Texas Conservative Coalition Research Institute
Senate Committee on Veteran Affairs & Border Security
February 24, 2020
Regarding the Committee’s Charge:
Interim Charge on Veteran Treatment Courts: Review the effectiveness of diverting veterans from the traditional criminal justice system to veteran treatment courts. Make recommendations to strengthen veteran treatment court outcomes and expand access to locations not currently served by the courts.
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Background
In 2011-12, veterans of the United States military comprised approximately 7.8 percent of the national prison and jail population.[i] Over the last few decades, the percentage of the national prison and jail population that consists of veterans has declined significantly, down from more than 24 percent in 1978. Although veterans are less likely to be in jail or prison than non-veterans, veterans who are in prison or jail are significantly more likely than non-veterans in that population to have been sentenced for violent offenses- 64 percent to 48 percent, respectively.[ii] The overwhelming majority of veterans in prison or jail in 2012 were discharged from the military before the U.S. began operations in Iraq and Afghanistan in the first decade of the 2000’s.[iii]
Military service members can be subject to unusual stresses as a result of their service: physical injuries (including brain injuries), separation from loved ones for prolonged periods, and absence from civil society for an extended period of time, to name a few. A 2014 study of 5,500 active-duty but non-deployed solders in the Army found that 25 percent suffered from at least one mental illness, and that major depression and PTSD were five and fifteen times more common among soldiers than civilians, respectively.[iv] The stresses veterans face can lead to or exacerbate mental illness and drug and alcohol or drug dependency, and upon return to civil society, problems securing housing and employment. In some cases, these stresses might even play a role in driving some veterans to commit crime. In such cases, a natural question is how the justice system should focus on rehabilitating these veterans and better equip them to deal with their stressors.
The majority of states have implemented veteran treatment courts (VTCs) to address veterans involved with the criminal justice system. The first such court started in 2008 in Buffalo, New York. Judge Robert T. Russell, the man who is credited with the development of that court, described its purpose as follows:
The mission driving the Veterans Treatment Court is to successfully habilitate veterans
by diverting them from the traditional criminal justice system and providing them with the
tools they need in order to lead a productive and law-abiding lifestyle. In hopes of achieving
this goal, the program provides veterans suffering from substance abuse issues, alcoholism,
mental health issues, and emotional disabilities with treatment, academic and vocational training,
job skills, and placement services.[v]
In addition to the worthy goal of maximizing veterans’ potential, VTC programs are intriguing because they offer possible cost savings in at least two ways. Incarceration is expensive; a 2016 news report (based on 2012 data) found that Texas spent $20,275 per inmate.[vi] A 2017 study found that per-inmate figure to be $22,012.[vii] In contrast, the National Association of Drug Court Professionals (NADCP) has found that the cost per participant in drug courts is $6,985.[viii] (Drug courts are similar to veteran courts in that they focus on rehabilitation rather than incarceration.) Moreover, the potential for VTC programs to save taxpayers money may be even greater than it appears from those figures if the programs reduce recidivism and future arrests and incarceration.
Veteran Treatment Courts in Texas
VTCs are especially fitting for Texas given the state’s traditional support of military service. According to a 2010 news report, over 150,000 Texans served in the operations in Iraq and Afghanistan.[ix] The federal Department of Veterans Affairs estimates that 11-20 percent of veterans who served in Operations Iraqi Freedom (Iraq) and Enduring Freedom (Afghanistan) have post-traumatic stress disorder (PTSD) in a given year.[x] Thus, a conservative estimate is that at least 15,000 Texas veterans suffer from PTSD in a given year. Of course, this estimate excludes servicemembers from previous eras or different operations.
VTCs in Texas were authorized in 2009 by Senate Bill 1940 (81R). Under Chapter 124 of the Government Code, the commissioners court of a county may establish a VTC, but is not required to do so. Counties may also band together and form a regional VTC service multiple counties. If a county establishes a VTC, a veteran-defendant may be referred to the VTC only if the prosecuting attorney agrees. Veteran-defendants must also consent to having their cases referred to a VTC; if they do not, then their cases take the normal course through the criminal justice system. Finally, a judge must make the following findings in order for a veteran-defendant to be referred to a VTC:
1) The defendant suffers from a brain injury, mental illness, or mental disorder, or has experienced sexual trauma;
2) The illness or trauma occurred during or as a result of the defendant’s military service; and
3) The illness or trauma affected the defendant’s conduct at issue.
Alternatively, a court may refer a defendant to a VTC under a sort of “catch-all” provision which allows for the court to exercise significant discretion. Essentially, a court may make such a referral if it believes that the defendant, considering his or her background and the surrounding circumstances, is likely to be rehabilitated through the VTC, thereby advancing public safety.
