Military service counts more and more for veterans accused of crimes

Veterans increasingly find service helps in court

SAN FRANCISCO — The plea was passionate, dramatic and effective: haunted to addiction by memories of a Bosnian mass grave and the shooting of a teen in Honduras, former U.S. Army Capt. Sargent Binkley robbed two Silicon Valley pharmacies for painkillers.

A Santa Clara County jury came back in January 2009 with a verdict of not guilty by reason of insanity for the first robbery. Because of that verdict, a San Mateo County judge in March approved a plea bargain between Binkley and prosecutors that called for mental health treatment rather than a lengthy prison sentence for the second pharmacy stickup.

“People who fight our wars and serve our country should absolutely get special treatment,” said Binkley’s attorney Chuck Smith, reprising the closing argument he delivered to Binkley’s jury. The jury ignored a prosecutor’s argument that the U.S. Military Academy graduate should be held accountable for his criminal behavior.

Leniency for veterans is a legal argument that is increasingly carrying the day in courts across the country. It’s also sparking debate over whether such special treatment is fair. Even supporters disagree over what crimes committed by veterans who suffer from post traumatic syndrome, severe brain injuries and other service-related maladies should qualify for special sentencing.

In November, the U.S. Supreme Court tossed out convicted murderer George Porter’s death sentence because his Florida jury wasn’t told of the Korean War vets’ combat-induced post traumatic stress syndrome.

“Our nation has a long tradition of according leniency to veterans in recognition of their service, especially for those who fought on the front lines as Porter did,” said the Supreme Court in its opinion.

A few weeks before, an Iraq veteran from Oregon was found guilty-but-insane of murder because of post traumatic stress syndrome.

Earlier this month, the U.S. Sentencing Commission said federal judges will be permitted to take into account military service when considering sentence reductions, beginning Nov. 1.

There are 72,000 incarcerated veterans and veterans account for about 10 percent of the population with criminal records, according to the Department of Justice. The DOJ and the Veterans Administration say veterans don’t offend at any higher rates then the general population.

Nonetheless, veterans are increasingly receiving specialized treatment in the legal system, highlighted by the explosive growth of so-called “veterans courts” across the country.

The first specialty court created to deal exclusively with veterans was launched in Buffalo, N.Y. in January 2008. There are now 31 such courts operating in every corner of the country: Hawaii, Alaska, Pennsylvania, California and points in between. About a dozen more are in the late-planning stages and several states are considering legislation to open veterans courts.

A federal bill is pending in Congress that would provide billions of dollars in grants for the courts.

The veterans courts are modeled on the nation’s popular “drug courts” and focus on rehabilitation rather than incarceration. Veterans are required to immediately plead guilty to their crimes and then generally are placed on probation but must adhere to a strict regimen of counseling, employment and sobriety.

The courts are manned by more than judges and lawyers. Counselors, Department of Veterans Affairs officials and volunteer veterans — “mentors” — keep close tabs on the defendant.

The VA and organizations supporting veterans argue that the special courts are often the first place that wayward veterans discover the many benefits they are eligible for such as medical and psychological care.

“It is a really good opportunity to get to a very difficult population to reach,” said Sean Clark, national coordinator for Veterans Justice Outreach at Veterans Affairs.

But as the concept’s popularity rises, so does debate over the courts themselves.

Critics question whether it’s fair to single out a special “class” for probation and treatment while similarly situated criminals are sent to prison for lack of military experience. What if two men conspire to commit the same crime and one is a veteran and the other isn’t?

“Creating an entirely different judicial system based solely on your status as a veteran seems to be the wrong approach,” said Allen Lichtenstein, head of the American Civil Liberties Union in Nevada.

The ACLU last year opposed legislation in Nevada on those very grounds. The ACLU wasn’t opposed to veterans gaining leniency based on military experiences, but the organization said each case should be argued individually in established courts.

“We’re not anti-veteran,” Lichtenstein said. “But creating a two-track system based solely on status is highly problematic.”

Four California counties have veterans courts. But Assemblywoman Mary Salas, D-Chula Vista, quickly pulled proposed statewide legislation from consideration last year when she was met with stiff opposition from the California District Attorneys Association, California Mental Health Directors Association, Mothers Against Drunk Driving and others.

There’s also debate among supporters of the courts over what crimes should qualify. Most veterans courts accept only nonviolent offenders. But not all of them. Some courts also accept veterans accused of violent crimes, including domestic abuse.

There’s also disagreement over what type of veteran qualifies.

“I take only combat veterans,” said Orange County Superior Court Judge Wendy Lindley, who accepts veterans accused of violent crimes. She has 34 cases on her veterans docket, including charges of felony assault, felony drunken driving and domestic violence.

She launched the court 18 months ago after a veteran in her drug court overdosed. She felt that could have been prevented if he was specifically approached as a traumatized veteran.

“When you take a human being who is trained to kill, who is put in the line of fire and who has killed or seen others killed … that can be significantly traumatizing,” she said. “I believe we owe them the opportunity to be restored to good mental health through treatment.”