SB40 HJUD AM 2-26

The Committee on the Judiciary moved to amend the Bill on page one, immediately following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following:

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.

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.

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.

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 such 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.

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(s) 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.

“Mentally ill” means a person who suffers from a manifestation of significantly impaired capacity to maintain acceptable levels of functioning in the areas of intellect, emotion or physical well-being.

"Military Service Members Court team" or "team" is a group of veterans and other professionals which assesses offenders and follows and reports to a court on an offender's progress.

"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 on active duty in the Army, Air Force, Marines, Navy, or Coast Guard, reserve status, or the National Guard, or a person who once served in the active military and then retired, voluntarily separated, or was discharged dishonorably or under other than honorable conditions.

“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-adjudication order" means a court order requiring a military service member to participate in a program as set forth in this article.

"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.

"Post adjudication order" means a court order requiring a military service member who has entered a plea of either guilty or nolo contendre to a crime identified in §62-16-7 to participate in a court program set forth herein.

"Split sentencing" means a sentence which includes a period of incarceration followed by a period of supervised release.

"Staffing" means the meeting before a military service member offender’s appearance in court, in which the team discusses a coordinated response to the military service member offender’s behavior.

"VA" means the United States Department of Veterans' Affairs.

“VJO” means the VA Veterans Justice Outreach Program.

"Written agreement" means the agreement executed to allow a military service member to participate in a court program, as referred to in §62-16-5.

§62-16-4. Court authorization and structure.

(a) The Supreme Court of Appeals shall establish a Military Service Members Court Program, under the oversight of the Office of the Administrative Director. Each Military Service Members Court is a separate court, tasked to administer a program providing an immediate and highly structured judicial intervention process for substance abuse treatment, mental health treatment or, other assessed treatment needs of eligible military service member offenders. Each court shall identify and assemble substance abuse professionals, mental health professionals, department professionals, local social programs and intensive judicial monitoring to address the purposes of this article.

(b) The courts shall be established in the areas of the state with the highest need, as determined by the Office of the Administrative Director. The Supreme Court of Appeals shall establish two courts on or before July 1, 2019. The Supreme Court of Appeals shall establish two additional courts each July 1st for the next four years, resulting in a total of ten courts operating by July 1, 2023. At the discretion of the Office of the Administrative Director, the court program may be operated in one county in the circuit and allow military service member offenders from all counties within the circuit to participate.

(d) 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.

(e) Neither the establishment of a Military Service Members Court nor anything in this article may be construed as limiting the discretion of the jurisdiction’s prosecutor to act on any criminal case which he or she determines advisable to prosecute.

(f) Each program 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. The Supreme Court of Appeals shall provide uniform referral, procedure, and order forms that shall be used in all Military Service Members Courts in this state.

§62-16-5. Written agreements.

(a) Participation in a Military Service Members Court program shall be pursuant to a written agreement with the consent of the prosecutor, team, and the court. The written agreement shall set forth all agreed upon provisions which allow the military service member to proceed in the program. The offender shall execute a written agreement with the court to memorialize agreed participation in the program, and all the terms and conditions of the program, including, but not limited to, the possibility of sanctions or incarceration for failure to comply with the terms of the program, orders of the court, and written agreement.

(b) A court may grant reasonable incentives to, or impose reasonable sanctions on, anyone who fails to comply with the written agreement, At the discretion of the court, sanctions may include incarceration, expulsion from the program, depending on recommendations of the team, and the following factors:

(1) performance in the court program;

(2) participation and progress related to education, treatment and rehabilitation;

(3) criminal conduct during the court program;

(4) violation of the terms and conditions of the agreement; and

(5) other participation in the court program.

(c) When the court program is successfully completed, 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, and a reduced period of incarceration.

§62-16-6. Military Service Members Court teams.