All VTCs in Texas share the following characteristics: a non-adversarial approach between prosecutors and defense attorneys; the integration of services (such as services for mental health) with the processing of cases; monitoring of defendants, including judicial monitoring; working with other public agencies, most notably the federal Department of Veterans Affairs, to ensure that veterans receive the services and benefits for which they are eligible; and involving a defendant’s family members (if they agree to be involved). A VTC must provide a veteran-defendant with an individualized treatment plan which indicates the services that will be provided to him or her (e.g., psychiatric counseling and medication, drug testing).
Participants in a VTC program may be required to pay a base fee of up to $1,000 and the costs associated with the treatment they received. These fees, however, are based on the participant’s ability to pay. Finally, if a participant successfully completes a VTC program, the court is required to dismiss the criminal case against the participant if it finds that doing so is in the best interests of justice. In addition, the court may, with the consent of the prosecuting attorney, order expunction regarding the conduct which gave rise to the participant being referred to the VTC.
Aside from sharing these general characteristics, however, counties have a great deal of flexibility in structuring their VTCs. For example, unlike some states, Texas does not specify that defendants charged with certain crimes (e.g., felonies) are ineligible for participation in VTCs; rather, devising those restrictions is left to each county. In addition, the timing of when a veteran is placed in VTC is not set by statute; it is possible for a veteran-defendant to be placed in a VTC after trial. However, because of the statutory emphasis on “early identification and prompt placement of eligible participants in the [VTC] program,” placement of eligible veterans in a VTC program in lieu of a trial is undoubtedly the more common practice. Informal conversations with VTC administrators in various counties indicate that virtually all participants in VTC programs are referred to them pre-trial.
Importantly, not all counties in Texas have VTCs. As of 2019, 39 counties do, and these counties tend to be in large metropolitan areas: to name a few, Harris, Travis, Dallas, Tarrant, Collin, El Paso, Hidalgo, Bexar, Montgomery, and Williamson counties.[xi] To mitigate the problem of veterans living far from VTCs, Texas law permits a VTC to transfer a case to a VTC in a county in which the relevant veteran works or resides, provided the veteran and the transferee VTC consent. Similarly, if a veteran is charged with an offense in a county that lacks a VTC, the court may transfer the case to a VTC in a county in which the veteran works or resides.
Different Approaches to Veteran Treatment Courts
Because state law imposes only general requirements on VTC programs, it can be helpful to examine a VTC program in greater detail. Fort Bend County’s VTC requires a veteran-defendant to be a veteran or current service member who has served in combat or hazardous duty and (if a veteran), has received an honorable or general discharge, and is a resident of Fort Bend County or a surrounding county.[xii] In addition, veterans are ineligible if they have a severe mental illness, or if they are charged with certain offenses or have been convicted or have received deferred adjudication for certain offenses. Offenses that can bar a veteran from the VTC program are sexual assault, murder, aggravated kidnapping, aggravated robbery, and indecency with a child.
Fort Bend County’s VTC can last up to 24 months and is divided into three phases. Phase 1, lasting up to six months, involves three face-to-face meetings with a community supervision officer. The veteran must also appear before a judge to the VTC once a month and report to counselors as applicable under the treatment plan devised for the veteran. Phase 2 and Phase 3 are very similar to Phase 1, except that the number of monthly face-to-face meetings with a community supervision officer are reduced. If a veteran fails to follow the plan outlined by the VTC, sanctions can be imposed, ranging from increased monthly meetings to community service to time in jail. Many VTCs are constructed to implement similar phases, although the particulars may vary (Montgomery County has a four-phase program).
Results of Veteran Treatment Court Programs
Data from jurisdictions outside Texas suggests that VTCs have some potential to improve the criminal justice system. The VTC program in Buffalo- the first in the nation- reports a recidivism rate of approximately 5 percent.[xiii]Other data is more mixed: a national study of 7,931 veterans in VTC programs found that, during the average program enrollment of approximately one year, 14 percent of veterans were incarcerated for an offense different than that which led to their placement in the VTC.[xiv] While the study pointed out that this 14 percent rate is significantly better than the one-year recidivism rate for all U.S. prisoners, it also noted that veterans with a history of prior incarceration who were enrolled in VTC programs had poor outcomes. In addition, a history of parole and/or probation violations and substance abuse history were risk factors for being incarcerated during the one-year period. Over the course of the program, participants became more likely to obtain their own housing and any VA benefits to which they are entitled, but the number of employed participants improved only negligibly.
Recidivism data on participants in VTC programs can be difficult to analyze, especially when comparing the results to a non-veteran population. As discussed above, veterans may face unique stressors or stressors to a greater extent than the non-veteran offender population, such as traumatic brain injuries or mental illness. In addition, controlling for all variables- such as employment status, mental health, and incarceration history- is challenging. Furthermore, a key point in analyzing recidivism is to distinguish between veterans who enrolled in a VTC program and those who successfully completed it.
