Veterans in Criminal Justice

New Developments in California Law and Treatment

Veterans in Criminal Justice

Wednesday, October 28, 20151 – 3 PM PDT

Presenters:Megan Zottarelli, Senior Analyst, Institute for Veteran Policy, Swords to PlowsharesScott Franklin, Public Defender, Sacramento CountyDuncan MacVicar, California Veterans Legal Taskforce

Agenda

THE CHARACTER OF VETERANS IN CRIMINAL JUSTICEPresented by Megan Zottarelli, Senior Analyst, Institute for Veteran Policy at Swords to Plowshares

CALIFORNIA LEGISLATION AFFECTING VETERANS IN CRIMINAL JUSTICEPresented by Scott Franklin, Public Defender, Sacramento County

CALIFORNIA VETERAN TREATMENT COURTS FOR ELIGIBLE VETERANSPresented by Duncan MacVicar, California Veterans Legal Taskforce

Character of Veterans in Criminal Justice

PRESENTED BY Megan Zottarelli

Senior Analyst, Institute for Veteran Policy Swords to Plowshares

[email protected]


PRESENTED BY Megan Zottarelli

Senior Analyst, Institute for Veteran Policy

Swords to [email protected]


The interface of the criminal justice and mental health systems.

Criminal responsibility and mitigating circumstances.

Veteran-specific jail diversion, specialty courts, correctional interventions, and prison re-entry activities have garnered attention and become widespread.

Veterans in Justice by the Numbers

Data are lacking on how many veterans are justice involved. In 2004, approximately 10% of persons in state and federal prisons

were veterans (self reported).

Had shorter criminal records but longer sentences. Half as likely to be held in prison (lower incarceration rates) but more likely to have violent offenses.

Up to 56,000 veterans are released from state and federal prisons each year, and at least 90,000 veterans are released each year from city and county jails.

Noonan, Margaret E. and Mumola, Christopher. “Veterans in State and Federal Prison, 2004.” Bureau of Justice Statistics:2007, NCJ 217199

Veterans in Justice by the Numbers

Year County % Veterans2014 Santa Cruz 8.4%2013 Calaveras 7.3%2014 Tuolumne 7.0%2013 San Diego 5.5%2013 Yolo 5.4%2011 Shasta 4.4%2013 Stanislaus 4.2%2012 Alameda 3.4%2014 San Joaquin 1.4%

MEDIAN 5.4%

VETERANS IN CALIFORNIA COUNTY JAILS

Based on self-reporting at booking or classification interviews.(California Veterans Legal Task Force, 2015)

Jail Pods

Housing veterans in a common area of the jail to allow jails to streamline case management and provide peer support. San Francisco County: Community of Veterans Engaged in

Restoration (COVER) Program. • 25 veterans currently reside in the pod.

Los Angeles County: Largest jail system in the country.• 291 prisoners are housed in veteran-only dorms.

San Diego County: N-Module-3.• 32 veterans serving sentences or awaiting trial live in the

module.

Veterans in County Jails

ALAMEDA COUNTY INTERVIEWS WITH 100 JAIL INMATES (2012) Older population, preponderance of Vietnam-era and older veterans.

14% Vietnam, 6% Iraq/Afghanistan, and 9% other combat service.

87% of veterans were 40 years old or more.

Higher level of mental health issues than the typical jail population: • 75% report substance abuse (39% of them alcohol, sometimes along

with drugs). • 64% report some other form of mental illness. • 17% report having attempted suicide, with another 10% having

considered suicide.

MacVicar, Duncan. Veteran Interviews of Incarcerated Veterans in Alameda County, California, February, 2012.

Identifying Veterans

SELF-IDENTIFICATION: Not all counties screen properly for veteran status.Lack of self-identification at booking for various reasons.

LINKING BOOKING REPORTS TO VA DATABASE:Effective to identify veterans enrolled at VA.

Justice-Involved Veterans and Post-Traumatic Stress Disorder (PTSD)

PREVALENCE ESTIMATES OF MENTAL HEALTH CONCERNS OF JUSTICE-INVOLVED VETERANS ACROSS 18 SAMPLES (1987–2013)

Common issues of justice-involved veterans: Likely experienced at least one traumatic event. Post-traumatic stress disorder (prevalence from 4% to 39% across samples). Alcohol and/or drug use disorder (estimates as high as 71% and 65%,

respectively). Other psychiatric disorders, such as depression (14% to 51%) and psychotic

disorders (4%–14%). Comorbid substance use and psychiatric disorders are at increased risk of

negative outcomes, including homelessness and violent behavior.

