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Veterans in Criminal Justice

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This webinar, dated October 28, 2015, provides behavioral health providers, veteran legal advocates, and others with an understanding of the circumstances in which veterans can become justice-involved, data on justice involvement, and California laws and treatment programs which affect veterans in criminal justice.

Veteran advocates, mental health care providers and criminal justice professionals now recognize evidence that military service-related mental or cognitive injuries may contribute to criminality.

As a result, a movement to treat rather than incarcerate veterans in eligible cases has emerged throughout the nation. California stands as a bellwether in this movement with a growing number of veteran treatment courts. In addition, the California legislature has expanded on criminal laws which provide alternative standards and sentencing for veterans with mental health trauma, and post-traumatic stress disorder is increasingly being used in criminal defense.

The character of veterans in criminal justice:
Presenter: Megan Zottarelli, Senior Analyst, Institute for Veteran Policy at Swords to Plowshares.
California legislation affecting veterans in criminal justice: Presenter: Scott Franklin, Public Defender, Sacramento County
California Veteran Treatment Courts for eligible veterans: Presenter: Duncan MacVicar, California Veterans Legal Taskforce.

Published in: Law
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Veterans in Criminal Justice

  1. 1. New Developments in California Law andTreatment Veterans in Criminal Justice Wednesday, October 28, 2015 1 – 3 PM PDT Presenters: Megan Zottarelli, Senior Analyst, Institute for Veteran Policy, Swords to Plowshares Scott Franklin, Public Defender, Sacramento County Duncan MacVicar, California Veterans Legal Taskforce
  2. 2. Agenda  THE CHARACTER OF VETERANS IN CRIMINAL JUSTICE Presented by Megan Zottarelli, Senior Analyst, Institute for Veteran Policy at Swords to Plowshares  CALIFORNIA LEGISLATION AFFECTING VETERANS IN CRIMINAL JUSTICE Presented by Scott Franklin, Public Defender, Sacramento County  CALIFORNIA VETERAN TREATMENT COURTS FOR ELIGIBLE VETERANS Presented by Duncan MacVicar, California Veterans Legal Taskforce
  3. 3. Character of Veterans in Criminal Justice PRESENTED BY Megan Zottarelli Senior Analyst, Institute for Veteran Policy Swords to Plowshares mzottarelli@stp-sf.org
  4. 4. Character of Veterans in Criminal Justice PRESENTED BY Megan Zottarelli Senior Analyst, Institute for Veteran Policy Swords to Plowshares mzottarelli@stp-sf.org
  5. 5. Character of Veterans in Criminal Justice 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.
  6. 6. 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
  7. 7. Veterans in Justice by the Numbers Year County %Veterans 2014 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. (CaliforniaVeterans LegalTask Force, 2015)
  8. 8. 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.
  9. 9. Veterans in County Jails ALAMEDA COUNTY INTERVIEWS WITH 100JAIL 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 IncarceratedVeterans in AlamedaCounty,California, February, 2012.
  10. 10. Identifying Veterans SELF-IDENTIFICATION: Not all counties screen properly for veteran status. Lack of self-identification at booking for various reasons. LINKING BOOKING REPORTSTOVA DATABASE: Effective to identify veterans enrolled at VA.
  11. 11. Justice-Involved Veterans and Post-Traumatic Stress Disorder (PTSD) PREVALENCE ESTIMATES OF MENTAL HEALTH CONCERNS OF JUSTICE- INVOLVEDVETERANS 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)
  12. 12. 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. JackTsai, Ph.D.; RobertA. Rosenheck, M.D.;Wesley J. Kasprow, Ph.D.; James F. McGuire, Ph.D. “Risk of Incarceration and Other Characteristics of Iraq and Afghanistan EraVeterans in State and Federal Prisons.” Psychiatric Services 2013; doi: 10.1176/appi.ps.201200188
  13. 13. 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
  14. 14. 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.
  15. 15. 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
  16. 16. 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).
  17. 17. Veterans in the Criminal Justice System PRESENTED BY Scott Franklin Public Defender, Sacramento County FranklinSc@saccounty.net
  18. 18. 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
  19. 19.  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
  20. 20. Now We Know You’re a Veteran THREE SPECIAL PROVISIONS 1. 1170.9 Veterans Alternative Sentencing and Restorative Relief 2. 1001.80 Veterans Diversion 3. 1170.91 Sentencing Mitigation
  21. 21. 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.
  22. 22. 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.
  23. 23. 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
  24. 24. Cal Penal Code 1170.9  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.
  25. 25. 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 FROMTHEVA, community-based programs and non-profits.
  26. 26. Cal Penal Code 1170.9  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
  27. 27. Cal Penal Code 1170.9 WHAT IT MEANS FORYOU?  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.
  28. 28. 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.
  29. 29. 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.
  30. 30. Cal Penal Code 1001.80  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.
  31. 31. Cal Penal Code 1001.80  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.
  32. 32. Cal Penal Code 1001.80  PARTICIPANT ISTHENTREATED FOR UPTOTWOYEARS. • Routine reports with court (but not appearances?)  THE COURT ISTO ORDERTHE 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 FROMTHEVA, community based programs and non-profits.
  33. 33. Cal Penal Code 1170.9 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
  34. 34. 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.
  35. 35. Leave No Veteran Behind
  36. 36. Veterans Treatment Courts PRESENTED BY Duncan MacVicar California Veterans Legal Task Force duncanmv@aol.com
  37. 37. Since 2008, Over 300 Veterans Treatment Courts in the Nation
  38. 38. 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
  39. 39. 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
  40. 40. 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.
  41. 41. 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
  42. 42. 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
  43. 43. 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”)
  44. 44. 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
  45. 45. 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
  46. 46. 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
  47. 47. 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
  48. 48. 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
  49. 49. 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
  50. 50. 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
  51. 51. 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
  52. 52. What Questions Do You Have?
  53. 53. Thank You for Your Attendance Copyright © 2015 by Swords to Plowshares All rights reserved, including the right of reproduction in whole or in part in any form. Swords to Plowshares Institute for Veteran Policy 1060 Howard Street San Francisco, CA 94103

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