(a) The goal of each team shall be to fill its positions with as many veterans as possible. A team shall include, but is not limited to the following members:

(1) A circuit court judge;

(2) A magistrate;

(3) The prosecuting attorney to which the case has been assigned to;

(4) Counsel for the offender, or if the offender does not have counsel, then a public defender or member of the criminal defense bar;

(5) A representative from a circuit court probation office;

(6) A case coordinator;

(7) Volunteer veteran mentors, with the goal of no mentor mentoring more than two offenders at the same time;

(8) VA Veteran Justice Outreach Specialist;

(9) Director of the Day Report Center for that circuit; and

(10) Any other persons selected by the team

(b) The team shall conduct a staffing prior to each court session to discuss and provide updated information regarding the military service member offender. After determining the offender's progress or lack thereof, the court team shall recommend the appropriate incentive, sanction or other action deemed appropriate. If the team cannot agree on the appropriate action, the court shall make the decision based on information presented at the staffing.

§62-16-7. Eligibility.

(a) A military service member offender, who is eligible for probation based upon the nature of the offense(s) for which he or she has been charged with, 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 team must also determine that the offense(s) are 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 articles eight, eight-b, eight-c, or eight-d of chapter sixty-one, 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 sections two, two-a, or three-a, article eight-d of chapter sixty-one;

(3) A felony violation of the provisions of sections three or four, article fourteen, of chapter sixty-one;

(4) A felony violation of sections nine-b or fourteen, article two, of chapter sixty-one;

(5) A felony violation of subsection b, section two, article five, of chapter seventeen-c; or

(6) 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.

§62-16-8. Procedure.

(a) 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 VA JVO 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 sixty days.

(b) Upon completion, the assessment shall be presented to the team for evaluation. After the team has done so, it may request the offender to appear with counsel, if represented, to answer any outstanding questions it may have.

(c) Subsequently, the team shall privately discuss the offender’s assessment and vote on his or her eligibility for the program.

(d) If determined by majority vote that the veteran offender is accepted, the veteran shall be assigned a mentor and the team shall determine an individual course of action for the veteran offender. The team shall then present their plan to the veteran and introduce the veteran to his or her mentor.

(e) If the veteran offender is not accepted the team shall present to the veteran offender explanation as to why he or she has not been accepted.

(f) When considering treatment, the team shall first utilize benefits available to the offender through the VA. 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 physicians' 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.

(g) The judge shall inform the offender that if he or she fails to meet the conditions of the court, eligibility to participate in the program may be revoked and the offender shall be subject to the sanctions set forth in section ten of this article.

§62-16-9. Mental health and substance abuse treatment.

(a) 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.

(b) The court may, in its discretion, employ additional services or interventions, as it determines necessary, on a case-by-case basis.

(c) The court may maintain or collaborate with a network of mental health treatment programs and, if it is a cooccurring mental health and substance abuse court program, a network of mental health treatment programs and substance abuse treatment programs representing a continuum of treatment options commensurate with the needs of the offender and available resources including programs with the VA, the department, and this state

§62-16-10. Violation; termination; discharge.

(a) 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.

(b) 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.

(c) Upon successful completion of the terms and conditions of the program or if the presiding judge determines the lack of the ability to drive is preventing program success, the court may expunge any driving offences that currently prevent the veteran offender from obtaining a West Virginia driver’s license.

§62-16-11. Governance.

The Supreme Court of Appeals is responsible for court funding, administration, and continuance of Military Service Members Courts. The Administrator of the Supreme Court of Appeals, or his or her designee, shall oversee the planning, implementation, and development of these courts as the administrative arm of the Supreme Court of Appeals.

§62-16-12. Program integrity and offender accountability.

(a) The courts shall collect and maintain the following information and any other information on participants as required by the Supreme Court of Appeals or its administrative office:

(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 shall 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.

§62-16-13. Funding.

(a) 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.

(b) Nothing in this article shall prohibit court teams from obtaining supplemental funds or exploring grants to support the Military Service Members Courts.

§62-16-14. Immunity from Liability.

Any individual 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 the gross negligence or willful misconduct. The grant of immunity provided in this section extends to all employees and administrative personnel of a court.