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review the following:
- The Mississippi law around participation in veterans’ courts: https://law.justia.com/codes/mississippi/2014/title-9/chapter-25/section-9-25-1
- The announcement for such a court from the Mississippi State Judiciary (2012): https://courts.ms.gov/news/2012/01%2013%2012Krebs%20Veterans%20Court.php
In your post, compare and contrast the Mississippi Veterans’ Court program, as defined by law and the related announcement, with components and descriptions from this module’s readings. In what ways is the Mississippi program similar to other Veterans’ Courts programs, as described in the readings? In what ways does the state’s program differ from those in the readings? Conclude by commenting on the potential effectiveness and/or limitations of the Mississippi program.
review the following: The Mississippi law around participation in veterans’ courts: https://law.justia.com/codes/mississippi/2014/title-9/chapter-25/section-9-25-1The announcement for such a court fro
Blaxploitation Films and BaadAsssss In Blaxploitation films, African Americans are often portrayed as tough, street-wise characters. They are often shown as being involved in crime and violence. These films typically focus on the black experience in America, and they often challenge racial stereotypes (Carrington, 2019). One of the most impressive aspects of BaadAsssss! is its depiction of African American culture. The film captures the feeling of what it is like to be black in America, from the music to the fashion to the way that people speak. It is clear that Van Peeble has a great love for black culture, and this comes through in his film. Another impressive aspect of BaadAsssss! is its portrayal of African Americans as strong and capable people (Coombs, 2017). In the past, African Americans were often shown as weak and helpless, but in this film they are shown to be just as strong and capable as anyone else. This is a great step forward in Hollywood’s representation of African Americans. One of the things that I really loved about BaadAsssss! was the way that it dealt with race. The film is set in Los Angeles, which is a city with a large African American population. However, the film does not shy away from showing the racism that still exists in the city. We see this when Sweetback is pulled over by the police and when he is attacked by a group of white men (Coombs, 2017). Furthermore, the film also shows how African Americans are often pigeon-holed into certain roles in Hollywood. For example, we see how Sweetback is only able to get work as an extra because he is black. Despite the racism, Sweetback is able to find a community of people who accept him for who he is. He finds a place in the underground world of sex and violence. This is a world that is often seen as dangerous and taboo, but Sweetback is able to find a place in it where he feels accepted. References Carrington, A. (2019). From blaxploitation to fan service: watching Wakanda. Safundi, 20(1), 5- 8. https://doi.org/10.1080/17533171.2019.1552350. Coombs, A. (2017). Queer Oedipal Drag in Sweet Sweetback’s Baadasssss Song and Baadasssss!. African American Review, 50(1), 41-58. https://doi.org/10.1353/afa.2017.0003.
review the following: The Mississippi law around participation in veterans’ courts: https://law.justia.com/codes/mississippi/2014/title-9/chapter-25/section-9-25-1The announcement for such a court fro
ORIGINAL PAPER Military Veterans, Culpability, and Blame Youngjae Lee Published online: 6 March 2013 Springer Science+Business Media Dordrecht 2013 AbstractRecently inPorter v. McCollum, the United States Supreme Court, citing ‘‘a long tradition of according leniency to veterans in recognition of their service,’’ held that a defense lawyer’s failure to present his client’s military service record as mitigating evidence during his sentencing for two murders amounted to ineffective assistance of counsel. The purpose of this Article is to assess, from the just deserts perspective, the grounds to believe that veterans who commit crimes are to be blamed less by the State than offenders without such backgrounds. Two rationales for a differential treatment of military veterans who commit crimes are typically set forth. ThePorterCourt raised each, stating that we should treat veterans differently ‘‘in recognition of’’ both ‘‘their service’’ and ‘‘the intense stress and mental and emotional toll’’ of combat. The former factor suggests there being a ‘‘social contributions’’ or gratitude-based discount, whereas the latter factor points towards a ‘‘mental disturbance’’ discount. This Article analyzes the two accounts and raises some doubts about both. This Article then argues that a military veteran who commits a crime should not be blamed to the full extent of his blameworthiness, not necessarily because of his mental capacity nor because of his social contribution, but because the State’s hand in producing his criminality undermines its standing to blame him. KeywordsVeterans Culpability Posttraumatic stress disorder Mitigation Punishment Retribution Blame Military Just and unjust war War crimes Introduction Recently inPorter v. McCollum, the United States Supreme Court, citing ‘‘a long tradition of according leniency to veterans in recognition of their service,’’ held that a defense lawyer’s failure to present his client’s military service record as mitigating evidence during Y. Lee (&) Fordham University School of Law, New York, NY, USA e-mail: [email protected] 123 Crim Law and Philos (2013) 7:285–307 DOI 10.1007/s11572-013-9207-z his sentencing for two murders amounted to ineffective assistance of counsel. 1After Porter, the Federal Sentencing Commission amended the Sentencing Guidelines in 2010 to single out military service as ‘‘relevant’’ when it is ‘‘present to an unusual degree’’ despite its general view that ‘‘prior good works are not ordinarily relevant’’ in sentencing deter- minations. 2Also, as American troops have started to return from Iraq and Afghanistan, there has been a steady stream of media accounts focusing on veterans who commit crimes after returning home 3and noting a ‘‘growing number of judges’’ who express the view that offenders with military service backgrounds should be treated differently at sentencing from nonveterans. 4 While thePorterCourt’s invocation of the ‘‘long tradition of…leniency’’ for military veterans is not incorrect, the legal system’s treatment of this issue has not been uniform. Some jurisdictions mandate a consideration of military service background as a mitigating factor at sentencing; others permit it. 5Federal Sentencing Guidelines, until the afore- mentioned amendment in 2010, discouraged it, by stating that ‘‘[m]ilitary, civic, charitable, or public service; employment-related contributions; and similar prior good works are not ordinarily relevant in determining whether a departure is warranted.’’ 6As a general matter, the issue is left to judges’ discretion, with some judges being more sympathetic than others to the idea that military veterans should be treated differently. 7 Neither is it the case, despite its long history and prominence, that there is a clear understanding of normative justi cations for treating military service background as a mitigating factor. Two rationales are typically set forth. ThePorterCourt raised each, stating that we should treat veterans differently ‘‘in recognition of’’ both ‘‘their service’’ 8 and ‘‘the intense stress and mental and emotional toll’’ of combat. 9The former factor 1Porter v. McCollum, 130 S. Ct. 447, 455 (2009).2US Sentencing Guidelines Manual § 5H1.11 (2011); US Sentencing Guidelines Appendix C, Amendment 739 (2011). For a recent case discussing the phrase ‘‘present to an unusual degree,’’ see United States v. Jager, 2011 WL 831279 (D.N.M. 2011). 3See, e.g., Erica Goode,Coming Together to Fight for a Troubled Veteran, NY Times, July 17, 2011; John Schwartz,Defendants Fresh from War Find Service Counts in Court, NY Times, Mar. 15, 2010; James Dao, Study Suggests More Veterans May Be Helped by Talking About Killing, NY Times, Feb. 13, 2010; Lizette Alvarez and Dan Frosch,A Focus on Violence by Returning G.I.’s, NY Times, Jan. 1, 2009; Deborah Sontag and Lizette Alvarez,In More Cases, Combat Trauma Is Taking the Stand, NY Times, Jan. 27, 2008. 4Amir Efrati,Judges Consider New Factor at Sentencing: Military Service, Wall St. J., Dec. 31, 2009; see also Hawkins (2010). 5Hessick (2008, pp. 1116–1117).6U.S. Sentencing Guidelines Manual § 5H1.11 (2009); Hessick (2008, pp. 1119–1125).7See, e.g., Forgey v. State, 886 N.E.2d 16, 24 (Ind. App. 2008) (‘‘While we recognize that Forgey was honorably discharged from the Marine Corps in 1993 and commend Forgey for his service to this nation, we cannot conclude that the trial court abused its discretion by failing to consider Forgey’s service to be a signi cant mitigating factor with respect to the instant crimes. Indeed, many of Forgey’s actions during the commission of the instant crimes appear to be attributable to his military training. For example, Forgey dressed in military fatigue-style camou age clothing, duct-taped the ankle shackles and thumb cuffs together to maintain silence, and hid on Gus’s property, undetected, for nearly 24 h before committing the offenses. The trial court was within its discretion to conclude Forgey’s military training assisted his com- mission of the instant offenses and to reject Forgey’s military record as a mitigating sentencing factor.’’); Deborah Sontag and Lizette Alvarez,Across America, Deadly Echoes of Foreign Battles, NY Times, Jan. 13, 2008; Tim McGlone,Navy Of cer Who Claimed PTSD in Child-Porn Case Gets 40 Months, Virginia-Pilot, Dec. 12, 2009; Anne Jungen,Iraq War Veteran Avoids Prison in Bar Robbery, La Crosse Tribune, Jan. 9, 2009. See also Grey (2012). 8Porter, 130 S. Ct. at 455.9Id. 286 Crim Law and Philos (2013) 7:285–307 123 suggests there being a ‘‘social contributions’’ or gratitude-based discount, whereas the latter factor points towards a ‘‘mental disturbance’’ discount, bearing some resemblance to other incapacity-based factors, such as insanity and intoxication. The ‘‘mental disturbance’’ account is frequently linked to the claim that these military veterans suffer from post- traumatic stress disorder (‘‘PTSD’’). 10 Although it seems plausible that these factors are somehow relevant, it is nevertheless frequently unclear in these discussions how such factors t into an overall theory of punishment. The purpose of this Article is to come to a better understanding, from the just deserts perspective, of the grounds to believe that veterans who commit crimes are to be blamed less by the State than offenders without such backgrounds. Of course, there may be sound penological reasons, such as incapacitation or rehabilitation, for the practice of giving discounts to veterans. It may be the case that military veterans are more likely than other, ordinary criminals to reform in settings other than prisons. 11 Some have also suggested, and put into practice, the idea of having a special court for veterans. 12This Article does not address the wisdom of these approaches. Rather, it focuses on the question of blame- worthiness—whether offenders with military backgrounds are, all other things being equal, less blameworthy than others, and whether the State can blame them to the full extent of their blameworthiness. More speci cally, because much of the debate in this area takes place in terms of PTSD, 13 this Article focuses on PTSD-based arguments in favor of mitigation. Although the issue is by no means settled, this Article starts from the assumption that PTSD has the effect of diminishing one’s capacity to control one’s own behavior and that, for that reason, it reduces one’s culpability for conduct committed while one’s self-control is compromised due to it. In order to justify the assumption, this Article begins with a brief discussion of PTSD generally—what causes it, who can be subject to it, and how it is thought to be linked to criminal behavior. The rest of the Article focuses on the limits of the PTSD-based argument for mitigation and advances the following propositions: First, a veteran’s PTSD does not mitigate his blameworthiness if his PTSD symptoms can be traced to his own culpable behavior. Second, a veteran’s PTSD does not mitigate if his PTSD arises from his acts in violation of certainjus in belloprinciples. Third, a veteran’s PTSD does not mitigate if his PTSD is traced to his participation in an unjust war, unless he had actually and reasonably believed that the war was just. Fourth, even if a veteran’s participation in an unjust war precludes mitigation, he should not be blamed to the full extent of his blameworthiness because the State’s hand in producing his criminality undermines its standing to blame him. The Article ends by exploring the implications of these arguments for the social contributions account of mitigation for offenders with military service backgrounds. A nal caveat. The issue of a veteran’s PTSD and its contribution to his criminal behavior may come up at either the guilt or the sentencing stage. At the guilt stage, PTSD symptoms may be suf ciently strong to defeat a charge altogether, either by negating an element of the offense or by establishing an element of a defense, such as self-defense or insanity. 14 At the sentencing stage, on the other hand, the PTSD symptoms and their 10See, e.g., Giardino (2009); Hawkins (2010, p. 563).11Dahlia Lithwick,A Separate Peace: Specialized Courts for War Veterans Work Wonders. But Why Stop at Veterans?Slate, Feb. 11, 2010. 12Id.; see also Hawkins (2010).13See, e.g., Giardino (2009); Hawkins (2010, p. 563).14Grey (2012, p. 54); Hafemeister & Stockey (2010, p. 96); Sparr (1996, p. 406). Crim Law and Philos (2013) 7:285–307 287 123 contribution to one’s criminal behavior may be thought to be a mitigating factor. 15 The focus of this Article is on the relevance of military service as a reason to mitigate, not acquit. That is, this Article is only about those who commit crimes with suf cient capacity to be held criminally responsible, and it does not address situations where one’s military service has caused a disability that is serious enough to negate criminal liability. 16 PTSD and Culpability PTSD and Criminal Behavior Although PTSD is frequently associated with military combat, it is a mental disorder that can arise from a variety of events: such as law enforcement, 17 violent assaults generally, terrorist attacks, 18 torture, incarceration, natural disasters, automobile accidents, or even ‘‘being diagnosed with a life-threatening illness,’’ even if, for some of these events, a person merely witnesses them happen to others or learns about their occurrence. 19 PTSD has also been associated with miscarriage, surgery, poisoning, rape, and domestic vio- lence, 20 and Battered Woman Syndrome has been considered a sub-category of PTSD. 21 PTSD can cause a variety of symptoms. 22 The diagnostic and statistical manual of mental disorders (DSM) requires ‘‘clinically signi cant distress or impairment in social, occupational, or other important areas of functioning’’ in order for one to be diagnosed with PTSD, and the symptoms of PTSD can range from ‘‘persistent symptoms of increased arousal’’ (such as ‘‘dif culty falling or staying asleep’’ and ‘‘dif culty concentrating’’) to ‘‘persistent avoidance of stimuli associated with the trauma’’ (such as ‘‘inability to recall an important aspect of the trauma’’) in combination with a ‘‘feeling of detachment or estrangement from others’’ and ‘‘restricted range of affect (e.g., unable to have loving feelings),’’ to ‘‘persistent reexperience’’ of the traumatic event (such as ‘‘acting or feeling as if the traumatic event were recurring’’). 23 Among the three types of symptoms outlined in DSM, only the last one, which could involve ‘‘dissociative states,’’ where ‘‘the person behaves as though experiencing the event at that moment,’’ is obviously related to criminal culpability. 24 ‘‘For people with post- traumatic stress disorder,’’ according to one expert, ‘‘remembering trauma feels like reliving it.’’ 25 People may experience ‘‘intrusive recollections,’’ 26 which manifest as ‘‘ ashbacks’’ in extreme cases, and such recollections are ‘‘so vivid that it seems as if the trauma is actually happening again,’’ meaning that ‘‘the person may see, hear, smell, or feel 15Hawthorne (2009, p. 12).16For a useful discussion of some conceptual dif culties concerning the distinction between full and partial defenses, see Husak (1998). 17Loo (1986); Mann & Neece (1990); Rivard et al. (2002); Stratton et al. (1984).18Brackbill et al. (2009).19American Psychiatric Association (2000, pp. 463–464).20Gold & Simon (2001, p. 507); Herman (1992, p. 49).21Walker (1991); Walker (1992).22Laufer et al. (1985); Laufer et al. (1984).23American Psychiatric Association (2000, p. 468).24Id. p. 464.25McNally (2003, p. 105).26Id. 288 Crim Law and Philos (2013) 7:285–307 123 the original sensations while remembering the trauma.’’ 27 Flashbacks can occur even among people who did not experience the traumatic events themselves; sometimes being in a close relationship with a victim of a traumatic event, such as a murder victim, is suf cient. 28 People who are experiencing ashbacks can react physically, a phenomenon known as ‘‘psychophysiologic reactivity.’’ 29 This is where extreme cases of PTSD may produce criminal behavior. 30 The link between criminal behavior and PTSD may exist in other ways, although the exact mechanism is not always clear. 31 Nevertheless, multiple pathways have been hypothesized, and here I mention a few. 32 First, people who experience traumas tend to rely on drugs and alcohol to avoid confronting the painful memories. 33Drugs and alcohol can in turn diminish one’s capacity to control oneself. Second, one common symptom of PTSD is hyperarousal and sensitivity to potential sources of danger and threat. 34 Third, veterans with PTSD can have ‘‘anger regulation de cits’’ and have trouble controlling their anger and aggression. 35Fourth, PTSD may bring about the ‘‘sensation seeking syndrome,’’ often characterized by a tendency to engage in risky activities in order to recreate the level of arousal and excitement they experienced in combat. 36These factors, each by itself or in combination, can lead to criminal behaviors. Although this discussion is a very short summary of an area with an enormous literature, the basic idea should be clear for our purposes. The question I explore in the rest of the Article is this: assuming that the links suggested in the psychological and legal literature between combat, trauma, and criminality are real, how should we morally evaluate vet- erans who commit crimes while suffering from PTSD? 37 When Does PTSD Mitigate? Assuming it is correct that PTSD can contribute to criminal activities, the question is whether the presence of PTSD is relevant to the issue of blameworthiness. Unfortunately, in reported cases and media accounts, sentencing judges have not always spoken clearly about whether PTSD is relevant to sentencing, and, if so, in what way. 38However, it does 27Id. p. 106.28Id. p.116.29Id. pp. 106, 118–120.30Hafemeister & Stockey (2010, p. 114).31Pollock (1999, p. 186).32For discussions, see Wilson & Zigelbaum (1983, pp. 73–76); Sparr et al. (1987); Pentland & Dwyer (1985, pp. 407–410). 33Bremner et al. (1996).34Id.; Friedman (2006); Lasko et al. (1994).35Carroll et al. (1985); Chemtob et al. (1997); Chemtob et al. (1994).36Wilson & Zigelbaum (1983, p. 74).37As mentioned above in Introduction, in considering this question, I set aside cases where PTSD-related disability is so extreme that the person suffering from it can avoid criminal liability altogether. This Article is only about those who are capable enough to be held criminally responsible. 