ECHOES OF WAR:
COMBAT TRAUMA, CRIMINAL
BEHAVIOR AND HOW WE CAN DO A
BETTER JOB THIS TIME AROUND
Sponsor: Criminal Law Section
CLE Credit: 1.0
Wednesday, June 17, 2015
10:40 a.m. - 11:40 a.m.
Thoroughbred 4
Lexington Convention Center
Lexington, Kentucky
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The materials included in this Kentucky Bar Association Continuing Legal
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disclaim liability therefore. Attorneys using these materials, or information otherwise
conveyed during the program, in dealing with a specific legal matter have a duty to
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TABLE OF CONTENTS
The Presenter .................................................................................................................. i
Echoes of War: Defending Combat Veterans in Criminal Court ...................................... 1
Overview ............................................................................................................. 1
Historical Perspective of PTSD ............................................................................ 3
Links between Combat Trauma and Criminal Behavior ..................................... 11
Defending the Combat Veteran in Criminal Court .............................................. 18
Conclusion: Crisis and Opportunity ................................................................... 29
THE PRESENTER
Brockton D. Hunter
The Law Office of Brockton D. Hunter, P.A.
3033 Excelsior Boulevard, Suite 550
Minneapolis, Minnesota 55416
(612) 874-1625
[email protected]
BROCKTON D. HUNTER is a criminal defense attorney who handles all types of
criminal cases in state and federal court. He served as the President and Legislative
Chair for the Minnesota Association of Criminal Defense Lawyers (MACDL) and
received its Special Achievement Award in 2009. Mr. Hunter also received the 2011
Professional Excellence Award, the Minnesota State Bar Association's highest honor, "in
recognition of outstanding efforts to advance the legal profession and the administration
of justice," and has been annually selected by his peers as a "Rising Star" (2006 – 2009)
and a "Superlawyer" (2011 – 2014).
Mr. Hunter is a former U.S. Army Recon Scout who focuses his practice on defending
psychologically injured veterans in the criminal courts and advocating for reforms in the
way the justice system deals with them. He helped draft and lead passage
of Minnesota's Veterans Sentencing Mitigation Act, Minn. Stat. 609.115, Subd. 10.,
which was subsequently cited in the landmark U.S. Supreme Court case, Porter v.
McCollum, 130 S. Ct. 447, at 455, n.9 (2009), the Court's first to address combat trauma
in criminal sentencing.
Mr. Hunter has since helped pass similar veteran sentencing legislation in other states,
has been called on to brief the Obama Presidential Transition Team, and has spoken to
leadership of the Department of Defense, and the Department of Veterans Affairs on
more effective ways to address troubled veterans who commit crimes. He has trained
thousands of attorneys, judges, law enforcement officers, and mental health
professionals across the country on these same issues.
Mr. Hunter is the lead editor and co-author of the just-released book, The Attorney's
Guide to Defending Veterans in Criminal Court. He is also the co-founder and President
of the Veterans Defense Project – a non-profit dedicated to advocating and educating for
veterans
in
the
justice
system
(more
information
available
at http://veteransdefenseproject.org/.)
i
ii
ECHOES OF WAR:
DEFENDING COMBAT VETERANS IN CRIMINAL COURT 1
Brockton D. Hunter
"They carried all they could bear, and then some, including a silent awe for the terrible
power of the things they carried." ― Tim O'Brien, The Things They Carried (1990).
I.
OVERVIEW
More than 2.6 million Americans have now served in Iraq or Afghanistan. 2 A
government study, released in July 2012 estimated that up to 20 percent,
approximately 500,000 of these veterans are suffering from Post-Traumatic
Stress Disorder. 3 The same study also noted, however, that the true numbers
are likely higher. 4 A 2008 RAND Corporation study found that 320,000 veterans
are suffering from Traumatic Brain Injury ("TBI"). 5 Both reports concluded that
less than half of these PTSD or TBI-suffering veterans had previously reported or
sought help for their condition. 6
Untreated, many of these psychologically injured veterans are acting out in
reckless, self-destructive and, sometimes violent ways that bring them into
contact with the criminal justice system. History tells us that as the wars in Iraq
and Afghanistan wind down, the numbers of troubled veterans flooding into our
criminal courts will swell. Our criminal justice system and, particularly, the
defense bar can and must be better prepared than previous generations.
A.
PTSD's Emerging History
Emerging historical research reveals a pattern of traumatized combat
veterans surfacing in the criminal justice system following every major
1
These CLE materials provide a brief overview of the unique problems facing criminally-involved
veterans with service-related disorders and how attorneys can effectively defend their veteranclients. For a much more thorough treatment of these issues, see The Attorney's Guide to
Defending Veterans in Criminal Court (Brockton Hunter & Ryan Else, eds., 2014). To learn more
about the Defending Veterans book or to order a copy, visit the Veterans Defense Project web
site at www.veteransdefenseproject.org.
2
Institute of Medicine of the National Academies, Treatment for Post-traumatic Stress Disorder in
Military and Veteran Populations: Initial Assessment 39 (2012).
3
Id.
4
Id.
5
Terri Tanielian et al., Rand Corp., Invisible Wounds of War: Summary and Recommendations
for Addressing Psychological and Cognitive Injuries 64 (2008) [hereinafter Invisible Wounds of
War].
6
Id., supra note 2.
1
American conflict. Though many at the time were aware of the problem,
open discussion was considered taboo and substantial efforts were often
made to sweep the issue under the rug.
Unfortunately, veterans of past conflicts were sometimes treated quite
harshly when their psychological injuries led them into criminal behavior.
This was particularly true in the wake of Vietnam when hundreds of
thousands of psychologically injured veterans returned home to a largely
hostile American public who had come to blame them for an unpopular
war. These veterans were often stigmatized and literally discarded when
their psychological injuries led to criminal behavior. Even now, more than
thirty years after that war, hundreds of thousands of Vietnam veterans
remain incarcerated, homeless, and/or chemically addicted across
America. Our society has paid a staggering price for our abandonment of
the Vietnam generation. The side effects of their untreated trauma have
cost us in many unforeseen ways. Countless families have been
destroyed, jobs lost, and taxpayer dollars spent on treatment that came
too late to make a difference for many. This is particularly tragic in the
criminal justice context where early criminal charges could have been
used as the opportunity for intervention before more serious offenses or
destruction occurred, using probationary sentences to ensure compliance
with treatment.
B.
Today's Military under Unprecedented Strain
After eleven years of war in Iraq and Afghanistan, our military is now
under enormous strain. Unlike any other extended conflict in American
history, we have not resorted to a draft to ensure a large pool of
combatants. Instead, we are fighting this conflict with a relatively small
volunteer military force that we are recycling back into combat over and
over. Most active duty troops have now served at least two tours. Many,
especially our ground combat troops, have served more. Some are now
on their sixth, seventh, eighth, even ninth combat tours. Our National
Guard and Reserves have also been tapped to an unprecedented level
with some now deploying for their second and even third tours. Compare
this with Vietnam, in which the vast majority of draftees served only one
twelve-month tour. We have no modern precedent with which to compare
our current situation. One thing is certain: the levels of combat trauma in
our armed forces will continue to rise. A recent Army study found that, not
surprisingly, the incidence of PTSD among troops rises significantly with
each additional combat tour. 7 This will inevitably lead to more veterans in
the criminal justice system,
7
Office of the Surgeon Multi-National Force-Iraq, Office of the Command Surgeon, & Office of the
Surgeon Gen. U.S. Army Med. Command, Mental Health Advisory Team (Mhat) V, Operation
Iraqi Freedom 06-08: Iraq, Operation Enduring Freedom 8: Afghanistan (2008),
http://www.armymedicine.army.mil/reports/mhat/mhat_v/MHAT_V_OIFandOEF=Redacted.pdf)
[hereinafter Mental Health Advisory Team (MHAT) V].
2
…PTSD is commonly associated with substance abuse,
unregulated anger, aggressive behavior, and hazardous
use of alcohol, all of which are themselves associated with
legal problems and incarceration. 8
II.
HISTORICAL PERSPECTIVE OF PTSD
The term "Post-Traumatic Stress Disorder" was first coined and formally
recognized in the context of treating traumatized Vietnam veterans. This
relatively recent formal recognition of the condition has led some to believe
Vietnam was the first war to produce psychological casualties. In fact, PTSD has
been a constant side effect of war for as long as soldiers have been sent into
combat.
A.
Combat Trauma in the Greek Classics, Modern Literature, and Cinema
Some of the first known chronicles of the psychological costs of war are
found in Greek literary classics. Written approximately 3,000 years ago,
Homer's Iliad and Odyssey richly detail the effects of war on soldiers'
psyches and souls. Two recent books, Achilles in Vietnam and Odysseus
in America, by Dr. Jonathan Shay, M.D., draw insightful parallels between
the trauma suffered by Homer's characters and that of modern day
combat veterans. 9
The Iliad tells the story of the great warrior, Achilles, and his
psychological unraveling during the Trojan War. Dr. Shay notes that
Achilles' profound grief over the loss of a close comrade, his subsequent
"berserker" rage as he mutilates the bodies of his enemies, and his
eventual self-destructive unraveling closely parallel the experiences of
many of his Vietnam veteran patients.
