07-11-2006, 17:37
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#1
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Quiet Professional
Join Date: Jan 2004
Location: LA
Posts: 1,653
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Legal History
Was there ever a time that a judge could order military service in lieu of jail?
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Somewhere a True Believer is training to kill you. He is training with minimal food or water, in austere conditions, training day and night. The only thing clean on him is his weapon and he made his web gear. He doesn't worry about what workout to do - his ruck weighs what it weighs, his runs end when the enemy stops chasing him. This True Believer is not concerned about 'how hard it is;' he knows either he wins or dies. He doesn't go home at 17:00, he is home.
He knows only The Cause.
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NousDefionsDoc is offline
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07-11-2006, 17:42
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#2
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Quiet Professional
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Location: Fayetteville
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Order?
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Originally Posted by NousDefionsDoc
Was there ever a time that a judge could order military service in lieu of jail?
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Order or one of those stong hints from the bench that if you were not in the Army in 30 days the maximum sentence would be activated?
I think some in the 60s and 70s took the hint.
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Pete is offline
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07-11-2006, 17:44
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#3
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Quiet Professional
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Some in the 80s took the hint too. 
No, I mean as an official legal order - a sentence.
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Somewhere a True Believer is training to kill you. He is training with minimal food or water, in austere conditions, training day and night. The only thing clean on him is his weapon and he made his web gear. He doesn't worry about what workout to do - his ruck weighs what it weighs, his runs end when the enemy stops chasing him. This True Believer is not concerned about 'how hard it is;' he knows either he wins or dies. He doesn't go home at 17:00, he is home.
He knows only The Cause.
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NousDefionsDoc is offline
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07-11-2006, 17:47
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#4
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Quiet Professional
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Back when I went in and the draft was in force. Judges would offer that 'choice' as Pete said. That was in the 60's and 70's. I knew a couple guys, that were given that 'choice'. Both went into the Service.
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Brad...
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12B4S is offline
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07-11-2006, 17:50
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#5
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Quiet Professional
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Lawyers Up!
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Originally Posted by NousDefionsDoc
Some in the 80s took the hint too.
No, I mean as an official legal order - a sentence. |
Lawyers Up!
Come on you scurvey bilge rats. Get out of the hold and man the guns. Your division on deck and primed for action.
Pete
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Pete is offline
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07-11-2006, 17:57
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#6
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Consigliere
Join Date: Jan 2004
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Quote:
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Originally Posted by Pete
Lawyers Up!
Come on you scurvey bilge rats. Get out of the hold and man the guns. Your division on deck and primed for action.
Pete
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Scurvey bilge rat reporting for duty! LOL
This is not my area, but if you can put someone in jail or a diversion program, I imagine you could make them serve in the army too. I also imagine the army would have to consent. But I'm just speculating.
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Roguish Lawyer is offline
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07-11-2006, 18:20
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#7
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Moderator
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Quote:
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Originally Posted by NousDefionsDoc
Some in the 80s took the hint too. |
I smell a story. . .
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Kyobanim is offline
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07-11-2006, 18:29
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#8
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Quiet Professional
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Quote:
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Originally Posted by Kyobanim
I smell a story. . .
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Not one you'll ever hear.. 
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Somewhere a True Believer is training to kill you. He is training with minimal food or water, in austere conditions, training day and night. The only thing clean on him is his weapon and he made his web gear. He doesn't worry about what workout to do - his ruck weighs what it weighs, his runs end when the enemy stops chasing him. This True Believer is not concerned about 'how hard it is;' he knows either he wins or dies. He doesn't go home at 17:00, he is home.
He knows only The Cause.
Still want to quit?
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NousDefionsDoc is offline
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07-11-2006, 18:48
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#9
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Bladesmith to the Quiet Professionals
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Location: Oregon, Land of the Silver Grey Sunsets
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Quote:
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Originally Posted by NousDefionsDoc
Not one you'll ever hear.. |
Restraining from asking the question now.
