Diversion Programs for Veterans

In recent years, the courts and legislature have recognized that military veterans who come before the criminal courts need our help. Many of those who have given so much of themselves in the defense of our country have experienced mental health and substance abuse issues. In many cases, it is these issues which have led veterans to be on the wrong side of the law. As a result, programs such as Veterans Treatment Courts and different diversion programs such as the Valor Act and Brave Act have been established.

Are you a veteran in Massachusetts charged with an offense carrying potential imprisonment? You may be eligible for a court-ordered diversion program which could result in the dismissal of your case. There are currently two diversion programs specifically for veterans:

The Valor Act

Are you eligible for the Valor Act?

You must meet all the following requirements to be considered for the Valor Act:

Previous or current “history of military service” in the armed forces of the United States (includes service in the National Guard);
Have no prior adult convictions (after age 18), in the state of Massachusetts or elsewhere;
Have no open criminal cases, warrants, or appeals;
Charged in a District Court or the Boston Municipal Court; and
One of the offenses you are charged with carries potential imprisonment, if found guilty.

How does the Valor Act work?

If you meet all the requirements for the Valor Act, you should notify the Probation Department when you first get to court on the day of your arraignment
The Probation department will confirm your military service through the Department of Veteran’s Affairs (VA) and notify the Court
You may seek a 14-day continuance of your arraignment
During this continuance you need to seek an assessment by the VA, Veteran’s Services or other suitable state or federal agency;
Assessment is to provide the court with treatment options, including diversion if appropriate
The Probation Department will assist you in setting up this assessment
If you suffer from mental health symptoms, a psychiatrist, clinical psychologist or physician must provide a written report to assist the court with “sentencing or diversion”
Once the assessment is performed the Court will review the proposed treatment plan and recommendations
The Court may stay or continue the case for an additional 90 days for you to comply with treatment
Upon your return to court, if you demonstrate compliance (written progress report), the judge may dismiss your case or order another 90-day continuance to complete the program
Upon successful completion of the program, the judge may dismiss your case
If the judge finds that you have failed to comply with the rules of the program or you are charged with a new crime, you may be expelled from diversion and the original charges can be prosecuted by the Commonwealth

It is important to note that everything in the Valor Act is a “may,” meaning that the judge has discretion throughout this process. Nothing in the Act requires the judge to grant a continuance, accept the treatment or diversion recommendations, or ultimately dismiss the case.

In the event you are not successful in diversion and your case continues to be prosecuted, nothing you have said or done in seeking diversion nor in your assessments or treatment can be used against you in the prosecution of the charges.

Further, the law is clear that this program only applies to the District Court case. If the District Attorney chooses to indict you on one or more of the charges, that case can proceed in the Superior Court even if you received diversion on the same charges in the District Court.

On April 13, 2018, the legislature of the Commonwealth of Massachusetts passed a major Criminal Reform Act. While many of the provisions of this act were a positive step towards treatment over punishment, not all was positive. In particular, the Criminal Reform Act eliminated several offenses from consideration for diversion programs like the Valor Act. Notably among the offenses that were eliminated were drunk driving (OUI/DUI) offenses and assault and battery. Fortunately, on November 7, 2018, a law known as the Brave Act was enacted which corrected this in part. See below for more information on the Brave Act and how it may help you.

The Brave Act

The Brave Act brought many benefits to military veterans, including some tax breaks, veteran’s programs and several studies designed to benefit veterans. The Brave Act also added a separate diversion program to benefit military veterans or active service members who have been charged with a first offense for operating a motor vehicle under the influence of alcohol or drugs.

Requirements to be eligible for the Brave Act:

You must be a veteran or person on active service with the armed forces of the United States;
Charged in a District Court or the Boston Municipal Court;
Have no prior adult convictions (after age 18), in the state of Massachusetts or elsewhere;
Have no open criminal cases, warrants, or appeals;
Charged with a first offense for operating a motor vehicle under the influence of alcohol or drugs (OUI / DUI), without having ever been charged or arrested in Massachusetts or any other jurisdiction for a like offense; and
You must have been clinically diagnosed with a traumatic brain injury, substance abuse disorder or serious mental illness; and
Said diagnosis is connected to your military service or active duty

How does the Brave Act work?

If you meet all the requirements for the Brave Act, you should notify the Probation Department when you first get to court on the day of your arraignment
The Probation department will confirm your military service through the Department of Veteran’s Affairs (VA) and notify the Court
You may seek a 14-day continuance of your arraignment
During this continuance you need to seek an assessment by the VA, Veteran’s Services or other suitable state or federal agency
Assessment is to determine whether you would benefit from such a diversion program
The Probation Department will assist you in setting up this assessment
Once the assessment is performed the Court will review the proposed treatment plan and recommendations
The Court may stay or continue the case for an additional 90 days for you to comply with treatment
Upon your return to court, if you demonstrate compliance (written progress report), the judge may dismiss your case or order another 90-day continuance to complete the program
Upon successful completion of the program, the judge may dismiss your case
If the judge finds that you have failed to comply with the rules of the program or you are charged with a new crime, you may be expelled from diversion and the original charges can be prosecuted by the Commonwealth

Like the Valor Act, the provisions of the Brave Act are not mandatory. The judge has discretion throughout this process. Nothing in the Act requires the judge to grant a continuance, accept the treatment or diversion recommendations, or ultimately dismiss the case.