In Military Courts, Considering Alternative Punishment for Troubled Service MembersBy JAMES DAO
Since the first one opened in Buffalo in 2008, veterans treatment courts have spread to more than 80 locations across the country. The special courts give civilian judges discretion to consider a veteran’s service-related drug or mental problems in sentencing, and have been praised by many experts as helping to ensure troubled veterans get needed treatment.
Now a senior military prosecutor at Fort Benning, Ga., is arguing that the same concept be applied to the military’s judicial system so that judges can sentence service members to treatment programs rather than automatically issuing punitive discharges that put them on the street without benefits.
In a deeply researched, 200-page article published in a recent edition of The Military Law Review, Maj. Evan R. Seamone argues that military courts may be aggravating the problems of service members by discharging them without first treating them for conditions like post-traumatic stress disorder. (The article can be found in Volume 208, the summer 2011 issue, which was actually released earlier this year.)
And when those troubled service members become troubled veterans — who, because of their punitive discharges may be denied certain veterans benefits — they are likely to create problems in civilian society, he contends.
By treating the underlying condition that led to the charged offense, Major Seamone writes, “The military can meaningfully reduce recidivism and restore veterans to a status where they can contribute to society, even if they are unable to continue their military service.”
Major Seamone knows a bit about the subject. A graduate of the University of Iowa’s law school, he has been a military lawyer since 2003, representing both prosecution and defense. Today he is chief of military justice at Fort Benning, with about half a dozen prosecutors working under him.
In an interview, Major Seamone said he became interested in “the rehabilitative ethic” in military justice, as he calls it, while working as a defense lawyer.
“I got to see firsthand that misconduct trumps everything else,” he said. “Once you are labeled a problem child, you are less likely to get the benefits you need, even if you have a recognized diagnosis that requires quality care.”
Major Seamone says instituting alternative sentencing in the military would not require changes to law or regulation. All it would entail would be willing commanders at military installations allowing judges to accept plea arrangements that entail treatment programs in lieu of punitive discharges.
The process would work much as it does in the civilian world, he said. Ideally it would begin with a service member pleading guilty to an offense. He offered no hard and fast rules about what crimes should be eligible, but he said sexual predation or murder, for instance, would not be appropriate. Substance abuse or drug-related crimes, aggressive or unbecoming behavior, drunken driving or even petty larceny might all qualify.
With the assent of the prosecution, the service member would have to agree to a rigorous treatment program, whether for alcohol or drug abuse, or psychological care. That program would be formalized in a document that the service member would sign.
If the judge accepted the deal, he could then suspend the defendant’s sentence until the treatment program was completed. At that point, the service member could either be allowed to continue service or receive an honorable discharge with full veterans benefits.
If, however, the service member broke the deal and failed to finish treatment, the judge could impose the original sentence, which might include incarceration and dishonorable discharge.
One potential problem with the proposal would be determining who would provide and oversee treatment programs. While common to the civilian world, those resources might be hard to find at many military installations. In those cases, Major Seamone suggests, the military courts could work through local veterans courts with experience in arranging and monitoring treatment programs.
“Handing over jurisdiction to civilian courts is perfectly okay,” he said.
If a service member fails to complete the program, “all those things you meted out are still there,” he said. “It’s a great incentive for them to complete the treatment plan.”
To those who say allowing alternative sentencing is letting wrongdoers off the hook, Major Seamone argues that such programs can be rigorous.
“If they are just faking, they will get bounced out,” he said. “They regiment your entire existence. You are working, paying child support, taking medications, not drinking or missing curfews. Some say it is worse than doing jail time. Because someone is always watching you all the time.”
The military actually has a long history of rehabilitative ethic in its judicial system, Major Seamone writes, dating back at least to a program under President Andrew Jackson to return incarcerated soldiers to duty. Rehabilitative programs in World War I and World II returned deserters and other offenders to duty, and during Vietnam, the Army had a retraining brigade at Fort Riley for the same purpose.
Major Seamone theorizes that alternative sentencing lost favor after the rise of the all-volunteer military in the 1970s, when the military was looking to push problematic service members out rather than keep them in.
So far, Major Seamone says he has received some positive response to his article from the Department of Veterans Affairs, but not much feedback from his fellow military lawyers. (He notes that the article represents his personal views and is not the position of the Army.)
Still, his article does report one case where a commanding general recently allowed alternative sentencing similar to what Major Seamone has prescribed.
In 2007, an Army staff sergeant with two combat tours went absent without leave after his term of service was extended, a policy known as stop-loss. After the staff sergeant, Ryan Miller, was caught, he received a diagnosis of P.T.S.D. His lawyer asked for lenient treatment, noting that during his two combat tours, the soldier endured divorce, the killing of a good friend in a roadside bombing, the death of his father and the diagnosis of cancer in his mother.
The judge sentenced Sergeant Miller to seven months incarceration, reduction of rank to private and a bad conduct discharge. But then he recommended that the entire sentence – except a reduction in rank to E-4 – be suspended upon completion of treatment and counseling.
The commanding general, Maj. Gen. James Terry, adopted that recommendation and Sergeant Miller successfully completed his treatment, Major Seamone says.
Major Seamone asserts that the need to revive alternative sentencing is more crucial than ever right now because so many troops are returning from war with hard-to-diagnose problems like P.T.S.D. or traumatic brain injury that can lead to undisciplined or even criminal behavior.
“Approximately 20 percent of our service members will come back with P.T.S.D.,” he said. “When symptoms go untreated, they commonly result in problems that could be criminal. Confinement as a response to this is not always going to be the best way to treat the condition.”
Moreover, the numbers of service members who are getting pushed out through adverse administrative actions or punitive discharges is likely to grow because the armed services are downsizing. And some of those discharges will be people who need treatment, he said.
“We’ve done it before,” he said of his proposal. “So certainly we can do it again.”