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Op-Ed: Fierce Urgency of Getting Veterans’ Diversion Right in New Jersey

We owe it to our veterans to get this right. Hopefully our legislators are listening

Matthew S. Adams
Matthew S. Adams

There is a debate going on in Trenton right now about the establishment of a veterans’ diversionary program, through which certain veterans can avoid the risk of criminal conviction by choosing an alternative, rehabilitative path to jail, the loss of employability, and, too frequently, such horrors as homelessness and the devastating consequences of substance abuse and suicide.

Proven effective, veterans’ diversion programs have taken hold throughout the country, with nearly 40 states already having adopted a form of veterans’ diversion ranging from specialized veterans’ courts, to intensive veteran supervision programs operating wholly outside the courts, exclusively through the exercise of prosecutorial discretion.

There are two bills that have flown through committee in both houses of the Legislature at lightning speed, seemingly headed for the governor’s desk, which do little, if anything, to address one of New Jersey’s, and, indeed, the nation’s most critical social issues. Senate Bill S-307, and its nearly identical counterpart, Assembly Bill A-4362, are honest attempts at addressing the problem facing our veterans. However, the voices of the criminal defense lawyers and the prosecutors on the front lines of this criminal justice emergency are being seemingly drowned out in the name of political expediency.

There is a fierce urgency to get an effective veterans’ diversion program in place in New Jersey — nobody challenges that notion — but S-307 and A-4362 simply miss the mark. They are too narrowly drawn, bloated with bureaucracy, and stand to provide an empty shell of a program that few, if any veterans will be able or willing to enter. There is a better alternative for veterans’ diversion than the proposed legislation, and the core legal framework for entry into that better program is already on the books.

There are several reasons why the pending bills from the Legislature are inadequate. Initially, the definitions setting forth the scope and application of the bills are overly narrow, both in terms of the type of service-members eligible for diversion, and the types of offenses for which diversion is an option. Furthermore, the bills create new bureaucracies that will likely impede the efficiency and efficacy of the contemplated program, rather than build upon and make more available the existing, well-funded, and specialized resources that are already in place to serve the veteran community. The bills also clumsily establish how veterans are even flagged or can self-identify for inclusion in the program, setting forth mental health criteria that all but ignore what we have come to learn about the silent horrors of PTSD and the other conditions facing our veteran community through intensive study, including at least two blue-ribbon panels in New Jersey since Vietnam.

In sum, the critical rehabilitative goals that all involved recognize need to be addressed will rarely, if ever, be realized by veterans as the bills are presently constituted. That message has been made clear to lawmakers through the committee testimony of both the defense bar and county prosecutors.

The solution to the shortcomings of the proposed legislation is to build veterans’ diversion into the existing framework for Pretrial Intervention (PTI). Under this proposed alternative, the factually intensive PTI analysis that is already codified by statute would serve as the gatekeeper to a veteran’s access. The exhaustive criteria already used throughout the state in determining a defendant’s eligibility for PTI would serve as the perfect set of benchmarks for assessing whether or not the particular veteran in question should be considered for diversion because they assess not only the nature of the alleged offense, but also the particularized circumstances of the defendant and any victim. Coupled with existing prosecutorial expertise in the area of diversion and judicial oversight, this would ensure fairness, eliminate arbitrariness, and dramatically enhance access to rehabilitative services. Once a veteran defendant meets the qualification hurdle, he or she would then be routed to the appropriate services through existing resources like the federal Veterans Affairs with the level of oversight necessary to ensure a meaningful and specifically tailored rehabilitative process.

The men and women of our military have, throughout history, sacrificed so much for our country. Their service warrants a veterans’ diversionary program in New Jersey that is fitting of the state’s reputation for fairness and equal justice under law. There is little sense in hastily embarking upon a veterans’ diversionary program in New Jersey that does not achieve the public-policy objectives that it is supposed to advance. And what more basic component to those objectives is there than access by the program’s intended beneficiaries? We owe it to our veterans to get this right. Hopefully our legislators are listening.

Matthew S. Adams is a partner and member of the litigation department of Fox Rothschild LLP. His practice focuses on white-collar criminal and regulatory defense, as well as complex commercial litigation.

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