Overview
During the audit period, the Northwestern District Attorney’s Office (NWDA) had not established its own veteran diversion program, as required by Section 34 of Chapter 12 of the Massachusetts General Laws. Instead, NWDA collaborated with the Veterans Justice Outreach (VJO) Program to identify appropriate candidates for diversion and shepherd the candidates into diversion opportunities. However, we found that NWDA did not develop written policies and procedures to regulate this process. In addition, our review of diverted veteran cases found missing documentation.
Our review of the 16 case files of veterans diverted found that 1 case did not have documentation regarding the veteran’s completion of or dropout from the diversion program.
NWDA is not complying with Section 34 of Chapter 12 of the General Laws because it has not established a veteran diversion program and has not developed written policies and procedures to regulate it. Not establishing a diversion program limits veterans’ access to diversion opportunities to help avoid prosecution where appropriate.
Additionally, by not keeping sufficient documentation as described more fully in this audit, NWDA cannot ensure that it monitors these diversion programs to ensure successful outcomes for veterans.
Authoritative Guidance
Section 34 of Chapter 12 of the General Laws states,
The district attorneys shall, within their respective districts, establish a pre-arraignment diversion program which may be used to divert a veteran or person who is in active service in the armed forces, a person with a substance use disorder or a person with mental illness if such veteran or person is charged with an offense or offenses against the commonwealth.
Reasons for Issue
NWDA told us it believes the US Department of Veterans Affairs is better qualified and has better resources to address veterans’ needs for conditions such as post-traumatic stress disorder and substance use disorder, among others.
NWDA stated that it has not prepared written policies and procedures related to the Veteran Diversion Program because it has not formalized a veteran diversion program.
Regarding the one case that did not have documentation to support the outcome of the diversion program, NWDA stated that, in this case, the veteran’s defense attorney orally explained to the judge the treatment provided to the veteran and asked the judge to consider this oral report as evidence of success with diversion. According to NWDA, the judge decided to dismiss the case based on the defense attorney’s testimonial, and no motion was filed to document this decision. The case’s cover had a hand-written note stating that the case was dismissed, despite the case not having proof of completion of the treatment.
Recommendations
- NWDA should establish its own Veteran Diversion Program to comply with Section 34 of Chapter 12 of the General Laws, and NWDA should develop written policies and procedures to regulate this program.
- NWDA should ensure that it collects and retains sufficient supporting documentation related to veteran diversion cases.
Auditee’s Response
The NWDA does have an established process by which we divert veterans’ cases out of the standard criminal justice system.
As noted above, veteran diversion as contemplated by section 34 of chapter 12 of the General Laws is a pre-arraignment opportunity for a veteran/defendant to avoid the charged crime appearing on their criminal record if they comply with certain conditions. In the same year that the Legislature passed section 34, it also passed the BRAVE Act (St. 2018, c. 218). The BRAVE Act also provides pre-arraignment diversion opportunities for veterans charged with offenses in the District Court.
Since 2018, the NWDA has used the BRAVE Act to facilitate opportunities for veterans to have their cases diverted from the standard criminal adjudicatory process, including dismissal prior to arraignment. Specifically, if our office becomes aware prior to arraignment through the probation department (which is required to ascertain veteran status for all defendants who appear in court for an arraignment), or any other source, that the defendant is a veteran, we check the defendant’s record for BRAVE Act eligibility, and check if the offense is eligible for BRAVE Act diversion. If the defendant is eligible, we move to continue the arraignment so a BRAVE Act assessment can be completed. This assessment can be provided by either the Veteran Justice Outreach Officer from the VA or the veteran’s pre-existing health care provider. Part of this assessment will include a recommended treatment plan for the defendant to follow.
After obtaining an assessment, the case then returns to court so it can be formally continued under the BRAVE Act for the defendant to comply with the treatment recommendations. The length of time to accomplish this can depend on several factors (e.g. seriousness of the offense, scope of the recommended treatment), but it is not less than 90 days and usually not more than six months. Leading up to the next court date, if we receive verification that the defendant has been in compliance with the recommended treatment, we will move to dismiss the charges.
Our office also goes further than the BRAVE Act in assisting veterans. Specifically, at times our prosecutors become aware of a defendant’s veteran status after the arraignment has already occurred, including at a pre-trial hearing. In such situations, although they are not technically eligible for pre-arraignment BRAVE Act diversion, we will give the veteran/defendant the same opportunities that would have been afforded them had their veteran status been known prior to the arraignment (assessment by a treatment provider and a dismissal of the case if they comply with the resulting treatment recommendations).
Therefore, while we disagree that we have not established effective procedures to properly divert veterans from the standard criminal justice process, we view the Auditor’s report as an opportunity to review and formalize a veteran diversion program for our office.
The fifteen (15) veterans/defendants that were . . . diverted . . . were actually handled pursuant to the BRAVE Act procedures as outlined above. In all of those cases, our files had all appropriate and requested documentation. The only exception was one file that did not contain a document indicating compliance with the treatment program, which was through no fault of the NWDA as the case was dismissed by the Court over the Commonwealth’s objection.
Auditor’s Reply
In its response, the NWDA states “the NWDA does have an established process by which we divert veterans’ cases out of the standard criminal justice system.” However, NWDA was not able to provide this written process when we requested it.
NWDA does acknowledge in its response that one of the case files did not have documentation regarding the veteran’s completion of or dropout from the diversion program, but claim that this was due to no fault of its own. However, NWDA should include all documentation regarding the status of the diversion program, even if cases are dismissed. NWDA cannot ensure successful outcomes for veterans without complete and proper documentation.
| Date published: | December 30, 2024 |
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