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WEST virginia legislature
2019 regular session
Enrolled
Committee Substitute
for
Senate Bill 40
Senator Weld, original sponsor
[Passed March 9, 2019; in effect 90 days from passage]
Be it enacted by the Legislature of West Virginia:
ARTICLE 16. THE MILITARY SERVICE MEMBERS COURT ACT.
§62-16-1. Short title.
This may be cited as the Military Service Members Court Act.
§62-16-2. Legislative findings.
(a)(1) The Legislature recognizes that while most veterans are strengthened by their military service, the combat experiences of many veterans have unfortunately left a growing number of veterans who suffer from issues such as Post Traumatic Stress Disorder and traumatic brain injury. A growing body of research shows that one in five veterans will have symptoms of a mental illness, mental health disorder, or cognitive impairment. One in six veterans who served in either Operation Enduring Freedom or Operation Iraqi Freedom suffer from substance abuse and related issues. As a result, many veterans have found themselves in the criminal court system charged with crimes which may be directly attributable to these service-related issues.
(2) The Legislature further recognizes that a Military Service Members Court is necessary to link veterans with the programs, benefits, and services that are necessary to help them overcome these issues and provide them with rehabilitation services instead of incarceration.
(3) Given the context of veteran life, especially given their past training and experiences in the Armed Forces, it is reasonably anticipated and likely that military service members would respond favorably to a structured environment. The Military Service Members Court is a professional, structured, and monitored program which mandates and provides participant accountability and responsibility, including mandatory court appearances, treatment, and counseling sessions, as well as frequent and random testing for drug and alcohol use. However, the Legislature also finds that some may still struggle. Those are the veterans who need the structure and support of a Military Service Members Court program the most. Without the structure of a Military Service Members Court program mentally ill and challenged veterans may well reoffend, remain in the criminal court system, and suffer under the emotional, physical, and mental yoke of substance abuse.
(4) The Legislature creates the Military Service Members Court to ensure that these veterans in need are able meet their obligations to themselves, their family, their loved ones, the court, and their community.
§62-16-3. Definitions.
For the purposes of this article:
“Assessment” means an evaluation to determine whether a criminal defendant is a military service member as defined by this section, that the offense he or she has been charged with are attributable to their military service, and if the offender would benefit from the provisions set forth in this article.
“Court” means a Military Service Members Court.
“Department” means the West Virginia Department of Veterans Assistance.
“Military Service Members Court program” or “program” is a program that includes pre-adjudicatory and post-adjudicatory treatment for military service members.
“Military service member” means a person who is currently serving in the Army, Air Force, Marines, Navy, or Coast Guard on active duty, reserve status, or in the National Guard, or a person who served in the active military, or who was discharged or released under conditions other than dishonorable.
“Offender” means a criminal defendant who qualifies as a military service member under this article.
“Post-adjudicatory program” means a program in which the offender has admitted guilt or has been found guilty and agrees, with the prosecutor’s consent, to enter a court program as part of his or her sentence.
“Pre-adjudicatory program” means a program that allows the offender, with the consent of the prosecutor, team, and the court to expedite the offender’s criminal case before conviction or before filing of a criminal case and requires the offender to agree to and successfully complete the court program as part of the written agreement.
“VA” means the United States Department of Veterans Affairs.
“VJO” means the Veterans Justice Outreach program of the United States Department of Veterans Affairs.
“Written agreement” means the agreement executed to allow a military service member to participate in a court program.
§62-16-4. Court authorization; funding; immunity from liability.
(a) Court authorization. — The Supreme Court of Appeals is hereby authorized to establish a Military Service Members Court program, under the oversight of its administrator. Each Military Service Members Court may be a stand-alone court or operated in conjunction with an existing drug court or other specialty court program. The Supreme Court of Appeals is further encouraged to give deference to circuits or regions in the operation of those programs to maximize flexibility, and to take into account regional and other differences and circumstance.
(b) Once a program is established, termination of any program may not take place until at least six months after written notice of the intent to terminate the program has been provided by the Supreme Court of Appeals Administrator to the Speaker of the House of Delegates and the President of the Senate.
(c) Each court judge may establish rules and may make special orders as necessary that do not conflict with rules and orders promulgated by the Supreme Court of Appeals to effectuate the purposes of this article.
(d) A court may offer pre-adjudication or post-adjudication programs for adult offenders.
(e) Nothing contained in this article confers a right or an expectation of a right to participate in a court program nor does it obligate a court to accept every military service member offender.
(f) Neither the establishment of a Military Service Members Court nor anything in this article may be construed as limiting the discretion of the prosecuting attorney to act on any criminal case which he or she determines advisable to prosecute.
(g) Funding. — Each Military Service Members Court, with the guidance of the Supreme Court of Appeals, may establish a schedule for the payment of reasonable fees and costs to be paid by participants necessary to conduct the program.
(h) Nothing in this article prohibits Military Service Members Courts from obtaining supplemental funds or exploring grants to support the courts.
(i) Immunity from liability. — Any person who, in good faith, provides services pursuant to this article is not liable in any civil action, unless his or her actions were the result of gross negligence or willful misconduct. The grant of immunity provided in this section extends to all employees and administrative personnel of a court.
§62-16-5. Eligibility; written agreement.
(a) Eligibility. — A military service member offender, who is eligible for probation based upon the nature of the offense for which he or she has been charged, and in consideration of his or her criminal background, if any, may, upon application, be admitted into a court program only upon the agreement of the prosecutor and the offender. Additionally, the court must also determine whether the offense is in any way attributable to the offender’s military service.
