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2024 SESSION
24101374DBe it enacted by the General Assembly of Virginia:
1. That § 2.2-2001.1 of the Code of Virginia is amended and reenacted and that the Code of Virginia is amended by adding in Chapter 18 of Title 19.2 an article numbered 7, consisting of sections numbered 19.2-316.5 through 19.2-316.11, as follows:
§ 2.2-2001.1. Program for mental health and rehabilitative services.
A. The Department, in cooperation with the Department of Behavioral Health and Developmental Services and the Department for Aging and Rehabilitative Services, shall establish a program to monitor and coordinate mental health and rehabilitative services support for military service members transitioning from military to civilian life, veterans, members of the Virginia National Guard, Virginia residents in the Armed Forces Reserves, and their family members. The purpose of the program is to, in a cost-effective manner, refer such transitioning service members, veterans, members of the Virginia National Guard, Virginia residents in the Armed Forces Reserves, and their family members to mental health, physical rehabilitation, and other services as needed to help them achieve individually identified goals and to periodically monitor their progress toward achieving those goals.
B. The program shall, subject to the availability of public and private funds appropriated for such purposes, (i) build awareness of veterans' service needs and the availability of the program through marketing, outreach, training for first responders, service providers, and others; (ii) collaborate with relevant agencies of the Commonwealth, localities, and service providers; (iii) develop and implement a consistent method of determining how many veterans in the Commonwealth are in need of mental health, physical rehabilitation, or other services currently or may be in need of such services in the future; (iv) work with veterans to develop a coordinated resources plan that identifies appropriate service providers to meet the veteran's service needs; (v) refer veterans to appropriate and available providers on the basis of needs identified in the coordinated resources plan; and (vi) monitor progress toward individually identified goals in accordance with the coordinated resource plan.
Coordinated resources plans shall be developed and veterans shall be referred to necessary services in a timely manner. The program shall prioritize veterans served on the basis of the immediacy and severity of service needs and the likelihood that those needs are attributable to the veteran's military service or combat experience.
C. The program shall cooperate with localities that may establish special treatment procedures for veterans and active military service members such as authorized by §§ 9.1-173 and 9.1-174. To facilitate local involvement and flexibility in responding to the problem of crime in local communities and to effectively treat, counsel, rehabilitate, and supervise veterans and active military service members who are offenders or defendants in the criminal justice system and who need access to proper treatment for mental illness, including major depression, alcohol or drug abuse, post traumatic stress disorder, traumatic brain injury or a combination of these, any city, county, or combination thereof may develop, establish, and maintain policies, procedures, and treatment services for all such offenders who are convicted and sentenced for misdemeanors or felonies that are not felony acts of violence, as defined in § 19.2-297.1. Such policies, procedures, and treatment services shall be designed to provide:
1. Coordination of treatment and counseling services available to the criminal justice system case processing;
2. Enhanced public safety through offender supervision, counseling, and treatment;
3. Prompt identification and placement of eligible participants;
4. Access to a continuum of treatment, rehabilitation, and counseling services in collaboration with such care providers as are willing and able to provide the services needed;
5. Where appropriate, verified participant abstinence through frequent alcohol and other drug testing;
6. Prompt response to participants' noncompliance with program requirements;
7. Ongoing monitoring and evaluation of program effectiveness and efficiency;
8. Ongoing education and training in support of program effectiveness and efficiency;
9. Ongoing collaboration among public agencies,
community-based organizations and the U.S. Department of Veterans Affairs
health care networks, the Veterans Benefits Administration, volunteer veteran
mentors, and veterans and military family support organizations; and
10. The creation of a veterans and military service members' advisory council to provide input on the operations of such programs. The council shall include individuals responsible for the criminal justice procedures program along with veterans and, if available, active military service members; and
11. Assistance in facilitating the provisions of the Service Member Sentencing Act (§ 19.2-316.5 et seq.).
D. The Commissioner shall include the results of the program in the annual report submitted to the Secretary of Veterans and Defense Affairs, the Governor, and the General Assembly pursuant to § 2.2-2004. The report shall include the number of transitioning service members, veterans, members of the Virginia National Guard, Virginia residents in the Armed Forces Reserves, and their family members affected by covered military members' service and deployments for whom coordinated resources plans are developed and who are referred for services; information about services provided to transitioning service members, veterans, members of the Virginia National Guard, Virginia residents in the Armed Forces Reserves, and their family members, including information about the types of services provided and the quality of those services; and the number of transitioning service members, veterans, members of the Virginia National Guard, Virginia residents in the Armed Forces Reserves, and their family members identified by the program as in need of services but not referred for services.
§ 19.2-316.5. Purpose.
The purpose of this article is to ensure that service members charged with a criminal offense are given the opportunity to avoid a record of conviction, have a felony reduced to a misdemeanor, avoid incarceration, or receive probation and treatment tailored to address the specific challenges such persons face stemming from a condition of military service.
§ 19.2-316.6. Definitions.
As used in this article, unless the context requires a different meaning:
"Case plan" means a set of conditions, goals, and programs based on a professional risk and needs assessment, tailored to the specific risks and needs of the veteran and developed in collaboration with the veteran.
"Condition from military service" means any substance abuse disorder, as defined in § 37.2-100, and any anxiety disorder, depressive disorder, or post-traumatic stress disorder, as those terms are defined in § 65.2-107, and includes any military sexual trauma, traumatic brain injury, or other mental or physical health condition that is related to a service member's military service.
"Service member" means any active military, naval, or air service members or veteran, as those terms are defined in § 2.2-2000.1, and includes any veteran who received a dishonorable discharge if such veteran has been diagnosed with a condition from military service.