38See, e.g., State v. Bilke, 781 P.2d 28, 30 (Ariz. 1989) (en banc) (‘‘Had the sentencing judge been aware that a mental disease known as PTSD existed, that defendant suffered from it as a direct result of his outstanding military service in Vietnam, and that the disorder was a causative factor leading to the com- mission of the crimes, he might well have sentenced defendant differently.’’); Kathleen Kreller,Iraq War Veteran George Nickel Won’t Go to Prison for Armed Standoff with Police Last Summer, Idaho Statesman, Apr. 6, 2010 (quoting the trial judge during sentencing a defendant for a rearms offense as saying that Crim Law and Philos (2013) 7:285–307 289 123 not take much imagination to link PTSD to the question of criminal responsibility. If it is indeed the case that PTSD has the effect of diminishing one’s capacity to control one’s own behavior, it seems that, at least under one standard account of criminal responsibil- ity, 39 it should reduce one’s culpability for conduct committed while one’s self-control is compromised even if it is not so compromised that one ought to be acquitted. 40 The issue, however, may not be so straightforward. Consider the following accounts: Case 1: John reported… ashbacks…John compared these ashbacks to a running movie of events surrounding the [traumatic incident]. He remarked upon the vividness and clarity of the images. He estimated that the ashbacks could persist from a matter of minutes up to one hour and reported a frequency of approximately twice a week during the night, plus two or three episodes during the day. The ashbacks that occurred during the day were eeting…, while those that occurred during the night generally persisted from between half-an-hour to an hour and were particularly resistant to his attempt to distract his thoughts elsewhere…John was adamant that these images were unwelcome, involuntary,…and caused him considerable distress. Case 2: CH had weekly nightmares of the [traumatic incident], intrusive images of the stabbing, and ashbacks and panic when exposed to related stimuli…and psy- chogenic amnesia relating to aspects of [the incident]. When thinking about the attack, she experienced severe anxiety, low mood, and guilt. She avoided all [inci- dent]-related stimuli including using sharp kitchen knives, reading about stabbings, …, going to sleep for fear of nightmares, and watching lms with knife scenes. Case 3: Following the [traumatic incident], R reported…re-experiencing the [incident] in repetitive ashbacks and nightmares. He would become physically agitated and anxious, commonly drinking alcohol ‘‘to the point where I was oblivious.’’…R experienced a recurrent ashback of a single image of the [incident] and a repetitive nightmare…He reported that the vividness of the images was the most distressing aspect. [H]e suffered from anxious arousal, defensive avoidance, intrusive symp- toms, depressed mood and self-destructive behaviors. Now imagine that John, CH, and R, who have been suffering from these symptoms, commit crimes, and that that these PTSD symptoms arise from their deployment as members of the military in combat zones. Should their PTSD symptoms mitigate their culpability? It seems that what we have here are typical fact patterns that give rise to PTSD-based arguments for mitigation for offenders with military service backgrounds. But these quotes are not from military veterans. They are from those who have PTSD symptoms arising from their past criminal offenses. John raped and strangled a woman, 41 Footnote 38 continued ‘‘[b]ecause he served his country honorably and courageously, he has developed some signi cantly bad conditions with his alcoholism…’’). 39Hart (1968, pp. 136–157).40See, e.g., Giardino (2009, p. 2975); Shein (2010, p. 48).41Kruppa (1991, p. 401). 290 Crim Law and Philos (2013) 7:285–307 123 CH killed a co-worker in a t of anger, 42 and R killed a person as a hitman. 43 If these people—those who suffer from PTSD symptoms arising from their own criminal activi- ties 44—commit new crimes, should their PTSD symptoms mitigate their culpability? It does not seem that they should. And why not? It seems that the source of one’s PTSD in uences how we evaluate the relationship between PTSD factors and criminal behavior. Is this a mistake? As discussed above, if PTSD lessens one’s capacity to control one’s behavior, it seems that one suffering from its symptoms has reduced culpability if such symptoms have contributed to one’s criminal activities. But the issue is more complicated than that. Sometimes in criminal law, how one has behaved in the past can cast a shadow on how one behaves at a later point even if the behavior at the later point may be entirely or partially blameless. In intoxication cases, for instance, a person who committed a criminal act while intoxicated may not be able to use his diminished capacity as an excuse if it resulted from his voluntary partaking of alcohol. 45 Similarly, in epileptic seizure cases, a person who loses control over his or her behavior because of a medical or psychiatric condition may be held responsible for such involuntary conduct if the behavior was foreseeable and could have been prevented through self-medication or avoidance of dangerous situations at a prior time. 46 Some of these cases, especially in the intoxication context, are controversial chie y because it seems wrong to treat all ingestion of intoxicants as reckless. 47However, the basic idea that one may be held responsible for what one does while intoxicated by going back in time and identifying the culpable event is not problematic. 48 There are also examples in criminal law where certain af rmative defenses are made unavailable if the defendant himself has brought about the condition that made it necessary or unavoidable to commit the crime. So, for instance, a person cannot invoke the self- defense defense if he was the initial aggressor who started the cycle of physical violence, thereby necessitating an act of violence to defend himself. 49 Similarly, a person who culpably creates an emergency cannot invoke the necessity defense after resorting to criminal acts to choose the lesser evil in the emergency. 50Neither can a person who places himself in a situation where he would likely be coerced to commit a crime raise the duress defense. 51These cases, too, are controversial because some of the actual provisions can be either too narrow or too wide. 52 However, it is widely accepted that one who would otherwise have an af rmative defense should sometimes be denied the defense because of his role in creating the dif cult situation. In these criminal law doctrines, different moral intuitions seem to be doing the nor- mative work. One intuition is that a person who, att 1, creates a reasonably foreseeable risk 42Rogers et al. (2000, p. 514).43Pollock (2000, p. 179).44For more discussion of criminals suffering from PTSD caused by their own behaviors, see, for example, MacNair (2005, pp. 60–63); Kruppa et al. (1995). 45See, e.g., Model Penal Code § 2.08(2).46People v. Decina, 138 N.E.2d 799 (1956).47Dimock (2011, p. 12).48Id. p. 17.49LaFave (2010, § 10.4(e)).50Id. § 10.1(d)(6).51Robinson (1985, p. 11).52Id. pp. 3–7. Crim Law and Philos (2013) 7:285–307 291 123 of himself doing something undesirable att 2may be held responsible for his actions att 2, even if what he does att 2would otherwise be excusable or justi able, because his original creation of risk att 1is culpable. A person who gets drunk at a bar when he knows he has to drive home afterwards and a person who gets into a car knowing that he is subject to epileptic seizures can be held responsible for crashing their cars while unconscious due to their respectively diminished faculties. Another intuition is that a person who, att 1, behaves in a certain undesirable manner that brings about negative consequences has ‘‘unclean hands’’ and can be held responsible for harms that he newly creates att 2in his attempts to contain such negative consequences, even if his attempts att 2ultimately minimize the amount of harm. The ‘‘unclean hands’’ idea can be broader than the foreseeable risk creation idea because, for example, the particular risk of certain negative consequences att 2may not be reasonably foreseeable at t 1. So, for instance, if a man rapes a woman in his apartment on a high oor, and the oppressiveness of the environment drives the rape victim to jump out the window and die, the rapist can bear responsibility for the death even if the particular victim’s reactions may have taken him (and a hypothetical reasonable observer) by surprise. 53Now, let’s say that the rapist knows that if his victim jumps out the window, she will fall on and likely kill several children playing directly underneath the window, and that in order to save the children’s lives he prevents her jump by shooting her. It seems doubtful that he can then raise a defense of others or necessity defense for the shooting, even though he may have done the right thing by saving the children’s lives. The principle that the law should not permit one to ‘‘pro t by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime,’’ in the words of the court decidingRiggs v. Palmer, seems relevant here, too. 54 Riggs, a case made famous by Ronald Dworkin’s discussion, 55 was about a person who attempted to inherit property from his murder victim, and it was decided on the basis that one should not be allowed to bene t from his own wrongdoing. The controversy over whether criminals should be able to pro t from writing books about their experience as criminals also is partially based on this idea. The laws that prevent assertions of the self-defense defense to aggressors or the duress defense for those who join criminal enterprises seem to get some normative support from this idea that one should not be permitted to ‘‘take advantage of his own wrong’’ as well. So what we have here is a cluster of related of ideas about the ways in which one’s past behavior can shape our normative responses to the current behavior. Such ideas may explain why we would not be sympathetic to a criminal who seeks to mitigate his pun- ishment by pointing at PTSD symptoms when the PTSD originates from his own past criminal conduct. I should clarify, however, that I am making the doctrinal analogies here only for the purpose of illustration. The discussion here is not meant to suggest that the question of evaluating offenders suffering from PTSD can be answered simply by extracting an abstract idea from these doctrines and applying it to a new context. After all, these examples are all different from one another. What we need instead is a separate, independent principle for the military veterans context that bears a family resemblance to these other doctrines and draws its appeal partly from the intuitions that underlie them. 53Cf. Stephenson v. State, 179 N.E. 633 (1932). This conclusion is controversial, and there may be a debate over whether the suicide victim’s actions are foreseeable. 5422 N.E. 188, 190 (N.Y. 1889).55Dworkin (1986, pp. 15–21). 292 Crim Law and Philos (2013) 7:285–307 123 Such a relevant principle here may be this:as a general matter, a person’s PTSD does not mitigate his culpability if he has acquired his PTSD through his own culpable conduct. A principle like this would explain why we may be reluctant to reduce culpability of ordinary offenders, like John, CH, and R, who suffer from PTSD from their past criminal conduct. 56 So, the important question for our purposes is whether we could think about military offenders’ supposed mitigation on the basis of PTSD in the same way. One may simply deny the analogy on the ground that veterans’ traumas come from a socially valuable activity, whereas ordinary criminals’ traumas arise from socially undesirable activities. It seems, however, that this response is too quick. The mere existence of a category of crimes called ‘‘war crimes’’ should be an indication that the matter is not so simple. Military veterans’ traumas may arise from activities of varying moral signi cance, and we may accordingly arrive at varying conclusions as to the appropriateness of treating their traumas as culpability reducers. In order to make headway into this issue, we need to consider the ways in which we morally evaluate soldiers’ behaviors. PTSD and Culpability of Soldiers Consider the example of the Nazi GermanEinsatzgruppen, also known as ‘‘mobile killing units.’’ 57 Einsatzgruppenwere killing squads charged with killing Jews and others. They engaged in mass killings throughout Europe, usually by shooting, 58 and are thought to be responsible for rounding up and killing one million Jews throughout the war. 59 And there are some indications that some members of the group found the process of systematic killings of Jews to be traumatizing. 60Rudolf Hoess, the commandant of Auschwitz, wrote in his autobiography that ‘‘[m]any members of theEinsatzgruppen, unable to endure wading through blood any longer, had committed suicide,’’ that some had ‘‘gone mad,’’ and that ‘‘[m]ost of the members of thesecommandoshad to rely on alcohol when carrying out their horrible work.’’ 61 Erich von dem Bach-Zelewski, one of the of cers directing these killing squads is reported to have suffered from ‘‘hallucinations connected with the shootings of Jews which he himself carried out.’’ 62 All of these are classic PTSD symptoms. It certainly seems credible that those who go through various towns, round up innocent civilians, murder masses of them, and bury them into hastily dug graves would have some serious psychological issues afterwards, to say the least. But if such psychological conditions contribute to further criminality, perhaps by way of drug or alcohol abuse, by these people in a more tranquil, postwar everyday setting, would it make sense to think that their PTSD symptoms mitigate their culpability for the later crimes? It seems bizarre to believe that those whose current PTSD symptoms can be traced to their execution of atrocities should be considered less culpable simply because they have PTSD symptoms that contribute to current criminal activities. Is the case of the Nazi killing unit instructive for our topic? Some might argue that the degree of evil is so exceptional in these cases that we should not draw any general lessons. 56Again, as discussed in Introduction, if one’s disability is serious enough to negate criminal liability altogether, the source of the disability should not make a difference. 57See generally Hilberg (2003, pp. 275–408).58Id. pp. 327–328.59Earl (2009, p. 7).60See Hilberg (2003, p. 337); see also Rhodes (2002, pp. 215–228).61Hoess (2000, p. 148); see also Earl (2009, pp. 165–178).62Ho¨ hne (1970, pp. 363–366). Crim Law and Philos (2013) 7:285–307 293 123 Perhaps that is the case, but what the Nazi example shows is that we cannot evade the issue of the source of one’s trauma and its moral character when thinking about the signi cance of PTSD on a person’s culpability, even if we are dealing with wartime activities. The relevant question then becomes how we should evaluate soldiers’ activities that give rise to PTSD when we morally evaluate veterans with military backgrounds. Things that soldiers do in situations like these do not materialize in isolation. Individual moral evaluations of soldiers necessitate a moral understanding of the wars that they participate in. Traditionally, wars are evaluated along two separate moral metrics, one having to do with reasons for going to war (jus ad bellum) and the other having to do with the manner in which such wars are fought (jus in bello). 63The Nazis in the example above are in violation of both because Germany was an unjust aggressor during the war and ghting the war by killing civilians—indeed by committing genocide—is in violation of rules that govern wartime practices. PTSD and Jus in Bello Perhaps the most importantjus in belloprinciples are the principle of discrimination between legitimate and illegitimate targets and the principle of non-combatant immunity. Some of the war crimes listed in the Rome Statute of the International Criminal Court are as follows: ‘‘[i]ntentionally directing attacks against the civilian population,’’ ‘‘torture or inhuman treatment,’’ ‘‘[c]omitting outrages against personal dignity,’’ and willful killing of those protected under the Geneva Conventions such as prisoners of war. 64 One of many reasons we may be unsympathetic to the Nazis in the particular example given above is that they were in clear violation ofjus in belloprinciples like these. 65Could we apply the same intuition to at least those American soldiers whose post deployment criminal behavior is rooted in PTSD arising from acts of atrocities they themselves perpetrated? It would be a gross mistake to equate American troops with the Nazis, but we must at the same time be careful not to fall into a state of moral complacency just because Americans’ acts are not as depraved as that of the Nazis. In fact, it is unfortunately the case that the American military is not immune from credible allegations of war crimes. The most well-known case is the Abu Ghraib abuse of prisoners, where American soldiers beat and sexually humiliated Iraqi detainees, 66but there are other publicized cases, such as: the exploits of the ‘‘kill team,’’ which was a group of American soldiers in Afghanistan who, in 2010, killed unarmed Afghan civilians for fun and staged them to look like legitimate combat killings during the war in Afghanistan; 67 Operation Iron Triangle, during which American soldiers killed unarmed Iraqi detainees, apparently following an order to kill any military-age male during an operation to search for insurgents, and in one case killing Iraqi detainees by rst freeing them and then shooting them as they ran away; 68 the ‘‘Baghdad canal killings,’’ an incident in which soldiers shot and killed four handcuffed and blind- folded Iraqi detainees and then pushed them into a canal in Baghdad in 2007; 69 and the 63Walzer (2006a, p. 21).64Rome Statute of the International Criminal Court, art. 8.65For an account of theEinsatzgruppentrials after the war, see generally Earl (2009).66See Seymour M. Hersh,Torture at Abu Ghraib, New Yorker, May 10, 2004.67See William Yardley,Calvin Gibbs Convicted of Killing Civilians in Afghanistan, NY Times, Nov. 10, 2011; William Yardley,Soldier Gets 24 Years for Killing 3 Afghan Civilians, NY Times, Mar. 23, 2011. 68See Raf Khatchadourian,The Kill Company, New Yorker, July 6, 2009.69Paul von Zielbauer,American Soldier Is Found Guilty in Iraqi Killings, NY Times, April 15, 2009. 294 Crim Law and Philos (2013) 7:285–307 123 ‘‘Haditha incident,’’ where marines killed 24 Iraqi civilians, apparently in retaliation for a roadside bombing, in 2005 in the city of Haditha. 70 These sorts of incidents are terrible atrocities that are likely traumatizing for not only the victims but also the perpetrators. 