opposition:California District Attorneys Association; American
Association for Marriage and Family Therapy California
Division (unless amended)
Assembly Floor Vote: Ayes 45 - Noes 19
KEY ISSUE
SHOULD THE LAW PROVIDE RESTORATIVE RELIEF TO A VETERAN DEFENDANT WHO
ACQUIRES A CRIMINAL RECORD DUE TO A MENTAL DISORDER STEMMING FROM
MILITARY SERVICE?
PURPOSE
The purpose of this bill is to provide restorative relief to a
veteran defendant who acquires a criminal record due to a mental
disorder stemming from military service
Existing law provides for diversion from criminal prosecution
through a deferred entry of judgment (DEJ) 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:
The defendant has no conviction for any offense involving
controlled substances prior to the alleged commission of the
charged offense;
The offense charged did not involve a crime of violence or
threatened violence;
(More)
AB 2371 (Butler)
Page 3
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;
The defendant's record does not indicate that probation or
parole has ever been revoked without thereafter being
completed;
The defendant's record does not indicate that he or she has
successfully completed or been terminated from diversion or
DEJ pursuant to this chapter within five years prior to the
alleged commission of the charged offense; and,
The defendant has no prior felony conviction within five years
prior to the alleged commission of the charged offense. (Penal
Code � 1000)
Existing law effectuates July 1, 2001, except as specified, a
person convicted of a non-violent drug possession offense shall
receive probation with completion of a drug treatment program as
a condition of probation. (Penal Code �� 1210, 1210.1, added by
Prop. 36, approved November 7, 2000.)
Existing law 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
programs; and refused treatment. (Pen. Code � 1210.03.)
Existing law allows a superior court, with the concurrence of
the prosecuting attorney of the county, may create a "Back on
Track" deferred entry of judgment reentry program aimed at
preventing recidivism among first-time nonviolent felony drug
offenders. No defendant who has been convicted of a violation
(More)
AB 2371 (Butler)
Page 4
of a sex offense shall be eligible for the program established
in this chapter. When creating this program, the prosecuting
attorney, together with the presiding judge and a representative
of the criminal defense bar selected by the presiding judge of
the superior court may agree to establish a "Back on Track"
deferred entry of judgment program pursuant to the provisions,
as specified. The agreement shall specify which low-level
nonviolent felony drug offenses under the Health and Safety Code
will be eligible for the program and a process for selecting
participants. The program shall have the following
characteristics:
A dedicated calendar;
Leadership by a superior court judicial officer who is
assigned by the presiding judge;
Clearly defined eligibility criteria to enter the program and
clearly defined criteria for completion of the program;
Legal incentives for defendants to successfully complete the
program, including dismissal or reduction of criminal charges
upon successful completion of the program; and,
Close supervision to hold participants accountable to program
compliance, including the use of graduated sanctions and
frequent, ongoing appearances before the court regarding
participants' program progress and compliance with all program
terms and conditions. The court may use available legal
mechanisms, including return to custody if necessary, for
failure to comply with the supervised plan.
Appropriate transitional programming for participants, based
on available resources from county and community service
providers and other agencies. The transitional programming
may include, but is not limited to, any of the following:
7Vocational training, readiness, and placement;
Educational training, including assistance with acquiring a
GED or high school diploma and assistance with admission to
college;
Substance abuse treatment;
Assistance with obtaining identification cards and driver's
licenses;
Parenting skills training and assistance in becoming compliant
(More)
AB 2371 (Butler)
Page 5
with child support obligations; and,
The program may develop a local, public-private partnership
between law enforcement, government agencies, private
employers, and community-based organizations for the purpose
of creating meaningful employment opportunities for
participants and to take advantage of incentives for hiring
program participants. (Pen. Code � 1000.8.)
Existing law applies this chapter whenever a case is before any
court upon an accusatory pleading at any stage of the criminal
proceedings, for any person who has been evaluated by a regional
center for the developmentally disabled and who is determined to
be a person with a cognitive developmental disability by the
regional center, and who therefore is eligible for its services.