Similarly, reviewing the effectiveness of VTCs in Texas is a challenge due to lack of centralized data on the subject. Senate Bill 1180 (86R, 2019), enacted this past legislative session, is a step in the right direction. The bill requires the Texas Veterans Commission to submit a report to the governor and certain other state officials regarding the number of veterans who participated in each VTC program in the state, how many were successful, and the grant funding for each VTC program. The first report is currently being compiled and should be released by the end of February 2020.
Some data on VTC programs, however, is available from specific counties.
In Travis County, 270 of 385 participants (70.1 percent) have graduated since the program’s inception in 2010. Of these 385, 270 have graduated, 65 have been dismissed from the program, and the remaining 50 are active in the program. Leaving aside the current participants in the program, 270 out of 335 (80.6 percent) have successfully completed the program. Complete data on recidivism was not available, but the two-year recidivism rate for 2016 graduates was a remarkably-low 3.05 percent.
In Tarrant County, there have been 484 admissions to the VTC program since 2010. Of these 484, 352 have graduated, 37 have been dismissed from the program, and the remaining 95 are active in the program. Leaving aside the current participants in the program, 352 out of 389 (90.5 percent) have successfully completed the program. Of the 352 graduates, only 24 (6.8 percent) have been re-arrested. The Tarrant County data indicates that the VTC program is attaining commendable results; however, it should be noted that of the 508 offenses committed by the 484 participants, 313 of them were misdemeanor driving while intoxicated (DWI). It is possible that the successful rehabilitation rate for more serious or violent offenders would not be as high.
Harris County divides its VTC program into a felony court and a misdemeanor court. From September 1, 2018 to August 31, 2019, felony court participants had a collective 79 percent completion rate, and the misdemeanor court had a 91 percent completion rate.
As of August 2019 (unless otherwise noted below), the following counties have seen the following results:
Collin County’s VTC program has graduated 23 participants, but 20 have been dismissed- a completion rate of 53.4 percent. Forty participants are enrolled as of August 2019.[xv]
Rockwall County’s VTC has graduated 19 participants and dismissed three- a completion rate of 86.4 percent. Fourteen participants are enrolled as of August 2019.[xvi]
Kaufman County’s VTC program has graduated 11 participants and dismissed two- a completion rate of 84.6 percent. As of August 2019, eight participants are enrolled.[xvii]
Fannin County’s VTC program has graduated six participants and dismissed seven- a completion rate of just 46.2 percent. As of August 2019, six participants are enrolled.[xviii]
Montgomery County’s VTC program has graduated 41 participants and eight failed to complete the program, although two of the eight transferred to VTCs in different counties. Excluding these two transferees, the completion rate is 87.2 percent. As of February 19, 2020, 29 participants are enrolled, and two more veterans are about to enroll.
The VTC programs in the state have shown enough to deserve continuation. To improve VTCs, the Legislature should consider the following steps.
Expand access to VTCs by ensuring that veteran-defendants can be referred to VTCs in counties which are adjacent to the counties in which they work or reside. If a veteran commits an offense and is eligible for admission to a VTC, current law provides that he is referred to a VTC in the county in which he or she is charged. However, veterans may be transferred to a VTC which is located in a county in which they work or reside. In addition, if the county in which veterans are charged lacks a VTC, they may be referred to a VTC which is located in a county in which they work or reside. House Bill 2481 (86R, Metcalf; SP: Creighton) would have allowed referrals to VTCs in counties which are adjacent to the county in which the veteran works or resides. This bill would be an important reform; as matters stand now, veterans who live in one of the many counties without a VTC can be deprived of the assistance a VTC program can provide. Notably, HB 2481 was vetoed by the Governor because of a late insertion into the bill relating to juvenile family drug courts; however, the Governor stated that he looked forward to expanding VTC access in the state if the provisions on drug courts are removed.[xix]
Require more information in VTC programs’ reports to state officials. Data on VTC programs is not centralized or standardized. As noted above, SB 1180 makes some strides in this area. However, to accurately assess the effects of VTC programs, the state must have more detailed data. Ideally, this data would list more information about the participants, including age, sex, medication usage, any substance abuse, history of mental illness, employment and housing status, and any prior parole, probation, or incarceration. As discussed above, veterans are subject to a unique combination of stressors, which makes them difficult to compare with non-veterans. This poses challenges in assessing the effectiveness of VTC programs. If veteran offenders who go through VTC programs have a recidivism rate equal to that of non-veteran offenders, but (for example) suffer from PTSD at much higher rates, it cannot be inferred that VTC programs did not reduce participants’ recidivism rate from what it otherwise would have been. In order to make “apples to apples” comparisons, identify important risk factors, and accurately assess VTC programs, the Legislature should require VTC programs to submit detailed data on their participants.