71 Some of these perpetrators, suffering from PTSD, may nd themselves being led to criminal activities. But if a person’s PTSD symptoms can be traced to these sorts of wrongful acts committed by himself, his culpability should not be reduced. One tentative conclusion we may draw from these observations is that one’s PTSD does not mitigate his culpability for his crime if those PTSD symptoms have arisen from his own perpetration of atrocities during war, such as intentionally killing civilians, torturing detainees, or similar mistreatments of combatants and noncombatants. There may be a question as to whether this conclusion affects a large number of veterans or just a few. The answer is that we do not know. There may be many incidents like them that we never learn about, or, alternatively, there may not be many more than the reported cases. There are, however, reasons to pay attention to PTSD cases arising from atrocities perpetrated by American soldiers. First, most veterans who return from war zones do not turn out to be criminals. 72 Second, there are indications that the existence of PTSD symptoms is highly correlated with veterans’ criminal behavior. 73 Third, several studies have found a link between participation in atrocities and both PTSD and post deployment criminality. One study of Vietnam veterans, for example, reported that ‘‘warzone abusive violence,’’ which the authors de ned as ‘‘warzone violence that, from a military point of view, is considered unnecessary,’’ is a predictor of PTSD and post deployment violence to self, spouse, and others. 74 Another study of Vietnam veterans reported that participation in atrocities, de ned as ‘‘torture, mutilation, or severe mistreatment of military personnel or civil- ians,’’ 75 ‘‘conferred a uniquely strong risk for posttraumatic stress disorder.’’ 76 Finally, there is at least some anecdotal evidence that intentional, unjusti ed killing of civilians in Iraq and Afghanistan by American troops happens and goes unreported. 77 These studies combined together still do not give us an estimate of the number of people affected by the analysis given here. At the same time, while it is probably not the case that most offenders with military backgrounds have participated in acts of atrocities, given the 70Michael S. Schmidt,Junkyard Gives Up Secret Accounts of Massacre in Iraq, NY Times, Dec. 14, 2011.71See generally Grossman (2009, pp. 225–227); MacNair (2005, pp. 13–27).72See Mumola (2000).73See Wilson & Zigelbaum (1983); Hafemeister & Stockey (2010, pp. 101–102).74See Hiley-Young et al. (1995).75See Breslau & Davis (1987, p. 583).76Id. p. 581; see also Fontana & Rosenheck (1995); Haley (1974); Strayer & Ellenhorn (1975, p. 90); Yager et al. (1984, p. 327). 77See, e.g., The Wounded Platoon (PBS 2010) (‘‘We were trigger-happy…Like, we’d…open up on anything. We usually rolled with three or four trucks. One of them got hit and there was, like, any males around, we’d open up and we’d shoot at them. It was kind of like that…[T]hey even didn’t have to be armed. We were just bragging like that. We’d be, like, ‘Well, I got one last week, all right?’…‘‘We were keeping track. We were keeping scores.’’); see also id. (‘‘Most of all it’s all murder…It’s easy to get away …You can just do it and be, like, ‘Oh, he had a gun. I don’t know’.…I mean, nobody really looks into it. They’re like, ‘Fuck it. It’s just another dead haji.’’); Michael S. Schmidt,Junkyard Gives Up Secret Accounts of Massacre in Iraq, NY Times, Dec. 14, 2011 (‘‘The stress of combat left some soldiers para- lyzed, the testimony shows. Troops, traumatized by the rising violence and feeling constantly under siege, grew increasingly twitchy, killing more and more civilians in accidental encounters. Others became so desensitized and inured to the killing that they red on Iraqi civilians deliberately while their fellow soldiers snapped pictures, and were court-martialed.’’). Crim Law and Philos (2013) 7:285–307 295 123 links between participation in atrocities, PTSD, and post deployment criminality, it would be misguided to ignore the issue of how to think about this relationship. And if we do not feel particularly sympathetic to the Nazis who complain of psychological trauma, then we should similarly subscribe to the notion that those who participate in atrocities in Iraq or Afghanistan and later suffer from PTSD that in turn leads to criminal behaviors are not any less culpable despite their PTSD symptoms. Should it make a difference that in many of these cases, there is likely a degree or coercion, either in the form of superior orders 78or of duress 79? It should make a difference, depending on the facts of the case, but it should also be kept in mind that the superior orders defense and the duress defense for war crimes are limited. Although it is contro- versial, the duress defense has been held to be unavailable against a charge of murder in this setting. 80The defense of superior orders also is limited. The International Tribunals for former Yugoslavia or Rwanda did not regard it as a proper defense, 81and while the Rome Statute allows it as a defense, it is available only if the defendant was unaware at the time of the act that the ‘‘order was unlawful’’ and only if the order was ‘‘not manifestly unlawful.’’ 82 Such limited availability of defenses of duress and superior orders in the context of war crimes re ects the underlying moral sense that when one is pressured to commit serious moral wrongs, one is morally required to resist such pressures. 83 Those who fail to resist, it seems then, should be held responsible for their actions and the consequences of their actions, including symptoms of PTSD that may lead to commit further crimes. 84 After all, the Nazi defendants in the Nuremberg trial ofEinsatzgruppen leaders (unsuccessfully) invoked the defense of superior orders, too. 85 78Rome Statute of the International Criminal Court, art. 33.79Id. art. 31(1)(d).80See Cassese (2008, pp. 285–289).81Statute of the International Criminal Tribunal for the Former Yugoslavia, art. 7(4) (‘‘The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him of criminal responsibility, but may be considered in mitigation of punishment if the International Tribunal determines that justice so requires.’’); Statute of the International Criminal Tribunal for Rwanda, art. 6(4) (same). 82Rome Statute of the International Criminal Court, art. 33; see also Walzer (2006a, p. 39).83Some also argue that the pressures of the combat zone drive people to commit acts of atrocities. See, e.g., James Dao, Reprehensible Behavior is a Risk of Combat, Experts Say, NY Times, Jan. 13, 2012. However, it is not generally argued that such pressures excuse reprehensible behaviors. See id. 84Now, it is true that even if defenses of duress and superior orders do not fully exculpate, they can serve as a mitigating factor at sentencing. The question is whether we could say something similar. That is, if the defendantDdoes a wrongful actWunder duress or a superior order that would mitigate his sentence if he were punished forWand ifWcauses inDsymptoms of PTSD which eventually causeDto commit a crime C, should the fact that he would have received mitigation forWtranslate to a culpability reducer forDfor the crimeC? I do not think so. The connection between the duress/superior order and the wrongful actWis not only immediate but also causal;D’s wrongful acts can be partially attributed to the duress/superior order in a way that diminishesD’s responsibility. The connection between the duress/superior order and the crime C, on the other hand, is attenuated. The duress/superior order cannot plausibly be described as (partially) causingthe crimeCbecause in order to believe that, one would have to posit that the causal link from the duress/superior order to the crimeCruns through two autonomous actors at different time periods, rst throughDat the time of the event that gave rise to PTSD and second throughDat the timeDcommitted the crimeC. Perhaps some trace of effects from the duress or superior order remains, but it would be marginal. 85Earl (2009, pp. 148–154, 249–250). 296 Crim Law and Philos (2013) 7:285–307 123 PTSD and Jus ad Bellum Even if a side ghting in a war strictly adheres to alljus in belloprinciples, it can still be acting wrongfully if it lacks just cause for its use of force. The Charter of the United Nations articulates the just cause requirement by prohibiting States from using ‘‘threat or use of force against the territorial integrity or political independence of any State’’ 86albeit while preserving ‘‘the inherent right of individual or collective self-defense if an armed attack occurs’’ against a State. 87 Although we are entering a more controversial territory, yet another reason we may be unsympathetic to theEinsatzgruppenkillers is that they were participating in an unjust war as aggressors, and it is appropriate to describe them as a group of criminal thugs attacking people with no justi cation. And if we apply the prin- ciple that those who engage in wrongful acts should be held responsible for the conse- quences, we may conclude that soldiers who participate in unjust wars do not have reduced culpability even if their criminal behavior is traceable to PTSD that they acquired from their military activities. How does this thought apply to American soldiers returning from, say, Iraq or Afghanistan? It seems to follow that in order to evaluate the blameworthiness of veterans who commit crimes, we must rst decide whether the wars that they participated in can be defended on moral grounds. While I will not address the question whether the Iraq and Afghanistan wars are just wars in this Article, a typical combination of views is that the 2003 war in Iraq is unjust and that the war in Afghanistan may have started out as just in 2001 but that its moral defensibility is increasingly doubtful. 88 Let’s assume that these views are correct. If we further subscribe to the view that soldiers who participate in unjust wars and later develop symptoms of PTSD due to the wars should be held fully responsible for the crimes they commit, then veterans from the Iraq war are not eligible for PTSD- based sentencing discounts whereas those from the Afghanistan war may or may not be depending onwhenthey participated in the war. Many will resist this line of reasoning, but why? If members of groupAattack members of groupBwith no just cause, and members of groupBdefend themselves by attacking members of groupA, then members ofAare criminals, and they do not have the right to counterattackB’s violent response in self-defense. 89If members of both groups, due to the harrowing experience of being in a violent con ict, develop PTSD symptoms that lead to criminal activities, it seems that the members of groupB, the victims, have a stronger claim to reduced culpability than members of groupA, the aggressors, who should have no analogous claim. One of those who would object is Michael Walzer, who has argued that we ‘‘draw a line between the war itself, for which soldiers are not responsible, and the conduct of the war, for which they are responsible, at least within their own sphere of the activity.’’ 90 This principle applies even to the Nazi military for Walzer, and he speaks approvingly of Erwin 86U.N. Charter art. 2, para. 4; see also Walzer (2006a, pp. 61–62).87U.N. Charter art. 51; Walzer (2006a, pp. 61–62).88On Iraq, see, for example, Walzer (2006b); McMahan (2004). On Afghanistan, see, for, example, Miller (2011); Walzer (2009). 89For a detailed development and defense of this core idea, see McMahan (2009). Among other things, McMahan challenges the conventional view that one can abide byjus in belloprinciples in wars that violate jus ad bellumprinciples and argues that unjust combatants cannot satisfy the principles ofjus in bello. Id. pp. 15–32. 90Walzer (2006a, p. 38). Crim Law and Philos (2013) 7:285–307 297 123 Rommel because while he was ‘‘one of Hitler’s generals,…he did not shoot prisoners.’’ 91 If this view is true, then the fact that a soldier participated in an aggressive war does not re ect badly on him. If theEinsatzgruppenmembers have PTSD, we may not be sym- pathetic to them, but that is not because of their participation in a war of aggression but solely because of their murder of civilians, according to this view. Something like Walzer’s position is the conventional view. If the conventional view is true, then even those who participate on the aggressor’s side in unjust wars can have reduced culpability on the basis of their military service related PTSD. It seems that there are a few recurring arguments in favor of the conventional view, and those arguments may be organized in terms of different mental states. First, a soldier may believe that a war is unjust, or that there is a substantial risk that it is unjust, but participate in it anyway because he or she is under duress, superior orders, and peer pressure, 92 and also may face punishment for desertion, 93 absence without leave, 94 disobedience of orders, 95 and dereliction of duty. 96 A soldier in this category may par- ticipate in unjust wars reluctantly and unwillingly because he feels coerced to do so. Call this the ‘‘duress argument.’’ Second, a soldier may believe that the war he or she is participating in is just simply because their political leaders have said so. Such beliefs may be reasonable. Whether a war is just or not is often controversial, uncertain, and shifting over time, and it may be reasonable for the soldiers to believe their political leaders, given the limited information the soldiers have. Even if it turns out that their belief is mistaken, their participation may be justi ed in the same way a reasonable but mistaken act of self-defense in the individual self-defense context may be justi ed. 97 Call this the ‘‘epistemic argument.’’ Third, a soldier may either lack beliefs one way or the other on the matter or set aside his or her personal beliefs, deeming them to be irrelevant. Some may argue that such a soldier is still justi ed in participating in unjust wars for the following reason. The military is an important institution, vital for national security, which is of paramount importance for obvious reasons. In order for the military to function well, it has to be organized hierar- chically, and there has to be a clear chain of command and a division of labor among its members. The task of deciding whether to engage in a military con ict is reserved for political leaders, and the soldiers cannot substitute their private judgments for the judgment of the government of cials. Because of this duty of soldiers to obey the orders given to them, participating in a con ict, even if it is unjust, may be morally required for soldiers. 98 Call this the ‘‘duty to obey’’ argument. The duress argument must be evaluated while keeping in mind the consequences of refusing service and comparing their seriousness to the gravity of what one is frequently asked to do in an unjust war. The consequences of disobeying can certainly be substantial. According to one study, the average punishment for the crime of desertion is 91Id.92Zupan (2008, pp. 224–225).9310 U.S.C. § 85 (2006).94Id. § 86.95Id. § 92.96Id.97See Zupan (2008, pp. 218–221); see also Estlund (2007).98Ryan (2011); see also Zupan (2008, pp. 221–222). 298 Crim Law and Philos (2013) 7:285–307 123 26.35 months. 99 That number may sound low, given that the maximum punishment allowed for the crime of desertion is the death penalty, if it happens in time of war. 100 However, the number actually overstates the seriousness of consequences for deserters, as it appears that deserters are rarely punished, 101 let alone receive the death penalty, even if the desertions happen during war. The last time someone was executed for the crime of desertion was in 1945, 102 and a more typical consequence, judging from what happened during the Iraq War, is to receive an ‘‘other than honorable’’ discharge. 103 On the other side of the ledger, the consequences of giving into the pressure to ght in an unjust war are grave: for those in direct combat, the consequence is to kill those who should not be killed, and for those not in direct combat, it is to aid and abet such killings. As we saw when we consideredjus in belloprinciples, when one is pressured to commit serious moral wrongs, one is morally required to resist such pressures, even if it is dif cult to do so. For these reasons, the duress argument seems weak. 104 Whether the epistemic argument is available or not for servicemen will depend on individual situations. Some soldiers may in fact believe that the war is unjust but partic- ipate in it anyway for whatever professional or personal reasons, and such people cannot argue that they believed that the war was just. Second, a soldier’s actual belief that the war is just would also have to be reasonable, and whether it is or not would depend on the information available in a given case. These two conditions would have to be met for a soldier to show that his participation in an unjust war is justi ed. What about the duty to obey argument? We should start by noting that the duty to obey is not absolute, and it may be overridden by a competing consideration if the reason to disobey is of a correct kind and of suf cient strength. At least three things follow from this feature of the duty to obey. First, it is morally irresponsible for a soldier to obey without giving a thought to whether what he is being asked to do is morally permissible, 105 unless one can justify one’s lack of thoughts on such matters on the basis of reasonableness, in which case his position should be evaluated as a form of the epistemic argument discussed above. Second, similarly, if a solider believes that obedience is justi ed in a given case because the war is just, then whether the obedience argument works or not turns on the reasonableness of his belief that the war is just, which, again, brings us back to the epistemic argument. Finally, if a soldier believes that a war is unjust and that he would be perpetrating violence against those who should not be attacked, then the gravity of the acts contemplated would likely create a permission, and perhaps even a duty, to disobey. 106 The upshot is that a successful pure duty to obey argument for participating in an unjust war— separate from the epistemic argument—is bound to be rare. So, it appears that a soldier may be justi ed in participating in an unjust war only when he actually and reasonably believes that he is participating in a just war. In such cases, we 99Sylkatis (2006, p. 408).100 10 U.S.C. § 85 (2006). 101 Associated Press,Military Makes Little Effort to Punish Deserters, June 28, 2007. 102 Sylkatis (2006, p. 401 n. 5). 103 Melba Newsome,Going AWOL, Details, Nov. 2007. 104 As we also saw when we consideredjus in belloprinciples, there are some complications here.See supranote 84. 105 Cf. Berman (2011, pp. 70–71) (‘‘While it would be lunacy to suppose that we are under an obligation to deliberate aboutallour actions, we do have such an obligation whenever we become aware of a prima facie or pro tanto moral reason not to do whatever we happen to be contemplating.’’). 