This chapter applies to any offense which is charged as or
reduced to a misdemeanor, except that diversion shall not be
ordered when the defendant previously has been diverted under
this chapter within two years prior to the present criminal
proceedings. (Pen. Code � 1001.21, subd. (a) and (b).)
Existing law mandates in any case in which a defendant has
fulfilled the conditions of probation for the entire period of
probation, or has been discharged prior to the termination of
the period of probation, or in any other case in which a court,
in its discretion and the interests of justice, determines that
a defendant should be granted the relief available under this
section, the defendant shall, at any time after the termination
of the period of probation, if he or she is not then serving a
sentence for any offense, on probation for any offense, or
charged with the commission of any offense, be permitted by the
court to withdraw his or her plea of guilty or plea of nolo
contendere and enter a plea of not guilty; or, if he or she has
been convicted after a plea of not guilty, the court shall set
aside the verdict of guilty; and, in either case, the court
shall thereupon dismiss the accusations or information against
the defendant and except as noted below, he or she shall
thereafter be released from all penalties and disabilities
resulting from the offense of which he or she has been
convicted, except as provided in existing law. The probationer
(More)
AB 2371 (Butler)
Page 6
shall be informed, in his or her probation papers, of this right
and privilege and his or her right, if any, to petition for a
certificate of rehabilitation and pardon. The probationer may
make the application and change of plea in person or by
attorney, or by the probation officer authorized in writing.
However, in any subsequent prosecution of the defendant for any
other offense, the prior conviction may be pleaded and proved
and shall have the same effect as if probation had not been
granted or the accusation or information dismissed. The order
shall state, and the probationer shall be informed, that the
order does not relieve him or her of the obligation to disclose
the conviction in response to any direct question contained in
any questionnaire or application for public office, for
licensure by any state or local agency, or for contracting with
the California State Lottery. (Pen. Code � 1203.4, subd. (a).)
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 post-traumatic stress disorder
(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 � 1170.9,
subd. (a).)
Existing law 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
(More)
AB 2371 (Butler)
Page 7
that an appropriate treatment program exists. (Penal Code �
1170.9, subd. (b).)
This bill declares that it is in the interests of justice to
restore a defendant who acquired a criminal record due to a
mental health disorder stemming from service in the United
States military to the community of law abiding citizens.
This bill provides that the restorative relief provision shall
apply to cases in which a trial court or a court monitoring the
defendant's performance on probation finds at a public hearing
that the defendant meets the following eligibility criteria:
He or she was granted probation, and at the time that
probation was granted had alleged the offense was committed
as a result sexual trauma, traumatic brain injury,
post-traumatic stress disorder (PTSD), substance abuse, or
mental health problems stemming from military service;
He or she is in substantial compliance with the
conditions of that probation;
He or she has successfully participated in court-ordered
treatment and services to address the sexual trauma,
traumatic brain injury, PTSD, substance abuse, or mental
health problems stemming from military service;
He or she does not represent a danger to the health and
safety of others; and
He or she has demonstrated significant benefit from
court-ordered education, treatment, or rehabilitation to
clearly show that granting restorative relief pursuant to
this subdivision would be in the interests of justice.
This bill enumerates factors the court may consider in
determining whether the grant of restorative relief would be in
the interests of justice, including, but not limited to:
The defendant's completion and degree of participation
in education, treatment, and rehabilitation as ordered by
the court;
(More)
AB 2371 (Butler)
Page 8
The defendant's progress in formal education;
The defendant's development of career potential;
The defendant's leadership and personal responsibility
efforts; and
The defendant's contribution of service in support of
the community.
This bill states that if the court finds a case satisfies the
eligibility requirements, then the court may, by form of a
written order with a statement of reasons, do any of the
following:
Deem all conditions of probation, including fines, fees,
assessments, and programs, except victim restitution, to
be satisfied and terminate probation early;
Exercise discretion pursuant to Penal Code Section 17(b)
to reduce an eligible felony to a misdemeanor; and
Grant relief in accordance with Penal Code Section
1203.4.