The Odyssey picks up at the end of the Trojan War and follows the oftencriminal adventures of another traumatized Trojan War veteran,
Odysseus (aka "Ulysses") as he makes his way home to Greece. Along
the way, notes Dr. Shay, Odysseus and his men raid and then drunkenly
pillage the city of Ismarus, battle drug addiction in "Lotus Land," and rob
the Cyclops, among other misadventures. Once he reaches home,
Odysseus commits a massive act of domestic violence, slaying dozens of
suitors who had been courting his wife during his absence and then killing
his wife's maidservants.
8
Institute of Medicine of the National Academies, Treatment for Post-traumatic Stress Disorder in
Military and Veteran Populations: Initial Assessment, 322 (2012).
9
See Jonathan Shay, Achilles in Vietnam: Combat Trauma and the Undoing of Character (1994);
Jonathan Shay, Odysseus in America: Combat Trauma and the Trials of Homecoming (2002).
3
The primary conclusion of Dr. Shay's scholarship is that, despite the
profound changes in warfare brought on by technology, war's effects on
the individual soldier, in facing death, taking life and losing comrades,
have changed little over the millennia. Dr. Shay' insights have won praise
from both military and academic circles. He now regularly lectures at the
Navy War College and before other military leaders. He is also the author
of Chapter 1 in the Attorney's Guide to Defending Veterans in Criminal
Court, directly connecting combat trauma and criminal misconduct.
Like Homer's Odyssey, twentieth century literature and cinema have also
explored the connection between combat trauma and criminal behavior.
After World War I, novels and plays such as What Price Glory?, They Put
a Gun in My Hand, All Quiet on the Western Front, and The Road Back
described this link. Vietnam-related literature and cinema, such as Taxi
Driver, The Deer Hunter, Apocalypse Now, Full Metal Jacket, First Blood,
Platoon, and Born on the 4th of July have done the same. The Hurt
Locker, Harsh Times, and Restrepo are modern films that depict combat
trauma and adjustment disorders head-on in very stark, gritty terms.
B.
PTSD's Many Names
The affliction we now call PTSD has gone by many names over the
centuries. The cluster of symptoms was first medically diagnosed in
Europe. It was referred to as "nostalgia" among Swiss soldiers in 1678.
German doctors during that period called the condition Heimweh, while
the French called it maladie du pays – both meant "homesickness." The
Spanish called it estar roto, meaning "to be broken." 10
Civil War-era Americans gave PTSD poetic names like "soldier's heart"
and "irritable heart." Out of the horrors of World War I, came "shell
shock." World War II and Korea ushered in the more clinical term,
"combat fatigue." 11
10
Edward Tick, War and the Soul: Healing Our Nation's Veterans from Post-Traumatic Stress
Disorder 99 (2005).
11
Id.
4
World War II correspondent and artist,
Tom Lea, first coined the term
"thousand yard stare" with his painting
that was actually entitled "that 2,000
yard stare," depicting a shell-shocked
Marine during fighting on Peleliu in the
South Pacific. The term has become
part of our cultural lexicon and is often
used synonymously with PTSD: 12
Many veterans have taken issue with the term, Post-Traumatic Stress
Disorder. One modern veteran is quoted as saying "PTSD is a name
drained of both poetry and blame." 13 That veteran prefers "soldier's
heart," because it connotes "a disorder of warriors, not men and women
who were weak or cowardly but . . . who followed orders and who, at a
young age, put their feelings aside and performed unimaginable tasks." 14
C.
Psychiatric Casualties in 20th Century Wars
According to Lieutenant Colonel David Grossman, a West Point professor
and recognized expert on the psychological effects of combat, "[c]ombat,
and the killing that lies at the heart of combat, is an extraordinarily
traumatic and psychologically costly endeavor that profoundly impacts all
who participate in it. . . . Psychiatric breakdown remains one of the most
costly items of war when expressed in human terms. 15 Indeed, for the
combatants in every major war fought in this century, there has been a
greater probability of becoming a psychiatric casualty than of being killed
by enemy fire". 16
World War I was a watershed period when the effects of "combat
stresses" began to be recognized. 17 It was only in World War I that armies
first began to experience months of 24-hour combat, leading to vast
numbers of psychiatric casualties. 18
12
Tom Lea, That 2,000 Yard Stare, Oil on Canvas, U.S. Army Center for Military History,
Washington, D.C. (1944).
13
Tick, supra note 10, at 99 (quoting George Hill, a disabled Marine).
14
Id.
15
Dave Grossman & Bruce K. Siddle, Psychological Effects of Combat (2000).
16
Id.
17
David H. Marlowe, Rand Corp., Psychological and Psychosocial Consequences of Combat and
Deployment 32 (2001).
18
Grossman & Siddle, supra note 15.
5
During World War II, 504,000 men were lost from America's combat
forces due to psychiatric collapse – enough to man fifty divisions. 19 At
one point in World War II, psychiatric casualties were being discharged
from the U.S. Army faster than new recruits were being drafted in. 20 A
World War II study of U.S. Army combatants who landed on the beaches
of Normandy and fought their way into France found that, after sixty days
of continuous combat, 98 percent of the surviving soldiers had become
psychiatric casualties. 21
The Vietnam War, with its unpredictable "guerrilla" nature and lack of
public support is believed to have generated even higher rates of
psychological injuries. Though experts debate the numbers, among the
3.5 million Americans who served in Vietnam, estimates of psychiatric
casualties range from 1,000,000 to 1,500,000 cases. 22
Twentieth century democracies have been better than most at admitting
and dealing with their combat psychiatric casualties. Information from
non-Western sources is extremely limited, but we now know that
America's experience is representative of a universal cost of modern,
protracted warfare. 23 Nations around the world have experienced similar
mass psychiatric casualties, but many have simply driven these
casualties into battle at bayonet point, shooting those who refused or
were unable to continue. 24
D.
PTSD Today
The psychiatric community and, more importantly, the Veterans
Administration did not formally recognize PTSD, until 1980, too late for
many psychologically injured Vietnam veterans. Their lives and their trust
in the system were often shattered by that time and many refused
treatment when and if it was eventually offered. Ultimately, 31 percent of
male Vietnam veterans and 27 percent of female Vietnam veterans have
had PTSD in their lifetime. 25
19
Id.
20
Id.
21
Id.
22
Id.
23
Id.
24
Id.
25
"Saint Louis Area Iraq War Veterans, Learning from Vietnam – Facts About Trauma, Iraq, and
Afghanistan" (2007), http://stliraqwarvets.wordpress.com/2007/03/26/learning=from=vietnam=
facts=about=trauma=iraq=and=afghanistan/ (citing National Center for Post-Traumatic Stress
Disorder and The U.S. Department of Veterans Affairs).
6
1.
PTSD's stigma.
Though PTSD has been informally recognized for millennia,
approaches to dealing with it have varied widely. After battle,
many Native American and other tribal societies segregated their
warriors from the rest of the tribe, sometimes for weeks, where
they were physically cleansed of the blood from battle, and
spiritually cleansed of their traumatic experiences. Some of the
rituals were intended to transfer to the stain of "bloodguilt" from
the warrior to his people as a whole. This shared responsibility
was believed to lift the spiritual weight of combat from the
shoulders of the warrior and to ease his transition back into peace.
Only when the warrior was ready to reunite with the tribe, and the
tribe with the warrior, did the reunion occur. 26
Industrialized nations and their militaries have historically taken a
tougher approach with the psychologically injured. Soldiers
suffering psychological injuries have often been stigmatized and
even punished. During WWII, General George Patton famously
struck at least two psychologically injured soldiers he came across
in Army hospitals, calling them cowards and malingerers. The
press picked up on the story, causing a swell of anger among the
American people and Patton was nearly relieved of his
command. 27
Some psychologically injured troops received the ultimate
punishment. The British government recently issued posthumous
pardons to 306 of its soldiers from World War I who were
executed without trial at the battlefront for cowardice or desertion,
recognizing today that they likely suffered from PTSD. 28
Not only were psychological injured soldiers killed during WWI,
they were also tortured. Dr. Lewis Yealland working at a French
hospital was taking over treatment of a twenty-four year old
private who had received nine months' worth of the following types
of treatment for war-related mental illness: "he had been strapped
in a chair for twenty minutes at a time while strong electricity was
applied to his neck and throat; lighted cigarettes had been applied
to the top of this tongue and hot plates had been placed at the
26
Grossman & Siddle, supra note 15, at 210-16.
27
"Private Wrote Family about Being Cuffed," Port Arthur News, Nov. 24, 1943, at 6; "Reprimand
for Patton is Denied," Fresno Bee, Nov. 22, 1943, at 1; "Patton Regrets Slapping Soldier," San
Antonio Light, Nov. 23, 1943, at 1; "Gen. Patton Slap Haunts Former GI," Charleston Daily Mail,
Mar. 25, 1970, at 12; "GI Slapped by Gen. Patton in Sicily Is Dead," Cedar Rapids Gazette, Feb.
2, 1971, at 7.
28
Richard Norton-Taylor, "Executed WWI Soldiers to be Given Pardons," The Guardian, Aug. 16,
2006, at 1.