106 Cf. McMahan (2009, pp. 72–73). Crim Law and Philos (2013) 7:285–307 299 123 cannot say that the PTSD that is brought on by his participation in an unjust war is a result of culpable behavior on his part, and his PTSD symptoms can then reduce his culpability. We can therefore conclude that a veteran’s PTSD should not mitigate when his PTSD is traced to his participation in an unjust war, unless he actually and reasonably believed that the war was just. 107 State Responsibility and Standing to Blame From the discussion in Part II, the picture that emerges is as follows. The strongest claim for PTSD to mitigate culpability is for those offenders whose PTSD symptoms arose from their participation in a just war and did not come about as a result of their participation in atrocities during war. The second strongest claim is for those whose PTSD symptoms came about from an unjust war that they actually and reasonably believed was just, where their symptoms were also not related to any atrocities committed during the war. The position we have arrived at is thus complex. Yet, it is still incomplete. Among those whose PTSD symptoms cannot be traced to their perpetration of atrocities but arose from their participation in unjust wars without justi cation, another reason to punish less exists. The reason does not concern their reduced culpability but instead centers around the State’s involvement in the production of their criminality. As I have implicitly assumed throughout this Article, when the State punishes, it blames, condemns, and stigmatizes the offenders. Two things follow from this. First, the State must ensure that its acts of condemning are fair to, and are in fact deserved by, their recipients. Thus, the discussion about offenders with military backgrounds far has focused, up until now, on this question of their blameworthiness. Second, even if the intended recipients of the State’s blaming are blameworthy, the State’s standing to blame—and to punish—may be undermined for various reasons. One of those reasons is that the State itself is partly responsible for the wrongdoing that it seeks to condemn. 108 The most obvious aspect of the State involvement in the soldiers’ participations in unjust war is that the soldiers are not out there on their own. First, they engage in acts of violence in their of cial capacity, as extensions of the State itself. Second, soldiers are placed in the types of situations—such as combat situations—that are likely to give rise to 107 There is a threshold issue here, however, that some readers may have trouble getting past. If what I am proposing here as a standard is to be adopted, we would have to devise a way, within our judicial system, to determine whether a particular armed con ict is just or unjust, and the prospect of such a thing happening will strike most as remote. Here is my response. First, there is a difference between arguing that it is dif cult for people to come to an agreement on whether a war is just and arguing that there is no such thing as the right answer on the question. This Article assumes that there are right and wrong answers on such questions. Second, there is a difference between rejecting an idea because it is theoretically unsound and rejecting an idea because the idea, for a host of ideological and pragmatic reasons, is unlikely to be implemented, and the focus of this Article is to defend the soundness of the theory, not necessarily to propose that we in fact implement these ideas. Third, there is a difference between arguing that we, as a matter of practice, have not held individuals morally responsible for participating in unjust wars in formal, legal settings and arguing that individuals are not morally responsible for participating in unjust wars. Much of the discussion in this section has been devoted to the latter, normative issue, not in the former, more pragmatic issue. Fourth, if it is the case that there are just wars and unjust wars,andif it is the case that individuals can be thought to be culpable in participating in unjust wars,andif it is the case that a person’s PTSD should not mitigate his culpability if he has acquired his PTSD through culpable conduct on his part,thenthe question as to whether the war a veteran participated in was just or not has to be asked in order to evaluate the claim that his PTSD reduces his culpability. Otherwise, the analysis will be woefully incomplete, and one modest goal of this section has been to highlight that incompleteness. 108 Cohen (2006); Duff (2010); Scanlon (2008, pp. 175–179); Tadros (2009). 300 Crim Law and Philos (2013) 7:285–307 123 symptoms of PTSD by the State itself. That is, a foreseeable consequence of sending soldiers to battle elds is that many of them would end up psychologically damaged. War can be, in short, criminogenic for those susceptible. If the soldiers, while working as agents of the State in places and situations designated by the State as their mission sites, develop symptoms of PTSD, which drive them toward criminal activities post-deployment, the State’s standing to condemn their behavior is undermined because the State itself has caused the conditions leading to the crimes. Also, if one of the reasons soldiers participate in unjust wars is because of their will- ingness to obey even commands that lead them to unjust wars, the State’s standing to blame soldiers for consequences that follow from their obedience is undermined. One mechanism by which soldiers act as agents of the State is through a system of commands. Such commands are mandatory, accompany a strict system of hierarchy and a clear chain of commands in the military, and disobedience within the military is an offense that can result in court martial and punishment. Thus, a State that orders its soldiers to participate in unjust wars cannot then turn around and blame the soldiers for having followed the commands. 109 The State’s involvement is in fact deeper than a mere issuance of commands backed up with sanctions. There is a powerful ethos of obedience that runs throughout the institutions of the military, and indeed the military actively cultivates a culture of obedience. 110 As Jeff McMahan observes: In most military organizations, the ability of soldiers to engage in autonomous re ection and deliberation about the content of their orders is also deliberately and systematically sabotaged. They are subjected to intensive conditioning and indoc- trination, to endless drills, and to processes intended to efface their individuality and subvert their autonomy. The suppression of individual identity is achieved in part through shaving of the heads of males and making all soldiers wear the same uni- form. They are all to look and act in exactly the same ways. Their wills are broken through intimidation, bullying, and humiliation by their instructors, through demands for repeated public displays of deference and submissiveness, and so on. The aim is to convert them into largely unre ective instruments of the wills of their superiors. 111 There are many reasons of ef ciency and effectiveness to cultivate such a culture. But one of the most powerful reasons perhaps is that soldiers are frequently required to do something that people generally nd very dif cult to do: kill other human beings. In the often discussed study by General S. L. A. Marshall, it was discovered that only about 15–20 of every hundred American soldiers in a battle with enemies consciously red at the other side. 112 The study is controversial, but its basic ndings that soldiers are extremely reluctant to kill and that they try to nd ways to avoid shooting even if the situations they are in call for them to shoot are accepted as valid. 113 The lesson of the Marshall study was that an important part of the military training had to be about overcoming such human inhibitions to kill, and by all accounts, the military has achieved some success in doing 109 The claim advanced here should be distinguished from the idea that soldiers who follow orders are either justi ed or excused and hence rendered blameless. Rather, the argument is thatXwho ordersYto doPlacks standing to criticizeYfor having doneP. 110 Grossman (2009, pp. 141–148). 111 McMahan (2009, p. 119). 112 Grossman (2009, p. 3). 113 Collins (2008, pp. 47–48). Crim Law and Philos (2013) 7:285–307 301 123 so. 114 This is yet another way in which the State has involved itself in inducing soldiers to act in ways that are potentially immoral—thereby burdening them with a kind ofmoral risk, which undermines its own standing to blame the soldiers for adverse consequences of their willingness to obey and kill. 115 Assuming that this analysis is correct and the State’s moral standing to blame can be undermined for various reasons, there are still a number of questions. First, these argu- ments appear to be especially strong in cases where the State is culpable in the sense that it has carried out an unjust war. The State has then contributed to the veterans’ criminality and has done so by engaging in an unjust con ict. Thus, its moral standing seems par- ticularly compromised. 116 This observation raises the following question: do these argu- ments apply even when the State is involved in a just war? If it is the case that the moral standing to blame is not undermined when a State does not act culpably, then it seems that these arguments should not apply if the war is just. This may not make a difference in the end since offenders whose criminal behavior can be traced to their military service in a just war are eligible for a discount according to the analysis above. However, it seems to me that the State’s standing can be compromised even if the State has not done anything wrong. Even if the State engages only in morally justi ed con icts and even if we grant that the State’s efforts to train soldiers to obey orders and overcome their inhibitions to killing are not culpable, the State’s total, intimate, and intrusive involvement in shaping the soldiers’ psyche and day-to-day lives makes it dif cult to declare that the State is not to share the blame in soldiers’ criminal behaviors, no matter the justness of the source of the criminality. 117 In other words, to the extent that the State has 114 Giardino (2009, pp. 2967–2971); Grossman (2009, pp. 252–263); Hafemeister & Stockey (2010, pp. 103–104). 115 This explanation for a sentencing discount for military veterans gives us the third reason why we may think that members ofEinsatzgruppenare not entitled to mitigation. Unlike, say, the United States gov- ernment responsible for Vietnam, Iraq, and Afghanistan wars, which, for better or worse, is thought of as ‘‘our’’ government by Americans, very few people—not even Germans—would identify with the Nazi government as their own government. The only government whose moral standing to blame has been undermined by its own complicity of atrocities committed by Nazi soldiers is the Nazi government, which no longer exists. The closest candidate would be the current German government, and even if there were a viable argument that the current German government has no standing to judge its own war criminals, reasons of transitional justice—a need to make a decisive break with the past in order to reconcile oneself with its own past—militate against any gesture that would be construed as sympathy for Nazi war criminals. Plus, to the extent that the current German government cannot make a complete break from its Nazi past, the fact that it has been scrupulous about blaming itself for its past deeds at least partially restores its moral standing to blame. Cf. Duff (2010, pp. 139–140); Tadros (2009, p. 410). 116 However, as discussed insupranote 115, in exceptional situations, for reasons of transitional justice, where a State must distance itself from its predecessor in order for a polity to move forward, a State may be right in not displaying any sign of impunity regarding wrongdoers from the previous regime. In such cases, sentencing discounts may not be called for. 117 It should be kept in mind that the State’s standing to blame is not undermined by the mere fact that the military training led one to become a criminal. The standing to punish argument here is limited to situations where a veteran’s criminal activity is brought about due to PTSD symptoms stemming from his or her military service. The reason this limitation is important is because the military may contribute to people’s criminal activities in all kinds of ways that do not undermine the State’s standing to blame. For instance, the military obviously trains people to be good at certain things (such as ability to shoot a gun), and some of the skills or character traits that one may develop in the military may be useful for criminal activities. And it seems odd to think that the State’s standing to blame is undermined just because the State has given a person tools that happen to be useful for criminal activities. For instance, John Allen Muhammad, the ‘‘Beltway Sniper,’’ was a Gulf War veteran who apparently used his skills as a marksman to go on a murder spree, setting aside the question of whether his mental stability had to do with his experience during the war.See Ian Urbina,Sniper Who Killed 10 Is Executed in Virginia, NY Times, Nov. 10, 2009; Byron Acohido and 302 Crim Law and Philos (2013) 7:285–307 123 created and operated the military and turned individuals into those capable of killing ef ciently and deployed them into combat, the State must share the blame for some of the foreseeable negative manifestations of such training and deployments, even if we cannot say that the State has done anything wrong. 118 Another question is whether the State’s standing to blame is so compromised with regard to veterans that even those whose PTSD symptoms arise from participating in atrocities—torture, intentional killing of civilians, etc.—cannot be criticized properly. The answer here is no, at least assuming that the State has not commanded the soldiers to engage in such wrongdoings. This is because there is a clear understanding among all participants that the minute soldiers start outing rules that govern their conduct during a war, they are no longer acting within the scope of authorized violence. They cannot claim to have acted as agents of the State; neither can they claim that they were ordered to do so by the State. Thejus in belloprinciples and the rules governing how to handle orders that require them to violatejus in belloprinciples are part of their training. 119 Therefore, the arguments given above as to why the State’s moral standing to blame is compromised do not generally apply here. Now, it is true that the State may be responsible for cultivating traits in soldiers that make them more likely to submit even to illegal orders, but by stressing thejus in bellorules and enforcing them, the State may immunize itself from the forces that may undermine its moral standing to criticize. Conclusion This Article has defended the following propositions: First, if a person’s PTSD symptoms contribute to his criminal behavior, the PTSD does not reduce his culpability if his PTSD originally stemmed from his own culpable behavior. Second, a veteran’s PTSD does not reduce his culpability if his PTSD arises from an instance of his violation of certainjus in belloprinciples during a war. Third, a veteran’s PTSD does not mitigate if his PTSD is traced to his participation in an unjust war, unless he actually and reasonably believed that the war he was participating in was just. Fourth, even if a veteran’s participation in an unjust war without suitable justi cation or excuse defeats the argument for culpability reduction, he should not be punished to the full extent of his blameworthiness because the State, through its involvement in the production of his criminality, has undermined its standing to blame him. There are two other arguments that I have not addressed. The rst argument is mercy, 120 and I will not address it here, partly because the idea of mercy seems capacious enough to serve simply as a way of discussing multiple, all-things-considered grounds for leniency. 121 The second argument is what I have above called the ‘‘social contributions’’ Footnote 117 continued Blake Morrison,Expert Marksman, Eager Student Lived as Vagabonds, USA Today, Oct. 25, 2002.See also Forgey v. State, 886 N.E.2d 16, 24 (Ind. App. 2008) (noting that ‘‘many of Forgey’s actions during the commission of the instant crimes appear to be attributable to his military training’’). 118 One implication of this argument, for those who are interested in implementation questions, is that courts, when deciding whether to grant a sentencing discount for offenders with military backgrounds, may bypass the vexing question as to whether a particular con ict is morally justi ed and still grant the discount, simply because mitigation is called for whether the war that a veteran was involved in was just or not. 119 See, e.g., DeSaussure (1994, p. 58); Eckhardt (2003, p. 440). 120 See, e.g., Gardner (2011, p. 101). For a general discussion, see Duff (2007). 121 See, e.g., Tasioulas (2011, pp. 45–48). Crim Law and Philos (2013) 7:285–307 303 123 argument. The standard justi cation that we saw in thePortercase has two parts. We should treat veterans differently ‘‘in recognition of,’’ rst, ‘‘their service,’’ 122 and, second, ‘‘the intense stress and mental and emotional toll’’ of combat. 123 This Article has primarily focused on the second factor, but the arguments made here have implications for the rst factor. The rst thing to note is that the analysis above shows the awkwardness of the idea of describing military veterans as having contributed to the society. Those who have violated jus in belloprinciples probably should not be described as having contributed in a positive manner; in fact, it may be the opposite as they may have damaged the State’s standing in the international community and its foreign relations. Those who should be honored instead, some have argued, are those who, at great personal and professional risk, dissented from certain practices, criticized certain policies, and reported on them. 124 Those who have participated in unjust wars without justi cation, on the other hand, may not have damaged the State in such an obvious manner but nevertheless have behaved in ways that are contrary to the path the State ought to have been on by assisting the State to go down an immoral path. And even if individual soldiers had justi cations, if they have participated in objectively wrongful acts, all they ought to receive is freedom from blame; it seems odd to express gratitude to those who participated in a morally wrongheaded activity. These considerations highlight the de ciencies of the social contributions account as the general justi cation of reduced punishments for veterans. The only veterans who may be entitled to a gratitude-based mitigation are, then, those who participated justly in just wars. Here it seems that the case for mitigation on this basis is still weak, but mainly for reasons that have to do with the general problems of social contributions as a sentencing factor. Namely, the institution of punishment should concern itself with individual acts and should not as a general matter serve as a forum where some kind of social accounting examining a person’s entire life takes place. 125 However, fully defending this argument is beyond the scope of this Article. 126 AcknowledgmentsThanks to Rachel Barkow for her very helpful comments as the discussant of this paper at the Columbia Criminal Law Roundtable, as well as to other participants at the event. Thanks also to Stephanos Bibas, Richard Bonnie, Debby Denno, Lauryn Gouldin, Abner Greene, Clare Huntington, Andrew Kent, Tom Lee, Ethan Leib, Dan Markel, Alice Ristroph, Victor Tadros, Ben Zipursky, and participants at NYU Criminal Law Theory Colloquium for helpful comments on earlier drafts, and to Tamar Lusztig for research assistance. Finally, special thanks are due to Antony Duff for his characteristically penetrating comments on the penultimate draft. 122 Porter, 130 S. Ct. at 455; see also Amir Efrati,Judges Consider New Factor at Sentencing: Military Service, Wall St. J., Dec. 31, 2009 (quoting a judge stating that a criminal defendant ‘‘is to be credited for his contributions to the United States Army, to his unit, and, in turn, to his country’’). 123 Porter, 130 S. 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Crim Law and Philos (2013) 7:285–307 307 123 R epro duce d w ith p erm is sio n o f th e c o pyrig ht o w ner. F urth er r e pro ductio n p ro hib ite d w ith out p erm is sio n.
