Challenges of Diverting Veterans to Trauma Informed Care

1. Identification of Returning Service Members and Veterans

Because Intercept 2 includes initial detention and first appearance (also called magistrate court in some jurisdictions), this means that identification of candidates for diversion often occurs at the county jail. The county for the pilot was chosen in part because of an already existing infrastructure for diversion and had the benefit of having one central jail at which bookings occur. The county jail did not have a question at booking to identify veterans and has not yet added one despite requests to do so from multiple stakeholders. This eliminated the most effective and efficient method of identifying those who had served in the U.S. military among the few hundred people booked each day. This necessitated alternative methods to identify veterans, such as announcing prior to the start of the daily first appearance court information about the project and asking people to indicate if they had ever served in the U.S. armed forces. The lack of a veteran identifier at booking also means that people who bond out prior to first appearance court cannot be identified in booking data as having served in the military, eliminating another opportunity for diversion. There is a kiosk accessible to people held in the jail on which they can look up information, such as court docket dates, and on which contact information for the SAMHSA JDTR project was included. The idea was that veterans could call the toll free number provided and self-identify. However, this has not led to the identification of a meaningful number of veterans. Project staff may have discussions with public defender staff, who can identify people on their case loads who are veterans. This method often means that a case has progressed to Intercept 3 (dispositional court) by the time the public defender has time to have a discussion of any length with a defendant (given the space and time demands of first appearance court).

A full discussion of the definition of an eligible veteran, and the policy and practice implications of the definition, is beyond the scope of this article. However, any program that is designed to address the needs of veterans must understand these issues and have agreement from all stakeholders on how the definition will be applied. In the broadest sense, a veteran is anyone who served in the U.S. armed forces for any period of time. But what about someone who went through basic training but then was in the military for a short time? What about people who were in the reserves? And does it matter for people in the reserves if they had active duty? What about people who served in the military but who had bad conduct or dishonorable discharges? Does the reason for the bad conduct/discharge matter, such as aggressive behavior that may have been due to the effects of trauma? Will there be a focus only on people eligible for VA benefits? If so, which VA benefits: Pension, VA-funded health care? How important is eligibility for the VA’s housing programs (such as Housing and Urban Development-Veterans Affairs Supported Housing [HUD-VASH] and Grants Per Diem programs), which have different eligibility rules from those for health care, which also vary from eligibility rule for pensions? How will this information be verified? Will people be given assistance to try to get a change in status, such as discharge status, change in percent service connected disability, which is then related to eligibility? For programs that involve veterans in program planning and service delivery, it is also important to consider their feelings as they often have strong opinions about who should be considered a veteran. These issues are complicated, require collaboration with VA and/or state veterans authority staff, and may be time consuming to resolve. The timing and logistics required to divert people at Intercept 2 mean that a clear definition needs to be established and understood, and there needs to be the resources to gather information to determine if people meet that definition. Can diversion take place while this is being explored, or must diversion wait for verification?

Asking the question “Have you ever served in the U.S. military?” at booking, jail classification (if the person stays long enough for classification), and by the public defender at first appearance court and throughout the process casts the widest net to identify veterans. Collecting this information early in the process (booking) allows veterans to be approached for diversion early. Asking throughout the process encourages those who were reticent to respond “yes” to do so when they feel comfortable doing that. Some veterans may be hesitant to respond given that VA disability compensation and/or VA disability pensions may be reduced or discontinued while incarcerated, especially if the incarceration is for more than 60 days (Department of Veterans Affairs, Compensation and Pension Service, 2008). The extent to which justice-involved veterans and those working with them are aware of this issue and the impact this has had on decision making is in need of study.

2. Knowledge Needs of Stakeholders Involved in the Diversion Process

3. Sanctions in Relation to what the Diversion Requires

Diversion at Intercept 2 means that people with every kind of case may be included. This includes people with minor charges that, at least in the jurisdiction of the first Florida SAMHSA JDTR pilot, can be disposed of at first appearance court. This means that people with certain types of charges (such as trespass and open container) often never make it to Intercept 3; therefore, figuring out how to approach people with these types of charges for diversions at Intercept 2 is especially important. As discussed previously, people with these types of charges may be the very types of people who could benefit from diversion and the services provided by initiatives such as the SAMHSA JDTR, such as persons who are homeless, with co-occurring disorders and trauma, and who may have multiple misdemeanor-level arrests. However, the sanctions in these situations may be quite minor (time served or a few days in jail) in relation to the length of engagement and activities required to be part of the diversion, such that people may not want to agree to the diversion. Plus, this scenario raises the question about whether someone was truly diverted, which leads us to the fourth challenge.

