Should veterans get a ‘second look’ at long prison sentences after military service?
Veterans’ advocates are pressing to allow judges and courts to consider a veteran’s military service when giving a “second look” to excessively long prison sentences. So-called second look reductions of long prison sentences are now allowed in federal courts and 25 states, but veterans groups say Congress needs to ensure that those reviews take military service into account.
“We’re facing the consequences of Iraq and Afghanistan, and even though we’re a few years away from those, still a lot of veterans are affected by that experience,” said Chuck Hagel, who served as Secretary of Defense from 2013 to 2015. Hagel now works with the Council on Criminal Justice Veterans Justice Commission, which is pushing to include military service in second look programs, Hagel said, and to understand, “why are there so many veterans incarcerated that get themselves in trouble and land in jail?”
In 2016, the Department of Justice reported that 107,400 veterans were serving time in state or federal prison. An analysis of a national survey found that nearly one-third of veteran respondents (31.1%) had been arrested and booked, a significantly higher rate than civilian respondents (18.0%).
“For those who did something wrong and broke the law and paid the price and spent time incarcerated, and then get out, they need some help,” Hagel told Task & Purpose. “These are individuals who gave a certain part of their lives, in many cases a big part of their young lives to the service of this country. We should give veterans a little extra help when they need it.”
The rise of ‘second look’ sentencing
Legal and military experts with the Veteran Justice Commission believe veterans should have the option to petition and have their case reviewed for resentencing, parole, or clemency hearings.
Second look laws have been enacted in 25 states, Washington, D.C., and in federal court. Rules vary state to state, but generally allow judges to review sentences after someone has served a lengthy period of time, according to the Sentencing Project. In Washington, D.C., for instance, a person who committed certain crimes before they turned 25, and has since served a minimum of 15 years in prison, can have their case reviewed.
Veterans’ advocates also point to a system in California adopted in 2023. That law allows veterans with one or more service-related conditions to petition for resentencing of their felony, probation, parole, or community supervision cases. The law cites military-related conditions such as sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance use or a mental health issue.
Advocates said second look policies are not a get-out-of-jail-free card or way to dodge accountability, Retired Brig. Gen. David “Mac” MacEwen, director of the commission, said. Rather, second look policies would have courts consider if their crimes are reflective of issues that stemmed from military service like those in the California law.
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Another issue, said MacEwen, is the stereotype that military veterans should be held to a higher standard in courtrooms.
“Oftentimes, we have jurisdictions that take military service as a matter of aggravation, not as a matter of mitigation. What I mean by that is a judge will look at someone and say, ‘Hey, you were a soldier. You should know better,’” MacEwen said. “Nowhere in there do we say, don’t hold someone accountable. We’re just saying maybe you should consider those things when you are looking at someone in the justice system.”
Therapeutic interventions
Advocates say second look policies also allow case-by-case review.
“If you kill somebody, well, that’s a pretty serious crime. But there are a lot of law breakers and a lot of different crimes that don’t meet the real extremes where judges have some leeway here on what the sentence is going to be,” Hagel said. “This isn’t new. Judges have forever looked at people’s intent. ‘What’s your background? You had a criminal record before? What was the crime?’ All those things are taken into consideration to force sentencing.”
Commission advocates said second look policies could apply to lower-level crimes and cases where veterans are eligible for parole. In California for instance, the policy does not apply to cases where people are required to register as a sex offender, or have serious violent felonies that are punishable by life in prison or death.
Second look policies would extend the intent of Veteran Treatment Courts, or VTCs, which lead to shorter sentences or other treatment and accountability options, like substance use programs and veteran-specific housing units for instance.
MacEwen said “we are huge fans” of VTCs, but that they don’t “reach enough of the population. A DOJ analysis found that “no more than 10 to 15% of justice-involved veterans can access a VTC” since just 15% of counties have an operational VTC. The special courts also sometimes restrict eligibility of veterans who received less-than-honorable discharges.
“Veterans treatment courts would do the similar thing, but we’re also talking about where there is no veteran treatment court, having those jurisdictions apply different rules than they currently do,” MacEwen said. “The person who came into the military has been fundamentally changed by coming in when they raised their right hand.”