Ten years ago, a 22-year old marine combat veteran of Fallujah (Iraq 2005-06) appeared before me on charges in six indictments. First-degree armed robbery was the most serious, carrying a sentence within the range of 10 to 20 years’ imprisonment. His other charges included terroristic threats, drug possession and credit card fraud. After his military service, the veteran had spent a few weeks in a U.S. Department of Veterans Affairs (VA) residential treatment program for Post-Traumatic Stress Disorder (PTSD); before this crime spree, he had picked-up three municipal court convictions for drug related offenses.
The attorney representing him in Superior Court gathered VA records and had him examined by experts. In their opinion, the PTSD was chronic and severe with resulting substance abuse, “induced by gruesome, shocking and emotionally distressing events he experienced and/or witnessed during his military duty in a war zone.” The experts noted symptomatic nightmares with flashbacks of combat and other traumatizing events in Iraq.
Relying on the expert opinions, the defense attorney succeeded in negotiating a plea to a reduced charge of second-degree robbery, carrying a sentence within the range of five to 10 years’ imprisonment. The veteran pled guilty to the amended charge and charges in four of the other indictments, with a recommendation for concurrent sentences.
Considering the evidence at sentencing, I was clearly convinced the mitigating factors in the case substantially outweighed the aggravating factors, and the interests of justice demanded a sentence in the range of a crime that is one degree lower. N.J.S.A. 2C:44-1f (2). Finding “compelling reasons” justified a downgrade, I imposed a sentence of four years’ imprisonment, which was the middle of the range for a third-degree crime. State v Megargel, 143 N.J. 484, 505 (1996). The prosecutor had 10 days to appeal, but declined. Sadly, the veteran requested the impossible—service of his sentence at a VA hospital.
We owe veterans who return home with conditions that bring them into the criminal justice system the assistance they need to resume their lives as productive citizens. Our nation does a good job of treating soldiers’ physical wounds, but we are terrible at treating their psychological scars. In response to this crisis, many jurisdictions throughout the country have established Veterans Treatment Courts and our State has established a Veterans Diversion Program (VDP).
In New Jersey, after Dec. 1, 2017, veterans arrested for certain crimes can be diverted from the criminal justice system for appropriate case management and mental health services. Veterans charged with non-violent, petty, disorderly and disorderly person offenses, or crimes of the fourth and third degree, are now eligible to participate in the diversion program, if they have a mental illness or condition related to the charge(s).
The New Jersey State Bar Association and its Military Law and Veterans Affairs Section supported enactment of the legislation, which directs all 21 County Prosecutor Offices to start a VDP. Admission into the program defers the prosecution. The deferral is similar to that available under the Pre-Trial Intervention Program. There are, however, important distinctions. First, a veteran may be admitted into the program more than once. Second, admission on consideration of the factors listed in N.J.S.A. 2C:43-26b is at the sole discretion of the prosecutor. Third, the prosecutor must consult the victim before admitting the veteran. Finally, the prosecutor sets the terms, conditions and timeframe for recovery and deferral, which may not exceed two years. The terms and conditions are set forth in a written diversion agreement, which the prosecutor and veteran sign.
At present, a court’s role in the program is limited to approval of postponement of the prosecution and review of the status every six months. The veteran’s attendance at counseling and treatment sessions is critical. A failure to comply with any term or condition ends the deferral, restoring the prosecution. Upon full compliance with the agreement and achievement of the goals, the prosecutor moves for dismissal of the charges. Upon dismissal, either the prosecutor or veteran may immediately file to expunge the arrest and the charge(s).
The VDP, while a good first step, is not a panacea. It cannot be until veterans who need treatment for psychological injuries have access to trained professionals. At a recent ICLE seminar entitled “No One Left Behind,” the Ocean and Monmouth County prosecutors, whose programs pre-date the new law, said their offices consider veterans charged with second-degree crimes, such as the unlawful possession of a gun (not involving unlawful use), on a case-by-case basis. This demonstrates that the statewide program should be expanded to heal more veterans involved with the justice system.
Edward M. Neafsey is a former New Jersey Superior Court Judge and an adjunct professor at Rutgers Law School-Newark, where he teaches Military Law.