review the following: The Mississippi law around participation in veterans’ courts: https://law.justia.com/codes/mississippi/2014/title-9/chapter-25/section-9-25-1The announcement for such a court fro
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Melissa Pratt, ‘New Courts on the Block: Specialized Criminal Courts for Veterans in the United States’ (2010) 15(1) Appeal: Review of Current Law and Law Reform 39 MLA 9th ed. Pratt, Melissa. “New Courts on the Block: Specialized Criminal Courts for Veterans in the United States.” Appeal: Review of Current Law and Law Reform, vol. 15, no. 1, 2010, pp. 39-57. HeinOnline. OSCOLA 4th ed. Melissa Pratt, ‘New Courts on the Block: Specialized Criminal Courts for Veterans in the United States’ (2010) 15 Appeal: Rev Current L & L Reform 39 Provided by: The University of Southern Mississippi Libraries — Your use of this HeinOnline PDF indicates your acceptance of HeinOnline’s Terms and Conditions of the license agreement available at https://heinonline.org/HOL/License — The search text of this PDF is generated from uncorrected OCR text. — To obtain permission to use this article beyond the scope of your license, please use: Copyright Information APPEAL VOLUME 15 39 ARTICLE NEW COURTS ON THE BLOCK: SPECIALIZED CRIMINAL COURTS FOR VETERANS IN THE UNITED STATES By Melissa Pratt* CITED: (2010) 15 Appeal 39-57 INTRODUCTION ‘To deny the frequent connection between combat trauma and subsequent criminal be- havior is to deny one of the direct societal costs of war and to discard another generation of troubled heroes.”” Over 1.7 million American military service members have been deployed to Iraq and Afghanistan in support of the Global War on Terror (GWOT) since the start of combat operations in 2001.2 Approximately one third of those individuals have been deployed more than once.’ With plans to withdraw all but 50,000 of the service members from Iraq by Au- gust 2010,’ the United States will face a massive influx of veterans returning from war. It has been estimated that 30 to 40 percent of the 1.7 million Iraq and Afghanistan veterans J.O. candidate, University of La Verne College of Law, 2011; B.A., California Polytechnic State University, 2002. The author is also a combat veteran, and served two tours in Iraq, in support of Operation Iraqi Freedom in 2004 and 2006. The author wishes to thank her friends, family, and husband for their undying love and sup- port. She also wishes to thank Judge Wendy Lindley and the Orange County Veterans Court for their invaluable assistance in researching this article. 1. Deborah Sontag & Lizette Alvarez, “Across America, Deadly Echoes of Foreign Battles” N. Y Times (13 January 2008), online: NYTimes.com (quoting Brockton D. Hunter, criminal defense attorney) (“Deadly Echoes”]. 2. VA Fact Sheet: Impact of Iraq and Afghanistan Wars, online: Veterans for Common Sense . See also Military Personnel Sta- tistics, online: Statistical Information Analysis Division of the Dept. of Defense . 3. Responding to the Needs of Justice-Involved Combat Veterans with Service-Related Trauma and Mental Health Conditions, online: Center for Mental Health Services National GAINS Center at 4 [GAINS Report]. 4. Julian E. Barnes & Greg Miller, “Obama Orders More Troops to Afghanistan” The Los Angeles Times (18 Febru- ary 2009), online: latimes.com [“More Troops”]. 40 APPEAL VOLUME 15 (“GWOT veterans”) will “face serious mental-health injuries” such as Post-Traumatic Stress Disorder (PTSD) or Traumatic Brain Injury (TBI).’ These disorders can lead to higher rates of drug and alcohol abuse, because many veterans will try to “self-medicate” to help deal with their problems.’ Higher rates of drug and alcohol abuse often lead to additional drug offences, theft, and ultimately incarceration. 7 As well, the New York Times reported in January 2008 that there had been at least 121 cases in which veterans of Iraq and Afghanistan were charged with killings ranging from involuntary manslaughter to first- degree murder, since the return of the first veterans from Afghanistan in 2002. Combat trauma and substance abuse played a part in many of the cases. 9 However, these violent crimes are just a small percentage of the larger estimated number of crimes that veterans will commit.'” At the same time, several studies have shown that veterans convicted of crimes have a much lower recidivism rate than other criminals.” A 1993 study by the New York Department of Correctional Services indicates that “veterans … return to the [correctional] system at less than 80 percent of the rate at which similarly situated non-veterans return.” 2 A 2000 re- 5. Terri Tanielian & Lisa H. Jaycox, Invisible Wounds: Mental Health and Cognitive Care Needs of America’s Re- turning Veterans, online: RAND Corporation at 2 [RAND Report]. The essential feature of PTSD “is the development of characteristic symptoms following ex- posure to an extreme traumatic stressor involving direct personal experience of an event that involves actual or threatened death or serious injury, or other threat to one’s physical integrity; or witnessing an event that in- volves death, injury, or a threat to the physical integrity of another person; or learning about unexpected or vio- lent death, serious harm, or threat of death or injury experienced by a family member or other close associate.” American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 4th ed. (Washington D.C.: American Psychiatric Association, 2000) at 465 [Manual of Mental Disorders]. TBI “occurs when a sudden trauma causes damage to the brain. TBI can result when the head suddenly and violently hits an object, or when an object pierces the skull and enters brain tissue.” Traumatic Brain Injury: Hope Through Research, online: National Institute of Neurological Disorders & Stroke at 3. There is a strong association between TBI and PTSD. In 2006, the New England Journal of Medicine conducted an anonymous study of 2,525 Army infantry soldiers and found that “of those reporting loss of consciousness, 43.9% met criteria for post-traumatic stress disorder (PTSD), as compared with 27.3% of those reporting altered mental status, 16.2% with other injuries, and 9.1% with no injury. Charles Hoge et al., “Mild Traumatic Brain Injury in U.S. Soldiers Returning from Iraq,” (2008) 358 New England J. Medicine 453, at 453. 6. Claudia Baker & Cessie Alfonso, “PTSD and Criminal Behavior” in “National Center for PTSD Fact Sheet 1”, online: National Center for PTSD [PTSD Fact Sheet]. 7. P.T. Bean & C.K. Wilkinson, “Drug Taking, Crime and the Illicit Supply System” (1988) 83 British J. Addiction 533. B. “Deadly Echoes”, supra note 1. 9. Ibid. 10. Ibid. 11. e.g. One study was based on “personal interviews conducted through the 1997 Survey of Inmates in State and Federal Correctional Facilities and the 1996 Survey of Inmates in Local Jails.” Christopher J. Mumola, “Veterans in Prison or Jail”, online: U.S. Dept. of Justice at 14 [Veterans in Prison]. However, the authors of the study noted that the accuracy of the report may suffer from sampling errors, as well as non-sampling errors (for example, the study relied on inmates to provide their own personal information which resulted in non-responses, different interpretations of the questions, and recall difficulties); but see Dane Archer & Rosemary Gartner, “Violent Acts and Violent imes: A Comparative Approach to Post- war Homicide Rates” (1976) 41 Am. Soc. Rev. 937 at 956: “Direct evidence of whether veterans are overrepre- sented in the commission of homicide is difficult to obtain.” 12. Veterans’ Program Follow-Up July 1993, online: State of N.Y. Dept. of Correction Services . APPEAL VOLUME 15 41 port from the Bureau of Justice Statistics concluded that, as a group, incarcerated veterans were less likely to commit future crimes than incarcerated non-veterans. 3 Additionally, other recent studies have shown that veterans who have completed special- ized treatment programs have an even lower recidivism rate, which suggests that veterans would be optimal candidates for rehabilitation and decreased sentencing.’ 4 Arguably, crim- inal defendants who are also veterans may require, or benefit from, differential treatment by the criminal justice system. States are beginning to respond to the increasing numbers of GWOT veterans turning up in their courtrooms.'” Judges, prosecutors, public defenders, US Department of Veterans Affairs officials, and volunteers are joining forces “to create courts with veterans-only case proceedings, because they have seen a common thread” of PTSD, TBI, substance abuse, and mental illness underlying the veterans’ crimes.’ 6 This article describes the creation of specialized courts for veterans accused of nonviolent crimes. It argues that such courts are an efficient and appropriate way for the US criminal justice system to streamline the anticipated influx of veterans who may find themselves facing incarceration, providing them with the chance to rebuild their lives. I. MAGNITUDE OF THE PROBLEM There is no foreseeable end to the United States’ involvement in the GWOT. Although plans have been’ set in motion to reduce the force in Iraq, the number of U.S. troops in Afghanistan is going to increase, and there is no indication of a complete withdrawal of American forces from either country. 17 Until the GWOT is over, the United States will con- tinue to send men and women into a combat environment, and a percentage of these sol- diers will continue to return with PTSD, TBI, or other mental health problems.” 8 Veterans who have not received adequate treatment (and even some who have) will continue to find themselves in trouble with the law. 13. Veterans in Prison, supra note 11, at 7; see also “U.S. Sentencing Commission on Recidivism and the First Of- fender”, online: United States Sentencing Commission at 23 (First Offender]: (indicating that offenders with prior military service make up a higher proportion of federal offenders with little or no prior criminal history than of federal offenders with lengthier criminal records). 14. The first veterans court in Buffalo, New York reports that of the more than 100 veterans who have passed through its program, only two had to be returned to the traditional criminal court system because they could not quit narcotics or criminal behavior. Nicholas Riccardi, “These Courts Give Wayward Veterans a Chance” Los Angeles Times (10 March 2009), online: latimes.com . A 2007 RAND Corp. study of the county mental health court in Buffalo, New York, showed that only 14 percent of participants committed a crime after going through the program. The Buffalo veterans court is modeled after its mental health and drug courts. The report claims that the recidivism rate for the general population of inmates is 67 percent. RAND Report, supra note 5, at 2. King County, Washington reports a recidivism rate of 16 percent for convicted veterans who have com- pleted their prison time, compared to the current recidivism rate of over 50 percent for the general population. Veterans’ Program Client Services, online: King County Dept. of Community & Human Services . 15. Lynne Marek, “Courts for Veterans Spreading Across U.S.”, online: (2008) National L. J. [Marek]. 16. Ibid. 17. “More Troops”, supra note 4. 18. RAND Report, supra note 5 at 2. 42 APPEAL VOLUME 15 A RAND Corporation study estimates that 300,000 GWOT veterans are currently suffer- ing from PTSD or depression, and about 320,000 may have experienced a Traumatic Brain Injury during deployment. 19 In an effort to identify soldiers who are at risk for, or who are already suffering from PTSD and other mental health disorders, the Department of Defense (DoD) has enacted certain post-deployment protocols. The DoD requires that a Post-De- ployment Health Assessment be administered to all service members at the end of de- ployment. 20 Three to six months later, the assessment is re-administered. 21 In 2007, during a random-dial survey, the GAINS Center found that of those surveyed, from the time of the initial assessment to the reassessment, positive screens for PTSD jumped 42 percent for those who served in the active Army (from 12% to 17%) and 92 percent for Army National Guard and Army Reserve members (from 13% to 25%).22 Depression screens increased as well, with Army National Guard and Army Reserve members reporting higher rates than those who were active Army. 23 It is estimated that only around 50 percent of veterans who need treatment for depression, PTSD, or TBI seek it, and only slightly more than half who receive treatment get even “minimally adequate care. “’24 There are no comprehensive statistics on how often veterans get in trouble with the law, and many will never become entangled with the legal system. But psychiatrists, law enforcement officials, and commentators agree that the traumas of combat can lead to addiction and criminality. According to the most recent data available on incarcerated veterans, ten percent of federal and state prisoners were veterans in 2004, before GWOT veterans began returning in large numbers. 2″ At that time, veterans were not overrepresented in the jus- tice system in comparison to their proportion in the general population. 26 However, as more veterans with PTSD, TBI, and other mental health disorders are returning from war, the growing concern is that the underlying conditions which cause veterans to become in- volved with the justice system are not being treated. 27 These conditions in turn cause more veterans to become involved with the criminal justice system, ultimately leading to more veterans ending up in prison. The best predictor of justice system involvement for veterans comes from the National Vietnam Veterans Readjustment Study (NVVRS). 2″ Based on interviews conducted be- tween 1986 and 1988, the NVVRS found that among male combat veterans of Vietnam with current PTSD (about 15% of all male combat veterans of Vietnam), nearly half had been arrested one or more times. 29 At the time of the study, this represented approximately 19. Ibid. at 2. 20. Dept. of Defense Instruction 6490.03 [11 August 2006], online: . 21. Ibid. 22. RAND Report, supra note 5 at 5. 23. Ibid. 24. Ibid. at 2. 25. Margaret E. Noonan & Christopher J. Mumola, Bureau of Justice Statistics Special Report- Veterans in State and Federal Prison (Washington, D.C.: U.S. Dept. of Justice, 2007) at 1. 26. Ibid. 27. GAINS Report, supra note 3 at 1. 28. Richard A. Kulka et al., Trauma and the Vietnam War Generation: Report of Findings from the National Viet- nam Veterans Readjustment Study (New York: Brunner/Mazel, 1990) at xxiii. 29. Ibid. at 186. APPEAL VOLUME 15 43 223,000 people. 3 If GWOT veterans with PTSD follow the same percentage of justice-in- volvement as Vietnam veterans, approximately 127,000 of the current 1.7 million veterans will find themselves facing criminal charges. Based on the serious problems facing GWOT veterans, and the underlying reason why they are facing these problems -their traumatic combat experiences -the United States must recognize these problems and find a solution. American society places a relatively high value on military service. Veterans receive special consideration in a variety of con- texts, including employment,” education, 2 naturalization, 3 voting rights, 4 medical care,” housing loans, 36 and small business loans. 37 That special consideration is given to veterans in large measure as recognition for the service they provided to their country. One current consequence of that service is that large numbers of GWOT veterans will suffer from PTSD, TBI, or other mental health disorders. Many will face substantial obstacles in obtaining healthcare.” Others will face difficulties obtaining service-connected compensation, 9 while some will be denied compensation and healthcare altogether. 4″ Self-medication and drug and alcohol abuse can exacerbate PTSD symptoms.’ Additionally, the post-deploy- ment transition is often complicated by adaptive behaviors developed during combat to promote survival. 42 Behaviours that are learned in order to survive in a combat zone can cause difficulties during the transition back to civilian life. 43 Undoubtedly, this is a recipe for disaster. 30. Ibid. at 60, 186. 31. See 5 U.S.C. §§ 2108, 3309 (2009); 38 U.S.C. § 4214 (2009). 32. See 38 U.S.C. §§ 3001-3036 (2009). 33. See 8 U.S.C. §§ i439-1440 (2009). 34. Miss. Code Ann. § 99-19-37 (West 2009) (restoring the right of suffrage to persons who lost such right by rea- son of criminal conviction, but who thereafter honorably served in the military during World War I or World War II). 35. See 38 U.S.C. §§1701-1774 (2009). 36. See 38 U.S.C. §§3701-3775 (2009). 37. See 38 U.S.C. §§3117(b), 3701-3775; 15 U.S.C. § 633(b)(1) (2009). 38. The backlog of Veterans Benefits Administration (VBA) compensation claims has been growing since the mid- 1990s, but over the past few years, the disability claims backlog has exploded. At the beginning of January 2004, the backlog was around 470,000, and by the end of March 2009, the backlog had reached 697,000. 2009 Monday Morning Workload Reports, online: U.S. Dept. of Veterans Affairs . 39. Without an approved service-connected disability rating from the VBA, veterans will not be able to receive cer- tain benefits that come with a service-connected disability. More importantly, a veteran who does not have a service-connected rating will have a lower priority for receiving care at Veterans Affairs (VA) Health Care facili- ties. VA Health Care Eligibility & Enrollment, online: U.S. Dept. of Veterans Affairs . 40. As of March 2008, veterans who do not currently have a service-connected disability, applied for care after Jan- uary 16, 2003, and have a certain level of income for the previous year, can no longer enroll for care from the VA. Ibid. 41. A study conducted ten years after the end of the Vietnam War found that approximately 75 percent of Viet- nam veterans with PTSD also “had a lifetime alcohol abuse or dependence disorder.” Kulka, supra note 28 at 124. 42. GAINS Report, supra note 3 at 5. 43. “Hypervigilance, aggressive driving, carrying weapons at all times, and command and control interactions, all of which may be beneficial in theater, can result in negative and potentially criminal behavior back home.” Ibid. 44 APPEALVOLUME 15 II. ATTEMPTS TO SOLVE THE PROBLEM Several different attempts have been made to address the increasing numbers of veterans suffering from PTSD, or other mental health concerns, who find themselves in trouble with the law as a result of their conditions. Some state and federal courts have taken vet- eran status into account during the sentencing stage, as a mitigating factor. Other states have allowed PTSD to be used as a diminished capacity defense. Both houses of the US Congress have proposed-bills that would create or sustain funding for programs that assist veterans involved with the criminal justice system. The most recent attempt, and the focus of this article, is the creation of courts exclusively for veterans. Regardless of the specific approach adopted, this article contends that courts should al- ways take a defendant’s veteran status and underlying conditions into account. Many courts do not inquire into an individual’s veteran status until the sentencing stage, if at all. 44 How- ever, this inquiry should be made at the beginning of any criminal proceeding. If a defen- dant is found to be a combat veteran, additional inquiries should be made into whether the veteran suffers from a mental-health condition or substance-abuse problem as a result of their combat experience. If the veteran is found to have one of these conditions, and it can be demonstrated that the condition caused the veteran to commit the crime he or she is ac- cused of, the state should offer the veteran probation and treatment for his or her condi- tion. This approach may not be suitable for the most serious crimes, such as murder, but if the veteran is eligible for probation under the applicable state or federal statute, proba- tion and treatment should be offered. This would avoid the apparent costs with creating a new court, by simply modifying the existing procedures. A. Veteran Status as a Mitigating Factor During the Sentencing Stage One way to accommodate the special needs of veterans accused of criminal offenses might be to raise a defendant’s veteran status during the trial, to show “good character.” Under fed- eral and most state laws, a defendant’s prior bad acts, such as previous convictions, are gen- erally excluded from evidence at trial. 45 However, evidence of a defendant’s good character is almost always admissible. 4″ The theory behind excluding prior bad acts is that a jury is likely to improperly conclude that an individual who has committed a crime in the past is more likely to have committed the offense of which he or she is presently accused. 47 This could lead the jury to convict the defendant for reasons other than whether the individual committed the offense in question. 4″ However, a defendant is permitted to introduce evi- dence of good character in an attempt to establish that he or she did not commit the crime in question. 