What Happens When Military Veterans Commit Criminal Offenses?

An Army National Guard veteran who served in Iraq shot dozens of people at a Florida airport, highlighting the particularized needs of military veterans when they run afoul of the criminal justice system.

26-year-old Esteban Santiago received a general discharge from the ANG shortly after his tour of duty in Iraq. According to friends and relatives, he was detached and still appeared shaken by the deaths of two comrades killed in a roadside bomb blast. He later began hearing voices and became convinced that the FBI had forcibly shown him ISIS videos. Authorities went so far as to temporarily seize Mr. Santiago’s firearms, but later returned them after determining he wasn’t a threat to public safety.

University of Pittsburgh psychologist Edward Mulvey, an expert in this field, pointed out that mentally-disturbed veterans almost never commit violent crimes.

California’s Military Diversion Program

Proposition 47 greatly relieved prison overcrowding, because under this provision, almost 5,000 inmates were released and re-sentenced to supervised release. However, Prop 47 may have only shifted the problem, because the probation/parole population is now at its highest level in seven years. To relieve overburdened probation caseworkers in an environment of near-perpetual budget cuts, prosecutors are more willing than ever to consider sentencing alternatives, like the Military Diversion Program.

Senate Bill 1227 amended Penal Code 1001.80 in 2014, adding the MDP to the ones already in place. Largely because it is a win-win for both defendants and prosecutors, the program is more and more popular, especially in San Diego County and other areas of California with large military populations. Defendants who successfully complete the program do not have criminal convictions, and prosecutors do not have to prove that defendants had the required mental state at the time, a showing which is not always easy if the defendant had any mental or emotional issues. The minimum qualifications are:

• Current or Former Servicemember: The law does not specify overseas or stateside deployment, active or inactive combat zone, service branch, dates of service, or anything else, so at least theoretically, any veteran who served in any capacity at any time is eligible for the MDP. The only catch is that the mental or emotional handicap must be related to the defendant’s military service.
• Misdemeanor: Similarly, any misdemeanor qualifies, even assault and DUI. Furthermore, there are hundreds of “wobblers” in California which can be charged as either misdemeanors or felonies, including many sexual and violent crimes, so a successful motion to reduce the charges expands the list of eligible offenses even further.
• Documented Mental or Emotional Handicap: The standard of proof is very low (“may be suffering”) and the list of eligible conditions is very broad and somewhat vague (“sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems”).
• Defendant’s Consent: This requirement is purely technical, as the defendants must waive their constitutional speedy trial rights to be eligible for almost any diversion program.

The MDP is a one-time-only affair. Most other pretrial diversion programs, whether they are sponsored by the state or the county, work the same way. Eligibility for these other programs varies greatly, but in most cases, they are only available to first-time, non-violent offenders.

As part of the program, judges often refer defendants to the county mental health services division, where they usually attend group therapy sessions and participate in other non-medical interventions. If the defendant “is performing unsatisfactorily,” which probably means skipping appointments or an otherwise recurrent and blatant refusal to comply, the judge the judge can pull the defendant out of the MDP following a hearing. On the other hand, if the defendant “has performed satisfactorily,” which is not the same thing as performing perfectly, the charges are dismissed.

Military diversions under S.B. 1227 last a maximum two years. Afterwards, assuming successful completion, the defendant has an arrest record but no conviction record. Depending on the type of offense, expungement may be an option to erase the arrest record for all purposes. Sometimes, formal expungement is not an option, for whatever reason. Bear in mind that many people only want to know about criminal convictions, and do not much care about arrests. If the arrest record does create a concern, such concerns are easily dissipated by saying something akin to “Yes I was arrested, but then I hired a lawyer and the lawyer took care of it.” Furthermore, MDP arrest records work a bit differently, as in most cases, only police and court personnel have access to the information.

Servicemembers enjoy additional protections in California’s criminal justice system. For an initial consultation with an experienced criminal defense attorney in San Diego, contact the Law Office of Vikas Bajaj, APC. Our professional team routinely handles servicemembers’ criminal cases.