Beacon Hill Moves to Amend Controversial Valor Act

The frenzied conclusion to the Massachusetts legislative session last week resulted in the passage of scores of bills, while others were left on the cutting room floor. One bill that sailed through changed several key aspects of the Valor Act, a law that provides special treatment to military veterans charged with crimes. The law was originally designed to account for the mental and substance abuse struggles that disproportionately affect veterans and offer them a chance to enter diversion programs rather than serve jail time for minor offenses. But in multiple cases, savvy lawyers have been able to exploit the law to help their clients who ostensibly did not suffer trauma from their military service avoid prison. Morning Edition’s Joe Mathieu discussed that law, as well as the reforms to it pending Governor Baker’s signature, with Northeastern University Law Professor and WGBH Legal Analyst Daniel Medwed. Medwed argues that the amended law takes considerable steps to correct the original bill's shortcomings, but overall he disagrees with codifying special treatment for certain classes of citizens in a legal system designed to treat every individual equally.

Joe Mathieu: How would you describe the basic characteristics of the Valor Act to begin with?

Daniel Medwed: Sure. It was passed in 2012 when Governor Deval Patrick was in the state house and it was designed originally to give trial judges wide latitude to award counseling services or even to drop charges altogether to veterans accused of crimes-often relatively low level crimes.

Now the theory behind it, I think was to recognize the special challenges that many veterans face including PTSD and substance abuse problems and to adopt a more rehabilitative approach. That's the theory. Now the practice, the implementation, has been much more controversial.

Mathieu: So talk about that what are the main criticisms of the law?

Medwed: Well I think things reached a head about a year or two ago when news broke about a New Bedford man who had been accused of assaulting his girlfriend in a domestic violence incident.

A District Court Judge, a lower court judge, dropped the charges citing the Valor Act and it turned out that this man had served in the - a few years in the Navy in Hawaii in the 1980s and there hadn't been any evidence of a correlation between that service and any current or ongoing trauma. This led people to criticize the law as a get out of jail free card for veterans. And there are valid concerns about creating this special preferential class of people, veterans, when so many other folks suffer trauma. And it's not formally accounted for in the system. Also the Valor Act applied as originally envisioned to a whole host of district court crimes including potentially domestic violence and driving under the influence.

Mathieu: So tell us about the amendments to the act. What were legislators looking to do?

Medwed: Sure, the Legislature adopted a repeal and replace approach where it retained some of the key features of the Valor Act, closed up some of the perceived loopholes and clarified that it applied to first time offenders who could show a direct link between their service and current trauma.

Here are just a couple of the key features. If this law is signed off on by a Governor Baker then veterans are going to have a 30 day evaluation period where it's going to be determined whether they're suitable for diversion outside the main criminal justice track. And that's very similar to how the criminal justice reform bill has approached diversion programs for the population generally. Another key feature when it comes to driving under the influence charges for a first time offense veterans could still benefit from this preferential treatment but only if they present clear evidence showing that they suffer some trauma that stems from their service.

And one last thing I'd like to mention, the law would empower prosecutors to push back on these district court judges if they perceive the judges to be too lenient to veterans. Prosecutors could refile charges in a higher court, a superior court if they so desire.

Mathieu: Well you've had a chance to think about this Daniel what's your gut what's your overall take on these changes?

Well I think it's a step in the right direction. Military veterans who suffer trauma as a result of their experiences in the military deserve to have those experiences accounted for in some fashion in the punishment calculus. But I've always been uncomfortable with the idea of carving out a special class of citizens who get special treatment when a whole host of folks suffer from trauma and they don't catch a break.

My hope is that this overall diversion program approach that was adopted last spring could be beneficial for a whole swath of people with regard to this.

Mathieu: You said that a couple times is very unusual on a legal level.

Medwed: I think it's very unusual. A fundamental principle of our entire system is predicated on equal protection for all so that we don't create differential classes that have sliding scale approaches to criminal justice based on categorization and characterization. So it is very troubling from a theoretical vantage point though I think it has a good genesis.