Sentencing Alternatives For Military Veterans Under Penal Code § 1170.9

Since 1982, with the enactment of Penal Code § 1170.9, our state legislature has recognized the unique needs of military veterans in dealing amidst California’s sentencing guidelines. In 1982, our courts were witnessing Vietnam veterans struggling with psychological and chemical dependency problems that manifested themselves in everything from multiple DUI’s, domestic violence, substance abuse furthermore fighting in public.

Our jails and prisons came to the ending that our veterans would benefit more from treatment than incarceration to awe or at least manage their disabilities acquired during military service. Disciplinary Code § 1170.9, in 1982, was enacted.

Since that time, section 1170.9 has been amended troika times, the last time being in mid-2010. As it presently stands, 1170.9 allows a judge to order treatment, rather than jail alternative prison, when it finds that an eligible veteran suffers from:

1. Post-Traumatic Stress Disorder (PTSD);

2. Traumatic Brain Injury;

3. Military Sexual Trauma;

4. Substance Abuse; or

5. Any other mental health problem that is the result of having served in the military.

A master is eligible for sentencing under 1170.9 usually by simply presenting his DD-214 to prove service (combat action is no longer required), a valid medical diagnosis and be eligible for probation.

The term “usually” is used that the vast majority of discharges are honorable. When the veteran received a general, other-than-honorable either bad conduct discharge (BCD) by designated court martial, the veteran may still be eligible for 1170.9 sentencing. In such cases, the veteran must appeal through the VA regional workstation for an evaluation to waive the presumptive bar to benefits.

When one has a dishonorable discharge, it is strikingly difficult to receive a waiver of the bar because a dishonorable discharge is the result of a general court martial, not the less formalistic special invite martial. However, the veteran may still apply for the waiver through his VA regional office.

The disabilities listed superadjacent as conditions for alternative sentencing must be found at smallest ten percent service related.

The fundamental purpose like the program is to reduce recidivism because the types concerning disabilities, if untreated, bear the veteran more susceptible to re-offend. Post-traumatic stress disorder, for example, often worsens with time, especially if treated and if the veteran is incarcerated, a further stressful environment. Post-traumatic stress disorder can even become resistant to treatment. Infantry sexual trauma, which is “extraordinarily common and usually unreported” according to Associate Justice Eileen Comerford Moore, must also be treated to permit the veteran a smooth development back into citizen life.

It merits mention that the 1170.9 program is completely separate from “Veteran’s Court,” which not all counties have. The 1170.9 preference is available in all courts, provided one can find a treatment catalogue that a mediator will approve for the veteran’s treatment. Sometimes, there is a local Veteran’s Administration that has such a program available also most likely, velleity be quite cooperative in providing documentation about available programs that one’s lawyer can then show the prosecutor and judge to make the 1170.9 referral easier.

This article was written near to Greg Hill, a combat veteran himself. Mr. Hill, as a Captain in the Marine Corps, flew 35 combat missions in Operation Desert Storm in 1991. As a lawyer, he has defended many veterans with compassion throughout Los Angeles, Orange, Riverside, San Bernardino and Ventura County. He is also a member of the admissions board for the U.S. Naval Academy, his alma mater.