7
back of his mouth." 29 According to the medical wisdom of the day,
such treatment was "necessary to supply the disciplinary element
which must be invoked if the patient is one of those who prefer not
to recover." 30 Dr. Yealland apparently believed that the failures of
this young private's treatment were only the result of too little
electro-shock therapy. Speaking of his own treatment of the
private, he said "after a few more hours of electricity the patient
could say ah, then whisper, then stammer. But just when it
seemed to be working, the patient developed a tremor in his left
arm. This too was attacked by electricity, but before it disappeared
it had to be chased from the right arm, left leg, and finally the right
leg with each part similarly treated." 31
In the aftermath of WWII, the United States' VA was guilty of
similar treatment of our veterans. The VA had 102,000 hospital
beds full and 20,700 patients in waiting, 60 percent of which were
in need of psychiatric care. 32 Maintaining these patients could cost
as much as $35,000 per year, but George Washington University
professor Walter Freeman created the ice pick lobotomy to be
able to treat certain psychoses. 33 Doctors would use "a hammer
to tap a modified ice pick through the patient's eye socket and into
the prefrontal lobe, which was then severed from the rest of the
brain." 34
World War II's most decorated soldier, Audie Murphy, is credited
with forcing the United States government to study PTSD and
extend benefits to psychologically injured veterans. Audie returned
home an American Hero and went on to become a major
Hollywood movie star. He also secretly suffered severe PTSD. He
became a chronic alcoholic and prescription drug addict who later
admitted he slept with a loaded gun under his pillow every night
after the war. His wife reported many incidents of domestic
violence including an instance in which he held a gun to her head.
Audie eventually sought help for his condition and then broke the
taboo against publicly discussing war-related psychological
injuries.
29
Ben Shepard, A War of Nerves: Soldiers and Psychiatrists in the Twentieth Century 77 (2001).
30
Id. at 76−77.
31
Id. at 78 (emphasis added).
32
Penny Coleman, Flashback: Posttraumatic Stress Disorder, Suicide, and the Lessons of War
54 (2006).
33
Id. at 54−55.
34
Id. at 54.
8
Today, the military is making strides in removing the stigma of
PTSD among its ranks. Troops heading into combat are educated
about PTSD and encouraged to seek help if they need it. The
military also now deploys "combat stress officers," basically
battlefield psychologists, to the front lines to screen and treat
troops as they come out of battle.
Though the military is making progress in removing the stigma, it
still has a long way to go. The military is under unprecedented
strain as it struggles to meet the demands of two extended
conflicts. Military leaders are often caught between a rock and a
hard place. Though they are now trained to recognize and
encourage treatment of mental health disorders, they are also
under pressure to field combat-effective units. Sometimes they
relegate mental health treatment to a secondary priority. A series
of 2007 media reports found systemic failures in mental health
treatment of psychologically injured troops at Ft. Carson,
Colorado. 35 The reports found a pattern by leadership of denying
their troops' requests for treatment, stigmatizing those who were
getting help and even kicking some out of the military. The reports
spurred investigations by Congress and the Department of
Defense, which confirmed remaining flaws in the military mental
health system. 36
The very culture of the military is also an issue. Military culture, by
necessity, puts great value on strength, both physical and mental.
Soldiers sent into combat face the most horrific experiences
imaginable. Only the strong survive. Over the centuries, military
training has become ever more sophisticated in conditioning
troops to operate effectively and complete their missions, even
when faced with imminent death. A soldier's reputation within a
combat unit is largely based on how "cool" they are under fire.
This "warrior" mindset becomes deeply ingrained and many
psychologically injured warriors deny they have a problem, even
to themselves. The RAND Corporation study, cited above, found
that, of the one third of Iraq and Afghan vets who admitted PTSD
or TBI-related issues, less than half had sought help. According to
RAND, those veterans who declined help did so out of fear that
they would lose the respect of their comrades, jeopardize their
security clearance, or harm their chances of promotion. 37 Many
35
Daniel Zwerdling, "Gaps in Mental Care Persist for Fort Carson Soldiers," Nat'l Pub. Radio,
May 24, 2007.
36
Daniel Zwerdling, "Pentagon Report Cites Mental Health Concerns," Nat'l Pub. Radio, June 15,
2007.
37
Invisible Wounds of War, supra note 5.
9
veterans carry this value system with them even after they leave
the military and come home.
2.
Iraq and Afghan veterans.
While the vast majority of Vietnam veterans served a single
twelve-month tour in-country, many veterans of Iraq/Afghanistan
will have served two, three, four or more tours. "People aren't
designed to be exposed to the horrors of combat repeatedly. And
it wears on them," General George Casey, then-Army Chief of
Staff, stated in a 2008 press conference. 38 General Casey was
announcing the results of a recent Army study, which found that
levels of PTSD climb significantly with repeated combat
deployments. 39
Some believe that because "only" 5,000 American troops have
been killed in these conflicts, as opposed to the 58,000 killed in
Vietnam, the current conflicts must be less violent. In fact, the
lower number of deaths is primarily attributable to today's hightech body and vehicle armor and modern battlefield medicine
techniques that have prevented deaths from injuries that would
have killed troops in past wars. The wars in Iraq and Afghanistan
have been incredibly violent, especially the up-close urban combat
in Iraq.
Evidence indicates that combat operations in Iraq are very
intense. According to a 2004 study conducted by the Walter Reed
Army Institute of Research, which surveyed combat infantrymen
just back from Iraq:

94 percent reported receiving small-arms fire;

86 percent reported knowing someone who was injured or
killed;

68 percent reported seeing dead or seriously injured
Americans;

51 percent reported handling or uncovering human
remains;

77 percent reported shooting or directing fire at the enemy;
38
Greg Zoroya, "Findings of Army Health Study, Fifth of Soldiers at PTSD Risk," USA Today,
Mar.
6,
2008,
http://www.usatoday.com/news/world/iraq/2008=03=06=soldier=
stress_N.htm?csp=34.
39
Id. (citing Mental Health Advisory Team (MHAT) V, supra note 7).
10

48 percent reported being responsible for the death of
enemy combatants and

28 percent reported being responsible for the death of a
noncombatant. 40
Note that the above-study was conducted in 2004, early in the war
and the troops surveyed in that study had only completed one
combat tour. Many of those same troops have now likely served
two, three, four or more tours and the statistics cited above would
certainly be much higher today.
Unfortunately, the Veterans' Administration (VA) was not initially
provided sufficient additional funding to handle the large influx of
Iraq and Afghan vets seeking PTSD treatment. Several highly
publicized scandals, one of which involved a Minnesota Marine
who killed himself after reportedly being turned away from a VA
hospital, have forced the government to significantly increase
resources toward necessary psychological care. 41 Today, care for
our psychologically injured veterans is improving.
III.
LINKS BETWEEN COMBAT TRAUMA AND CRIMINAL BEHAVIOR
A.
Historic Post-War Spikes in Veteran-Committed Crimes
Historical research reveals a pattern of veteran-committed crime waves
following every major conflict. Though scientific studies have only recently
been conducted on this issue, a look back at history through this lens
clearly reveals this pattern.
Following the American Revolutionary War, one author noted a marked
increase in crime that caused many states to institute new laws and
penalties in response. 42 A Revolutionary veteran, describing conditions in
South Carolina after the war, wrote, "highway robbery was a common
occurrence, and horse-stealing so frequent that the Legislature made it a
crime punishable with death." 43
40
Charles W. Hoge et al., "Combat Duty in Iraq and Afghanistan, Mental Health Problems, and
Barriers to Care," 351 New Eng. J. Med. 13, 18 (2004).
41
Kevin Giles, "This Marine's Death Came after He Served in Iraq: When Jonathan Schulze
Came Home from Iraq, He Tried to Live a Normal Life, But the War Kept that from Happening,"
Minneapolis Star Trib., Jan. 26, 2007; Charles M. Sennott, "Told to Wait, A Marine Dies: VA Care
in Spotlight after Iraq War Veteran's Suicide," Boston Globe, Feb. 11, 2007; Dan Ephron & Sarah
Childress, "How the U.S. Is Failing Its War Veterans," Newsweek, Mar. 5, 2007.
42
Allan Nevins, The American States During and After the Revolution, 1775-1789 454 (1924).
43
Id. (citing Joseph Johnson, Traditions and Reminiscences 400 (1851)).
11
Studies conducted after the Civil War, World War I and World War II
found a disproportionate number of veterans in the criminal justice
system. Following the Civil War a great wave in crime and disorder was
documented. 44 One prison in Pennsylvania reported a large influx of
prisoners in the last three months of 1865, "most in poor physical
condition, and nine-tenths incapacitated and demoralized by the war." 45
In 1866 they reported an unprecedented influx, three-fourths of whom had
fought in the war and were "shattered" by their experiences. 46
Nationwide, in 1866 two-thirds of all commitments to state prisons in
northern states were men who had seen service in the war. 47
Many Civil War veterans also headed west after the war. In fact they are
largely responsible for putting the "wild" in the "wild west." Jesse James
and his brother Frank, for instance, served in a Confederate guerilla unit
similar to today's special operations forces. When the war ended, they
and other members of their unit formed the James Gang and headed
west, plying their war-honed skills in robbing trains, stagecoaches and
banks. 48
A similar pattern of veteran-committed crimes was noted in Europe
following WWI. In 1920, one English writer observed:
The war has destroyed with a hand more desolating than
the Black Death or the most terrible plagues of history. But
its consequences do not end with destruction. The people
who have taken serious part in it are not the same people
as those who went into it. . . . They are changed peoples.
They have passed through an experience which has
altered habits, temper, outlook, in five years, more than
44
Edith Abbott, "Crime and the War," 9 J. Am. Inst. Crim. L & Criminology 41 (1918).
45
Id. at 43.
46
Id.
