Evaluation of the Valor Act

Population

The Veteran population suffers from rates of PTSD two to four times higher than members of the general population (Richardson, Frueh, & Acierno, 2010). Post-traumatic stress disorder (PTSD) refers to an anxiety disorder developing from traumatic events that are re-lived through nightmares and flashbacks. An individual suffering from PTSD may experience feelings of isolation, irritability, and guilt. Combat has adverse effects on an individual’s mental health, attributed to the demand of the activities that provide a great burden to the health of the individuals involved.

Since World War II, engagement of soldiers in combat has remained active. As of 2007, 300,000 Veterans were diagnosed with PTSD (Tanielian, Jaycox, 2008). The prevalence of PTSD among soldiers has necessitated the incorporation of additional research into the effect of combat on soldiers and as a factor facilitating the development of PTSD. A study of Vietnam combat veterans showed that up to 75 percent of veterans with a history of PTSD in their lifetime met criteria for substance abuse or dependence (Hamner, M. B. 1992) The wars in Iraq and Afghanistan took a toll on the mental health of soldiers, which led to the increased provision of resources to facilitate research in mental health.

This population of Veterans, many of whom suffer from substance use disorder as well, is the target population of the Massachusetts VALOR Act.

Objective of the Law

In 2012 then Governor Deval Patrick signed “An Act Relative to Veterans’ Access, Livelihood, Opportunity, and Resources”, known as the VALOR Act. This was a large omnibus bill that was an amalgamation of references and tweaks to existing legislation. According to Governor Patrick the stated objective of the bill was to “enhance our already strong supports for veterans” (Office, 2012). It’s many subsections did create new opportunities for education and licensure for Veterans, it also brought local Veteran ordinances and regulations into line with state mandates, and in the most under-reported section of the bill, Section 16, it mandated that the Veteran status of criminal offenders be determined and the establishment of diversionary court programs for Veterans, who were first time criminal offenders (Chapter 108, n.d.).

The language of this section is written in regulatory legalese, but it sets up a system of review and psychological assessment for alternative treatment options and diversionary court options for this new “special” class of offenders. The law was intended to address the mental and substance use issues that affect Veterans and give them a chance to enter a pre-trial diversion program rather than serve jail time for minor, non-violent offenses. While the language of the law is somewhat confusing, all parties that were involved with its inception and passage agreed on one common goal, its intent was to help Veterans (The Valor Act, n.d.).

Intended Consequences

At the time of the signing there were nearly 400,000 Veterans residing in Massachusetts, 37,000 of whom where Veterans of the wars in Iraq and Afghanistan (Office, 2012). With the large number of Veterans, it could be assumed that there was a need for many of the reforms and services that were in the VALOR Act. The former Secretary of Veterans Services for Massachusetts put the number of Veterans served during the six years that the VALOR Act was in effect at over 2,000 (Nee, 2018). While this number may seem small, it is 2,000 individuals, that due to the nature of the mental health issues that they faced as a result of military service, did not end up serving a prison sentence.

Unfortunately, there are no numbers kept on the number of Veterans that have interacted with the criminal justice system in Massachusetts during that same six-year period, so the ability to comment on the overall effectiveness of the law is not possible, however it can be stated that the Act itself was successful in bringing Massachusetts Veterans services under one overarching regulation. The coordination of the other provisions of the Act, such as bringing consistency to the application of certain Veteran benefits statewide, have made the legislation effective.

There were several other sections of the Act that covered various items such as education and benefits for Veterans, and the children of Veterans killed in combat. Chapter 115 covers cash benefit payments to Veterans in financial need (Chapter 115, n.d.). Historically the decisions on who got these benefits was left up to the local Veteran Service Officers (VSOs), and there had been some disparity of payment rates among different communities. One of the provisions of the Act was to bring more consistency to the administration of those benefits (Chapter 108, n.d.).

Since the bill that replaced it, the BRAVE Act, expanded several benefits relating to property taxes, and granted leave for military service to state workers, it could be inferred that the original act was successful in its mission. However, certain sections of the law were changed, specifically those that deal with diversionary programs for Veterans. In the next section, I will review some of the unintended consequences of the VALOR Act that made it controversial and led its repeal and replacement by the BRAVE Act (Chapter 218, n.d.).