4. Definition of Diversion

“Jail diversion is not as simple a concept as it first appears, and as a result, it can be misinterpreted or misconstrued as crisis services or transitional planning” (CMHS National GAINS Center, 2007, p. 9). The GAINS Center review of lessons learned from 10 years of diversion points out that “jail diversion is the avoidance or radical reduction in jail time achieved by linkage to community based services” (p. 9). For people with relatively minor charges, for which the sanctions may be a short jail sentence, it is unclear the extent to which identifying them for a diversion and engaging them in the program is really all that much of a diversion. If a person who normally would have spent 5 days in jail is released and does not serve those 5 days because of a diversion, then that is avoidance of jail time, and therefore could be considered a diversion. If the person would have been released in 5 days regardless of the “diversion” (but that release is construed by the stakeholders involved as being part of a diversion), then is this really a diversion? Stakeholders involved should be clear with the person being diverted about the pros and cons of diversion, including the criminal justice implications. In this respect, Challenge 2 (knowledge needs of stakeholders involved in the diversion process) is especially important. If people are agreeing to a diversion that will involve being engaged with a behavioral health intervention for 6 months to a year but without the diversion could have had their case disposed of with a 5-day jail sentence, they need to know that and have the guidance to make an informed decision. This issue of informed choice is important also because of its relationship to procedural justice and coercion and the impact of these constructs on various outcomes (see Poythress, Petrila, McGaha, & Boothroyd, 2002), as well as the need to address three core concepts of trauma informed care: “safety, voice, and choice” (National Association of State Mental Health Program Directors, 2011).

This leads to a larger policy question about whether individuals with these types of cases should be diverted, using SAMHSA project funds or BJA funds? Does it matter to policy makers and clinicians if the focus is on this type of scenario? Is this the best use of limited resources? Diversion of a person with minor charges may avoid future justice system involvement and thus benefit from diversion by avoiding longer jail or prison stays. Or is length of jail/prison time avoided to be considered when deciding how to approach diversion at Intercept 2? To whom does it matter and why?

Another scenario is someone whom the first appearance court judge releases on his or her own recognizance (no bond), but with the case to continue to dispositional court (and another judge’s docket, at Intercept 3). Should diversion programs engage the person, at least preliminarily, until the dispositional court hearing, where a decision about whether or not to divert from a jail/prison sentence can be made? Or should people only be approached for diversion once they reach dispositional court, that is, at Intercept 3 and not Intercept 2, when the extent to which diversion will be pursued and the nature of the diversion is clearer? It is possible that there are benefits to engaging someone early in the process, such as Intercept 2, but then is that ok to do in a diversion program if the dispositional court judge opts not to divert? Is the person then out of the diversion program? To a certain extent this challenge is related to timing and logistics issues, although timing and logistics are important to consider generally as they relate to other issues.

5. Timing and Logistics

Events occur quickly at Intercept 2. People are booked into jail and have their first appearance court within about a day. First appearance court often involves having hundreds of people in a room, sometimes brought in waves because there is not space for everyone. In the jurisdiction for the Florida SAMHSA JDTR pilot, as with many others across the country, court is held via video, with the judge at the courthouse and the defendants at the jail. There are one or two public defenders for many people, there is little to no room to talk to someone in a private setting, and the need to keep cases moving means that there is very little time to engage individuals. In a system where the jail identifies veterans at booking and allows researchers and clinicians involved in diversion projects to go into the jail housing units, people flagged on the docket as veterans could then be screened in a private room on the jail housing units. This approach was followed for a mental health court evaluation (Christy, Boothroyd, Petrila, & Poythress, 2003). But this is not possible if veterans are not identified on the docket or if the jail does not allow such access on the facility housing units. It is often not possible to verify veteran status quickly enough to formally enroll veterans for at least the few days until this can be verified. Unless the provider has another program that the person can be engaged in that does not require a person to be a veteran, judges and state attorneys may be reticent to agree to a diversion that is provisional on verifying veterans’ status.

6. How to Screen for Trauma in a Sensitive Way

Screening for trauma at Intercept 2 is a challenge. It needs to be done in a way that is sensitive to the “physical and psychological safety” of those screened (National Association of State Mental Health Program Directors, 2011, p. 3). This is especially true when talking to people close in time to first appearance court, but is also true at other court hearings. The location of the space where the screening can take place may not be private and the person may already be in a heightened emotional state after having recently been arrested (first appearance court, Intercept 2) or because of the nature of a dispositional hearing (Intercept 3). There may not be time to engage the person in a discussion about his or her trauma and needs that may arise if he or she becomes upset talking about trauma. Therefore, the screening to determine if someone meets requirements for diversion should be brief and not include pursuit of details about the trauma beyond what is absolutely necessary. Screening for trauma is usually a two-part process. First, it is determined whether the person has experienced any traumatic events. Then, the person is asked if he or she has had any problems related to those events. For the Florida JDTR project, it was decided to screen in the broadest sense for trauma-related disorders, and then a more in-depth clinical interview was used to determine diagnoses after diversion. The National Center on PTSD (www.ptsd.va.gov) is an invaluable resource for researchers and providers on screening instruments for veterans and civilians. Those screening for trauma should have a plan developed a priori for what to do if someone becomes upset during the screening process to address the person’s mental health needs and in whatever setting that screening takes place (e.g., courthouse, jail).