War Injuries and the Law

Posted By Bill Nimmo & Raymond Gomez, Attorneys at Law || 20-Nov-2015

It is a cold fact that up to a third of the men and women in our nation’s prisons are veterans. It is also a cold fact that California leads the nation in recidivism, men and women caught up in the revolving door of incarceration. Our prisons have become little more that graduate programs in crime and this is unacceptable. However, with regard to combat veterans who are caught up in the criminal justice system, there is a new tool: Penal Code Section 1170.9.

PTSD and the Criminal Justice System

No one doubts that combat veterans serving in Iraq and Afghanistan, touched by the horrors of war and returning home, are forever changed. Some will cope, but a large percentage are suffering from post-traumatic stress disorder, or related psychological problems. In addition, there are still thousands of Vietnam and Desert Storm veterans who are struggling with combat-related issues. Regrettably, many of them are, and will, come into contact with law enforcement. Our society put them in harm’s way, and it shares responsibility for their damage in our service. Parades, flag-waving and patriotic slogans are great, but we owe them far more than that. They have earned a level of consideration that is commensurate with their sacrifice. This is not giving special treatment; it is recognizing how special their service has been.

Alternative Sentencing for Veterans in California

Penal Code Section 1170.9, signed into law in 2007, recognizes that sacrifice and accepts that responsibility. It is the first, but not the only, Alternative Sentencing Program in the nation for War on Terror Veterans suffering from post traumatic stress disorder (PTSD). Depending on the nature of the offense, and wherever possible, Penal Code Section 1170.9 gives judges the discretion to apply what some refer to as “problem-solving justice” in framing remedies. Punishment where appropriate, but not for punishment’s sake, and avoid unnecessary harm if possible.

About California Penal Code Section 1170.9

This section is still so new that very few defense attorneys, prosecutors, and judges are aware of its existence. In essence, the Section provides that once a combat veteran is convicted, and is otherwise eligible for probation, and certain requirements are met, the judge has an option other than sentencing the combat veteran to prison or jail. Once a clear connection is established between the offense and a diagnosis of post-traumatic stress disorder, substance abuse, or psychological problems stemming from service in a combat theater in the United States military, the judge may order the defendant into a local, state, federal, or private nonprofit treatment program. Of course, the veteran has to agree to this alternative. If the veteran successfully completes the program, the court may dismiss the charges. Having an experiencedcriminalattorney is the only way to ensure a fighting chance of keeping the freedoms a veteran has fought for.

In California, there are a many such private programs, as well as some that exist within the Veterans Administration and Counties. Some the better known ones are Veterans Village in San Diego (which already has a court referred defendant), U.S. Vets in Long Beach, New Directions in Los Angeles, and Swords to Plowshares in the Bay Area. These are residential facilities that deal with the victims of post traumatic stress injuries are a vital asset for the courts and for the recovery of our veterans to a productive life. Prison is no remedy.

Currently the debate regarding this code section centers on the nature of offenses that will be considered for alternative sentencing. Although the only requirement concerning the offense is that the defendant be eligible for probation, there may be some offenses that will not be considered by District Attorneys or Judges. Violent felonies, for one, are difficult choices. The bottom line is that the judge will have the discretion to determine, on a case by case basis, which offenses to accept.

Veterans' Courts in California

Education is the key to any new approach. Our entire criminal justice system needs to recognize and understand this new code section and accept that we share a significant responsibility for the welfare of our combat veterans. Already, there are some jurisdictions, such as Orange County, that recognize this need and are developing new approaches, such as a Veterans’ Courts to address the growing problem. A stand-alone Veterans’ Court, like Drug Courts, is presently being proposed by the United States Senate and other states are doing so as well. Clearly, this is an issue which grows with importance with every year this nation is at war, and for the generations that will follow.

Clearly this dialogue cannot begin too soon. The clock is ticking, and every day another combat veteran is overwhelmed by the damage he or she has suffered in our service. The dialogue between all elements of the criminal justice system and veterans’ services should begin immediately, and it is incumbent upon members of law enforcement, prosecutors, defense attorneys, the judiciary and probation departments to make an aggressive beginning. Does anyone doubt that we owe our combat veterans anything less?