This bill provides that, notwithstanding the language of Penal
Code Section 1203.4, a dismissal of the action under this
subdivision releases the defendant from all penalties and
disabilities resulting from the offense of which the defendant
has been convicted in the dismissed action.
This bill prohibits dismissal of the following offenses:
A conviction under Vehicle Code Section 42002.1(c);
A felony conviction under Penal Code Section 261.5(d);
A conviction under Penal Code Section 286(c);
A conviction under Penal Code Section 288;
A conviction Penal Code Section 288a(c);
A conviction under Penal Code Section 288.5; and
A conviction under Penal Code Section 289(j).
This bill provides that a dismissal under this section does not
affect the requirement to register as a sex offender under Penal
Code Section 290.
(More)
AB 2371 (Butler)
Page 9
This bill states that when information concerning prior arrests
or convictions is requested to be given under oath, affirmation,
or otherwise, the defendant will not have to disclose his or her
arrest on the dismissed action, the dismissed action, or the
conviction that was set aside, except for when the question is
contained in a questionnaire or application for any law
enforcement position.
This bill gives the court discretion to seal the arrest and
court records of the dismissed action, making the records
thereafter viewable by the public pursuant to a court order.
Also gives the court discretion to destroy those records if the
district attorney concurs.
This bill provides that the dismissal of the action under these
provisions shall be a bar to any future action based on the
conduct charged in the dismissed action.
This bill specifies that dismissed convictions can still be
pleaded and proved as a prior conviction in a subsequent
prosecution for another offense.
This bill provides that a set-aside conviction can still be
considered a conviction for the purpose of administratively
revoking or suspending or otherwise limiting the defendant's
driving privilege on the grounds of multiple convictions.
This bill specifies that the defendant's DNA sample and profile
shall not be removed as a result of a dismissal under these
provisions.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
(More)
AB 2371 (Butler)
Page 10
In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code section 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
ineligible for jail and therefore subject to state prison.
Under these principles, ROCA has been applied as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress towards reducing prison
overcrowding by passing legislation which could increase the
prison population. ROCA will continue until prison overcrowding
is resolved.
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
(More)
AB 2371 (Butler)
Page 11
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
than the following:
167 percent of design capacity by December 27, 2011
(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
COMMENTS
1. Need for This Bill
According to the author:
Many veterans are suffering from mental illnesses as a
result of service in the United States Military. This
(More)
AB 2371 (Butler)
Page 12
bill hits at the heart of the issue, getting veterans
the treatment that they need. When a veteran commits a
crime as a result of mental illness from service, in
lieu of prison time the veteran will be given treatment
for their specific mental illness. Once treatment and
conditions are met, this bill would allow a court to
grant restorative relief. These Veterans have
sacrificed for our country, we need to support them and
give them the rehabilitation they need so they can have
a normal life.
2. UCSF and San Francisco VA Medical Center Study on Veterans and
PTSD
An article appearing in Science Daily (online) on March 13,
2007, discussed a study conducted by the University of
California-San Francisco and the San Francisco Veterans Affairs
Medical Center finding that approximately one-third of veterans
returning from Iraq received one or more mental health or
psychosocial diagnoses. The study appeared in the Journal of
the American Medical Association and Archives Journals. Another
study reported in the New England Journal of Medicine in 2004
stated that the rate of post-traumatic stress syndrome (PTSD)
among Iraq and Afghanistan veterans increased in a linear manner
with increased exposure to combat. (Hoge, 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 drive or exacerbate drug and
alcohol abuse by veterans. (Stress & Substance Abuse: A Special
Report, National Institute on Drug Abuse (Sept. 12, 2005).)
Mental health and substance abuse problems are linked to future
incarceration in veterans. 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 Justice, 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
(More)
AB 2371 (Butler)
Page 13
at the time of the offense for which they were incarcerated.
(Id. at p. 5.) 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).)