47
E.C. Wines & Theodore Dwight, "The Reformation of Prison Discipline," 105 N. Am. Rev.,
580−81 (1867), available at http://books.google.com/books?id=Kn8FAAAAQAAJ&pg=PP7&lpg=
PP7&dq=Ticknor+and+Fields,+The+North+American+Review,+Boston,+Vol.+CV,+1867&source=
bl&ots=5JWYeUkEQ4&sig=01A0d6Lbo61dQYVxwFXhEvCXwYc&hl=en&sa=X&ei=_0SDT=S8Bo
qk8AST6PjsBw&ved=0CEIQ6AEwBQ#v=onepage&q=Ticknor%20and%20Fields%2C%20The%2
0North%20American%20Review%2C%20Boston%2C%20Vol.%20CV%2C%201867&f=false.
48
William A Settle, Jesse James Was His Name (1977); Amy Shafer, "Visitors Drawn to Jesse
James' Hometown;" Deseret News; July 2000: http://www.deseretnews.com/article/772331/
Visitors=drawn=to=Jesse=James=hometown.html;
PBS:
"Interview:
Guerilla
Tactics":
http://www.pbs.org/wgbh/americanexperience/features/interview/james=guerrilla/;
PBS:
"Biography: Jesse James": http://www.pbs.org/wgbh/americanexperience/features/biography/
james=jesse/; The State Historical Society of Missouri: Jesse James (1847=1882):
http://shs.umsystem.edu/famousmissourians/folklegends/james/; James M. McPherson, "How the
Civil War Shaped Jesse James;" US News, Jun. 24, 2007; http://www.usnews.com/news/articles/
2007/06/24/how=the=civil=war=shaped=jesse=james
12
fifty years of ordinary life would have altered them. Some
of the consequences of that experience are obviously bad.
The epidemic of crimes of violence is the natural sequel of
war, for men learn in that school to think little of life. The
same increase of crime of this kind followed the
Napoleonic Wars both here and in France. 49
In the United States, post-WWI veteran-committed crimes were also a
cause for grave concern. The President of the Institute of Criminal Law
and Criminology, in his annual address in 1919, stated:
Last year saw the ending of the War. From England to
France, and in our own country, statistics have been
gathered which show that serious crime, which had been
on the decrease during the period of the War was again
stalking in the foreground. . . . The newspapers are filled
with accounts of crimes of such daring and boldness as to
make the average citizen stand aghast at the manner in
which the security of life and rights of property are
ruthlessly disregarded and imperiled." 50
A study entitled Military Service and Criminality, 51 published in 1952, a
few years after WWII, tallied the number of men committed to eleven
prisons in the upper-Midwest during 1947, 1948 and 1949 and found that
fully one third of them were veterans. Similarly, a study of Vietnam
veterans receiving care for PTSD in the VA system during the mid-1980s
found that almost half of all Vietnam veterans suffering from PTSD had
been arrested or in jail at least once, 34.2 percent more than once, and
11.5 percent reported being convicted of a felony. 52
In the case of the Vietnam generation, involvement in the criminal justice
system has lingered for decades. A 1998 Department of Justice study
found that more than twenty years after the war, approximately a quarter
million veterans, a large portion from the Vietnam era, were still housed in
our nation's prisons. 53
49
Edith Abbott, The Civil War and the Crime Wave of 1865-70, 1 Soc. Serv. Rev. 212 (Jun.,
1927) (citing The Nation, XXVI, 498 (Jan. 10, 1920).
50
Betty Rosenbaum, "The Relationship between War and Crime in the United States," 30 J. Crim.
L. & Criminology, 730 (1940) (citing Hugo Pam, "Annual Address of the President of the Institute
of Criminology," 10 J. of Am. Inst. of Crim. L. & Criminology 327 (1919)).
51
Walter A. Lunden, "Military Service and Criminality," J. Crim. L., Criminology, & Police Sci.,
766−73 (1952).
52
Richard Kulka, et al., National Vietnam Veterans Readjustment Study, VII-21-1 (1990).
53
Christopher J. Mumola, Bureau of Justice Statistics, Veterans in Prison or Jail, NCJ 178888
(2000), http://www.ojp.usdoj.gov/bjs/.
13
Those who attempt to deny the link between war trauma and crime often
cite this same 1998 Department of Justice study, pointing out that
veterans are imprisoned in smaller percentages than the civilian
population. What they overlook, however, is that since WWI, the military
has aggressively screened out those it deems psychologically or morally
unfit. During the call-up for World War II, for instance, 1,681,000 men
were rejected and excluded from the draft for emotional, mental, or
educational disorders or deficiencies. 54 Another 500,000 were
subsequently separated from the Army during training on psychiatric or
behavioral grounds. 55 This recruit screening continued through Vietnam
and into our current conflicts. Thus, any direct comparison of
incarceration rates between veterans and the civilian population is flawed.
Given the military's screening, the fact that veterans are incarcerated at
even close to the same rates as the civilian population is alarming and is
prima facie evidence that military service, itself, played a role.
The most recent and definitive tie between combat trauma and criminal
behavior comes from the military, itself. In 2009, following a highlypublicized wave of homicides and other violent crimes committed by
recently-returning combat soldiers on and around Fort Carson, Colorado,
the Army commissioned a study called the Epidemiological Consultation,
or EPICON, for short. 56
Epidemiology is the branch of medicine that seeks to study the factors
affecting the health and illness of entire populations. Most of the time,
epidemiologists focus on infectious disease, but increasingly the Army
has used its experts to look at behavioral health issues. A team of twentyfour physicians and Ph.D.s from Walter Reed Institute of Research
descended on Ft. Carson, studying soldiers who had acted out violently,
looking for common factors.
The EPICON team, first, found that violent crime among the soldiers at Ft.
Carson was well outside normal levels of crime in civilian society. The
murder rate for Ft. Carson had doubled since the start of the Iraq war.
Rape arrests had tripled and stood at nearly twice the rate of other Army
posts. 57
Second, the EPICON team ruled out the "bad seed" theory. Long a
favorite of military commanders, the "bad seed" theory posits that the only
troops acting out criminally were troubled before their military service and
would have acted out whether they had served or not. The EPICON team
54
Marlowe, supra note 17, at 48.
55
Id.
56
U.S. Army Center for Health Promotion and Preventive Medicine, Epidemiologic Consultation
No. 14-HK-OB1U-09: Investigation of Homicides at Fort Carson, Colorado November 2008–May
2009, ES-1 (2009).
57
Id. at 10-11.
14
found no such common tie. Soldiers who had acted out had disparate
pre-service criminal backgrounds and mental health issues. They also
came from diverse racial, socioeconomic, and educational backgrounds.
The common thread among all those who had committed violent crimes
was that they had seen serious combat. From a public health standpoint,
combat seemed to be a contagion. PTSD, drug and alcohol abuse,
violence, and murder were just the symptoms. The more soldiers were
exposed to combat, the more they showed the effects.
The EPICON study also concluded that the crimes reported on and
around Ft. Carson were just the tip of the iceberg. Of the Ft. Carson
soldiers surveyed, 40 percent reported choking, beating, kicking, or
pointing a gun at someone – in other words they had committed some
kind of felony assault. 58
In the end, the EPICON team found two major factors contributed to postdeployment violent behavior: (1) repeated deployments and (2) the
intensity of combat in those deployments. The study concluded with a
carefully worded assertion that "[s]urvey data from this investigation
suggest a possible association between increasing levels of combat
exposure and risk for negative behavioral outcomes." 59 In other words,
the military finally confirmed what civilian sociologists had long believed:
combat contributes to crime. Soldiers come home different. By sending
young men and women to war, a country is unintentionally bringing
violence back on itself.
Closely linked to the criminal justice system is the homeless population. A
2006 study found that fully 24 percent of Minnesota's male homeless
population are veterans. More than half of those homeless veterans were
deemed to have a "serious mental illness." 60 Nationally,
An estimated 136,334 veterans spent at least one night in
an emergency shelter or transitional housing program
between October 1, 2008 and September 30, 2009. This
accounts for one of every 168 veterans in the U.S. or one
out of every ten veterans living in poverty. 61
58
Id. at 12-13.
59
Id. at 18.
60
Wilder Research, Overview of Homelessness in Minnesota 2006, 40-41 (2007).
61
U.S. Dep't of Hous. & Urban Dev., Office of Cmty. Planning & Dev., Veteran Homelessness: A
Supplemental Report to the 2010 Annual Homeless Assessment Report (AHAR) to Congress i
(2009).
15
This statistic illustrates just how difficult it can be for veterans to make the
transition from military to civilian life.
B.
Modern Combat Conditioning and the Total Military Institution
In addition to the psychological toll of warfare, the training and
conditioning used to prepare our veterans for combat may also be
relevant to criminal behavior,
In order to fully understand the complexities associated
with a veteran's risk for chronic mental health problems
(e.g., PTSD) it is necessary to consider the role and
function of military training and the total institution (an area
that has enjoyed research immunity in the area of PTSD),
contributing static variables, and the more opaque dynamic
variables, which include the psychological "software"
installation and manipulation procedures employed during
the training processes in the military total institution. 62
In order to ensure success and survival on the battlefield, the U.S. military
has a culture and training program that encourages immediate and violent
reactions to threats. Nowhere is this clearer than the military's attitude
toward killing, "Killing another human being, for example, is considered an
unnatural act in the civilian environment. In the military, killing is viewed
differently – killing becomes a more natural act that enhances the
likelihood of survival and advances the probability that the military will
succeed in its mission." 63
To overcome the human aversion to killing and ensure performance
under the stress of combat, the armed forces must condition the service
members to follow orders even in the most tragic situations. To this end,
the military has grown to be what the sociologist Erving Goffman coined
as a "total institution," which is a place of work and residence where a
great number of similarly situated people, cut off from the wider
community for a considerable time, together lead an enclosed, formally
administered round of life. As experienced by service members,
The United States military system meets many of the
criteria set forth in Goffman's total institution model. The
individual's entire being is devoured and controlled in a
total institution environment. This environment undercuts
the person's individuality, disregards the individual's
dignity, and results in a regimentation of life that typically
disregards his or her desires or inclinations. Short of going
AWOL (Absent Without Leave) or desertion, the total
62
William Brown, "Another Emerging Storm: Iraq and Afghanistan Veterans with PTSD in the
Criminal Justice System," Just. Pol'y J., Vol. 5, No. 2, 17-18 (2008).
