Can a judge still force a defendant to choose between the military or jail time?

Everyone has heard the old stories of judges forcing someone guilty of a small-time crime to choose between a hefty jail sentence or joining the Army. Or the Marine Corps. Or the Navy.

It seems like back in the old days, getting pinched for lifting car parts or selling bootleg cigarettes could end up with the defendant doing a two-year stint in Korea – which could be just as bad as jail, except you get paid. 

The practice isn’t as common as it used to be as it turns out. The U.S. military isn’t engaged in a global effort to defeat communism anymore and the days of a peacetime draft are long gone. With the benefits set aside for people joining what is now an all-volunteer force, the military isn’t hurting for new employees. 

At least for the most part. It definitely doesn’t require people who would be considered convicts if they hadn’t become soldiers, sailors, airmen or Marines.

But in the courtroom, the judge is the absolute ruler. Ruling from the bench means ruling by decree and, within the limits of the Constitution and existing law, the judge can pronounce whatever sentence he or she deems fit.

For a long time, that meant the choice between military service or jail time. But the individual branches of service aren’t a part of the judge’s court and though the judge can order such a sentence on a defendant, that doesn’t mean the military has to take them.

The most recent and notable case of such a choice was that of Michael Guerra of Upstate New York. In 2006 Guerra was facing a conviction of aggravated assault. According to Stars and Stripes, the judge was willing to discharge Guerra if he joined the military. Guerra agreed. The Army did not. 

As an Army spokesperson told Stars and Stripes’ Jeff Schogol, “Not taking jailbirds has been our policy for decades.” 

Keep in mind, this was at the height of the Iraq War, when the Army needed soldiers more than anything. The Army preferred to take the PR hit of instituting stop-loss programs rather than take cons like Guerra. 

The policy of not taking “jailbirds” is  actually part of the Army’s recruiting regulations. Regulation 601-210, paragraph 4-8b reads: 

“Applicants 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."