49 The prosecutor can respond by introducing evidence of bad character, but 44. See Carissa Byrne Hessick, “Why Are Only Bad Acts Good Sentencing Factors?” (2008) B.U.L. Rev. 88 at 1109 [Hessick]. 45. Fed. R. Evid. 404(b). 46. Fed. R. Evid. 404(i). 47. John W. Strong et aL., McCormick on Evidence, vol. 1, 5th ed. (St. Paul: West Group, 1999) § 191. 48. Ibid. 49. Ibid. APPEAL VOLUME 15 -45 only to rebut the evidence of good character.” 0 This bias in favour of good character evi- dence at trial has a long history and is well settled. During the sentencing phase of a trial (post-conviction), the opposite bias exists: prior con- victions are considered relevant to determine the proper punishment. 5′ The issue of what role prior good acts should play at this stage is much less certain. 2 Not many jurisdictions explicitly recognize prior good acts as a mitigating sentencing factor, and even fewer rec- ognize military service as one of these factors. 53 Occasionally, trial judges have reduced a de- fendant’s sentence on the basis of prior good actions that are unrelated to the conviction, such as military service or charitable work. 4 But these decisions have met resistance from the US Sentencing Commission and federal appellate courts, and various scholars have ex- pressed the view that prior good acts should not be considered at sentencing. 55 Federal law on prior good acts for mitigation is inconsistent. Before the Federal Sentenc- ing Guidelines were enacted, oftentimes a defendant’s prior good acts were raised and con- sidered at sentencing. 56 However, when Congress formed the US Sentencing Commission to develop the Guidelines, it did not mention an offender’s prior good works as a sentenc- ing factor. The Commission was left to decide whether various factors “have any relevance to … an appropriate sentence’ and the Commission was directed by Congress to “take them into account only to the extent that they do have relevance “”‘ The original Sentenc- ing Guidelines classified many of the factors as not normally relevant in determining a de- fendant’s level of offense but did not mention a defendant’s prior good works. In United States v. Pipich 8 (“Pipich”), the district court gave a defendant a below-Guide- lines sentence, on the basis that: An exemplary military record, such as that possessed by this defendant, demonstrates that the person has displayed attributes of courage, loy- 50. “The prosecution … generally is forbidden to initiate evidence of the bad character of the defendant …. Yet, when the table is turned and the defendant in a criminal case seeks to offer evidence of his good character to imply that he is unlikely to have committed a crime, the general rule against propensity evidence is not ap- plied.” Ibid. 51. Hessick, supra note 44 at 1110. 52. Ibid. at 1111. 53. See e.g., N.C. Gen. Stat. § 15A-1340.16(e)(14) (2007) (felony sentencing statute providing for the mitigation of a defendant’s sentence if he “has been honorably discharged from the United States armed services”); Tenn. Code Ann. § 40-35-113(13) (2007) (Tennessee trial courts are permitted to consider prior military service as a mitigating factor, but they are under no obligation to mitigate an offender’s sentence on that basis; it is not a statutorily defined mitigating factor, but is available under the “catch-all” provision of the annotated statute); but see People v. Duncan, 5 Cal. Rptr. 3d 413, 414 (Ct. App. 2003) (observing that the trial court rejected “de- fendant’s claim that his military service should be treated as a factor in mitigation”). 54. See e.g., United States v. Pipich, 688 F Supp, 191 (D. Md. 1988) [Pipich]; State v. Kayer, 984 P.2d 31, 46-47 (Ariz. 1999) (“We have on rare occasions found that a defendant’s military record warranted consideration as a mitigating circumstance”); State v. Anderson, 631 So. 2d 80, 83 (La. Ct. App. 1994); State v. Arterberry, 449 So. 2d 1179,1181 (La. Ct. App. 1984). 55. See Andrew Ashworth, Sentencing and Criminal Justice, 3d ed. (New York: Cambridge U.P., 2000) at 151; Dan Markel, “Against Mercy” (2004) 88 Minn. L. Rev. 1421 at 1437-38; Andrew von Hirsch, “Desert and Previous Convictions in Sentencing” (1980) 65 Minn. L. Rev. 591 at 608. 56. Christina Chiafolo Montgomery, “Social and Schematic Injustice: The Treatment of Offender Personal Charac- teristics Under the Federal Sentencing Guidelines” (1993) 20 New Eng. J. on Crim. & Civ. Confinement 27 at 37-38. 57. 28 U.S.C. § 994(d) (2000). Some of the factors to be considered were previous employment record, community ties, and criminal history. 58. Pipich, supra note 54. 46 APPEAL VOLUME 15 alty, and personal sacrifice that others in society have not. Americans have historically held a veteran with a distinguished record of military service in high esteem. This is part of the American tradition of respect for the citizen-soldier, going back to the War of Independence. This American tradition is itself the descendant of the far more ancient tra- dition of the noble Romans, as exemplified by Cincinnatus. s9 In opposition to Pipich and other decisions, the Sentencing Commission adopted a new Guideline mandating that “military, civic, charitable, or public service; employment-re- lated contributions; and similar prior good works are not ordinarily relevant in determin- ing” whether to impose a sentence outside the Guideline range. 6° Currently, although a district court may consider a defendant’s prior good acts in selecting a sentence within the applicable Guideline range, the court may only sentence a defendant below that range when a defendant’s prior military service, charitable acts, or other good works are “exceptional.” 6’ Additionally, if states were to take veteran status into account as a “good” factor during sentencing, the larger problem of a veteran’s underlying condition would still exist. The veteran would still be incarcerated, albeit for a lesser amount of time, and would still suffer from PTSD. Rather than getting treatment, incarceration will likely seriously exacerbate PTSD symptoms and cause the person’s level of functioning to deteriorate. 62 Counseling and treatment are generally sub-par in a prison environment, and PTSD sufferers will gen- erally not recover on their own. 63 Veterans, by and large, are unlikely to benefit from mitigated sentencing approaches. Not only is the law inconsistent and the outcome uncertain, but PTSD symptoms are likely to be exacerbated in prison, and veterans will not be returned to society as law-abiding and functioning citizens. B. PTSD or Mental Health as an Affirmative Defense In certain cases, such as for violent crimes and felonies, it is possible for veterans to use their PTSD or other mental-health conditions as an affirmative defense. PTSD has been used by veterans to prove existing criminal law defenses since 1978.64 After the American Psychiatric Association officially recognized PTSD as a mental disorder in 198o,6″ the use 59. Ibid. at 193. Under the then-existing mandatory sentencing guidelines, district courts had the authority to give sentences outside the mandatory range when they found that “there exists an aggravating or mitigating cir- cumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.” 18 U.S.C. § 3553(b) (2000). 60. United States Sentencing Commission, Guidelines Manual (Washington D.C.: United States Sentencing Com- mission, 2007) at § 5H1.11. 61. Koon v. United States, 518 U.S. 81,95-96 (1996). 62. PTSD is a chronic condition, but with the proper treatment and education, its symptoms can usually be success- fully managed. It is unlikely that PTSD sufferers receive the proper treatment during incarceration. In fact, be- cause prison life may re-traumatize a person, a lengthy incarceration will likely seriously exacerbate PTSD symptoms and cause the person’s level of functioning to deteriorate. PTSD Fact Sheet, supra note 6 at 1. 63. Ibid. 64. Samuel P. Menefee, “The ‘Vietnam Syndrome’ Defense: A ‘G.I. Bill of Criminal Rights?”‘ (1985) Army Law. 1 at 27. 65. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 3d ed. (Washington, D.C.: American Psychiatric Association, 1980) at 236-39. APPEAL VOLUME 15 47 of PTSD as a defense dramatically increased. 66 Depending on the jurisdiction, PTSD can be used to prove a defense of insanity, unconsciousness, diminished capacity or self defense. 6″ If PTSD is successfully used as an insanity defense, the veteran will be committed to a men- tal health institution. 8 If the veteran succeeds with an unconsciousness defense, due to PTSD, the usual result will be a complete acquittal. 69 A diminished capacity defense yields the same result in other jurisdictions. 7″ Although there are a wide variety of plausible de- fenses available to a veteran suffering from PTSD, none of these defenses can fully address the symptoms and results of PTSD. For example, in order to succeed with the uncon- sciousness defense, the veteran must experience a dissociative state, 7′ which is often very dif- ficult to prove.” In California, a veteran recently succeeded with an affirmative defense of PTSD. In Janu- ary 2009, a former Army Captain, Sargent Binkley, was accused of robbing a pharmacy at gunpoint.” Binkley had been diagnosed with PTSD after serving in Bosnia and Honduras, and developed an addiction to painkillers after a hip injury that went untreated for years.. 4 He was found not guilty by reason of insanity, based on his diagnosis of PTSD. 7’ As a re- sult of the verdict, he will be treated in a state hospital, rather than facing 12 to 23 years in prison. 76 However, Binkley’s story is an exception to the rule. In recent years, the overall use of the insanity defense 77 has decreased significantly, and its successful use has also diminished. 71 The rise of the concept of the “moral agent” the absence of a uniform application, ° and 66. C. Peter Erlinder, “Paying the Price for Vietnam: Post-Traumatic Stress Disorder and Criminal Behavior” (1984) 25 B.C. L. Rev. 305 at 317 (explaining that “once PTSD was recognized as a disorder that could be isolated and diagnosed by psychiatrists and psychologists, it became a legitimate issue to be raised in legal proceedings. After the publication of DSM Ill, therefore, PTSD was raised in several cases as an explanation for a defendant’s criminal conduct”). 67. Ann R. Auberry, “PTSD: Effective Representation of a Vietnam Veteran in the Criminal Justice System” (1985) 68 Marq. L. Rev. 647. 68. Ibid. at 665 (” In many jurisdictions an acquittal based upon an insanity defense creates a situation of automatic commitment to a mental institution”). 69. Ibid. at 668-69. 70. See e.g., United States v. Fishman, 743 F Supp. 713, 721 (N.D. Cal. 1990). 71. Elizabeth J. Delgado, “Vietnam Stress Syndrome and the Criminal Defendant,” (1986) 19 Loy. L.A. L. Rev. 473 at 484. 72. Erlinder, supra note 66 at 307. 73. Tracey Kaplan, “Ex-Army Officer Found Not Guilty by Reason of Insanity in Robbery,” San Jose Mercury News (13 January 2009), online: MercuryNews.com . 74. Daniel DeBolt, “Binkley Avoids Jail Sentence,” Mountain View Voice (13 January 2009), online: Mountain View Voice . 75. Ibid. 76. Ibid. 77. This is largely analogous to the plea of “Not Criminally Responsible on Account of Mental Disorder” in Canada. 78. Stephen G. Valdes, “Frequency and Success: An Empirical Study of Criminal Law Defenses, Federal Constitu- tional Evidentiary Claims, and Plea Negotiations” (2005) 153 U. Pa. L. Rev. 1709 at 1722-25. 79. Stephen J. Morse, “Crazy Reasons” (1999) 10 J. Contemp. Legal Issues 189 at 192. 80. Ellen Byers, “Mentally III Criminal Offenders and the Strict Liability Effect: Is There Hope for a Just Jurisprudence in an Era of Responsibility/Consequences Talk?” (2004) 57 Ark. L. Rev. 447 at 449. 48 APPEAL VOLUME 15 increased public disapproval of the insanity defense,”‘ have created a legal environment that is disapproving of defenses based on mental illnesses. Thus, most veteran defendants will likely not be able to present a successful insanity defense. 2 Another obstacle to the use of PTSD as a defense is the subjective nature of symptoms in PTSD sufferers. As a result, it is sometimes challenging to establish the presence of PTSD in any particular defendant. In particular, lack of credibility remains a sizable obstacle in the use of PTSD to aid veterans facing criminal charges. 83 Diagnoses of mental health dis- orders are based on the defendant’s own account, and are therefore vulnerable to skepticism in the legal context, 4 especially when a diagnosis would be self-serving when used by a de- fendant in a criminal case. This skepticism is undoubtedly compounded when a defendant asserts a defense based on PTSD, since no one but the defendant is able to recount and de- scribe the symptoms and behavior that resulted from PTSD and led to the criminal con- duct.” Oftentimes, a defendant’s substance abuse, which is often a by-product of PTSD itself, undermines the defendant’s credibility and enables prosecutors to point to a cause of the defendant’s behavior apart from his or her mental illness. 86 Thus, credibility remains a significant concern in cases involving evidence of PTSD. Creating an even bigger obstacle when it comes to credibility is the fact that defendants ean easily fake PTSD. 7 With a wealth of information available on the Internet and elsewhere about PTSD, it is all too easy for individuals to use PTSD as an excuse, when they do not in fact suffer from the disorder. PTSD is widely regarded as an easy condition to fake. 8 False claims of PTSD have resulted in criminal acquittals, and have undoubtedly made it more difficult for genuine PTSD sufferers to succeed with a PTSD defense. In State v. Lock- ett89 (“Lockett”), the defendant asserted a defense of “not responsible due to PTSD” as a re- sult of his service in Vietnam, which the Court accepted. However, it was later revealed that Lockett had never actually served in Vietnam. 90 The Court set aside the plea, holding that a defendant “may not use alleged statutory or constitutional rights as a protection for fraud after he put that service in issue.91 As a result of Lockett and other cases involving 81. This is particularly a result of the public uproar over the acquittal of John Hinckley. See V.F. Nourse, “Reconcep- tualizing Criminal Law Defenses” (2003) 151 U. Pa. L. Rev. 1691 at 1721 (referring to the Hinckley verdict as “the most notorious of the modern insanity cases” and claiming that the “public rebelled” as a result of the ac- quittal). 82. Constantina Aprilakis, “The Warrior Returns: Struggling to Address Criminal Behavior by Veterans with PTSD” (2005) 3 Geo. J.L. & Pub. Policy 541 at 542. 83. Daniel E. Speir, “Application and Use of Post-Traumatic Stress Disorder as a Defense to Criminal Conduct” (1989) Army Law. 17 at 18-19 [Speir]. 84. M. Keane et al., “Forensic Psychological Assessment in PTSD” in Robert I. Simon, ed., Posttraumatic Stress Dis- order in Litigation: Guidelines for Forensic Assessment (Washington, D.C.: American Psychiatric Publishing, 2003) 119 at 136. 85. Speir, supra note 83 at 18-19. 86. Ibid. at 18. 87. Ibid. at 19. 88. Ibid.; see also Betsy Streisand, “Treating War’s Toll on the Mind” U.S. News & World Report (1 October 2006), online: usnews.com . 89. State v. Lockett, 468 N.Y.S.2d 802 at 803, 805 (1983) (Lockett based his plea of not responsible due to the PTSD he suffered as a result of his service in the United States Air Force in Vietnam. In particular, Lockett as- serted “I fought in the jungles in Vietnam” and “I am still a soldier there.”) 90. Ibid. 91. Ibid. at 807. APPEAL VOLUME 15 -49 ‘ defendants faking PTSD symptoms, prosecutors and judges will probably be more skepti- cal of defendants’ claims of PTSD. Additionally, this attaches a stigma to PTSD. As with the Vietnam veterans, society may begin to look at modern veterans as loose cannons. If every veteran with PTSD could be considered “insane:’ many veterans will be motivated to hide their illness, and will avoid seeking help when they know they are suffering. Already, many veterans avoid seeking help for their mental health problems. The military culture that veterans are a part of insists that psychological injuries “are a sign of weakness”‘ 92 As a result, many veterans are dis- couraged from asking for help, and do not realize that PTSD is a medically-recognized mental health disorder that many others are suffering from as well. 93 The majority of veterans are unlikely to benefit from the PTSD defense. Although it has been used successfully in some cases, it is difficult to prove, juries are skeptical of it, and defendants face challenging credibility obstacles in proving this defense. C. Federal and State Initiatives Several bills have been proposed in Congress that would have provided special funding for programs that treat veterans involved with the justice system. The Second Chance for America’s Veterans Act, proposed in 2007, would have extended and provided additional funding for the Incarcerated Veterans Transition Program (IVTP). 94 During its pilot phase from 1989 to 2007, IVTP claimed it reduced recidivism rates amongst participants by 90 percent. 95 IVTP also recorded that 90 percent of its participants were moved into perma- nent housing, and 72 percent became gainfully employed. 96 On the basis of this data, IVTP claimed it saved taxpayers millions of dollars per year in incarceration costs and stimu- lated local job growth and economic development by providing former offenders with jobs. 9″ However, the pilot program stopped receiving funding as of September 2007. The bill that would have extended funding for the program was sponsored by Kentucky Rep- resentative John Yarmuth, and was introduced in August 2007.9″ After the bill was intro- duced, it was referred to the House Committee, but no further action was taken on the bill, and funding has consequently ceased. 99 It is not entirely clear why this bill did not become law. However, in a statement before a House subcommittee by Keith Pedigo, an Associate Deputy for the Veterans Benefits Ad- ministration (VBA), Pedigo noted that most of the services proposed under H.R. 3467 could be provided through the Second Chance Act, which the President had signed into law the previous week.’ The Second Chance Act formally authorized key features of the 92. Ilona Meagher, Moving a Nation to Care: Post- Traumatic Stress Disorder and America’s Returning Troops (Brooklyn: ig Publishing 2007) at xiii. 93. Ibid. 94. H.R. 3467, 110th Cong. (2007). 95. Ibid. 96. Ibid. 97. Ibid. 98. Ibid. 99. Ibid. 100. Keith Pedigo, Address (Statement before the Subcommittee on Economic Opportunity House Committee on Veterans’ Affairs Hearing of Legislation Affecting Veterans’ Benefit Programs), online: U.S. Dept. of Veterans Affairs, Congressional and Legislative Affairs . 50 APPEAL VOLUME 15 Prisoner Re-entry Initiative, which provides recently released ex-offenders, including vet- erans, the support and services they need to successfully reintegrate into mainstream so- ciety. °” Although there is nothing to indicate that this testimony was the reason the bill was never enacted, it can be inferred that Pedigo’s statement in his capacity as a VBA repre- sentative had a detrimental effect on the bill’s future. The Services, Education, and Rehabilitation for Veterans Act, proposed by Rhode Island Representative Patrick Kennedy in 2008, would have authorized the Attorney General to make grants to states and other entities: “(1) to develop, implement, or enhance veteran’s treatment courts or to expand operational drug courts to serve veterans; and (2) for pro- grams that involve continuing judicial supervision over nonviolent offenders with sub- stance abuse or mental health problems who have served in the U.S. military.’ 1012 This bill would have provided funding for up to 75 percent of the cost for states to create veterans courts, but the bill was not passed. This has left funding for such treatment programs up to individual states. Currently, there have been no attempts to reintroduce the bill or cre- ate a similar initiative. The California legislature understands the need to address the problems faced by veterans who return from combat in Iraq or Afghanistan with psychological problems brought on by their war-time experience. The state recently amended its penal code to provide special relief from harsh sentencing policies specifically for service members with PTSD or sub- stance abuse problems.” 3 The State had enacted a similar provision in the past, in response to the influx of Vietnam veterans into the criminal justice system.” 4 However, the previ- ous law was found to be ineffective in providing any sort of special relief to veterans, be- cause there was no federal statute that authorized the Federal Bureau of Prisons to house Vietnam veterans serving state sentences.” 0′ The new amended law applies to: [A]ny person convicted of a criminal offense who would otherwise be sentenced to county jail or state prison and who alleges that he or she committed the offense as a result of post-traumatic stress disorder, sub- stance abuse, or psychological problems stemming from service in a combat theater in the United States military. 