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 with 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 and fighting in public.

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

Since that time, section 1170.9 has been amended three times, the last time being in mid-2010. As it presently stands, 1170.9 allows a judge to order treatment, rather than jail or 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 veteran 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 because the vast majority of discharges are honorable. When the veteran received a general, other-than-honorable or bad conduct discharge (BCD) by special court martial, the veteran may still be eligible for 1170.9 sentencing. In such cases, the veteran must apply through the VA regional office for an evaluation to waive the presumptive bar to benefits.

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

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

The fundamental purpose of the program is to reduce recidivism because the types of disabilities, if untreated, make 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. Military 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 transition back into civilian life.

This article was written by 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.

Greg is an attorney in Torrance, California. He is a U.S. Naval Academy graduate (B.S., 1987), Boston University graduate (M.B.A., 1994) and Loyola Law School graduate (J.D., 1998). Greg Hill & Associates represents clients in Torrance, Long Beach and the surrounding areas in DUI, as well as domestic violence, juvenile offenses, drug offenses and restraining orders, among other crimes.