California's lack of Veterans Treatment Courts leaves veterans vulnerable

Veterans Day is an important day of recognition, a time when Americans thank and honor the dedication and sacrifice of the best among us. Yet, the authors of this piece, a retired superior court judge and former prosecutor, both veterans and Retired Army Colonels, must sadly report many California counties fail their veterans. This article suggests a solution.

Veterans sometimes run afoul of the law and the cause can be a mental health condition resulting from their military service. Veterans also suffer from suicide, addiction and homelessness rates that are double the national average. In response, some of our California courts and justice partners have developed Veterans Treatment Courts (VTC) as a collaborative treatment solution for justice-involved veterans.

The first VTC was created in Buffalo, New York in 2008. Today, with more than 600 VTCs in the US, we know VTCs work. Veterans who complete the court program have low recidivism rates -- less than 20% re-offend within three years -- and as a result thousands of veterans have been rescued from the nightmares of PTSD, homelessness and addiction.

Yet despite their success, 22 of California's 58 counties do not have them. Veterans who commit crimes in these counties are denied the collaborative benefits of a VTC, resulting in two systems of justice for veterans.

One reason so many counties do not have VTCs is the absence of legislative authority for them. Our courts have broadly read Penal Code Section 1170.9 to allow for the creation of these courts, but it is not explicit. Under Section 1170.9, if the court finds a veteran facing incarceration committed a crime due to a military related mental health condition, the court "shall" consider that condition as a factor in favor of granting probation. Without the benefit of a VTC, an individual court's application of Section 1170.9 is often the only chance a veteran has to heal from combat trauma.

VTCs offer a structured program that address the root causes of criminality: mental health, addiction, homelessness and job insecurity. Numerous veterans appear in court at the same time for hearings, providing a sense of unity and support among the veterans. Contrast this to an individual court applying this legislative enactment. The rehabilitative benefits of a VTC over the individual court are obvious.

Section 1170.9 requires the court to find a nexus, or a connection, between the crime and the mental health condition. However, not all counties require a nexus to admit a veteran into VTC. In Riverside County, where Judge (Ret.) Johnson presided over a VTC for eight years, a nexus was not required. If the defendant suffered from a mental health condition resulting from service, that was enough for Judge Johnson to admit that veteran.

The Riverside County VTC began in January 2012 as a post-plea program. The veteran plead guilty and was supervised on probation. The structure was based on the drug court model with regular court appearances, frequent drug and alcohol testing and intensive supervision by probation. A collaborative team of professionals from the Veterans Administration, the court and several county agencies worked together for the good of the veteran. The veteran was vitally assisted by a veteran mentor who served as an advisor, friend, and battle buddy to help the veteran through the program.

Veterans who successfully completed the VTC program in Riverside County were entitled to expungement, pursuant to Penal Code Section 1203.4.; or reduction of their offenses to misdemeanors, pursuant to Section 17(b).

In 2015, California enacted Penal Code Section 1001.80. The section offered a misdemeanor diversion program for current and former members of the United States military. Like Section 1170.9, this provision required the defendant to be suffering from a military related mental health disorder. It did not, however, require a nexus between the misdemeanor and that condition. If accepted, the veteran receives the assistance of treatment while maintaining an unblemished record.

Not every eligible veteran has their case diverted. The question is whether the defendant can be rehabilitated through diversion. Defendants who require more treatment than is available on diversion can be denied. This is yet another reason why a veteran attempting to obtain diversion in a county without a VTC system and a judge familiar with veteran issues is at a marked disadvantage.

Most of the counties in California with VTCs now offer two systems focusing on veterans: post-plea VTC and pre-plea military diversion. The cases are usually heard before the same judge.

Last September 2024, Gov. Gavin Newsom approved the amendment of Penal Code Section 1001.80 to add felonies to the offenses that can be diverted. Unlike misdemeanor diversion, felony diversion requires a nexus between the offense and the veteran's mental health condition. According to revised Section 1001.80, "the defendant's condition [must have been] a significant factor in the commission of the charged offense." The "significant factor" is a high burden, but not for the veteran. If the prosecution opposes diversion, it has the burden of proving the absence of a nexus.

Most felonies charged may be considered for diversion. The only exclusions are: murder, voluntary manslaughter, several sex offenses, and any offense for which a defendant would have to register under Penal Code Section 290 as a sex offender.

Dismissal of any criminal case, much less a felony, is a huge benefit to veterans. Beyond this, the highest goal of both VTC and military diversion is not just keeping a veteran's record clean. It is providing treatment to a vulnerable group that needs it.

California may lead America in certain things, but sadly not in court services for veterans. Many Northern California counties provide nothing. When Colonel (Ret.) Dollison ran for District Attorney of Humboldt County in 2014, one of his campaign planks was to work to create a VTC. The ultimate winner of that election subsequently made no effort to develop a program. Humboldt is currently one of the 22 counties without a VTC.

Ultimately in our opinion, the California Judicial Council should take the leadership role in ensuring all 58 counties have these courts.