06 After a defendant makes a claim, a court must then hold a hearing to determine whether the person was in fact a combat veteran, and must assess whether he or she suffers from PTSD, substance abuse, or psychological problems as a result of their combat service. 07 If the court finds that the veteran satisfies those requirements, and if the veteran is otherwise 101. Ibid. 102. H.R. 7149, 110th Cong. (2008). 103. Cal. Penal Code § 1170.9 (West 2009). 104. Cal. Penal Code § 1170.8 (West 2005). 105. People v. Abdullah, 9 Cal. Rptr. 2d 131 (Cal. Ct. App. 1992). 106. Cal. Penal Code § 1170.9(a) (West 2009). 107. Ibid. APPEAL VOLUME 15 51 eligible for probation,”‘ the court will then place the veteran on probation, and may order the veteran into an appropriate (local, state, federal, or private nonprofit) treatment pro- gram. ‘9 If the veteran is granted probation and is committed to a residential treatment program, he or she will earn sentence credits for the actual time served in treatment. 10 Although federal attempts at a comprehensive solution have failed so far, states such as California have recognized that there is a problem, and have attempted to solve the prob- lem by creating laws that provide for the treatment of veterans who suffer from PTSD, mental health disorders, or substance abuse. III. SPECIALIZED VETERANS COURTS Veterans courts are the newest addition to the larger theory of “therapeutic justice” and “problem-solving courts’ Therapeutic justice addresses the root cause of an offender’s crim- inality and treats the offender to remove the problems and returns the offender to the com- munity as a responsible citizen.”‘ Problem-solving courts are “specialized courts that seek to respond to persistent social, human, and legal problems, such as addiction, family dys- function, domestic violence, mental illness, and quality-of-life crime “‘ While traditional courts focus on processing the cases that come before them, resulting in a revolving door syndrome, problem-solving courts focus on achieving positive outcomes for victims, defendants, and communities.”‘ Generally, the new veterans courts have been modeled after the mental health and drug courts that sprung up in the late 198os.”‘ Men- tal health courts, for example, attempt to “achieve two separate but interrelated outcomes by linking offenders with mental illness to treatment as an alternative to incarceration: im- proved psychiatric stability for the offenders and improved public safety”1” Building on the model of drug and mental health courts, veterans courts seek to work with mental health agencies, veteran mentors, substance abuse treatment programs, housing providers, and others to help veterans lead a crime-free life in the community. Similar to the drug and mental health courts, most of the veterans courts that have been created do not allow defendants accused of violent crimes to participate in their pro- 108. Defendants are eligible for probation as long as they do not fall within one of the categories restricting the availability of probation. Under California law, probation is precluded primarily for those who commit violent crimes or serious drug offenses, or are recidivist serious offenders. Most of the mandatory provisions are in- cluded in the probation provisions of the Penal Code. Cal. Penal Code §§ 1203.06-1203.09 (West 2009). A non-exhaustive list of criminal charges that preclude a defendant from probation are: murder, robbery, kidnap- ping, lewd acts, first degree burglary, rape, carjacking, torture, and anyone who was previously convicted of one of the aforementioned crimes. Cal. Penal Code § 1203.06 (West 2009). 109. Cal. Penal Code § 1170.9(b) (West 2009). 110. Cal. Penal Code § 1170.9(e) (West 2009). 111. Teresa W. Cams et al., “Therapeutic Justice in Alaska’s Courts” (2002) 19 Alaska L. Rev. 1 at 5. 112. John Feinblatt et al., “Judicial Innovation at the Crossroads: The Future of Problem Solving Courts” (2000) 15 Ct. Manager 28 at 29. 113. Carol Fisler, “Building Trust and Managing Risk: A Look at a Felony Mental Health Court” (2005) 11 Psychol. Pub. Policy & I 587 at 589 [Fisler]. 114. Michaei C. Dorf & Jeffrey A. Fagan, “Community Courts and Community Justice: Foreword: Problem-Solving Courts: From Innovation to Institutionalization” (2003) 40 Am. Crim. L. Rev. 1501 at 1502-03. The first of the modern drug courts opened in Miami in 1989 and included Janet Reno among its key participants. As Attorney General, she provided seed money for drug courts nationwide, and today there are over 1000 operating drug courts. Ibid. 115. Fisler, supra note 113 at 590. 52 APPEAL VOLUME 15 grams.’ 16 Judges are naturally apprehensive about releasing violent offenders back into so- ciety, even if they are participating in some kind of treatment program. The bulk of the funding for the existing veterans courts comes from Veterans Affairs,” 7 but other funding has come from the Substance Abuse and Mental Health Services Adminis- tration of the US Department of Health and Human Services.’ Currently, the two best-developed programs are in Buffalo, New York, and Orange County, California, both of which began operations in 20o8.119 Other veterans courts have been proposed or already started in Pennsylvania, Wisconsin, Oklahoma, Massachusetts, Ari- zona, and Illinois. 2′ A review of these programs demonstrates their superiority to the al- ternatives already explored (taking a defendant’s veteran status into account only at the sentencing stage, or using PTSD as an affirmative defense). 2′ A. Buffalo, New York In early 2oo8, Buffalo City Court Judge Robert Russell established the first-ever specialized court for veterans accused of nonviolent felonies and misdemeanors. 2 Judge Russell began the program after he noticed a significant increase in veterans (300 in one year), many with drug and psychiatric problems, coming through the system. 23 The program offers defen- dants an opportunity to avoid incarceration or more serious charges in return for entering addiction or mental health treatment and taking other steps to right their lives. 24 Judge Russell “believed [the veterans] might benefit from being in the courtroom together, given the military’s strong sense of camaraderie” 2 The court meets once or twice a week, and veterans are required to report back once a month to report on their progress. ‘ Most vet- erans will be required to stay in the treatment program for at least a year, in order to make enough progress to have their charges diminished or dismissed. 27 Since it began, 82 vet- erans have enrolled in the program, 65 percent of whom are Iraq or Afghanistan veter- ans. 28 So far, only two veterans have been unable to avoid incarceration, and only one has been re-arrested. 129 Several success stories from the Buffalo Veterans Court have been reported. Tom Irish, a Vietnam War veteran, was charged with a felony weapons possession, after he pointed a 116. Matthew Daneman, “N.Y. Court Gives Veterans Chance to Straighten Out” USA Today (1 June 2008), online: usatdoday.com [“Chance to Straighten Out”]; but see Superior Court of California County of Orange, Veterans Court Participant’s Hand- book (on file with author, 2008) at 25 [Orange County Veterans Handbook]. 117. Marek, supra note 15. 118. Ibid. 119. Ibid. 120. Ibid. 121. See Part III above. 122. “Chance to Straighten Out”, supra note 116. 123. Ibid. 124. Ibid. 125. Marek, supra note 15. 126. Ibid. 127. Ibid. 128. Ibid. 129. Ibid. APPEAL VOLUME 15 53 loaded shotgun at police who were responding to a disturbance call at his home.” a Irish was drunk during the incident, and claimed that he was suffering from a flashback; he did- n’t see the police officers during the incident, but instead saw Viet Cong soldiers. 3′ In- stead of time behind bars, Irish was allowed to participate in the Buffalo Veterans Court.’ 32 He is undergoing counseling, and the charges against him will likely be dropped if he com- pletes everything that is required by the court. 33 Thomas Zaborowski, a Korean War veteran, suffered for many years with the aftermath of his experiences from the war.’ 34 Shortly after returning from war, he found himself facing criminal charges for impaired driving, marijuana possession, and criminal mischief.’ 3′ After his third arrest, he was given the option of going to the Buffalo Veterans Court, rather than spending ten days in jail.’ 36 After his participation in the program, Zaborowski is now sober and plans to attend college next spring, a first in his family. 3 He plans to use funds that are available to him as a veteran, something he did not know about until the vet- erans court provided him with the information.’ 31 B. Orange County, California The first of its kind in California, the Orange County Veterans Court began operating in November 2008. The court was an expansion of the county’s already-existing collaborative court system.’ 39 Orange County Superior Court Judge Wendy Lindley, who oversees the mental health and drug courts, helped to start the new veterans court after a young Iraq vet- eran died of a drug overdose, shortly after passing through her criminal courtroom. 4° She first approached her superiors with the idea of a veterans court, with the newly amended California penal code’ 4′ as support.’ 42 In order to get a better idea of what the new court would entail, Judge Lindley flew to New York, to talk to Buffalo City Court Judge Robert Russell and observe his court.’ 43 With the information from the Buffalo Veterans Court and the assistance of the Center for Court Innovation, Judge Lindley helped to successfully cre- ate California’s first veterans court.”‘ 130. “Chance to Straighten Out”, supra note 116. 131. Ibid. 132. Ibid. 133. Ibid. 134. Amanda Ruggeri, “New Courts Give Troubled Veterans a Second Chance” U.S. News & World Report (3 April 2009, online: usnews.com . 135. Ibid. 136. Ibid. 137. Ibid. 138. Ibid. 139. Orange County has various specialized courts all under one roof: Drug Court, Homeless Outreach Court, Co- Occurring Disorders Court, Domestic Violence Court and the newest addition -Veterans Court. See, Collabora- tive Courts, online: Superior Court of California -County of Orange . 140. Interview of Judge Wendy Lindley (14 April 2009), in Orange County Superior Court, Santa Ana, Cal. [Inter- view of Judge Lindley]. 141. Cal. Penal Code § 1170.9 (West 2009). 142. Interview of Judge Lindley, supra note 140. 143. Ibid. 144. Ibid. 54 APPEAL VOLUME 15 The mission of the Orange County Veterans Court “is to provide an inter-agency, collab- orative, nonadversarial treatment strategy for [v]eterans in the criminal justice system who suffer from PTSD, psychological, or substance abuse problems as a result of having served in a combat theater. “45 It was developed to help veterans achieve abstinence from illegal drugs, avoid criminal activity, and to address their mental health issues.’ 46 The court was “designed to promote self-sufficiency and to return [veterans] to the community as … pro- ductive and responsible citizen[s]” 47 The program “is a court-supervised, comprehensive treatment collaborative, whose goal is to help [veterans] address the issues that led to [their] contact with the criminal justice system “’48 The program is voluntary for qualified veter- ans and includes regular court appearances before a designated veterans court Judge.1 49 After an individual is arrested and is found to be eligible for the program (he or she must be a combat veteran and eligible for probation), the veteran is advised about and offered a choice between prosecution on the pending charges or the veterans court program. 50 Entry into the program requires the defendant to enter a guilty plea.’ 5′ The “[fIinal determination of entry into the program [is] made by the Judge, with the concurrence of the District Attorney, VA, defense counsel, Probation, law enforcement, and other agencies as appropriate. 52 The court meets weekly, and before the calendar is called a meeting is held with the Orange County Veterans Court Judge, the District Attorney, the public defender or the defendant’s own private counsel, and a VA representative, where they discuss each individual that is seeking entry into the program.’ 53 They review the veteran’s case file, the charges against him or her, and any other pertinent information. 54 If the parties agree that the veteran is an optimal candidate, the judge then admits the veteran into the program.’ A few exam- ples of defendants who will typically not be admitted into the program are those charged with domestic violence or those who are charged with possession of drugs with intent to sell. “’56 The court does not have appropriate treatment programs for domestic violence of- fenders, and the risk of having a drug dealer in the program is too high. 57 The primary pur- pose of the court is to treat veterans who are suffering from substance abuse, PTSD, or other mental health disorders.'” If one of these conditions can be reasonably found to un- derlie the charges the veteran is facing, then he or she will be admitted into the program. 59 After the veteran pleads guilty to the charges and is admitted into the program, the veteran is then placed on “formal probation” for three years, and immediately reports to the Pro- 145. Orange County Veterans Court Brochure at 2 (on file with author, 2008). 146. Orange County Veterans Handbook, supra note 116 at 25. 147. Ibid. 148. Ibid. at2. 149. Ibid. 150. Ibid. at3. 151. Ibid. 152. Ibid. 153. Interview of Judge Lindley, supra note 140. 154. Ibid. 155. Ibid. 156. Ibid. 157. Ibid. 158. Ibid. 159. Ibid. APPEAL VOLUME 15 55 bation Department. 6° There is a 14-day window during which time the veteran can with- draw his or her guilty plea, presumably resulting in prosecution on the original charges. 6′ Additionally, failure or discharge from the program will result in imposition of sentence for the original charges.’ 62 However, successful completion of the program avoids incarcera- tion, allows the veteran to receive the counseling and help that he or she needs, and “may result in having the charges dismissed.”. 3 However, the dismissal of charges does not au- tomatically occur. It happens on a case-by-case basis, depending on the degree of the crime (felony or misdemeanor), and whether the attorneys and judge agree that dismissal would be appropriate. 4 Generally, most felonies will be reduced to misdemeanors, and most misdemeanor charges will be dismissed. 6′ During participation in the program, the veteran is required to adhere to specific terms and conditions, including abstinence from drugs and alcohol. 66 The veterans probation officer is responsible for supervision and enforcement of the probation terms and conditions. 67 Probation supervision includes unannounced home visits, searches of the veteran and his or her residence, and may include random drug or alcohol testing (if appropriate).’ The majority of the participants in April 2009 were subjected to weekly drug testing. 169 If a vet- eran violates the requirements of the program, sanctions will be imposed on him or her. 70 For example, if a veteran fails a weekly drug test, he or she may be incarcerated, for a period of time determined by the judge.’ 7′ Other examples of sanctions that may be imposed in- clude an admonishment from the court, increased frequency of court appearances, in- creased drug testing, demotion to an earlier phase in the program, or a finding of a formal probation violation.’ 72 If a veteran continually violates the program’s requirements, the vet- eran will be dismissed from the program and will likely face prosecution on the original charges.1 3 Most veterans are required to report to the court on a weekly basis, and give the judge an update on their progress.’ 74 The District Attorney, the defense attorney, and the VA representative will also give the judge an update on the veteran’s progress. 7 Treatment during the program includes “individual and group counseling, drug testing, and regular attendance at self-help meetings if appropriate (such as Narcotics Anonymous or Alcoholics Anonymous), [and] is provided through the combined effort of the Proba- 160. Orange County Veterans Handbook, supra note 116 at 3. 161. Ibid. 162. Ibid. 163. Ibid. 164. Interview of Judge Lindley, supra note 140. 165. The types of charges that will not be dismissed are DUIs, and other crimes that would constitute a “prior” if the defendant were to re-offend. Ibid. 166. Orange County Veterans Handbook, supra note 116 at 3. 167. Ibid. 168. Ibid. 169. Interview of Judge Lindley, supra note 140. 170. Orange County Veterans Handbook, supra note 116 at 22. 171. Ibid. 172. Ibid. at 22-23. 173. Ibid. 174. Interview of Judge Lindley, supra note 140. 175. Ibid. 56 -APPEAL VOLUME 15 tion Department, the Veterans Administration, and other agencies”‘ 76 Those agencies also help the veterans “with obtaining education and skills assessments and … provide refer- rals for vocational training, education and/or job placement services.” 1″ The program lasts at least 18 months, but is determined by each participant’s progress.’ 78 Additionally, ongo- ing aftercare services are available to all who complete the program.’ 79 CONCLUSION: THE FUTURE OF VETERANS COURTS Although it may be argued that specialized courts, such as veterans, drug, or mental health courts, are fundamentally unfair because they provide a sort of selective justice to the par- ticipants, ultimately the good provided by these courts greatly outweighs any of these con- cerns. Numerous specialized courts have been created over the years, beyond those mentioned above, and there is a significant amount of literature regarding the success of those courts. Drug and mental health courts have been operating in the United States since the late 198os, and have had significant success. Although the legal system is an adversar- ial one, which may require treating all defendants the same, American society has come to realize that all defendants are not the same. This is why certain defenses have become more widely accepted over the years, why mitigating factors are taken into account at sentenc- ing, and more importantly, why specialized courts are created and needed. No one is arguing that veterans should receive a “free pass” after committing a crime. How- ever, veterans who suffer from PTSD should be treated differently in a criminal context. Al- though sentence mitigation, affirmative defenses, and other efforts may assist in certain circumstances, they are not the most effective way to deal with the massive influx of vet- eran defendants that the courts will see over the next decade. By creating veterans courts, states will be able to adjudicate veteran defendants, while simultaneously providing treat- ment and returning them to society as law-abiding citizens. This does not equate to pref- erential treatment or a lack of justice. The United States must recognize and confront the problem of hundreds of thousands of veterans returning with mental health issues and subsequently committing crimes as a re- sult of their conditions. With no clear guidance or federal funding, states will have to de- cide how and whether to confront the issue and try to solve the problem of justice-involved veterans. The Buffalo Court, as the first veterans court, provides the most data for the suc- cess of these courts. However, there is limited data on the precise procedures and eligibil- ity requirements of this court. The Orange County Veterans Court, modeled on the Buffalo Court, is so new that it has no data on the success rate of its veterans, but provides a sig- nificant amount of information on creating one of these courts. Nevertheless, states should model their veterans courts after the Buffalo and Orange County courts. Both courts were created with the assistance of the Center for Court Inno- vation, and are modeled after the highly successful drug and mental health courts that have flourished across the country. Although the Orange County Veterans Court does not specifically require that a veteran be diagnosed with PTSD in order to be eligible for the 176. Orange County Veterans Handbook, supra note 116 at 2. 177. Ibid. 178. Ibid. 179. Ibid. APPEAL VOLUME 15 57 program, a mandatory evaluation of each participant has revealed that most participants suffer from some type of mental-health disorder. States looking to create their own veter- ans court should require that an evaluation of possible participants reveal some kind of mental-health disorder or substance abuse problem that is causing their criminal behav- ior. Otherwise, all veterans would conceivably be eligible for the program, when there is no reason for them to be in the treatment program. The creation of specialized courts for veterans is an innovative idea that will assist many vet- erans in overcoming their legal problems that have resulted from PTSD and other service- related issues. It is impossible to deny the frequent connection between combat trauma and subsequent criminal behavior. The United States must recognize this as a direct soci- etal cost of war and do everything it can to rehabilitate veterans and return them to soci- ety as law-abiding citizens. Veterans courts are the best step in this direction.