(Blodgett et al. Prevalence of mental health disorders among justice-involved veterans. Epidemiology Review. 2015;37:163-76. doi: 10.1093/epirev/mxu003)

Justice-Involved Veterans and Post-Traumatic Stress Disorder (PTSD)

RISK OF INCARCERATION OF IRAQ AND AFGHANISTAN ERA VETERANS:

OEF/OIF/OND veterans were less than half as likely as other veterans to be incarcerated and constituted only 3.9% of the incarcerated veterans.

Compared with other incarcerated veterans: more likely to report combat exposure. three times more likely to have combat-related PTSD. 26% less likely to have a diagnosis of drug abuse or dependence.

Jack Tsai, Ph.D.; Robert A. Rosenheck, M.D.; Wesley J. Kasprow, Ph.D.; James F. McGuire, Ph.D. “Risk of Incarceration and Other Characteristics of Iraq and Afghanistan Era Veterans in State and Federal Prisons.” Psychiatric Services 2013; doi: 10.1176/appi.ps.201200188

Justice-Involved Veterans: Prior Era Veterans

Socially isolated; overrepresented in both veteran homeless population and in prisons.

Casualties of the streets; cycle of poverty and homelessness.

Drug use, theft and property crimes.

Illegal survival tactics which make them prone to arrest and conviction.

In 2004, 65% of veteran males were 55 or older, compared to 17% of non-veteran men. The median age (45) of veterans in state prison was 12 years older than that of non-veterans (33).

Culhane, et al. 2011; Noonan, 2010; Mumola and Noonan, 2007

Justice-Involved Veterans: Substance Use

More than one half of veterans with criminal-justice involvement report problematic substance use, but less than one third ever receive or engage in treatment for substance use disorders.

Single greatest predictive factor for the incarceration of veterans is substance abuse.

Glynn et al, 2014; Beckerman, et al. 2009; Erickson, et al. 2008.

Incarcerated Veterans and Suicide

Incarcerated veterans are at a greater risk than the general

veteran population for committing suicide.

Wortzel HS, Binswanger IA, Anderson CA, Adler LE. “Suicide among incarcerated veterans.” J Am Acad Psychiatry Law. 2009; 37(82):82-91

Justice-Involved Veterans &Violence The exact nexus - root cause and violence - may or may not be

directly linked to military service-related trauma, but among those with PTSD, there is a significant link between the severity of PTSD and violence severity.

Aggression toward others reported by up to one-third of Iraq and Afghanistan war veterans.

One in three veterans with TBI demonstrate significant aggressive behavior during the first six months after their injury.

Violent crimes are often omitted from criminal justice treatment programs.

Elbogen, 2012; Gerlock, 2004; Tateno et al, 2003).

Veterans in the Criminal Justice System

PRESENTED BY

Scott Franklin

Public Defender, Sacramento County

[email protected]

Basics of the Criminal Justice System

BEGINNING PART OF A CRIMINAL CASE IS AT ARRAIGNMENT

• Nature of the charges

Felony vs. misdemeanor

• Figuring out an attorney

Private vs. public defender

• Now being advised about special provisions of law for veterans and active duty personnel

Early detection of veterans• Using the moment of crisis to engage treatment

Purpose of the arraignment advisement and the form MIL-100• Underreporting

What 858 requires

What form MIL-100 requires

What clinicians can do

Basics of the Criminal Justice System

Now We Know You’re a Veteran

THREE SPECIAL PROVISIONS1. 1170.9 Veterans Alternative Sentencing

and Restorative Relief

2. 1001.80 Veterans Diversion

3. 1170.91 Sentencing Mitigation

Veterans Alternative Sentencing

CALIFORNIA PENAL CODE 1170.9: Consideration for alternative sentencing and restorative relief.

