Changes in Veterans’ Diversion under Criminal Justice Reform and the BRAVE Act

Last month the Massachusetts House and Senate voted unanimously to pass the BRAVE Act, a bill designed to expand access to services and benefits for veterans and their families. Although the recently enacted Criminal Justice Reform Law generally expanded diversion availability for adults and juveniles, it eliminated some diversion opportunities for veterans otherwise eligible under the VALOR Act. The BRAVE Act restores one of those opportunities, allowing veterans to be considered for veterans diversion if charged with a first offense operating under the influence (OUI).

Diversion under the Criminal Justice Reform Law

The Criminal Justice Reform Law eases diversion by eliminating the certification requirement for programs and eliminating age restrictions. At the same time, it excludes certain offenses from eligibility.

Prior to the Criminal Justice Reform Law, pre-trial diversion was unavailable under G.L. c. 276A due to there being no certified and approved programs that a defendant could be diverted to as required by G.L. c.  276A, § § 1, 2, and 8. The new law amends the pre-trial diversion statute to no longer require programs to be certified and approved by probation. An eligible defendant can now be diverted to any program provided that the court receives a recommendation from a program that the defendant would benefit from participation in said program.

The Criminal Justice Reform Law also eliminates the age restriction for G.L. c. 276A diversion to permit an adult of any age to be diverted if otherwise eligible. Accordingly, any adult may be considered for diversion if the defendant:

  1. Has not previously been convicted of a violation of any law of the commonwealth or of any other state or of the United States (except for traffic violations not punishable by a term of imprisonment), and
  2. Does not have any outstanding warrants, continuances, appeals or criminal cases pending before any courts of the commonwealth or any other state or of the United States.

The defendant must be charged with an offense punishable by a term of imprisonment that is not one of the following excluded offenses:

  • Any offense for which a penalty of incarceration greater than five years may be imposed
  • Any offense ineligible for decriminalization pursuant to the newly revised G.L. c. 277, § 70C (see below), except for:

Please see the complete list of offenses ineligible under 277,  § 70C at the bottom of this post.

The 2012 VALOR Act

An Act Relative to Veteran’s Access, Livelihood, Opportunity, and Resources, commonly referred to as the VALOR Act, was signed into law by former Gov. Deval Patrick on May 31, 2012. Among other provisions, the law provided eligible veterans with an opportunity to go into a pre-trial diversion program rather than going through the traditional criminal trial process. The main premise behind the Act was to assist veterans struggling with post-traumatic stress disorder linked to their military service.

In order to qualify for a diversion program under the Valor Act, a probation officer was required to determine if the defendant was eligible for an evaluation. To qualify, a defendant needed to be:

  1. A veteran, a person on active service in the armed forces of the United States, or a person with a history of military service in the armed forces of the United States (as provided under G.L. c. 4, § 7);
  2. Charged with an offense against the commonwealth for which a term of imprisonment may be imposed;
  3. Have no previous adult convictions, except for traffic violations not punishable by a term of imprisonment;
  4. Have no outstanding warrants, continuances, appeals, or criminal cases pending before any courts of the commonwealth or any other state or of the United States

Once a probation officer used his or her best efforts to confirm the defendant’s status as a veteran and the defendant met the remaining qualifications, a district court judge had the authority to offer a 14-day continuance for the defendant to be assessed “by the United States Department of Veterans Affairs, the department of veterans’ services or another state or federal agency with suitable knowledge and experience of veterans affairs to provide the court with treatment options available to the defendant.” After which, the court could take whatever action it deemed appropriate.

Concerns about the VALOR Act

There were minimal limitations on the type of charges that could be diverted. As a result, veterans were diverted for serious charges such as assault and battery with a dangerous weapon and strangulation. There was also no statutory limitation on the amount of times a defendant could be diverted under the veterans diversion statute. A defendant could be deemed eligible so long as he had no previous adult convictions (except for traffic violations not punishable by a term of imprisonment), no outstanding warrants, no continuances, no appeals, and no criminal cases pending before any court.

In 2017, the Supreme Judicial Court, in Commonwealth v. Morgan, solidified this point when it ruled that the VALOR Act permitted a judge to dismiss a charge for a second or subsequent OUI offense, notwithstanding the provisions of G.L. c. 90, §24. The Court analyzed the legislative intent of the VALOR Act as giving judges the discretion to allow diversion in appropriate cases that involve charges of OUI, second or subsequent. This ruling ran counter to the legislative objective of “Melanie’s Law”.

Subsection 24 of Chapter 90 of the General Laws, commonly referred to as “Melanie’s Law,” went into effect on October 28, 2005. Named after 13-year-old Melanie Powell who was struck and killed by a driver who had multiple OUI convictions, Melanie’s Law was designed to make OUI penalties, particularly for repeat offenders, more severe. The law overhauled the Massachusetts OUI statutes and provides, among other things, that any person convicted of a second OUI be required to install an ignition interlock device on his automobile as a precondition to license reinstatement.

Diversion for Veterans after CJR and the BRAVE Act

The offenses excluded from diversion under the Criminal Justice Reform law apply to the entire pre-trial diversion statute, including the section allowing diversion for veterans, persons on active service in the armed forces, and persons with a history of military service. In other words, as of April 13, 2018, a veteran divertible under the VALOR Act could no longer be considered for diversion if the charged offense was excluded under the new adult diversion statute.

The BRAVE ACT allows veterans to receive an alternative disposition for one of the more frequent charges against veterans transitioning to civilian life without negating the importance of “Melanie’s Law”. Under the new BRAVE Act, eligible veterans can be considered for diversion for a first offense OUI as well as for the same offenses permitted under adult diversion.

