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Law Practice

Oct. 24, 2018

Step up to represent veteran inmates

As of Jan. 1, 2019, veterans sentenced prior to Jan. 1, 2015 will have an opportunity to go back to court and ask for a sentence reduction if they have one of the enumerated maladies after serving in the armed forces.

4th Appellate District, Division 3

Eileen C. Moore

Associate Justice, California Courts of Appeal


In 2010, at the request of Vietnam Veterans of America, I authored an article on veterans' courts. After publication, I received letters from incarcerated Vietnam veterans serving life terms in California prisons. They were thrilled to hear that society's response to veterans has evolved since they served in the military. In responding to them, I wrote something to the effect that they were in a position to help other veterans who find themselves on the wrong side of prison bars. Fast forward several years and I received a letter from them inviting me to visit Soledad Prison and speak to the Vietnam Veterans on Memorial Day. They wanted me to see their veterans' facilities and tell me about forming IVVA, Incarcerated Vietnam Veterans of America.

My husband, Michael Fields, and I were met by Warden Marion E. Spearman, not a veteran himself, but very supportive of veterans. He provided an office, telephones, a fax machine and other accouterments to assist veteran inmates help incarcerated veterans throughout California's prisons. The inmate who seemed to be in charge was Edwin Munis. The Memorial Day ceremony was in the gymnasium, an aging auditorium with plaster peeling from the ceiling. The veterans, in their well-worn prison garb, filled the bleachers and chairs. When everyone rose to sing the National Anthem and observe the flag ceremony, half the veteran inmates saluted our country's flag and the other half held their hands over their hearts. Many had tears in their eyes. After the speeches, the veterans were pretty excited because the warden sprang for Subway sandwiches, quite a treat for them.

Conversations with them as we ate our sandwiches always seemed to work their way to the topic of parole. One after the other of those Vietnam vet lifers told me they had been turned down for parole several times, and they thought they were going to die in prison. Apropos of their concern, this past September, Edwin Munis, was finally granted parole; he died of a heart attack in his sleep a few hours before he was supposed to be released.

Unlike today's veterans, Vietnam veterans were given no treatment for their Post-Traumatic Stress Syndrome when they returned, and California's prisons do not treat for PTSD either. Without treatment, it must be very, very difficult to convince a parole board that one does not pose a public safety hazard. I can't help but wonder how many of these veterans ended up committing crimes because of the mental health problems they suffered as a result of the war.

Others must have had the same notion because our Legislature enacted Penal Code Section 1170.91. As of Jan. 1, 2015, if a sentencing court concludes a defendant convicted of a felony suffered from PTSD or some other listed mental health malady after serving in the military, that circumstance "shall" be considered as a factor in mitigation. That, of course, left the over-6,000 already incarcerated veterans without the opportunity to demonstrate PTSD to a sentencing judge and possibly have their sentences reduced. Once again, someone noticed. As of Jan. 1, 2019, veterans sentenced prior to Jan. 1, 2015 will have an opportunity to go back to court and ask for a sentence reduction if they have one of the enumerated maladies after serving in the armed forces.

Section 1170.91 now states: "(b)(1) A person currently serving a sentence for a felony conviction, whether by trial or plea, who is, or was, a member of the United States military and who may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of his or her military service may petition for a recall of sentence, before the trial court that entered the judgment of conviction in his or her case, to request resentencing."

Who will represent these veterans is not at all clear. It's possible, of course, there is a veteran or two among those thousands of incarcerated veterans who have the wherewithal to hire a lawyer to represent them, but most will not. In larger counties, public defenders may step up to the plate. In smaller counties, however, that may not be possible.

I suspect there are lawyers out there who might be willing to take on a veteran or two and guide them toward a resentencing hearing. Experience in criminal cases might not be necessary. There may even be an entity or firm out there who would be willing to train volunteers to represent veterans. Is there?


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