Veterans appear to be disproportionately represented in the
prison population. Veterans make up 10% of state prisoners.
(Noonan & Mumola, supra, at p. 1.) By 2004, veterans of the
current conflicts in Iraq and Afghanistan already comprised 4%
of the veterans in state and federal prisons. (Ibid.)
Studies have concluded approximately two-thirds of mentally ill
prisoners receive no 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.) Providing meaningful
mental health treatment has been shown to significantly reduce
recidivism rates, with studies showing decreases of over 20%.
(Wash. State Inst. For Pub. Policy, Evidence-Based Policy
Options to Reduce Future Prison Construction, Criminal Justice
Costs, and Crime Rates (2006).)
3. Dismissal After Probation for Specified Veterans
Under existing law, if a veteran convicted of a criminal offense
alleges he or she committed the offense as a result of sexual
trauma, traumatic brain injury, post-traumatic stress disorder,
substance abuse or mental health problems stemming from service
in the U.S. military the court shall make a determination if the
veteran was in fact suffering from one of these. Once that
determination is made, if the court finds the veteran defendant
is eligible for probation, the court may order the defendant
into a local, state, federal or private nonprofit treatment
program if the defendant agrees and such a program exists.
This bill provided that the court may order "restorative relief"
if specified conditions are met including that he or she is in
substantial compliance with the conditions of probation; he or
she successfully participated in court-ordered treatment and
(More)
AB 2371 (Butler)
Page 14
services to address his or her problem; that he or she is not a
danger to the health and safety of others; and that he or she
has benefited from court ordered treatment or education. If the
court finds that the veteran defendant is eligible the court may
do any of the following:
Deem all conditions of probation to be satisfied
including fines, fees, assessments and programs and
terminate probation prior to the expiration of the term of
probation.
Reduce an eligible felony to a misdemeanor pursuant to
Penal Code Section 17(b).
Withdraw the plea and dismiss the action pursuant to
Penal Code Section 1203.4.
This bill further provides despite anything to the contrary in
Penal Code Section 1203.4, dismissal under this subdivision
releases the defendant from all penalties and disabilities
resulting from the offense which the defendant has been
convicted in the dismissed action.
This bill specifically does not apply to specified sex offenses,
including any offense for which a person must register or to a
Vehicle Code provision relating to inspection.
This bill does specifically state that if the veteran defendant
is convicted of an offense in the future then the one that was
dismissed can still be plead and proven as a prior. However, it
also allows the court to destroy the court record so it is
unclear how a crime could in the future be used as a prior if
there are no court records that can be used to prove the
offense. This conflict should probably be fixed, allowing for
the records to be sealed but not destroyed which would allow
access to them by a prosecutor in the future but not the public.
4. Equal Protection
The Equal Protection Clause of the Fourteenth Amendment, Section
1, commands that no state shall "deny to any person within its
(More)
AB 2371 (Butler)
Page 15
jurisdiction the equal protection of the laws." The California
Constitution has a similar provision. An equal protection
challenge is a claim that a law discriminates against a person
by unequal treatment or unequal results.
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 "promoting" 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. These preference programs are instances
of disparate treatment. The law targets the veteran qua veteran
and treats him or her differently than the civilian. The laws
above express this country's appreciation for the sacrifices of
military service and mark the fact that this contribution to the
country is different from the contributions to the economy and
communal life that civilians make.
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 should be noted, however, that this case
actually addressed the question whether such a preference
unconstitutionally discriminates on the basis of sex. The
Supreme 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 preferred
(More)
AB 2371 (Butler)
Page 16
veterans as such." (Ibid.) The Court did not address whether
this status distinction itself was permissible because "the
appellee had not disputed, that this legislative choice was
legitimate." (Ibid.)
Although usually equal protection is used to analyze government
action that draws a distinction among people, sometimes it is
used if the government discriminates among people as to the
exercise of a fundamental right, such as marriage, procreation,
voting, and access to the judicial process. If the government
action infringes on a fundamental rights, then the strict
scrutiny test applies. The law will be upheld if it is
necessary to achieve a compelling government purpose. The
government must have a truly significant reason for
discriminating and it must show that it cannot achieve its
objective through less discriminatory means.
