In 1974, Massachusetts enacted a pretrial diversion statute that permits the District Court to divert certain first-time criminal defendants to a program if they would benefit from participation. These programs include vocational training, substance use disorder treatment, medical and psychological services, halfway houses, and other community supervision and services programs. As originally enacted, the diversion statute limited eligible defendants to young adult defendants (those between the ages of 18 and 22), subject to certain charge-based exceptions.
To assist the influx of Massachusetts veterans transitioning to civilian life after service in the military during two lengthy campaigns in Iraq and Afghanistan, the Massachusetts Legislature in 2012 enacted the VALOR Act, St. 2012, c. 108, which amended the pretrial diversion statute.
Specifically, the VALOR Act added M.G.L. c. 276A, § 10, which broadly defines eligible military defendants, including any who have “a history of military service” “regardless of any age.” Under the VALOR Act, veterans who have not “previously been convicted of a violation of any law” and who do not “have any outstanding warrants, continuances, appeals or criminal cases pending…” qualified for diversion.
The VALOR Act also added M.G.L. c. 276A, § 11, which provided a process through which courts may, at their discretion, afford veterans a continuance to determine if the veteran would benefit from a diversion program and, ultimately, dismissal of the case upon successful completion of the program. The statute requires input from treatment professionals to assist the court with evaluating the benefits of diversion programs for those veterans suffering from mental illness.
In particular, the VALOR Act aimed to provide a second chance for veterans suffering from substance abuse, often brought on in the wake of mental illness such as PTSD, depression, and other conditions commonly correlated with combat. Scientific studies have confirmed increased substance use disorders and major depression across the military services associated with combat conditions, thereby justifying the Legislature’s intended diversion of veterans charged with first time offenses, including substance-related offenses such as operating under the influence (“OUI”).
However, as of April 13, 2018, the Massachusetts Legislature jeopardized the ability of veterans to enter into pretrial diversion for first offense violations under the law by enacting the 2018 Criminal Justice Reform Bill.
The 2018 revisions to M.G.L. c. 276A eliminate the age restriction for diversion eligibility. See M.G.L. c. 276A, § 2, as amended. They also exclude otherwise eligible defendants who are charged with a litany specific crimes. See M.G.L. c. 276A, § 4, as amended. These specific crimes now include common substance use-related crimes, most notably, first offense OUI.
Under current law, it is unclear whether veterans otherwise eligible for diversion under the VALOR Act who are charged with first-offense OUI are still eligible for diversion. Veteran advocates fear that Courts may hold that they are ineligible, relying on the SJC decision in Commonwealth v. Morgan, 476 Mass. 768, 778 (2017). Ironically, in Morgan, the Court held that VALOR diversion for an OUI offense was permitted under a comprehensive reading of the prior version of Chapter 276A, including the VALOR Act, and in reliance on the legislative history thereof, which is replete with references to the intention of supporting veterans suffering from substance abuse and related disorders.
However, since passage of the 2018 Criminal Justice Reform Bill, practitioners and veteran advocates fear that Courts may now take the position that first time veteran defendants charged with OUI committed after April 13, 2018 are no longer eligible for VALOR Act diversion.
Legislators should act quickly to clarify the statute, such as by including a proviso in M.G.L. c. 276A, § 4 stating that OUI and any other first-time offenses related to substance abuse rendering defendants ineligible for diversion under the revised law do not, in the case of a veteran defendant otherwise eligible for diversion under the VALOR Act, render that defendant ineligible.
Alternatively, the Legislature could bifurcate M.G.L. c. 276A into two sections, such that Chapter 276A stands as is (sans the VALOR Act, §§10 and 11), and the VALOR Act is relocated to a new veteran-focused Chapter 276C with broader eligibility provisions than those now restricting OUI eligibility in the new M.G.L. c. 276A, § 4.
Either of these proposals would in large part restore the previous state of the law with respect to veterans, accomplishing the original legislative intent underlying the VALOR Act’s broad eligibility provisions for qualifying veterans. Veterans accused of substance-related offenses, including first-time OUI offenses, should be eligible for diversion and a treatment opportunity. In a perfect world, these legislative changes would be retroactive to April 13, 2018 to avoid any veterans being lost in the gap.
UPDATE: MassLive’s Shira Schoenberg provides additional coverage of this issue, featuring a quotation Attorney Michael G. McDonough of Egan, Flanagan, and Cohen
ABOUT THE AUTHORS:
Attorney Michael G. McDonough, Esq. (mgm@efclaw.com) is one of many talented trial lawyers at Egan, Flanagan and Cohen He began his litigation career an officer in the U.S. Army JAG Corps and continues to serve in the U.S. Army Reserve.
Attorney Katie Manzi McDonough, Esq. (kmm@efclaw.com) practices estate planning and probate, corporate, and non-profit law. A military spouse herself, she has long served the veteran community through legal services, volunteer work, and issue advocacy.
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