Rights include possibly: Receiving treatment instead of prison or jail time for certain

crimes. Having a greater chance of receiving probation. Having conditions of probation deemed satisfied early, other than

any victim restitution ordered and probation terminated early. Having some felonies reduced to misdemeanors. Having the court restore rights, dismiss penalties, and/or set

aside conviction for certain crimes.

Veterans Alternative Sentencing

REQUIREMENTS INCLUDE: For consideration of alternative sentencing:

• Convicted on certain criminal offenses (some crimes do not qualify).

• Eligible for probation and court orders probation. For restorative relief following order of probation:

• In substantial compliance with conditions of probation.• A successful participant in, and demonstration of

significant benefits from treatment and services.• No danger to the health and safety of others.

Cal Penal Code 1170.9

Participant must suffer from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems stemming from service in the United States military (PC § 1170.9).

The crime must be alleged to have been committed as a result of the above service-related problem.

NEXUS


Participant must be placed on probation. Participant must voluntarily and willingly agree

to participate in treatment instead of incarceration.

The court may request and assessment to aid in the determination if the criteria is met.

Cal Penal Code 1170.9 PARTICIPANT IS THEN TREATED for up to the

maximum of the jail or prison time suspended.

THE COURT IS TO ORDER the participant into an established treatment program with a history of successfully treating veterans who suffer from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or other mental health problems as a result of their service.

• TREATMENT CAN COME FROM THE VA, community-based programs and non-profits.


What the participant CAN GET out of the Statute• Suspend all or part of the jail time• Early termination of probation• Deem all probation requirements satisfied• Reduce charges from felonies to misdemeanors• Expungement on steroids

What participants DO NOT get • Gun rights back• Useable as a prior (DUI and DV)

Usable years after the fact or at the time of sentencing


WHAT IT MEANS FOR YOU? You may be asked for clinical evaluations. Establish a Nexus. Provide a treatment plan. Update a treatment plan. Aid the court in determining if the participant: • Successfully participated in treatment,• has significantly benefited from treatment, AND• does not represent a danger to the health and safety of

others.

Veterans Diversion

CALIFORNIA PENAL CODE 1001.80: Diversion in misdemeanor cases. Rights include:

• Pre-trial diversion program instead of trial and potential conviction and incarceration.

• Dismissal of eligible criminal charges following satisfactory performance in program.

• Arrest is deemed to have “never occurred” for most purposes following successful completion of program.

Veterans Diversion

SPECIAL PROVISIONS Requirements include:

• Application to misdemeanors only, not felonies.• Consent to diversion.• Waiver to right of speedy trial.• Satisfactory performance in program.


Participant must suffer from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems stemming from service in the United States military (PC § 1001.80).

No Nexus between traumatic condition and crime.


Participant NOT placed on probation.

Participant must voluntarily and willingly agree to

participate in treatment instead of incarceration.

The court may request and assessment to aid in

the determination if the criteria is met.


PARTICIPANT IS THEN TREATED FOR UP TO TWO YEARS.• Routine reports with court (but not appearances?)

THE COURT IS TO ORDER THE PARTICIPANT into an established treatment program with a history of successfully treating veterans who suffer from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or other mental health problems as a result of their service.

• TREATMENT CAN COME FROM THE VA, community based programs and non-profits.


WHAT IT MEANS FOR YOU? You may be asked for clinical evaluations Establish a diagnosis Provide a treatment plan Update a treatment plan Aid the court in determining if the participant

Significantly benefited from treatment

Sentencing Mitigation

LAST LINE OF DEFENSE California Penal Code 1170.91: Mitigating factor in felony

sentencing.

The court shall consider these circumstances from which the defendant may be suffering as a result of military service as a factor in mitigation during felony sentencing, which could mean a more lenient sentence.

Leave No Veteran Behind

Veterans Treatment Courts

PRESENTED BY

Duncan MacVicarCalifornia Veterans Legal Task Force

[email protected]

Since 2008, Over 300 Veterans Treatment Courts in the Nation

Why are Veterans Treatment Courts Needed?

Many soldiers return from combat traumatized• PTSD, TBI, depression…• Need mental health therapy

But veterans often deny these problems• Untreated, they get worse• Sometimes leads to crime

Veterans Treatment Court is the mechanism to turn them around• Address underlying mental health issues• Issue: Participation is voluntary, so incentives needed

Typical Offenses of Veterans Anything high risk, e.g.

