BILL ANALYSIS �
Senate Appropriations Committee Fiscal Summary
Senator Kevin de Le�n, Chair
SB 1227 (Hancock) - Diversion: members of the military.
Amended: As Introduced Policy Vote: Public Safety 6-0
Urgency: No Mandate: Yes
Hearing Date: May 23, 2014 Consultant: Jolie Onodera
SUSPENSE FILE. AS AMENDED.
Bill Summary: SB 1227 would authorize a pretrial diversion
program for a current or former member of the military who may
be suffering from service-related trauma, substance abuse, or
mental health issues, as determined by the court, who is charged
with a misdemeanor or jail felony offense, as specified.
Fiscal Impact (as approved on May 23, 2014):
Potential ongoing increased court workload (General Fund*)
to conduct assessments to determine defendant eligibility,
assess appropriate program placement, hold periodic
hearings, review progress reports, and collaborate with
various local, state, and federal agencies.
Potentially significant county mental health services costs
(Local/Federal), likely non-reimbursable, as court orders to
county mental health agencies are authorized only if the
agency has agreed to accept responsibility for the treatment
of the defendant.
Non-reimbursable county mental health agency costs for
referrals to county veteran services offices and periodic
reporting on the progress of program participants to the
court and local prosecutors.
Potentially significant future cost savings to the criminal
justice system, both to the courts in averted prosecutorial
hearings and reduced local incarceration and supervision
costs to the extent participation in diversion programs is
successful.
*Trial Court Trust Fund
Background: Existing law provides for post-plea probationary
programs for current or former members of the military convicted
of criminal offenses who would otherwise be sentenced to county
jail or state prison. For a defendant determined by the court to
be suffering from service-related trauma, substance abuse, or
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mental health problems, if the defendant is otherwise eligible
for probation and the court places the defendant on probation,
the court may order the defendant into a local, state, federal,
or private nonprofit treatment program for a period not to
exceed the term the defendant otherwise would have served in
state prison or county jail, provided the defendant agrees to
participate in the program and the court determines an
appropriate treatment program exists. (Penal Code �
1170.9(a)-(b))
This bill seeks to offer comparable treatment programs prior to
prosecution to similarly affected current and former members of
the military who have been charged with misdemeanor or jail
felony offenses.
Proposed Law: This bill would authorize placement in a pretrial
diversion program for active duty and veterans of the military
who may be suffering from service-related trauma, substance
abuse, or mental health issues, and who are charged with
misdemeanor or jail felony offenses. Specifically, this bill:
Requires the court to determine 1) whether a defendant is a
current or former member of the United States military, and,
2) whether the member may be suffering from sexual trauma,
traumatic brain injury, post-traumatic stress disorder (PTSD),
substance abuse, or mental health problems as a result of his
or her military service.
Authorizes the court to request, using existing resources, an
assessment to aid in the determination that the defendant
meets requirements 1) and 2) noted above.
If the court determines that a defendant is eligible, with the
consent of the defendant and a waiver of the defendant's
speedy trial right, may place the defendant in a pretrial
diversion program.
Provides that if it appears to the court that the defendant is
performing unsatisfactorily in the assigned program, or that
the defendant is not benefiting from the treatment and
services provided, after notice to the defendant, the court
must hold a hearing to determine whether the criminal
proceedings should be reinstituted.
If the defendant performs satisfactorily during the diversion
period, at the end of the diversion period, the criminal
charges shall be dismissed.
Specifies that an order shall be made referring a defendant to
a county mental health agency only if that agency has agreed
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to accept responsibility for the treatment of the defendant.
If referral is made to the county mental health authority as
part of the pretrial diversion program, the county shall be
obligated to provide mental health treatment services only to
the extent that resources are available for that purpose, as
specified. If mental health treatment services are ordered by
the court, the county mental health agency is required to
coordinate appropriate referral of the defendant to the county
veterans service officer.
Specifies that the county mental health agency is not
responsible for providing services outside its traditional
scope of services.
Requires the court to assess whether the defendant should be
ordered to participate in a federal or community-based
treatment service program with a demonstrated history of
specializing in the treatment of mental health problems,
including substance abuse, PTSD, TBI, sexual trauma, and other
mental health issues.
Requires the court to give preference to an established
treatment program with a history of successfully treating
veterans suffering from service-related issues, including but
not limited to programs operated by the United States
Department of Defense or the U.S. Department of Veterans
Affairs (DVA).
Authorizes the court and the assigned treatment program to
collaborate with the DVA and the U.S. DVA to maximize benefits
and services provided to the veteran.
Provides that the period during which criminal proceedings
against the defendant may be diverted shall be no longer than
two years.
Requires the responsible agency or agencies to file reports on
the defendant's progress in the diversion program with the
court and with the prosecutor not less than every six months.
Requires a record to be filed with the Department of Justice
indicating the disposition of the cases diverted.
Defines "pretrial diversion" as the procedure of postponing
prosecution either temporarily or permanently, at any point in
the judicial process from the point at which the accused is
charged until adjudication.
