First enacted in 1982 in response to studies which demonstrated the association between psychological war wounds and criminal behavior, California Penal Code 1170.9, revised in 1984, 2006, 2010 and 2012, directs that courts consider treatment rather than incarceration when sentencing a defendant who serves or has served in the military. A number of prerequisites must also be satisfied: The veteran must be diagnosed with a mental disorder and the disorder must be connected to military service and related to the defendant’s criminal conduct. The veteran must plead guilty or be found guilty, be eligible for probation, and appropriate treatment must be available.
Veterans who commit very serious crimes are precluded from probation consideration under current law and are ineligible for relief. Veterans who are legally eligible for such relief, must still be determined by a trial judge to be suitable for probation in order to obtain it in lieu of incarceration as part of their sentence. This determination by the sentencing judge is a right and a hearing must be granted if the veteran requests the determination. However, there is no right to get treatment in lieu of incarceration. That is solely determined by the sentencing judge even if it is determined that the veteran is eligible for it.
Some monitoring is provided by veterans treatment court judges using PC §1170.9. For veterans treatment courts operating under California Penal Code 1170.9, veteran-defendants must, as previously noted, enter a guilty plea and be sentenced in order to be referred to treatment as a condition of their probation. Compliance is monitored by a judge who can punish the defendant for non-compliance and re-impose custody time for treatment failure. Veterans treatment court judges generally add more requirements such as more frequent court appearances, multiple treatment modalities/reporting, support meetings, and working with a mentor in addition to statutory court requirements. Some counties also have special calendars for lower level veteran offenders where no guilty plea is required or prosecution is deferred pending outcome of treatment. These programs generally are only available to a particular geographic area and eligibility criteria are usually at the discretion of the prosecutor.
Most judges currently monitor the offender for 12-18 months; some have longer monitoring periods. Monitoring usually requires treatment provider reports to the court and regular court appearances in addition to statutory requirements assigned to individual crimes (i.e. drunk driving school, domestic violence counseling or compliance with protective orders).
Research shows that these psychological conditions are treatable and that evidence-based treatments can be effective in helping these veterans and their families learn to manage their symptoms and return to full law-abiding, productive lives after their military service. PC §1170.9 encourages treatment as early as possible to make communities safe and restore veterans to health.