Key Element One
Eligibility and Incentives
Veterans Treatment Courts are a pioneering intervention and have grown at a rapid rate, from the first VTC in Buffalo, NY, in 2008 to more than 600 today. The number of VTCs is expected to continue to rise, but for several reasons, ranging from cost to the specific segment of the population they are intended to serve (those who are both high-risk and high-need), they cannot be the system’s only front-end response for veterans.
Indeed, many veterans encountering the criminal justice system today cannot access a VTC. In December 2021, just 14% of U.S. counties had an operational VTC.1 Examining specific states and counties reveals an even more pronounced lack of access. Indiana operated 28 VTCs as of December 2021, meaning there was one court per 14,000 veterans in the state. By contrast, Iowa had just one VTC for its 188,867 veterans. Six states had no VTCs at all. While there is no official estimate of how many justice-involved veterans are seen in a VTC each year, a recent analysis by the U.S. Department of Justice indicated that no more than 10% to 15% of justice-involved veterans could be served by a VTC.2
Figure 1: Number of Veterans per VTCs by State
Chart note: States in gray did not have any operational VTC as of December 2021.
In addition, a 2022 multisite evaluation of VTCs found significant variation in how these courts function, including differences in eligibility criteria and the use of incentives and sanctions.3 A study of more than 2,300 prosecutors’ offices in 2021 found similar issues, with only 36 offices (less than 2%) operating a veteran-specific diversion program and little uniformity in how the programs functioned.4
Even when veterans are in a location where they can access a VTC, other eligibility requirements often prevent them from doing so. Conditions related to military service, such as PTSD, have been linked to an increased risk of violent behavior,5 yet a national survey of VTCs found that 43% exclude veterans with any violent felony charge.6 Notably, veterans are 22% more likely than non-veterans to be incarcerated for violent crimes, with nearly 70% of veterans in state prisons serving time for a violent offense.7 As a result, the VTC restriction means that many justice-involved veterans end up in prison due in part to conditions from their service, rather than receiving evidence-based treatment for those conditions while under supervision in the community.
Beyond restricting many veterans based on offense type, nearly a quarter of VTCs bar veterans who are ineligible for VA benefits. Often this ineligibility stems from a veteran receiving a “bad paper” discharge, which may be an administrative “other than honorable discharge” (OTH) or a punitive bad-conduct discharge. Veterans with bad paper discharges are overrepresented within the justice-involved population; they make up approximately 6% of the total veteran population,8 but account for 18% of incarcerated veterans.9 In addition, veterans with bad paper discharges are more likely to suffer from issues related to their service. One study of nearly 450,000 Iraq and Afghanistan veterans, for example, found that 45% of veterans discharged for misconduct had a mental health or substance use disorder, compared to 20% of those discharged under routine conditions.10 Tethering VTC and VA eligibility together leads to a considerable portion of justice-involved veterans being incarcerated and excluded from programs that would offer them treatment in place of incarceration. Notably, the veterans who are excluded are often those most in need of treatment.
Finally, research suggests that even veterans who have access and eligibility refrain from participating in a VTC because of a lack of compelling incentives. According to one survey of justice-involved veterans who did not engage with a VTC, 8.6% decided not to pursue the option because they felt they could get a better deal by going through the standard criminal court process. An additional 11.3% cited the same reason for dropping out of the VTC after starting the program.11
Findings showing that veterans avoid VTCs because of a lack of incentives align with research on other problem-solving courts. According to the Best Practice Standards published by All Rise (formerly the National Association of Drug Court Professionals), research consistently shows that drug courts are more effective when they provide significant incentives to participants.12 One recent review found, for example, that drug courts did more to reduce recidivism when the benefit of completing the program was avoiding a conviction entirely.13
This element of the policy framework is designed to augment VTCs and prosecutor-led diversion programs and create an array of appropriate interventions for the full spectrum of veterans who enter the criminal justice system. It is intended to provide veterans with an alternative in cases where a VTC or prosecutor-led diversion program restricts access based on the offense level or the discharge type; provides insufficient legal benefit to promote full veteran participation; or occurs in one of the vast majority of U.S. jurisdictions where no VTC or prosecutor-led diversion program currently exists. By building on the efforts of existing initiatives, this element seeks to provide broad eligibility and utilize strong incentives that will encourage greater participation from veterans, generating the largest benefit for both veterans and public safety. It also anticipates that many programs based on this model will evolve into VTCs when local conditions warrant that approach.
Implementation Steps
Key Element One calls for the creation of a Veteran Sentencing Option (VSO) with probation and treatment used in place of incarceration. The implementation steps below define the essential elements of the VSO, including eligibility and incentives. More detail, particularly on the case plan that would accompany this option, is provided in Key Element Two.
1
VSO Definition:
- The VSO refers to the disposition or adjudication of a case being postponed pending completion of a case plan that consists of probation and treatment (see Key Element Two for details on the case plan).
2
VSO Eligibility:
- To ensure broad eligibility for a VSO, a veteran is defined as a person who swore an oath and entered any branch of the Armed Forces, including the National Guard or Reserve, and is either (1) currently serving in such branch and has not been discharged, or (2) was discharged or released from such service under any characterization except for those receiving a dishonorable discharge, unless the individual receiving the dishonorable discharge has been diagnosed with a substance use disorder (SUD), military sexual trauma (MST), traumatic brain injury (TBI), PTSD, or a mental health condition.14
- Law enforcement, court, and correctional personnel should verify the veteran status of all individuals being processed, using this definition of a veteran to identify those who may be eligible for a VSO.15
- All veterans should be eligible for a VSO if there are one or more indicators of mental or physical symptoms of a condition from military service that could have contributed to the offense. This includes the psychological effects of their time in service as well as from the period of family separation related to deployment.
- A presumption in favor of a VSO should exist for any offense that is eligible for probation; this presumption may only be overcome by a judicial finding that a VSO would not reasonably ensure public safety based on an individualized assessment of the veteran and consideration of the supervision, treatment, and other programs available in that community. This presumption may apply to veterans who previously absconded or were rearrested for a new offense while previously given the benefit of a VSO.
3
VSO Incentives:
- Veterans who successfully complete their case plan should avoid a term of incarceration upon successful completion and have a presumption in favor of either having their case dismissed and their conviction not recorded, or having their felony conviction converted to a misdemeanor.
- This presumption can only be overcome by a judicial finding that the veteran remains an ongoing risk to public safety and that such a dismissal or conversion would not reasonably ensure public safety. Such judicial determinations must be stated on the record and include the facts upon which the judge relied to reach it.