(b) A military service member offender may not participate in the court program if he or she has been charged with any of the following offenses:
(1) A sexual offense, including, but not limited to, a violation of the felony provisions of §61-8-1 et seq., §61-8B-1 et seq., §61-8C-1 et seq., or §61-8D-1 et seq. of this code, or a criminal offense where the judge has made a written finding that the offense was sexually motivated;
(2) A felony violation of the provisions of §61-8D-2, §61-8D-2a, or §61-8D-3a of this code;
(3) A felony violation of the provisions of §61-14-3 or §61-14-4 of this code;
(4) A felony violation of §61-2-9b or §61-2-14 of this code;
(5) A felony violation of §61-2-28 of this code;
(6) A felony violation of §17C-5-2(b) of this code; or
(7) If he or she has previously been convicted in this state, another state, or in a federal court for any of the offenses enumerated above.
(c) Written agreement. — Participation in a Military Service Members Court program, with the consent of both the prosecutor and the court, shall be pursuant to a written agreement. This written agreement shall set forth all of the agreed upon provisions to allow the military service member offender to proceed in the court. The offender shall execute a written agreement with the court as to his or her participation in the program and shall agree to all of the terms and conditions of the program, including, but not limited to, the possibility of sanctions or incarceration for failing to comply with the terms of the program.
(d) Upon successful completion of a court program, the judge shall dispose of an offender’s case in the manner prescribed by the written agreement and by the applicable policies and procedures adopted by the court. Disposition may include, but is not limited to, withholding criminal charges, dismissal of charges, probation, deferred sentencing, suspended sentencing, split sentencing, or a reduced period of incarceration.
§62-16-6. Procedure; mental health and substance abuse treatment; violation; termination.
(a) Procedure. — Upon application, the court shall order the offender to submit to an eligibility screening, a mental health and drug/alcohol screening, and an assessment by the Department of Veterans Affairs (VA) Veterans Justice Outreach to provide information on the offender’s mental health or military service member status. The assessment shall include a risks assessment and be based, in part, upon the known availability of treatment resources available to the court. The assessment shall also include recommendations for treatment of the conditions which are indicating a need for treatment under the monitoring of the court and reflect a level of risk assessed for the individual seeking admission. The court is not required to order an assessment if a valid screening or assessment related to the present charge(s) pending against the offender has been completed within the previous 60 days.
(b) The court may order the offender to complete substance abuse treatment in an outpatient, inpatient, residential, or jail-based custodial treatment program, order the offender to complete mental health counseling in an inpatient or outpatient basis, comply with all physician recommendations regarding medications, and complete all follow-up treatment. The mental health issues for which treatment may be provided include, but are not limited to, post-traumatic stress disorder, traumatic brain injury, and depression.
(c) Mental health and substance abuse treatment. — The court may maintain a network of mental health treatment programs and substance abuse treatment programs representing a continuum of graduated mental health and substance abuse treatment options commensurate with the needs of offenders; these shall include programs with the VA, the department, this state, and community-based programs.
(d) Violation. — The court may impose reasonable sanctions under the offender’s written agreement, including, but not limited to, imprisonment or dismissal of the offender from the program. The court may reinstate criminal proceedings against him or her for a violation of probation, conditional discharge, or supervision hearing, if the court finds from the evidence presented, including, but not limited to, the reports or proffers of proof from the court’s professionals that:
(1) The offender is not performing satisfactorily in the assigned program;
(2) The offender is not benefitting from educational treatment or rehabilitation;
(3) The offender has engaged in criminal conduct rendering him or her unsuitable for the program; or
(4) The offender has otherwise violated the terms and conditions of the program or his or her sentence or is for any reason unable to participate.
(e) Termination. — Upon successful completion of the terms and conditions of the program, the court may dismiss the original charges against the offender, successfully terminate the offender’s sentence, permit the offender to enter into a plea agreement to a lesser offense, or otherwise discharge him or her from any further proceedings against him or her in the original prosecution.
(f) Notwithstanding any provision of this code to the contrary, upon successful completion of the terms and conditions of the program, or if the presiding judge determines the lack of the ability to operate a motor vehicle is preventing program success, the court may expunge any driving offenses that prevent the veteran offender from obtaining a West Virginia driver’s license.
§62-16-7. Program integrity and offender accountability.
(a) If deemed appropriate by the Supreme Court of Appeals or its administrative office, the courts shall collect and maintain information on participants which may include, but is not limited to, the following:
(1) The participants’ prior criminal history;
(2) The participants’ prior substance abuse and mental health treatment history;
(3) The participants’ employment, education, and income histories;
(4) The participants’ gender, race, ethnicity, marital and family status, and any child custody and support obligations;
(5) Instances of participants’ recidivism occurring during and after participation in a court program. Recidivism may be measured at intervals of six months, one year, two years, and five years after successful graduation from Military Service Members Court;
(6) The number of offenders screened for eligibility, the number of eligible offenders who were and were not admitted, and their case dispositions; and
(7) The costs of operation and sources of funding.
(b) An offender may be required, as a condition of pretrial diversion, probation, or parole, to provide the information described in this section. The collection and maintenance of information under this section shall be collected in a standardized format according to applicable guidelines set forth by the Supreme Court of Appeals.
(c) To protect an offenders’ privacy in accordance with federal and state confidentiality laws, a court shall keep treatment records in a secure environment, separated from the court records to which the public has access.
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