63
Id. at 18.
16
institution significantly restricts the options for military
personnel until their contractual agreement expires
(discharge) – or until she or he is dead. 64
Given this military total institution, the training and conditioning the
military puts the service member through has powerful and lasting effects.
This training often is expertly designed to overcome the service members'
reluctance to commit violent or aggressive acts in order to ensure they
will kill the enemy or take other aggressive action when the need arises.
This is good for the service member because it helps ensure survival in
combat. But, since veterans are not deprogrammed as they leave the
military, this will, of course, lead some veterans to rely on these violent
and aggressive instincts even after they have left the military, causing
terrible problems in their civilian lives. The power of these effects are so
significant that, through thorough sociological research, Dr. William Brown
found that there is very little dissimilarity between criminally-involved
veterans and veterans with no criminal offenses in terms of alcohol use,
attitudes about killing, relational problems, and illegal behavior. 65
C.
How Combat Trauma Sometimes Manifests in Criminal Behavior
Combat trauma can be linked to criminal behavior in two primary ways.
First, symptoms of PTSD can incidentally lead to criminal behavior.
Second, offenses can be directly connected to the specific trauma that an
individual experienced. 66 Many symptoms of PTSD can lead to behaviors
likely to result in criminal behavior and/or sudden outbursts of violence.
Individuals with PTSD are often plagued by memories of the trauma,
chronically anxious, and unable to sleep without terrifying nightmares.
They often self-medicate with drugs and alcohol in an attempt to calm
their nerves and sleep. The emotional numbness many trauma survivors
experience can lead the survivor to engage in sensation-seeking behavior
in an attempt to experience some type of emotion. Some combat
veterans also may seek to recreate the adrenaline rush experienced
during combat. "Hypervigilance," feeling the need to be always "on guard"
can cause veterans to misinterpret benign situations as threatening and
cause them to respond with self-protective behavior. Increased baseline
physiological arousal results in violent behavior that is out of proportion to
the perceived threat. It is common for trauma survivors to feel guilt and to
resort to self-destructive behaviors, which can sometimes lead them to
64
Id. at 18-19 (citing, Erving Goffman, Asylums: Essays on the Social Situation of Mental Patients
and Other Inmates (1961)).
65
William Brown, "Spinning the Bottle: A Comparative Analysis of Veteran-Defendants and
Veterans Not Entangled in Criminal Justice," The Attorney's Guide to Defending Veterans in
Criminal Court (Brockton Hunter ed., 2012).
66
Claudia Baker & Cessie Alfonso, PTSD and Criminal Behavior: A National Center for PTSD
Fact Sheet, http://www.criminalprofiling.com/PTSD-and-Criminal-Behavior_s291.html.
17
commit crimes that will likely result in their apprehension, punishment,
serious injury, or death. 67
A particular traumatic stressor can lead an individual suffering combat
trauma to commit a specific crime in three primary ways. First, crimes at
times literally or symbolically recreate important aspects of a trauma. The
second way that traumatic stressors can be linked to specific crimes is
that environmental conditions similar to those existing at the time of the
trauma can induce behavior similar to that exhibited during the trauma, in
particular, violent responses. The final way that traumatic stressors can
be linked to specific crimes is that life events immediately preceding the
offense can realistically or symbolically force the individual to face
unresolved conflicts related to the trauma. This creates a disturbed
psychological state in which otherwise unlikely behaviors emerge. 68
IV.
DEFENDING THE COMBAT VETERAN IN CRIMINAL COURT
There are opportunities to make the veteran's service and service-related trauma
relevant throughout the case, from pre-charge to sentence mitigation. If possible,
before charges are even filed the prosecutor should be made aware of the
veteran's service, any service-related mental health problems, and available
treatment options to allow this to be considered in the charging decision. The
veteran's service, connection to the community, available treatment resources,
and veterans' organizations that may supervise the release can all be used to
argue for pretrial release. If the veteran is suffering from service-related PTSD or
TBI, the need for treatment and available treatment resources can be used both
in plea negotiations and sentencing. When such conditions are present to an
extreme degree, they may even be exculpatory in negating the mens rea
requirements of the crime. These materials will provide an introductory overview
of the strategies in defending the military veteran, which are fully addressed in
The Attorney's Guide to Defending Veterans in Criminal Court.
A.
The Changing Terrain: State Statutes and Veterans Courts
Fortunately, federal, state, and local governments are beginning to
recognize the unique situation of combat veterans in criminal courts. To
prevent reliving the mistakes made with the Vietnam generation of
veterans, the federal government has made military service a relevant
consideration for departures in sentencing; 69 a few states have passed
legislation to expressly allow the Court to consider the Defendant's
service and service-related mental illness at sentencing; and many
counties have created veterans specialty courts to directly address
67
Id.
68
Id.
69
U.S. Sentencing Guidelines Manual, §5H1.11 (2010) (stating that "[m]ilitary service may be
relevant in determining whether a departure is warranted, if the military service, individually or in
combination with other offender characteristics, is present to an unusual degree and distinguishes
the case from the typical cases covered by the guidelines").
18
veterans' unique situations and to supervise the veterans rehabilitation.
These are all evidence of a changing legislative intent that pervades at all
levels of government, showing any court that there is a popular-public
interest in providing veteran-defendants special consideration and, when
necessary, the treatment resources necessary to ensure their combat
service does not lead into a perpetual cycle of incarceration.
In 2007 and 2008, along with other Minnesota veterans advocates, I,
Brockton Hunter, led an effort to draft and pass legislation that addresses
deficiencies in the way the Minnesota's criminal courts deal with
psychologically-injured veterans. 70 The law is designed to ensure that
mental health diagnoses and available treatment options are taken into
account in sentencing a veteran whose combat trauma played a role in
his or her criminal offense. The law does not force a judge to do anything
in a particular case. Rather, it gives the judge the tools to make an
informed decision, recognizing that probationary treatment is often
preferable to a single stint of incarceration in getting to the root of the
problem and ensuring long-term public safety. This is not a "get out of jail
free card" for veterans. Completion of treatment is a condition of
probation and failure to follow through can result in execution of a jail or
prison sentence.
In 2007, California also updated past legislation that had been found
ineffective at dealing with the veterans returning from wars in Afghanistan
and Iraq. 71 Like the Minnesota statute cited above, California has given
judges the express authority to utilize treatment over incarceration while
not mandating that the Courts follow any particular type of sentence.
What the Minnesota and California statutes do, in effect, is make the
veteran's service a relevant sentencing consideration, just as the United
States Sentencing Guidelines §5H1.11 did in 2010 in stating that "Military
service may be relevant in determining whether a departure is warranted,
if the military service, individually or in combination with other offender
characteristics, is present to an unusual degree and distinguishes the
case from the typical cases covered by the guidelines." This multi-state
and federal push for such sentencing mitigation guidelines shows that the
public's interests have shifted towards placing a higher priority on the
treatment of a veteran's service-related impairment and less of a priority
on a strictly punitive approach to veteran-defendants. It seems that,
amidst the recent wars in Iraq and Afghanistan, the American public and
the policy makers working on their behalf have made an affirmative
decision not to relive the mistakes made when the Vietnam generation of
veterans first came in contact with the criminal justice system.
70
Minn. Stat §609.115 Subd. 10.
71
Adam Caine, "Fallen from Grace: Why Treatment Should Be Considered for Convicted Combat
Veterans Suffering from Post-Traumatic Stress Disorder," 78 U.M.K.C. L. Rev. 215, 225-29
(2009).
19
Veterans treatment courts are further evidence of this trend in changing
policy interests and show that this trend is not limited to the legislative
branch. As of June 2, 2011, there were at least sixty-two county veterans
courts in twenty-six different states. 72 In December 2011, The Atlantic
reported that "[n]early eighty veterans courts have sprung up across the
country over the past four years, and twenty more are expected to open
by the end of this year," 73 showing a rapid growth of these courts across
the country that signals a national acceptance of their underlying
principles. Texas, California, Colorado, Illinois, Oregon and Virginia have
passed legislation specifically permitting the establishment of county
veterans treatment courts. 74 Other states have done so directly through
county court systems.
These courts follow a variety of models, but all offer a defense attorney a
way to lessen their client's exposure to incarceration and, sometimes,
conviction through diversion to judicially supervised rehabilitation
programs if the veteran is willing to accept responsibility for his actions
and get help for his underlying conditions, usually PTSD and/or
substance abuse. This structure is quite similar to long-used drug and
mental health specialty court models, but, by using the existing structure
and resources of the VA, these courts are an attractive option to districts
that are under budget strains. Even in districts where there is not a
veterans problem-solving court, this fiscal reasoning is a strong argument
in favor of probationary treatment that is unique to veteran-defendants.