• High-speed driving• Robberies

DUI Drug possession Bar fights/assaults Possession/brandishing of firearms Domestic Violence

Mission of the Veterans Treatment Court (VTC)

To enhance public safety by providing a judicially supervised regimen of treatment intervention to justice-involved veterans with unique mental health conditions stemming from military service.

Goals of the Veterans Treatment Court Reduce further criminal behavior• Public safety is always the chief concern

Keep troubled veterans out of jail• They can live with family, have jobs, receive VA

benefits Help troubled veterans turn their lives around• Get them the therapy and other assistance they need

Key Attributes of the Veterans Treatment Court Collaborative team model

• Hybrid of drug court and mental health court Provide treatment in lieu of jail/prison

• Judicial monitoring for 12-18 months Integrated alcohol and drug treatment

• Abstinence monitored via frequent testing Graduated system of incentives and sanctions

• Guide participants’ compliance and VTC response Peer mentors ensure cooperation of participants

• Differentiating characteristic of VTC

Benefits to Society of VTCs

Lower two-year recidivism• Misdemeanors (VTC 0-15% vs. 40-50%)• Felonies (VTC 0-15% vs. 70%)• Note: Only initial data so far

Lower cost of incarceration• Prison/jail costs about $50,000 per year• Supervision and therapy cost much less

Local taxpayers save with VTCs since most therapy is VA (“free”)

San Diego Pilot Veteran Treatment Court

74 participants between February 2011 and February 2014

27 graduates 37 continued in program 3 withdrew voluntarily 7 removed involuntarily 4% internal recidivism

Veterans Treatment Courts in California

24 COURTS OPERATING: Alameda, Butte, El Dorado, Kings, Lake, Los Angeles (2), Orange, Placer, Riverside, Sacramento, San Bernardino, San Diego, San Francisco, San Joaquin, San Luis Obispo, San Mateo, Santa Barbara (2), Santa Clara, Santa Cruz, Solano, Tulare, Ventura

Many other jurisdictions in discussion Some jurisdictions inventing alternatives Based on CPC 1170.9, but use all existing law

VTC Eligibility Criteria Legal requirements Possible exclusion criteria

• Violent/serious felony, death/GBI/disability• Arson, DUI, strike-eligible• Sex offender• Gang member• Danger/substantial risk

Possible suitability criteria• VA eligibility• County resident• Combat experience

Veterans Treatment Court Core Team

Judge Public defender District attorney Team coordinator Probation officer Law enforcement (jail inmate services) Veterans Justice Outreach Specialist of VA County Mental Health Department Peer mentoring organization Court analyst/evaluator

Veterans Treatment Courts are Efficient

Key is the VTC team• Team has all necessary veteran-related knowledge

• Team gets to know each other well and works fast

• Team gathers only during court and pre-court staffing

• Team develops expertise in dealing with military-specific mental health problems

Team is supplemented by other local veteran-related resources• Housing

• Therapy

• Employment

• Education

• Entitlements

VTC Innovation in an Era of Limited Resources Volunteer labor, for example:

• Peer mentors (now usually volunteer)• Team coordinator• Court analyst• Probation• Case management

Shared labor• Use personnel from existing courts• Case management by housing/therapy providers

Large veterans organizations• For funds, transportation, etc.

Other nonprofits• Housing, employment, trauma-informed therapy

Alternatives to VTC for Smaller Counties Direct veteran defendants to specific judge who can choose to

implement PC 1170.9 (Example: Sonoma County in the past)• Need champion, involvement of local VA

Implement PC 1170.9 via existing drug court or mental health court (Amador County)• Team exists

Select eligible veteran defendants for PC 1170.9 sentencing; any courtroom (Trinity County)• Need champion, involvement of local VA

Getting a VTC Started Start identifying veterans at county jail District Attorney, Public Defender, and Judge define operating

principles:• Will this court accept PC 1001.80 diversion veterans?• Defendant eligibility• Eligible offenses

Series of meetings to plan court operation• Indentify Core Team ASAP

Identify and educate other local resources Proposal to presiding judge Assemble cadre of peer mentors Core Team attend Justice For Vets training

What Questions Do You Have?

Thank You for Your Attendance

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