Specifies that a pretrial diversion program shall utilize
existing resources available to current or former members of
the U.S. military to address and treat those suffering from
sexual trauma, TBI, PTSD, substance abuse, or mental health
problems as a result of military service.
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Related Legislation: AB 2098 (Levine) 2014 would require the
court to consider a defendant's status as a veteran suffering
from PTSD or other forms of trauma when making specified
sentencing determinations. This bill is pending hearing in the
Senate Committee on Public Safety.
Prior Legislation: SB 769 (Block) Chapter 46/2013 clarifies that
dismissal of a case under provisions for veteran defendants who
had service-related mental health issues does not restore a
defendant's right to possess a firearm and does not prevent
conviction for being a felon or drug addict in possession of a
firearm.
AB 2371 (Butler) Chapter 403/2012 provides restorative relief to
a veteran defendant who acquires a criminal record due to a
mental disorder stemming from military service.
AB 674 (Salas) Chapter 347/2010 authorizes a court to order a
defendant who suffers from service-related trauma, substance
abuse, or mental health problems into a treatment program or
veteran's court for a period not to exceed that which the
defendant would have served in state prison or jail.
AB 2586 (Parra) Chapter 788/2006 allows the court to consider a
treatment program in lieu of incarceration as a condition of
probation in cases involving military veterans who suffer from
PTSD, substance abuse, or psychological issues stemming from
their military service.
Staff Comments: This bill would potentially create significant
new and ongoing workload to the courts to administer the
pretrial diversion program. While it is unknown how many current
and former members of the military who have been charged with
misdemeanors or jail felonies would present themselves before
the court on an annual basis, the California Veterans Legal Task
Force indicates from its 2013 San Diego Veterans Court Report on
its website, "San Diego County is home to the largest
concentration of military activity in the world, with 137,000
active duty military personnel, 250,000 veteran residents. About
38,000 veterans in the county have recent combat service, the
highest concentration of any county in the U.S. and almost
double the number residing in Los Angeles. Of that number,
research by the DVA indicates that approximately 13,300 (35
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percent) will suffer a diagnosable mental condition related to
that service. Studies from the Bureau of Justice Administration
can be used to predict that almost 5,800 will be incarcerated
for criminal activity, 1,900 for felony crimes. At present, an
average of 100 self-identified military veterans are booked into
San Diego County jail each week." ( http://www.cvltf.org )
The bill authorizes the court to use existing resources to
conduct assessments of defendants to determine eligibility for a
pretrial diversion program, but to the extent current resources
are redirected from existing court duties would potentially
result in at minimum a delay in daily operations. While the bill
does not mandate these activities on the courts, to the extent
more time is spent by existing staff to make these assessments
of military veterans and active duty members, could result in
new costs.
In addition to conducting mental health assessments, the courts
offering pretrial diversion programs would need to assess
appropriate program placement, notice defendants of hearings,
hold periodic hearings to monitor progress and determine whether
prosecutorial hearings should resume, review progress reports
submitted by agencies, file disposition records, and collaborate
with various local, state, and federal agencies. Ongoing costs
for these activities are unknown but would be significant.
This bill expands the responsibility of county mental health
agencies to provide treatment services to these defendants to
the extent that resources are available for that purpose, and
provided the services provided are within its traditional scope
of services. Importantly, because the bill provides that an
order from the court referring a defendant to a county mental
health agency is allowable only if that agency has agreed to
accept responsibility for the treatment of the defendant, all
treatment costs incurred by the agency are estimated to be
non-reimbursable by the state. Staff notes this bill cross
references Welfare and Institutions Code section 5600.3(b)(5),
which provides the authority for county mental health agencies
to provide services to California veterans. Because there is no
existing statutory reference to active duty military personnel
in this section of law, it is unclear whether the provision of
mental health services would be authorized for active duty
military personnel who otherwise meet the eligibility
requirements for diversion created by this measure.
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This bill also requires the responsible agency or agencies to
file reports on a defendant's progress in the diversion program
with the court and the prosecutor at least every six months for
up to two years (the maximum term of diversion). While the
"responsible" agency is undefined, it is assumed county mental
health agencies would be tasked with submitting the periodic
reports to courts and local prosecutors, who would in turn be
required to review the reports. By increasing the duties of
county mental health agencies and local prosecutors, this bill
imposes a higher level of service, the costs of which could
potentially be state-reimbursable. The magnitude of costs would
be dependent on the volume of defendants participating in these
programs, the frequency of reports submitted, and the time
required to compile and review the reports.
To the extent the provisions of this bill result in the
successful completion of the diversion program by defendants,
could result in significant future cost savings to the criminal
justice system. By diverting misdemeanor and jail felony
offenders from prosecution and keeping potential convictions off
their records, this bill not only potentially avoids
prosecutorial hearings and saves local incarceration and
supervision costs, but also removes barriers to community
participation and the ability to potentially secure stable
employment for these individuals.
Committee Amendments: Remove the mandate on county mental health
agencies and make other technical changes.