These courts are not "get out of jail free" courts that are showing veterans
a preferred status. Rather, these courts often use longer terms of
probation than the defendant would be exposed to in a standard criminal
court in order to provide the court with the proper leverage to ensure the
veteran stays committed to the treatment program until rehabilitated. The
level of oversight and accountability is often very demanding. By having
other veterans hold the veteran-client accountable, these courts "offer the
most easily accepted 'tough love' support." 75
Both the statutes and the veterans courts have arisen out of the public's
recognition that when our Nation is sending young men and women to
72
Nat'l Ass'n of Drug Court Prof'ls, Justice for Vets: The National Clearinghouse for Veterans
Treatment Courts, http://www.nadcp.org/JusticeForVets (last visited June 1, 2011).
73
Kristina Shevory, "Why Veterans Should Get Their Own Courts: As Troops Surge Back into
Domestic Life, Incarceration Isn't Always the Answer," The Atlantic, Dec. 2011,
http://www.theatlantic.com/magazine/archive/2011/12/why=veterans=should=get=their=own=cour
ts/8716/.
74
Nat'l Ass'n of Drug Court Prof'ls, Veterans Treatment Court Legislation, http://www.nadcp.org/
JusticeForVets-Legislation (last accessed June 1, 2011); Cal. Penal Code, §1170.9 (2010); Col.
Rev. Stat., §§13-3-101; 13-5-144 (2010); 730 Ill. Comp. Stat. Ann. 167 (2010); Or. Rev. Stat.
§135.886(2)(j)(3) (2010); Tex. Health & Safety Code, §617 (2010); Va. Code, §2.2-2001.1 (2010).
75
Judge Michael Daly Hawkins, "Coming Home: Accommodating the Special Needs of Military
Veterans to the Criminal Justice System," 7 Ohio St. J. Crim. L. 563, 570 (2010).
20
prepare for and fight wars, as San Diego Prosecutor William C. Gentry so
eloquently stated, "you are unleashing certain things in a human being we
don't allow in civic society, and getting it all back in the box can be difficult
for some people." 76 The public and courts nationwide are recognizing
that the responsibility for these veterans falls on all of the American
public. Thus, even where these statutes are not applicable and these
courts are not available, this change in public sentiment should be used
to argue to the Court that it, as well, has a duty to show compassion
toward, and promote the rehabilitation of, veteran-defendants.
B.
Pre-Trial Strategies
Even before charges are filed by the State, there is an opportunity for the
Defendant's military service to become relevant and maybe even
dispositive. Prosecutors have incredible discretion to not charge or undercharge an offense. A veteran-client's military service may be relevant to
many of the National District Attorneys Association's (NDAA) factors for
screening whether to charge or what to charge: doubt as to accused's
guilt; the availability of suitable diversion and rehabilitative programs; the
attitudes and mental status of the accused; "any mitigating
circumstances;" and the characteristics of the offender. 77 These factors
show there are various reasons why a prosecutor should consider a
veteran-defendant's military service in the charging decision or in the
context of a plea agreement. Prosecutorial sympathy for veterans has
been tested and shown as significant, in at least minor offenses, through
social science research as well. 78 A University of Alabama study polled a
sample of thirty-five active prosecutors from Alabama, Mississippi,
California, and Kansas regarding a charged assault with consistent fact
patterns and four types of defendants: veterans with PTSD, veterans
without PTSD, non-veterans with PTSD, and a control group that was
neither a veteran or had PTSD. 79 The veteran-defendant with PTSD had
been in a blast that struck his vehicle, injuring him and killing two others
from his unit; and the non-veteran with PTSD had been in a car accident
that injured him and killed a passenger. 80 The following findings suggest
a significant sympathy for both veteran groups amongst prosecutors:
76
Id. at 569 (quoting Deborah Sontag & Lizette Alvarez, "Across America, Deadly Echoes of
Foreign Battles," N.Y. Times, Jan. 13, 2008).
77
Nat'l Dist. Attorneys Ass'n (NDAA), National Prosecution Standards, Standard 4-1.3, Screening
Factors to Consider (3d. ed. 2009); Hans Sinha, "Prosecutorial Ethics: The Charging Decision,"
41 Prosc. 32, 39 (2007).
78
Jennifer Kelly Wilson, Stanley L. Brodsky, Tess M.S. Neal, & Robert J. Cramer, "Prosecutor
Pretrial Attitudes and Plea Bargaining Behavior toward Veterans with Posttraumatic Stress
Disorder," 8 Psychol. Servs. 319 (2011).
79
Id.
80
Id at 322.
21
Overall, prosecutors viewed veterans as less blameworthy
for the low-level offense than nonveterans. As
hypothesized, prosecutors were significantly more likely to
empathize and identify with veteran defendants, as well as
find them less criminally culpable, than with nonveteran
defendants . . . We anticipated that prosecutors would
recommend similar sentences and dispositions to veterans
and nonveterans alike, but sentencing leniency for
veterans almost reached statistical significance. A further
important finding was that veterans were offered
significantly more treatment-focused diversion programs
than nonveteran defendants, as opposed to simply jail or
probation. 81
The study found that veterans overall, both with and without PTSD, were
perceived by prosecutors as less culpable, "The hierarchy of least to most
culpable was veterans with PTSD, veterans without PTSD, nonveterans
with PTSD, and nonveterans without PTSD; however, the absolute
differences were small between conditions." 82 The authors of the study
hypothesized that the reason for this is that "in the case of defendants
who are military veterans, prosecutors may recognize that some
experience significant practical and psychological barriers to readjustment
to civilian life. Thus, veterans may be found somewhat less culpable for
committing crimes and may receive a treatment approach from the courts,
instead of retribution. 83
Among prosecutors who resist mitigated charges or sentences for combat
veterans, a common concern is their perception of the veterandefendant's dangerousness. After long experience, I have found the best
response is:
Yes, my client is potentially dangerous. In fact, you
probably don't realize just how dangerous our government
has made him and all other veterans like him. I am not
seeking this treatment-based resolution in spite of the
danger he poses. I am seeking this resolution because of
his potential danger if he does not get the help he needs.
This is not just about doing right by my client, in recognition
of his service and sacrifice on our behalf. This is also about
better protecting public safety. If you take that duty
seriously then treatment is the best way to accomplish it.
81
Id at 326.
82
Id at 327.
83
Id.
22
C.
Voir Dire
Studies conducted on public attitudes toward military service-connected
PTSD indicate potential jurors are more empathetic in this context than
toward other mental health issues. For example, in a 1988 study of the
effects of various stigmas,
Participants viewed service-related PTSD as highly
treatable and having an uncontrollable onset and thus
attributed low responsibility for the illness and low blame in
general. The diagnosis of PTSD elicited greater liking and
pity and less anger than any other mental-behavioral
stigma in the study. Participants who viewed veterans with
PTSD as less blameworthy also exhibited charitable
attitudes and a tendency toward helping behavior with
such individuals, pointing to a possible link between
attitudes and behavior. 84
A 2003 study had similar findings when applied directly to excuse
defenses in the criminal justice context:
Not surprisingly, mock jurors viewed the PTSD defense as
highly excusable, with low criminal culpability and control
over illness relative to other defenses. Thus, jurors
generally tend to view people with PTSD as less
responsible for criminal offenses. Such beliefs, together
with feelings of sympathy, could influence verdicts and
sentencing behavior of judges, jurors, and prosecutors. 85
Finally, a 2011 study found a "positive juror bias toward veterans with
PTSD [that] represents a strong indicator of community support for this
group of individuals, support documented by various public surveys." 86
When these findings are taken with the fact that "research has revealed a
generally high level of public support for troops in recent years," 87 the
84
Jennifer Kelly Wilson, Stanley L. Brodsky, Tess M.S. Neal, & Robert J. Cramer, "Prosecutor
Pretrial Attitudes and Plea-Bargaining Behavior toward Veterans with Posttraumatic Stress
Disorder," 8 Psychol. Servs. 319 (2011) (discussing B. Weiner, R. Perry, & J. Magnusson, "An
Attributional Analysis of Reactions to Stigmas," J. Personality & Soc. Psychol., 55, 738-48
(1988)).
85
Id. (discussing Wendy P. Heath, Jeff Stone, John M. Darley, & Bruce .D. Granneman, "Yes I
Did It, but Don't Blame Me: Perceptions of Excuse Defenses," 31 J. Psychiatry & L., 187-226
(Summer 2003)).
86
Jennifer Kelly, Veterans on Trial: Juror Attitudes and Behaviors toward Veterans with
Posttraumatic Stress Disorder 28 (2011) (unpublished M.A. thesis, University of Alabama),
available
at
http://acumen.lib.ua.edu/content/u0015/0000001/0000579/u0015_0000001_
0000579.pdf.
87
Wilson, Brodsky, Neal, & Cramer, supra note 86 (citing D.L. Leal, "American Public Opinion
Toward the Military: Differences by Race, Gender, and Class," Armed Forces & Soc., 123-38
23
defense for the veteran-client can afford to be slightly more cautiously
optimistic about trial than with a non-veteran client and perhaps push the
envelope on the above defenses a little bit further.
In addition to seeking jurors who are open and empathetic towards PTSD,
an obvious choice would be jurors who have served in the military. A
veteran on your jury can be your best friend or your worst enemy. Some
veterans, particularly higher ranking officers may have a rigid attitude
towards PTSD and those who profess to suffer from it, particularly if they
never served in combat, themselves.