"Service member sentencing option" means the procedure of postponing disposition or adjudication of a service member charged with a criminal offense pending the completion of such service member's case plan.
§ 19.2-316.7. Eligibility.
A. Any service member shall be eligible for a service member sentencing option if such service member has been diagnosed with one or more indicators of a condition from military service that contributed to the commission of the alleged criminal offense, based on a finding by the court who has jurisdiction over the alleged offense.
B. A presumption in favor of a service member sentencing option shall exist for any criminal offense. However, such presumption can be overcome by a judge if a finding is made that the service member sentencing option would not reasonably ensure public safety based on an individualized assessment of the service member and the consideration of the supervision, treatment, and other programs available in the service member's community.
C. A service member having previously received a service member sentencing option shall be eligible to receive another such option upon another alleged commission of a criminal offense.
D. A service member sentencing option shall be available to a service member even though he has previously been convicted of a criminal offense, been adjudicated delinquent as a juvenile, or had proceedings deferred and dismissed under this article or under any other provision of law, unless, after having considered the position of the attorney for the Commonwealth, the views of the victims, and any evidence offered by the defendant, the court finds that service member sentencing option is inconsistent with the interests of justice.
§ 19.2-316.8. Procedure for service member sentencing option.
A. In any criminal case, upon a plea of guilty, or after a plea of not guilty, and the facts found by the court would justify a finding of guilt, the court may, if the defendant has been (i) identified as a service member and (ii) diagnosed with a condition from military service and the court finds by clear and convincing evidence that the criminal conduct was caused by or had a direct and substantial relationship to the service member's condition from military service, without entering a judgment of guilt and with the consent of the accused, after giving due consideration to the position of the attorney for the Commonwealth and the views of the victim, defer further proceedings and place the accused on probation subject to the terms and conditions of the service member's case plan. Upon violation of a term or condition, the court may enter an adjudication of guilt; or upon fulfillment of the terms and conditions, the court may discharge the service member and dismiss the proceedings against him without an adjudication of guilt. This section shall not limit the authority of any juvenile and domestic relations court granted to it in Title 16.1.
B. In placing a service member on probation subject to subsection A, the court may order the service member to attend evidence-based treatment tailored to address the condition from military service that caused or had a direct and substantial relationship to the criminal conduct. The court shall order the service member to create a case plan for such service member, developed in consultation with psychological experts, his probation officer, the local community services board, and the Department of Veterans Services. Such plan shall be approved by the court prior to the service member entering into an agreement to receive the service member sentencing option and shall include (i) a professional assessment of the service member's specific risks and needs and (ii) clear and individualized supervision and treatment goals, including program rules, consequences for violating such rules, and incentives for compliance.
C. The court shall retain discretion in deciding service member eligibility, establishing the conditions of probation, setting the terms of successful program completion, determining if the service member has successfully completed his program at a final hearing, and releasing the service member upon successful completion.
D. A service member placed on the service member sentencing option may request to have his supervision transferred to his local community-based probation services agency, provided that such transfer does not interfere with the ability of the service member to receive appropriate supervision and treatment and the rights of the victim under law.
E. The service member placed on the service member sentencing option may elect for his family members to receive information regarding the service member's case plan and progress. If a no-contact order is in place between the service member and his family members as a result of the criminal offense, such order shall be evaluated periodically to determine if preventing contact is necessary.
F. The victim shall have the opportunity to be involved in the process, including an opportunity to submit a written statement to be read at the final hearing when program completion is determined. If the criminal offense is a domestic assault and battery pursuant to § 18.2-57.2, such victim shall receive a victim advocate to assist with the process.
§ 19.2-316.9. Sentencing mitigation for service members.
A. Any service member who is not eligible for the service member sentencing option shall have his service member status considered as a factor by the court in determining the sentence of such service member.
B. The court shall not use a defendant's status as a service member as an aggravating factor to impose a more severe punishment for a criminal offense.
C. Factors of a service member's service that shall be relevant to the court at sentencing include:
1. Individual merit earned during service;
2. Overseas deployment;
3. Exposure to danger; and
4. Service-connected disability ratings.
When considering multiple factors, the court shall give additional weight to each factor.
D. The court shall not require a connection between the criminal offense and a condition for military service in order to consider a service member for sentencing mitigation. However, if the service member shows by clear and convincing evidence that the criminal offense was caused by or had a direct and substantial relationship to the service member's condition from military service, there shall be a presumption that imprisonment is not appropriate. Such presumption can be overcome by a judge if a finding is made that imprisonment is necessary to reasonably ensure public safety based on an individualized assessment of the service member and the consideration of the supervision, treatment, and other programs available in the service member's community.
§ 19.2-316.10. Training.
The Department of Veterans Services, in cooperation with the Department of Behavioral Health and Developmental Services and the Department for Aging and Rehabilitative Services, pursuant to § 2.2-2001.1, shall, upon request, provide training and information to law-enforcement agencies, courts, and correctional facilities designed to increase understanding of cases involving service members, including service member's exposure to trauma and violence. Such training shall include understanding of conditions from military service, and include issues that disproportionately impact female veterans such as military sexual trauma.
§ 19.2-316.11. Data collection and evaluation.
The court shall track and report to Executive Secretary of the Supreme Court the number of service members receiving, successfully completing, failing, declining, and denied a service member sentencing option and sentencing mitigation. Such information shall be categorized by race, ethnicity, gender, age, military discharge characterization, and offense type. The report shall be made upon a form furnished by the Executive Secretary.