Wednesday, February 11, 2009

Vets can benefit from a little-known sentencing law

Herbert A. Sample writes in California Lawyer:

Vets can benefit from a little-known sentencing law

"Sean Nesmith could have found himself in jail for as long as five years after he robbed an Ocean Beach bank in 2006 using nothing more than a note demanding money.

Instead, a judge sent the 23-year-old ex-Marine to treatment for a severe case of depression and post-traumatic stress disorder (PTSD). The order resulted from a little-noticed state law, penal code section 1170.9. It lets judges, under certain circumstances, sentence combat veterans suffering from PTSD to psychiatric help instead of jail time for their crimes.

As service members return from duty in the Middle East, many expect the law to be used more frequently in the future. "We're seeing the sprinklings of a big storm ahead," says James E. Faulder, a deputy public defender in San Diego. "And we're trying to brace for it and get our avenues set up [to defend veterans]. And 1170.9 is going to be one of them."

In addition to combat vets with PTSD, the law applies to those suffering from substance abuse or unspecified psychological ailments. If service people afflicted with those conditions have been convicted of a criminal offense that generally would lead to a stint in county jail or state prison--and they are eligible for probation--judges have the option of sending them to a treatment facility instead of prison. Outpatient programs also are a possibility.

It is unclear how often the law has been used since it took effect in January 2007. Spokespeople for the San Francisco and Los Angeles county public defenders offices say few attorneys appear to know about the statute.

Even in San Diego County, home to a large military contingent, the law had been used only twice as of June, according to deputy PD Faulder, who handled both cases. Still, Faulder heralds the statute as a vast improvement over a 1980s-era law that made treatment instead of prison available only to convicted Vietnam War vets, and which proved unworkable. The new law covers all combat veterans, including those who served in Iraq and Afghanistan.

Some of them may well come to need it. Nearly 40,000 of those soldiers have been diagnosed with PTSD since 2003, the Army reported in May, noting that many more with the condition have not sought help.

Part of the reason is, "[W]e keep sending the same people back for third, fourth, and fifth tours," says Pete Conaty, a Vietnam vet and Sacramento lobbyist who pushed for the 2006 legislation. "If we can keep people who served their country and who need some psychological care out of jail, I think it serves all of us."

Still, some people need convincing that sending a vet to treatment--rather than jail--is not being soft on crime. Making the judge and the DA comfortable with that notion "is part of our task," says Faulder."

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