Define “recidivism” and update participants’ recidivism rate at least once every two years. The state needs a way to assess the recidivism rates of VTC program participants; this information is fundamental to evaluating the benefits of VTC programs. As the Office of Court Administration noted in a recent study, “recidivism” can be defined in different ways.[xx] For example, recidivism may be measured in terms of re-arrest, re-conviction, or re-incarceration and over different time periods. To compare results among various VTC programs in the state, it is essential that the programs are using the same definition of recidivism.
Ensure that counties have access to “resource kits” which provide guidance on setting up a VTC program. Many people who have worked in the context of VTCs have emphasized the importance of proper planning in setting one up. While the state has done an admirable job in granting counties flexibility in crafting their VTC programs, it may be helpful for counties to have a blueprint or guide to best practices in setting up a VTC.[xxi] (See footnote 21 for two possible sources).
[i] Jennifer Bronson, et al., U.S. Department of Justice, “Veterans in Prison and Jail, 2011-12,” (December 2015), available at https://www.bjs.gov/content/pub/pdf/vpj1112.pdf (see Table 1)
[ii] Ibid. (Table 2)
[iii] Ibid. (Table 8)
[iv] Val Willingham, “Study: Rates of Many Mental Disorders Much Higher in Soldiers than in Civilians,” CNN.com (March 4, 2014), available at https://www.cnn.com/2014/03/03/health/jama-military-mental-health/index.html
[v] Judge Robert T. Russell, “Veterans Treatment Court: A Proactive Approach,” 35 New Eng. J. on Crim. & Civ. Confinement 357, 364 (2009).
[vi] Fauzeya Rahman, “Politifact: Texas Spends More Per Inmate than Student,” Austin Statesman (Nov. 15, 2016, but updated Sep. 25, 2018), available at https://www.statesman.com/news/20161115/politifact-texas-spends-more-per-inmate-than-per-student
[vii] Fernando Ramirez, “Here’s How Much Texas Spends on the Average Inmate,” Houston Chronicle (July 26, 2017), available at https://www.chron.com/news/houston-texas/texas/article/Here-s-how-much-Texas-spends-on-the-average-inmate-11439179.php
[viii] National Association of Drug Court Professionals, “Drug Courts,” (2018), available at https://www.nadcp.org/wp-content/uploads/2018/03/NADCP-Brief.pdf
[ix] Bobby Cervantes, “The War at Home,” Texas Tribune (May 17, 2010), available athttps://www.texastribune.org/2010/05/17/courts-for-accused-veterans-prioritize-treatment/
[x] U.S. Department of Veterans Affairs, “PTSD: National Center for PTSD, available at https://www.ptsd.va.gov/understand/common/common_veterans.asp
[xi] See Gaelle Fournier, “Does Texas Have a Veterans Treatment Court in Each County?” Politifact.com (April 25, 2019), available at https://www.politifact.com/factchecks/2019/apr/25/dave-griffith/does-texas-have-veterans-treatment-court-each-coun/; see also “Veteran Treatment Courts in Texas,” Texvet.org, available at https://www.texvet.org/vetcourts-tx
[xii] Fort Bend County, “Veterans Court Program,” available at https://www.fortbendcountytx.gov/government/departments-a-d/county-courts-at-law/county-court-at-law-2/veterans-court
[xiii] Buffalo Veterans Mentor Group, “Ten Years of Second Chances – VFW,” (November 28, 2018), available at
http://buffaloveteranstreatmentcourt.org/news/
[xiv] Jack Tsai, et al., “A National Study of Veterans Treatment Court Participants: Who Benefits and Who Recidivates,” Administration and Policy in Mental Health and Mental Health Services Research
(March 2018), available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5776060/pdf/nihms929803.pdf
[xv] https://www.heralddemocrat.com/news/20190801/specialty-court-continues-to-help-local-veterans-find-their-footing-for-healthy-law-abiding-walk-in-civilian-life
[xvi] Ibid.
[xvii] Ibid.
[xviii] Ibid.
[xix] Governor’s Veto Proclamation, available at https://lrl.texas.gov/scanned/vetoes/86/hb2481.pdf#navpanes=0 (June 15, 2019).
[xx] Office of Court Administration, “Study on Outcomes of Participants in Specialty Courts Who Have a Mental Illness,” https://www.txcourts.gov/media/1443969/sb-1326-final.pdf
[xxi] See, e.g., Bernard Edelman, et al., Veterans Treatment Courts: A Second Chance for Vets Who Have Lost Their Way, National Institute of Corrections (May 2016), available at https://s3.amazonaws.com/static.nicic.gov/Library/030018.pdf; Bradley Barrett, Veteran Treatment Court Programs in Texas: An Exploratory Research Project (Spring 2017), available at https://digital.library.txstate.edu/bitstream/handle/10877/6585/BarrettBradley.pdf?sequence=1.