The newly enacted BRAVE Act will allow 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 90 or a like offense in another state or the United States or a military, territorial or Indian tribal authority.

Under the BRAVE Act,  veterans also receive many new benefits unrelated to the criminal justice system.

Offenses ineligible for decriminalization pursuant to G.L. c. 277, § 70C (as revised by CJR)

  • The following under G.L. c. 90 Motor Vehicles and Aircraft
    • § 22F, Habitual traffic offender
    • § 24, Driving while under influence
    • § 24D, Persons convicted of driving under the influence
    • § 24G, Homicide by motor vehicle
    • § 24L, Serious bodily injury by motor vehicle while under influence
    • § 24N, Suspension of operator’s license upon issuance of complaint
  • The following under G.L. c. 90B Motorboats, other vessels and recreational vehicles
    • § 8, Operation of a water vessel while under influence liquor or narcotics
    • § 8A, Operation of a water vessel while under the influence of controlled substances causing serious bodily injury
    • § 8B, Operation of a water vessel while under the influence of a controlled substance causing death
  • Any offense in G.L. c. 119 Protection and Care of Children, and Proceedings against them
  • Any offense in G.L. c. 119A Child Support Enforcement
  • Any offense in G.L. c. 209 Husband and Wife
  • Any offense in G.L. c. 209A Abuse Prevention
  • Any offense in G.L. c. 265 Crimes Against the Person
  • The following under G.L. c. 268 Crimes Against Public Justice
    • § 1, Perjury
    • § 2, Subornation of perjury
    • § 3, Attempt to procure another to commit perjury
    • § 6, False reports or testimony before state departments, board or commissioner; false entries in company books or statements; aiders or abettors
    • § 6A, False written reports by public officers or employees
    • § 6B, Process servers; false statements; penalty
    • § 8B, Compulsion or coercion to refuse appointment or promotion
    • § 13, Corrupting or attempting to corrupt masters, auditors, jurors, arbitrators, umpires or referees
    • § 13A, Picketing court, judge, juror, witness or court officer
    • § 13B,  Intimidation of witnesses, jurors and persons furnishing information in connection with criminal proceedings
    • § 13C, Disruption of court proceedings
    • § 14, Receipt of gift by juror, arbitrator, umpire, referee, master or auditor
    • § 14B, Witnesses in criminal actions; discharge, etc. from employment
    • § 15, Aiding escape from a correctional institution or jail; rescue
    • § 15A, Escapes from jail
    • § 16, Escape or attempt to escape, or failure to return from temporary release or furlough
    • § 17, Aiding escape from officer or person having custody
    • § 18, Jailer or officer suffering prisoner to escape
    • § 19, Suffering or consenting to an escape from a penal institution
    • § 20, Negligently suffering prisoner to escape; refusal to receive prisoner
    • § 28, Delivering drugs or articles to prisoners in correctional institutions or jails; possession
    • § 31, Delivery or receipt of articles to or from inmates
    • § 36, Compounding or concealing felonies
  • Any offense in G.L. c. 268A Conduct of Public Officials and Employees
  • The following under G.L. c. 269 Crimes Against Public Peace,
    • § 10, Carrying dangerous weapons; possession of machine gun or sawed-off shotguns; possession of large capacity weapon or large capacity feeding device; punishment
    • § 10A, Selling, giving or using silencers; confiscation and destruction
    • § 10C, Tear gas; use in commission of crimes
    • § 10D, Body armor; use in commission of crime
    • § 10E, Firearms sales, distributions or transfers; penalties; eligibility for probation, parole, furlough or work release
    • § 11B, Possession or control of firearm with serial or identification number removed or mutilated, while committing or attempting a felony; destruction
    • § 11C, Removal or mutilation of serial or identification numbers of firearms; receiving such firearm; destruction
    • § 11E, Serial identification numbers on firearms
    • § 12, Manufacturing and selling knives, slung shots, swords, bludgeons and similar weapons
    • § 12A, Air rifles; sale to minors
    • § 12B, Air rifles; possession by minors; shooting
    • § 12D, Rifle or shotgun loaded with shells or cartridges; unloaded rifle or shotgun; carrying on public way prohibited; exceptions; punishment
    • § 12E, Discharge of a firearm within 500 feet of a dwelling or other building in use; exceptions
  • The following under G.L. c. 272 Crimes Against Chastity, Morality, Decency, and Good Order
    • § 1, Enticing away person under 16 for marriage
    • § 2, Enticing away person for prostitution or sexual intercourse
    • § 3, Drugging persons for sexual intercourse
    • § 4, Inducing person under eighteen to have sexual intercourse
    • § 4A, Inducing minor into prostitution
    • § 4B, Living off or sharing earnings of minor prostitute
    • § 6, Owner of place inducing or suffering person to resort in such place for sexual intercourse
    • § 7, Support from, or sharing, earnings of prostitute
    • § 8, Soliciting for prostitute
    • § 12, Procuring person to practice, or enter a place for, prostitution; employment office procuring person
    • § 13, Detaining, or drugging to detain, person in place for prostitution
    • § 16, Open and gross lewdness and lascivious behavior
    • § 28, Matter harmful to minors, dissemination; possession; defenses
    • § 29, Dissemination or possession of obscene matter; punishment; defense
    • § 29A, Posing or exhibiting child in state of nudity or sexual conduct; punishment
    • § 29B, Dissemination of visual material of child in state of nudity or sexual conduct; punishment

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Will Brownsberger
State Senator
2d Suffolk and Middlesex District