Access to the courts is a fundamental right subjected to strict
scrutiny. Although at times the Supreme Court has spoken in
terms of a right of access to the courts, its decisions all have
involved challenges to particular impediments in the legal
system. The U.S. Supreme Court has held that the
"constitutional guaranties of due process and equal protection
both call from procedures in criminal trials which allow no
invidious discriminations between persons and different groups
of persons." (Griffin v. Illinois (1956) 351 U.S. 12, 17.) The
question is whether the dismissal provisions of this bill
violate the principle of equal protection by giving the veteran
defendant additional benefits when a conviction is dismissed
than is given to other defendants who have similar traumatic or
mental issues?
(More)
5. Support
In support the Department Defense State Liaison Office states:
The Department of Defense recognizes restorative relief
as a best practice in promoting a framework to help
veterans afflicted with mental health and/or substance
addition to obtain treatment services in order to
resolve outstanding criminal offenses and stabilize
their lives. We support procedures that allow all
qualifying charges to be reduced or dismissed
(including where appropriate, more serious charges)
commensurate with completion of appropriate treatment
and services. Where charges are dismissed, we support
limited access to the record, including expunging
records where appropriate as provided by state or local
law.
In support the California Psychological Association states:
This bill seeks to provide restorative relief to a
veteran defendant who acquires a criminal record due to
a mental disorder stemming from military service. CPA
agrees with the Author who states that "Many veterans
are suffering from mental illnesses as a result of
service in the United States Military." This bill
allows veterans to pursue treatment, rather than
punishment. AB 2371 addresses service needs for our
returning veterans. PTSD is underdiagnosed in our
returning veterans and treatment is key for these men
and women. This bill is a practical solution to an
increasing problem. The VA estimates there have been
nearly 1 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.
(More)
AB 2371 (Butler)
Page 18
6. Opposition
The California District Attorneys Association opposes this bill
stating:
Existing law provides that a person convicted of a
criminal offense who could otherwise be sentenced to
county jail or state prison who alleges that he or she
committed the offense as a result of sexual trauma,
traumatic brain injury, post-traumatic stress disorder,
substance abuse, or mental health problems stemming
from service in the United States military, who is
eligible for probation and is placed on probation by
the court, may be ordered by the court into a treatment
program. This bill further allows a court, as it
regards a defendant described above, to terminate
probation early and to reduce a felony to a
misdemeanor.
We do not concur with the need to extend relief to
these offenders beyond what is contemplated by existing
law. Sufficient discretion on the part of the court and
district attorney exists as it relates to the charging
and sentencing of crimes that are punishable as either
misdemeanor or felonies, and we need not grant
particular advantage to person alleging their offenses
were a result of military service. Additionally,
allowing a felony to be reduced to a misdemeanor, even
with the concurrence of the district attorney,
frustrates justice and minimizes the seriousness of the
offense.
The American Association for Marriage and Family Therapy,
California Division would like to see this bill apply to all
military veterans not just ones with the specific problems
listed. Their concern is that:
While PTSD and other mental health ailments are indeed
tragically common among veterans, and there is benefit
AB 2371 (Butler)
Page 19
in allowing court flexibility in the early release of
probationers who primarily need mental health treatment
rather than (or in addition to) county oversight, this
bill has a key problem: it risks creating an incentive
for jailed veterans to try to fake symptoms of PTSD or
another disorder and get the diagnosis so they can end
their problems early.
This could set up something of an adversarial
relationship between clinician and patient, where the
clinician would necessarily look skeptically on claimed
trauma symptoms. There is already enough of a problem
with matching PTSD diagnosis to those who genuinely
carry the symptoms; this bill could make that worse.
Those who truly carry such symptoms would be less
likely to seek treatment if it becomes known that the
disorder is regularly faked.
***************