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Bill Harsey is offline
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07-11-2006, 20:49
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#10
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Quiet Professional
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Sentenced? No.
But I had a Platoon Sergeant in 1981 who came in the Army around 1970 when the judge in Tampa told him to get in the Army or go to jail.
The deputies came by shortly afterwards to help him pack. He told me that they were not kidding and he only had those two choices.
All I know is that he was a hell of a soldier.
TR
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De Oppresso Liber 01/20/2025
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The Reaper is offline
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07-11-2006, 21:45
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#11
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Area Commander
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While the thirteenth amendment does allow for “involuntary servitude” when sentenced for a crime, I don’t know if the military is required to accept a “criminal” as a recruit.
I knew a couple of guys in basic at Polk in ’67 who said that a judge forced them to enlist or else. In hindsight, I think it’s more likely that they enlisted voluntarily but were intimidated by draftees calling them “lifers”.
On the other hand, I’m sure that some small town Justices of the Peace or judges did encourage some promising young men to step up and sign up.
Pat
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PSM is offline
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07-12-2006, 10:27
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#12
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There are two separate questions, as RL alludes to.
1. May a judge order military service as an alternative sentence?
2. Must a branch of the armed services accept such an order?
The answer to #1 is murky. Judges are generally allowed to craft sentences as they see fit, but are constrained by the sentencing guidelines in their state laws, or the Federal Sentencing Guidelines in the case of Federal judges. They are also subject to the 8th Amendment and, as applicable, the analogous provisions of state constitutions.
The 13th Amendment is a non-issue. Notwithstanding the views of some libertarians, the general consensus is that military service, even compulsory military service, is not "involuntary servitude". That, by the way, is not only the consensus, but the law. This was upheld by the Supreme Court in the Selective Draft Law Cases , 245 U.S. 366 (1918) ("... as we are unable to conceive upon what theory the exaction by government from the citizen of the performance of his supreme and noble duty of contributing to the defense of the rights and honor of the nation, as the result of a war declared by the great representative body of the people, can be said to be the imposition of involuntary servitude in violation of the prohibitions of the Thirteenth Amendment, we are constrained to the conclusion that the contention to that effect is refuted by its mere statement.").
As to the second question, I don't know what armed forces policy has been in the past, but currently, the services would not accept a recruit as a form of alternative sentencing. See, e.g., AR 601-210, Section 4.12(b):
Quote:
b. Applicant who, as a condition for any civil conviction or adverse disposition or any other reason through a civil or criminal court, is ordered or subjected to a sentence that implies or imposes enlistment into the Armed Forces of the United States is not eligible for enlistment unless—
(1) The condition is removed by the same or higher authority imposing the sentence.
(2) The condition is removed by virtue of expired period of sentence.
(3) The condition is over 12 months from imposition and the court, city, county, or State no longer obligates the applicant to this condition.
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The other services have analogous regulations and policies.
So, assuming a judge could, as provided in for example, section 65.05 of the New York Penal Law, impose a sentence of conditional discharge and make the condition that the offender join the Army, two problems would arise: first, New York law imposes a limit of one year for misdemeanors and three years for felonies as the term of any conditional discharge, which is too short for any enlistment contract, and second, the Army would not consider the offender eligible for enlistment unless the condition were removed.
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Airbornelawyer is offline
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07-12-2006, 10:32
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#13
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Quiet Professional
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Hmmmm... According to the above analysis by AL - the answer is Yes and NO.
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x SF med is offline
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07-12-2006, 11:06
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#14
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Quote:
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Originally Posted by x_sf_med
Hmmmm... According to the above analysis by AL - the answer is Yes and NO.
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Maybe you haven't been around lawyers enough to realize that the answer is always "Yes and No". 
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Airbornelawyer is offline
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07-12-2006, 11:08
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#15
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Guerrilla Chief
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The only instances that I am aware of where a Judge actually ordered someone into the military were during the Civil War. I take those instances with a grain of salt due to the quality of reporting at the time.
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