Unintended Consequences

In the past several years there had been a growing unease with certain provisions of the VALOR Act, specifically those relating to pre-trial diversion programs for Veterans. Many have seen it as a “get out of jail free card” and local media has been awash with stories of Veterans that, in the opinion of some, have committed crimes that they were not held accountable for (Ebbert, 2018). These types of stories have led to questions from the public about the law, and comments from legal scholars about the law and the creation of a separate class of offenders under the VALOR Act (Deady, & Medwed, 2018).

There were minor guidlines on the types of charges that could be placed into pre-trial diversion. As a result, Veterans were diverted for more serious charges such as assault & battery with a dangerous weapon, and strangulation. There was also no limitation on the number of times a defendant could be diverted under the Act. A Veteran was deemed eligible, so long as he had no previous adult convictions (except for traffic violations that were not punishable by a term of imprisonment), had no outstanding warrants, no continuances, no appeals, and no criminal cases pending before any court.

In one case a Veteran assaulted his then girlfriend on his boat. His lawyer then used the broad provisions of the VALOR Act to get the case dismissed after he completed a pre-trial diversionary program. The problem with this case, was that the Veteran served in the Navy during a time of peace in the 1980’s. and did not suffer from military related PTSD or any mental condition that may have been brought on by military service (Ebbert, 2017). Many saw this as a gross misuse of the statute, and this strengthened calls for its repeal (Stout, 2018)

There were other examples, one of which went all the way to the Massachusetts Supreme Judicial Court (SJC). In the case of Commonwealth v. Morgan (2017), the SJC ruled that the defendant (Morgan) was covered under the VALOR Act for an OUI (Operating Under the Influence), even though it was a second offense. The mitigating factor in this case was that in the intervening years between the two OUI charges, Morgan had deployed to Afghanistan, and had developed PTSD as a result of the experience. His PTSD was linked directly to his subsequent opioid abuse which led to his arrest for OUI. On the one hand many argued that this was exactly who the VALOR Act was for, a well deserving Veteran, suffering from PTSD, who could be rehabilitated. On the other side prosecutors saw it as a “clean slate”, wherein the Veteran would have no record of the OUI so that any subsequent offense could be treated as a first offense as well.

Reform, Repeal, and Replace

As part of a comprehensive criminal justice reform bill in April of 2018, there was an attempt to remedy some of the problems with the VALOR Act. Under the guise of creating more diversionary programs, for a greater pool of potential criminal defendants, the rules on eligibility for offenses was narrowed, and it no longer included OUI (Chapter 69, n.d.). Some argued that this type of offense, so closely linked with substance abuse brought on by PTSD, was exactly the type of offense that the Act was written for, and that the Veterans that were affected by this change were the ones most in need of the diversionary programs that had been heretofore provided.

In an effort to address the shortcomings of the reform act, a new bill, an Act relative to veterans’ benefits, rights, appreciation, validation and enforcement (the BRAVE Act) was passed. This bill expanded some provisions relating to Veterans benefits, and reinstated OUI as an offense covered by pre-trial diversionary programs for Veterans. This new act also closed other loopholes in the VALOR Act. The newly enacted BRAVE Act allows a Veteran, who suffers from a service related substance abuse or mental health issue, to be considered for diversion for a first offense OUI if they have;

Never previously been arrested for or been the subject of a complaint alleging a violation               of an offense pursuant to said subparagraph (1) of said paragraph (a) of said subsection               (1) of said section 24 of said chapter () or a like offense in another state or the United               States or a military, territorial or Indian tribal authority (Chapter 69, n.d.).

This effectively eliminates the possibility of a “clean slate” for OUI, and makes the provision for pre-trial diversion solely for a first offense, charged or otherwise.

Recommendations

Many of the issues relating to the problems with the Act have been addressed by the subsequent reforms and the replacement for it. However, this act only scratches the surface of the greater problems faced by Veterans. There is no comprehensive state policy dealing with the mental health of Veterans. The current opioid crisis highlights the inadequacies of the mental health system, and for Veterans, many of whom are self-medicating due to underlying mental health issues, this is a life or death fight.