Great caution is warranted here. Look for veterans from the lower ranks
who served as close as possible to the front lines. Even then, beware of
those who may have served in such a capacity and may be in denial
about their own combat trauma. Veterans, regardless of their attitudes
toward PTSD, are likely to assume a leadership role among other jurors
who did not serve, so be very careful. When you pick a veteran, you are
very likely picking the foreman of your jury. Choose wisely.
Family members and friends of veterans are often a safer bet. They will
be familiar with the service and sacrifice of veterans, in general, and their
own stories and experiences with those veterans may play a large
educational role with other jurors.
Jurors who are familiar with and sensitive to mental health issues, in
general, are also often good choices. They will understand these issues
are real and can often educate their fellow jurors on these issues during
deliberation.
Emphasize during voir dire that you are seeking a "few good men and
women" for your particular case. Emphasize that some of the information
about your client's military service and actions that led to the criminal
charges may be difficult to hear. That is ok. They just need to be honest if
they don't think they can hear them weigh the evidence fairly.
D.
Trial Defenses: Insanity and Self Defense
Sometimes, trial will be necessary. In cases of extreme service-related
disorders, the veteran's service may be relevant to the determination of
guilt or innocence because the disorder may negate the requisite intent of
the crime or mitigate the veteran's culpability. 88 PTSD meets the
scientific criteria of admissibility requirements laid down in Daubert v.
(2005); PEW Research Center for People and the Press, Trends in Political Values and Core
Attitudes: 1987-2007 (2007); Brad Knickerbocker, "This Time, Vets Return to Welcome,"
Christian Sci. Monitor 1-4, Nov. 9, 2007.
88
See also Marku Sario's description of the Jessie Bratcher case in Chapter 19 of The Attorney's
Guide to Defending Combat Veterans in Criminal Court, in which he successfully asserted an
insanity defense in a murder trial based on the Defendant's PTSD and conditioned stimulusresponse based on his combat training.
24
Merrell Dow Pharms., Inc., 509 U.S. 579 (1993) and Federal Rule of
Evidence 702.89 89
PTSD or TBI-related defenses can be separated into four categories: (1)
insanity defenses, negating all culpability; (2) self-defense defenses
based on the veteran's altered belief of the amount of force necessary to
protect him or herself; (3) an automatism defense when the veteran is
acting out of reflex, sleep-walking, or conditioned stimulus response; and
(4) mens rea defenses other than insanity defenses, mitigating the
veteran's culpability in order to reach a lesser-included- offense. 90 A brief
overview of each is provided below. For more detailed discussion of these
defenses, see Brockton Hunter & Ryan Else, "Legal Strategies for
Defending the Combat Veteran in Criminal Court," The Attorney's Guide
to Defending Veterans in Criminal Court (Brockton Hunter ed., 2012).
1.
Insanity defenses.
The applicability of insanity defenses "will vary depending on the
jurisdiction's applicable insanity test and the severity of the
individual's [disorder]." 91 To meet the minimum threshold of any of
the four insanity tests used in the U.S., 92 the Defendant must
make a prerequisite showing that the criminal activity was the
result of a "mental disease," which typically requires a psychotic
disorder involving a "gross impairment in reality testing." 93 Most,
but not all, of the successful service-related-PTSD insanity
defenses have been cases of dissociative flashbacks, in which the
Defendant had believed he was back in combat, where violence
was not only acceptable but rewarded, when he committed the
crime, thus did not appreciate the wrongful nature of his actions. 94
89
Edgar Garcia-Rill & Erica Beecher-Monas, "Gatekeeping Stress: The Science and Admissibility
of Post-Traumatic Stress Disorder, 24 U. Ark. Little Rock L. Rev. 9, 30 (2001).
90
Thomas Hafemeister & Nicole Stockey, "Last Stand? The Criminal Responsibility of War
Veterans Returning from Iraq and Afghanistan with Posttraumatic Stress Disorder," 85 Ind. L.J.
87, 107−132 (2010); see also Daniel Burgess, Kara Coen & Nicole Stockey, "Reviving the
'Vietnam Defense': Post-Traumatic Stress Disorder and Criminal Responsibility in a PostIraq/Afghanistan World," 29 Dev. Mental Health L. 59, (2010); Alyson Sincavage, "The War
Comes Home: How Congress' Failure to Address Veterans' Mental Health Has Led to Violence in
America," 33 Nova. L. Rev. 481, 496 (2010).
91
Hafemeister & Stockey, supra note 90, at 112.
92
There are four insanity tests currently used in U.S. jurisdictions: (1) The M'Naghten Rule, or
Cognitive Test; (2) the Product Test; (3) the American Law Institute (ALI)/Control Test; and (4) the
Model Penal Code (MPC) Rule.
93
Hafemeister & Stockey supra note 90, at 113 (quoting Am. Psychiatric Ass'n, Diagnostic and
Statistical Manual of Mental Disorders 297 (4th ed. 2009)).
94
Michael Davidson, "Post-Traumatic Stress Disorder: A Controversial Defense for Veterans of a
Controversial War," 29 Wm. & Mary L. Rev. 415, 424-29 (1988).
25
2.
Self-defense: A parallel with Battered Women's Syndrome.
A veteran-defendant's service-related disorder can also support a
claim of self-defense in a situation that the Defendant's conduct
would not normally be "reasonable" in reacting to a perceived
threat but for the effect of the military experience on his perception
of and reaction to threats. Model Penal Code (MPC) §3.04(1)
states that, "a person is justified in using force upon another
person if he believes that such force is immediately necessary to
protect himself against the exercise of unlawful force by the other
on the present occasion." The defendant's service is relevant to a
self-defense claim because the defendant's combat service
altered what defendant reasonably believed was the immediately
necessary amount of force to protect himself, much like battered
women's syndrome is invoked to claim that past violent trauma
"can alter an individual's perception of the surrounding
environment and cause the individual to react unexpectedly to
certain cues or events that are perceived to be threatening." 95
Limited case law is available, but what is available shows that war
veterans in some jurisdictions can raise self-defense claims when
there is a diagnosis of PTSD, "supported by findings that the
disorder impacted a defendant's cognitive and emotional state and
causes him or her to react to a situation differently than would
otherwise be expected" in a reasonable person. 96 In State v.
Mizell, the District Court of Appeal for Florida held that the
Defendant's service-related PTSD was admissible as state of
mind evidence, as opposed to diminished capacity evidence, and
expert testimony of PTSD is relevant to the defendant's actual
belief that the danger was real in the same way that battered
women's syndrome is admissible and relevant. 97
3.
Unconsciousness/automatism during the criminal act.
Although seldom used, the defense of unconsciousness or
automatism may be available to veteran-defendants who have an
unconscious dissociative flashback, act reflexively, or are
sleepwalking while committing the offense. 98 This defense is
operative when the Defendant was not acting voluntarily, will
result in full acquittal, and is recognized in "virtually all
jurisdictions." 99 Because this defense is based upon the
95
Hafemeister & Stockey, supra note 90, at 128-29.
96
Id. at 127.
97
State v. Mizell, 773 So. 2d 618, 620-621 (Fla. Dist. Ct. App. 2000).
98
Burgess, Coen & Stockey, supra note 90, at 71.
99
Id.
26
defendant's inability to control his or her actions, it is close to the
ALI standard's control test for an insanity defense, but is not
dependent on an established mental illness.
Though rare, this defense may be more relevant in the
representation of combat veterans than the civilian population.
Chronic traumatic brain injury (TBI) has been proven to contribute
to the development of REM behavior disorder (RBD), 100 in which
sufferers appear to be unconsciously acting out their dreams in
ways that can be violent in nature and in some cases will result in
injury to either the patient or their bed partner. PTSD can cause
dissociative flashbacks that cause a person to believe they are in
a situation similar to the combat trauma. 101 Sleep-related violence
during dreaming, similar to the RBD experienced by TBI sufferers,
is also a problem for PTSD sufferers. 102 Since TBI and PTSD are
more common in the veteran population than the civilian
population, it stands to reason that these issues will be more
common among veteran clients than non-veteran clients.
4.
Mens rea mitigation of culpability.
Even if complete acquittal cannot be secured, a veteran's servicerelated disorder may be used to mitigate culpability and reach a
lesser-included offense because the disorder may have made the
defendant incapable of forming the requisite specific intent of the
offense. 103 Such an approach will be widely available to
defendants because "the defendant claiming a lack of mens rea is
not limited to when the PTSD induced a psychotic state – as is
typically required for an insanity defense – but can include various
other PTSD symptoms." 104 Such a defense may be the difference
between a conviction of first-degree murder and manslaughter, so
it is worth considering as a trial strategy.
100
Arunima Verma, Vivek Anand, & Narayan P. Verma, "Sleep Disorders in Chronic Traumatic
Brain Injury," 3 J. Clinical Sleep Med. 357, 357-62 (2007).
101
Arturo Silva, Dennis Derecho, Gregory Leong, Robert Weinstock, & Michelle Ferrari, "A
Classification of Psychological Factors Leading to Violent Behavior in Posttraumatic Stress
Disorder," 46 J. Forensic Sci. 311, 311-312 (2001).
102
Id. at 312 (citing J.A. Silva, G.B. Leong, C. Gonzales, & J. Ronan, "Dangerous
Misidentification of People Associated with Post-Traumatic Stress Disorder," 19 Am. J. Forensic
Psychiatry 17, 17-32 (1988); C.N. Scherick, S.R. Bundlie, M.G. Ettinger, & M.W. Mahowald,
"Chronic Behavioral Disorders in Human REM Sleep: A New Category of Parasomnia," 9 Sleep
293, 293-308 (1986); I. Oswald & J. Evans, "On Serious Violence During Sleepwalking," 147 Brit.