The Commonwealth of Massachusetts does have significantly more programs for Veterans than most other states, but mental health is still left up to the Department of Veterans Affairs. I would submit that the state Department of Veterans Services should work with the Department of Mental Health to develop a state funded and state focused program to work on the mental health issues of Veterans. This program could be facilitated by the local VSOs throughout the state, the people who come into contact with the Veterans on a regular basis. By working with the VSOs, as well as with Veteran’s groups themselves, work could be done to identify and support Veterans in need of mental health services, before they are in need of pre-trial diversion.

This program could become the tip of the spear and would take some of the burden off of an overworked VA. By working in conjunction with the VA, treatment could be provided for substance use disorder and PTSD. The VA has a program for dual-diagnosis Veterans, run as a group. These groups are a supplement to empirically proven support groups such as Alcoholics Anonymous and SMART Recovery. VA also has a larger pool of detox beds available throughout New England, available for Veterans in their time of need.

When looking at changes to the BRAVE Act, it is still too early to see what the unintended consequences may be, as it was only signed a few months ago. Only time will tell if the legislators have gotten it right this time.

References

• Chapter 69. (n.d.). Retrieved from https://malegislature.gov/Laws/SessionLaws/Acts/2018/Chapter69
• Chapter 108. (n.d.). Retrieved from https://malegislature.gov/Laws/SessionLaws/Acts/2012/Chapter108
• Chapter 115. (n.d.). Retrieved from https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXVII/Chapter115
• Chapter 218. (n.d.). Retrieved from https://malegislature.gov/Laws/SessionLaws/Acts/2018/Chapter218
• Commonwealth v. Morgan (Lawyers Weekly No. 10-058-17). (2017, April 18). Retrieved November 25, 2018, from http://masslegalresources.com/commonwealth-v-morgan-lawyers-weekly-no-10-058-17
• Deady, B., & Medwed, D. (2018, August 07). Beacon Hill Moves to Amend Controversial Valor Act. Retrieved from https://www.wgbh.org/news/politics/2018/08/07/beacon-hill-moves-to-amend-controversial-valor-act
• Ebbert, S. (2018, January 16). Lawmakers may restrict use of Valor Act – The Boston Globe. Retrieved November 25, 2018, from https://www.bostonglobe.com/metro/2018/01/15/lawmakers-may-restrict-use-valor-act/kF7ivQ8Qx5EPIV5I5vKagJ/story.html
• Ebbert, S. (2017, December 30). Veteran cleared of domestic violence charges thanks to his military service – The Boston Globe. Retrieved November 25, 2018, from https://www.bostonglobe.com/metro/2017/12/30/veteran-cleared-domestic-violence-charges-thanks-his-military-service/ZOUniBg7kSxvdCga5G0oaK/story.html
• Hamner, M. B. (1992), Trauma and the Vietnam War Generation: Report of Findings from the National Vietnam Veterans Readjustment Study. New York: Brunner/Mazel, Publishers, 1990, 322 pages, $19.95. J. Traum. Stress, 5: 321-322. doi:10.1002/jts.2490050217
• Nee, C. (2018, July 03). Study Valor Act before changing it. Retrieved November 25, 2018, from https://commonwealthmagazine.org/opinion/study-valor-act-before-changing-it/
• Office of Governor Charlie Baker and Lt. Governor Karyn Polito. (2012, May 31). Retrieved November 25, 2018, from http://www.mass.gov/governor/pressoffice/pressreleases/2012/2012531-governor-signs-valor-act.html
• Richardson, L. K., Frueh, B. C., & Acierno, R. (2010). Prevalence estimates of combat-related post-traumatic stress disorder: critical review. The Australian and New Zealand journal of psychiatry, 44(1), 4-19.
• State Senate Approves “The Valor Act”. (n.d.). Retrieved from https://willbrownsberger.com/state-senate-approves-the-valor-act/
• Stout, M. (2018, July 26). Lawmakers move to repeal Valor Act – The Boston Globe. Retrieved November 25, 2018, from https://www.bostonglobe.com/metro/2018/07/25/lawmakers-move-repeal-valor-act/QZpstXyNveJU239nNbuvPO/story.html
• Tanielian, T., Jaycox, L. (2008). Invisible Wounds of War: Summary and Recommendations for Addressing Psychological and Cognitive Injuries. doi:10.7249/mg720.1