J. Psychiatry 688, 688-91 (1985)).
103
Hafemeister & Stockey, supra note 90, at 126.
104
Id.
27
D.
Sentencing Mitigation
In 2009, the United States Supreme Court stated that,
Our Nation has a long tradition of according leniency to
veterans in recognition of their service, especially for those
who fought on the front lines as [the Defendant] did.
Moreover, the relevance of [the Defendant's] extensive
combat experience is not only that he served honorably
under extreme hardship and gruesome conditions, but also
that the jury might find mitigating the intense stress and
mental and emotional toll that combat took on [the
Defendant]. 105
In fact, Porter held that for a defense attorney to fail to present the
Defendant's combat service and its related trauma as a mitigating factor
at sentencing in a capital case is proper grounds for a Strickland 106 claim
of prejudicially ineffective assistance of counsel. 107 As discussed in the
section on statutes and veterans courts above, this "leniency" is often
coupled with a desire to provide veterans with rehabilitative treatment to
ensure they do not reoffend and there are an increasing number of
creative options to structure such treatment. Of course, no matter what
the Court wants to do, it must also know it has the authority and public
support to do so. There is a three-step process that has worked well in
our office for arguing at a veteran-defendant's sentencing: (1) make the
court want to be lenient toward this veteran in particular and veterans in
general; (2) provide the Court with a structured treatment or rehabilitation
plan that will ensure the Defendant is well supervised and has a likelihood
of not reoffending; and (3) provide the Court with the history of public,
judicial, and legislative support for leniency towards combat veterans, and
any law on the matter that gives the court the authority to act on the
desires seeded in steps one and two.
An essential element of arguing to the Court for a lenient or treatmentbased sentence is to let the Court get to know the veteran, his or her
service history, and the history of veterans with combat trauma in the
105
Porter v. McCollum, 130 S.Ct. 447, 455 (2009).
106
Strickland v. Washington, 466 U.S. 668, 687 (1984) (stating that "[a] convicted defendant's
claim that counsel's assistance was so defective as to require reversal of a conviction or death
sentence has two components. First, the defendant must show that counsel's performance was
deficient. This requires showing that counsel made errors so serious that counsel was not
functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance prejudiced the defense. This requires
showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable. Unless a defendant makes both showings, it cannot be said that the
conviction or death sentence resulted from a breakdown in the adversary process that renders
the result unreliable”).
107
Porter v. McCollum, 130 S.Ct. 447, 455 (2009).
28
criminal justice system. By the time the case reaches sentencing, the
Court will already know that the Defendant is a veteran, so the argument
needs to make the Defendant a unique veteran by focusing in detail on
exceptional service records, combat experiences, personal hardships
caused by service, readjustment issues, service to the community,
support of friends from the military, or any other evidence that will
separate this veteran-defendant from the pack.
The A+ versions of the veteran-defense-counsel's arguments often
become more than forty-page-long memoranda, half of which is devoted
to providing this evidence of the veteran as an individual service member
in a chronological story format. 108 Of course, this story should be
supported by official service documents, such as the veteran's DD-214;
corroborating letters or affidavits from people that served with the veteran;
and any relevant medical treatment records. The veteran's individual story
should then be put in context with the plight of combat-stress inflicted
veterans historically and the medical/psychological significance of the
veteran's disorder, if any. Once the court is convinced that it wants to help
this veteran, it is the defense attorney's job to structure a treatment or
supervised release program that will make it feasible for the court to, at
the same time, not imprison the defendant and still not endanger public
safety.
V.
CONCLUSION: CRISIS AND OPPORTUNITY
As the discussion above makes clear, there is a looming crisis in the criminal
justice system as the wave of new veterans return home bearing the
psychological burdens of our wars. This crisis is also an amazing opportunity
because it is rare that the criminal justice system can bring its resources to bear
on a population that is as highly motivated and disciplined as these military
veterans. If properly reintegrated with society, these men and women can go on
to do things just as great at home as they did on distant combat deployments.
The poster child for what is possible in this regard is a close friend and colleague
of mine named Hector Renee Matascastillo. Hector is a former Army Ranger,
Special Operator, and Infantry 1st Sergeant with thirteen combat deployments,
many of them still classified. In 2004, Hector's undiagnosed PTSD led to a
dissociative flashback and an armed standoff with the police, resulting in multiple
felony charges. Hector's case was handled very well by all involved. In return for
his agreement to undergo treatment for his psychological injuries, all of his felony
charges were dismissed. Two years later, after completing treatment and
probation, Hector was cleared to return to active military duty. He volunteered to
return to Iraq and was assigned as 1st Sergeant of a 167-man infantry rifle
company bound for Al-Anbar Province at the height of the insurgency. Hector
brought all of his men home alive and was awarded the Bronze Star for his
108
See Andrea George, Position of Def. with Respect to Sentencing, U.S. v. Carson, Criminal No.
10-26 PJS-AJB, Doc. 31, Jun. 11 (U.S. Dist. Ct. Minn. 2010); Brockton Hunter, Mem. of Law in
Supp. of Mot. for Sentencing Departure, Minn. V. Klecker, Dakota Co. File No.: 19-K7-06-003438
(First Judicial Dist. Minn. June 21, 2007).
29
leadership. Upon returning home, Hector left the military to pursue a new
mission. In May 2010, he graduated with his Masters Degree in Social Work and
is now a licensed therapist, working with other combat trauma-suffering veterans.
In addition to his clinical work with veterans, Hector has worked with me in
training thousands of judges, attorneys, law enforcement officers, mental health
providers and community leaders on the reality of PTSD, its ties to criminal
behavior and how much a veteran can accomplish when given a second chance.
Fortunately, in Hector's case, the criminal justice system got it right by using his
offense as an opportunity for rehabilitation and redemption rather than punishing
a hero that served our nation bravely and honorably.
Alternatively, I have witnessed firsthand what happens when the criminal justice
system gets it wrong. One of my former clients, Arthur, "Artie" Torgesen, is a
Vietnam war veteran who served in C Company, 1st Battalion (Mechanized), 5th
Infantry Regiment, 25th Infantry Division in 1968, the bloodiest year of the
Vietnam war. His unit was decimated in an ambush on August 21, 1968 in the
Ben Cui rubber plantation. To illustrate the intense violence of this battle: in a
thirty minute firefight, his company of sixty men suffered seventeen killed and
twenty-one seriously wounded; one man earned the posthumous award of the
Congressional Medal of Honor; one earned the Silver Star; and the unit earned
the Presidential Unit Citation for "extraordinary heroism." 109 Artie's closest friend,
Specialist Michael Mangan, was posthumously awarded the Distinguished
Service Cross for, among other acts of valor, covering the unit's retreat, saving
Artie's life. 110 Artie would later name his only son after Mr. Mangan for this act.
Artie was injured during this battle, earning his second Purple Heart.
Despite physically surviving the war, Artie never fully returned home. He suffered
from severe PTSD, including dissociative states in which his wife would find him
low crawling through the house, and he heavily self-medicated with alcohol. In
the years following his return, Artie was arrested at least thirteen times for DUI,
once for theft, and another time for fleeing the police, 111 but none of these
offenses were leveraged to force him into treatment. In July of 2008, approaching
the forty-year anniversary of the Battle of Ben Cui, Artie was having what he
called "Vietnam problems," with intensified intrusive memories, dissociative
states, and alcohol abuse.
On July 18, 2008, Artie called his son and left a voice message saying
"everything is over for me." 112 That night, Artie decided to kill himself, but did not
want to leave the wife he loved alone. While his wife slept, he kissed her
goodbye and stabbed her repeatedly with a kitchen knife. 113 He then tried to kill
109
Samuel Martin Kier, Two Centuries of Valor: The Story of the 5th Infantry Regiment 347-53
(2010).
110
Id.
111
Paul Levy, "'Everything Is Over for Me,' Distraught Vet Said," Minneapolis Star Trib., July 22,
2008 [hereinafter "Everything Is Over"].
112
Paul Levy, "He Escaped Vietnam, but Not His Demons," Minneapolis Star Trib., July 28, 2008.
113
Id.
30
himself by covering himself and his wife's body in a mix of gasoline and lacquer
and lighting himself on fire. He could not endure the pain, so he stripped himself
naked to escape the flames and called 911, stating "I started a fire. I tried to kill
myself. I killed my wife." 114 Artie was found by his neighbors "sitting naked on a
living room couch as smoke filled the house." 115
I defended Artie on charges of first-degree murder and first-degree arson,
ultimately reaching a plea agreement for civil commitment. When I think of his
case, I cannot help but think that this terrible tragedy could have been avoided if
any one of his fifteen prior offenses had been used as an opportunity to leverage
Artie into facing his demons and completing a course of treatment for his servicerelated mental health problems. The present generation of veterans will certainly
have their Arties that will present a crisis to the criminal justice system.
Fortunately, we now know that this crisis also presents an amazing opportunity
for the criminal justice system to help rehabilitate and reintegrate veterans,
leading to success stories like Hector's. Thus, we can now choose exactly what
the echoes of our wars will be and we cannot fail to make the correct choice with
the coming wave of returning veterans.
114
"Everything is Over," supra note 111.
115
Id.
31
32
NOTES
33
34