review the following: The Mississippi law around participation in veterans’ courts: https://law.justia.com/codes/mississippi/2014/title-9/chapter-25/section-9-25-1The announcement for such a court fro
DATE DOWNLOADED: Mon Oct 3 09:11:07 2022 SOURCE: Content Downloaded from HeinOnline Citations: Bluebook 21st ed. J. Michael Montgomery, Death Is Different: Kreutzer and the Right to a Mitigation Specialist in Military Capital Offense Cases , 2007 ARMY LAW. 13 (2007). ALWD 7th ed. J. Michael Montgomery, Death Is Different: Kreutzer and the Right to a Mitigation Specialist in Military Capital Offense Cases , 2007 Army Law. 13 (2007). APA 7th ed. Montgomery, J. (2007). Death is different: kreutzer and the right to mitigation specialist in military capital offense cases Army Lawyer, 2007(2), 13-29. Chicago 17th ed. J. Michael Montgomery, “Death Is Different: Kreutzer and the Right to a Mitigation Specialist in Military Capital Offense Cases ,” Army Lawyer 2007, no. 2 (February 2007): 13-29 McGill Guide 9th ed. J. Michael Montgomery, “Death Is Different: Kreutzer and the Right to a Mitigation Specialist in Military Capital Offense Cases ”  2007:2 Army Law 13. AGLC 4th ed. J. Michael Montgomery, ‘Death Is Different: Kreutzer and the Right to a Mitigation Specialist in Military Capital Offense Cases ‘  2007(2) Army Lawyer 13 MLA 9th ed. Montgomery, J. Michael. “Death Is Different: Kreutzer and the Right to a Mitigation Specialist in Military Capital Offense Cases .” Army Lawyer, vol. 2007, no. 2, February 2007, pp. 13-29. HeinOnline. OSCOLA 4th ed. J. Michael Montgomery, ‘Death Is Different: Kreutzer and the Right to a Mitigation Specialist in Military Capital Offense Cases ‘ (2007) 2007 Army Law 13 Provided by: The University of Southern Mississippi Libraries — Your use of this HeinOnline PDF indicates your acceptance of HeinOnline’s Terms and Conditions of the license agreement available at https://heinonline.org/HOL/License — The search text of this PDF is generated from uncorrected OCR text. — To obtain permission to use this article beyond the scope of your license, please use: Copyright Information Death Is Different: Kreutzer and the Right to a Mitigation Specialist in Military Capital Offense Cases Lieutenant J. Michael Montgomery* In the 12 years since Furman v. Georgia, 408 U.S. 238 (1972), every Member of this Court has written or joined at least one opinion endorsing the proposition that because of its severity and irrevocability, the death penalty is qualitatively different from any other punishment, and hence must be accompanied by unique safeguards to ensure that it is ajustified response to a given offense.’ I. Introduction With no question as to his guilt, advocates of the death penalty likely find Sergeant (SGT) William Kreutzer a poster- child for the ultimate punishment. On 27 October 1995, as 1,300 members of the 82d Airborne stood in a pre-run formation, SGT Kreutzer hid in a nearby wood line with two automatic weapons and over 500 rounds of ammunition. 2 Before nearby Soldiers heroically subdued Kreutzer, he sent a bullet through the forehead of Major Stephen Badger, leaving a hole the size of a hand in the head of this career Soldier and father of eight. 3 Seventeen others were injured in the attack, including Major Guy Lafaro who was in a coma for forty-five days following the shooting and Chief Warrant Officer Two Abraham Castillo who was paralyzed after a bullet lodged in his spine. 4 Kreutzer was charged with violating multiple articles of the Uniform Code of Military Justice (UCMJ), including murder under Article 118, 10 U.S.C. § 918 (2000). 5 On 12 June 1996, a twelve member panel unanimously sentenced SGT Kreutzer to death. 6 However, on 16 August 2005, in a four-to-one decision, the Court of Appeals for the Armed Forces (CAAF) affirmed the decision of the Army Court of Criminal Appeals (ACCA), 7 setting aside the death sentence. 8 On facts as clear and horrific as these, how could the highest military court set aside Kreutzer’s death sentence? Affirming the ACCA’s decision, the CAAF held the “[e]rroneous denial of Kreutzer’s request for a mitigation specialist was error of constitutional magnitude.” 9 This article discusses the role of a mitigation specialist and impact of the Kreutzer decision on capital cases in military justice. II. Overview of Capital Punishment in the Military In 1789, Congress enacted the first Articles of War by adopting the Articles written by the Continental Congress in 1775 and revised in 1776.10 At that time, the death penalty was authorized for fourteen military offenses; however, civil authorities received jurisdiction over those capital crimes not specific to the military. 1 Since that time, Congress gradually expanded court-martial jurisdiction, culminating with the passage of the UCMJ in 1950.12 Article 118 of the UCMJ, most recently revised in 2005, covers the crime of murder and provides for the availability of the death penalty for premeditated murder and certain types of felony murder.’ 3 Judge Advocate, U.S. Navy. Currently assigned as a staff attorney at the Naval Legal Service Office Pacific Detachment Pearl Harbor. Spaziano v. Florida, 468 U.S. 447, 468 (1984) (Stevens, J., concurring in part and dissenting in part). 2 Todd Richissin, Nobody Listened When a Soldier Warned of His Violent Intentions, NEWS & OBSERVER (Raleigh, N.C.), Mar. 9, 1997, at A1. 3 id. 4 Id. ‘ See UCMJ art 118 (2005); United States v. Kreutzer, 61 M.J. 293 (2005). 6 Id. 7 United States v. Kreutzer, 59 M.J. 773 (Army Ct. Crim. App. 2004). 8 Kreutzer, 61 M.J. at 294. 9 Id. at 305. 10 Loving v. United States, 517 U.S. 748, 752 (1996). 1 Id. 12 id. ‘3 UCMJ art. 118 (2005). FEBRUARY 2007 • THE ARMY LAWYER -DA PAM 27-50-405 The Supreme Court’s 1972 decision in Furman v. Georgia 14 impacted capital punishment in many states and in the military. The constitutionality of the military capital punishment scheme was challenged in United States v. Matthews 5 in 1983. Noting that there are certain occasions where the “rules governing capital punishment of servicemembers will differ from those applicable to civilians,”‘ 16 the Court of Military Appeals (COMA) 7 held that military court-martial sentencing procedures must meet “the standards established by the Supreme Court for sentencing in capital cases in civilian courts.’ 18 Additionally, the court noted that in enacting Article 55 of the UCMJ, 19 Congress “‘intended to grant protection covering even wider limits’ than ‘that afforded by the Eighth Amendment.’ 20 In analyzing “guidance from Supreme Court precedent,”, 21 the COMA listed certain prerequisites to imposing a death sentence. 22 Looking back to military procedure, the COMA noted that “neither the Code nor the Manual requires that the court members specifically identify the aggravating factors upon which they have relied in choosing to impose the death penalty. 23 Despite finding no prejudicial error on mandatory review, the court held that Matthews’s death sentence was improperly adjudged. 24 President Ronald Reagan responded to the Matthews decision in 1985 by promulgating by executive order Rule for Courts-Martial (RCM) 1004, requiring a unanimous finding that the accused was guilty of a capital offense, that at least one aggravating factor existed, and that any extenuating or mitigating circumstances are substantially outweighed by aggravating circumstances. 25 In Loving v. United States, the Supreme Court held the RCM 1004 capital sentencing scheme constitutional. 26 Trial by military judge alone is not permitted in courts-martial referred as capital cases. 27 Nor is an accused permitted to plead guilty to a capital offense. 28 Absent exigent circumstances, the capital case must be heard before a panel of not less than twelve members. 29 There are four “gates toward death-penalty eligibility” 30 in the military justice system. First, the 14 408 U.S. 238 (1972). 16 M.J. 354 (C.M.A. 1983). 16 Id. at 368. 17 The Court of Military Appeals was renamed the Court of Appeals for the Armed Forces in 1994. See National Defense Authorization Act for Fiscal Year 1995, Pub. L. No. 103-337, 108 Stat. 2663 (1994). 18 Matthews, 16 M.J. at 368. ‘9 10 U.S.C.S. § 855 (LEXIS 2007). 20 Matthews, 16 M.J. at 368 (citing United States v. Wappler, 9 C.M.R. 23, 26 (C.M.A. 1953)). 21 Id. at 368. 22 Id. at 377. From the procedures approved by the Supreme Court, the following features appear: 1. A Bifurcated Sentencing Procedure Must Follow the Finding Of Guilt Of a Potential Capital Offense. 2. Specific Aggravating Circumstances Must Be Identified To the Sentencing Authority. 3. The Sentencing Authority Must Select and Make Findings On the Particular Aggravating Circumstances Used As a Basis For Imposing the Death Sentence. 4. The Defendant Must Have Unrestricted Opportunity To Present Mitigating and Extenuating Evidence. 5. Mandatory Appellate Review Must Be Required To Consider the Propriety Of the Sentence As To the Individual Offense and Individual Defendant and To Compare the Sentence To Similar Cases Statewide. In sum, the sentence must be individualized as to the defendant, and the sentencing authority must detail specific factors that support the imposition of the death penalty in the particular case. Id 23 Id. 24 Id. at 382. 25 See MANUAL FOR COURTS-MARTIAL, UNITED STATES R.C.M. 1004 (2005) [hereinafter MCM] (providing the current version of Rule 1004). 26 517 U.S. 748 (1996). 27 UCMJ art. 18 (2005). 2 Id. art. 45(b). 29 Id. art. 25a (applying to offenses committed after 31 December 2002). 30 United States v. Loving, 41 M.J. 213, 277 (1994). FEBRUARY 2007 -THE ARMY LAWYER ° DA PAM 27-50-405 members must find the accused guilty of a capital offense. 3′ Second, they must find that an aggravating factor exists. 32 Third, the panel members must find that any extenuating or mitigating circumstances are substantially outweighed by any aggravating circumstances. 33 Fourth, the members must unanimously agree on the death penalty. “If at any step along the way there is not a unanimous finding, this eliminates the death penalty as an option.” 34 Additionally, the members must vote on the sentence, starting with the least severe to the most severe. 35 Following the court-martial, the convening authority must approve or disapprove the death sentence. 36 The convening authority may choose to commute the death sentence to a lesser sentence, such as life in prison. If the convening authority approves the sentence, there is an automatic appeal to the Court of Criminal Appeals for the accused’s service. 37 If the Court of Criminal Appeals affirms the sentence, then there is a mandatory appeal to the CAAF. 38 The Supreme Court of the United States has discretionary certiorari jurisdiction over death penalty sentences heard by the CAAF. 39 Finally, the President must approve a military death sentence before the accused can be executed. 4° The last execution in the military justice system was conducted on 13 April 1961 when the military hanged Army Private (PVT) John A. Bennett following his conviction for rape and attempted murder. 41 Military service members on death row are housed at the U.S. Disciplinary Barracks, Fort Leavenworth, Kansas-the only maximum security prison in the Department of Defense and the oldest penal institution in continuous operation in the federal system. 42 Once convicted of a capital offense, a defendant has the right to present evidence in extenuation and mitigation. 43 Effective development and presentation of this evidence may be the defendant’s only chance to avoid a death sentence. As will be discussed below, defense counsel are poorly equipped to perform the extensive investigation into a defendant’s background required to prepare an effective case in extenuation and mitigation. Thus, a mitigation specialist is an essential member of the defense team. III. The Role of a Mitigation Specialist in Capital Cases A. What Is a Mitigation Specialist? A variety of definitions of “mitigation specialist,” “mitigation expert,” or “mitigation investigator” exist throughout both case law and scholarly articles.” In an article discussing the use of mitigation specialists in death penalty litigation, Jonathan 31 MCM, supra note 25, R.C.M. 1004(a). 32 Id. R.C.M. 1004(b)(4)(A). ” Id. R.C.M. 1004(b)(4)(C). 34 United States v. Simoy, 50 M.J. 1, 2 (1998). 35 MCM, supra note 25, R.C.M. 1006(d)(3)(A). 36 UCMJ art. 60 (2005). ” Id. art. 66(b)(l). 31 Id. art. 67(a)(1). 39 id. art. 67a. Only those court-martial cases considered by the Court of Appeals for the Armed Forces fall within the Supreme Court’s certiorari jurisdiction. Because all cases in which a Court of Criminal Appeals affums a death sentence fall within the Court of Appeals for the Armed Forces’ mandatory jurisdiction, they also fall within the Supreme Court’s certiorari jurisdiction. Congress provided the Supreme Court with certiorari jurisdiction over cases reviewed by the Court of Military Appeals in 1983. Dwight H. Sullivan et al., Raising the Bar: Mitigation Specialists in Military Capital Litigation, 12 GEO. MASON U. Civ. RTs. L.J. 199 n.24 (2002) (citations omitted). 40 UCMJ art. 7 1(a). 41 Death Penalty Information Center, The U.S. Military Death Penalty, http://www.deathpenaltyinfo.org/article.php?did=180&scid=32 (last visited Mar. 27, 2007). 42 U.S. Army Combined Arms Center, U.S. Disciplinary Barracks, http://usacac.leavenworth.army.mi/CAC/usdb.asp (last visited Mar. 27, 2007). 43 MCM, supra note 25, R.C.M. 1004(b)(3). 44 Jonathan P. Tomes, Damned If You Do, Damned If You Don’t: The Use of Mitigation Experts in Death Penalty Litigation, 24 Am. J. CRIM. L. 359, 366 (1997). FEBRUARY 2007 -THE ARMY LAWYER • DA PAM 27-50-405 Tomes proposed the following definition: “a person qualified by knowledge, skill, experience, or training as a mental health or sociology professional to investigate, evaluate, and present psychosocial and other mitigating evidence to persuade the sentencing authority in a capital case that a death sentence is an inappropriate punishment for the defendant. ‘ One court described a mitigation investigator as “an individual who specializes in compiling potentially mitigating information about the accused in a capital case. ‘”6 Currently, there are neither licensing authorities for mitigation specialists, nor prescribed educational criteria for an individual to be considered a mitigation specialist. Indeed, courts have certified sociologists, 47 psychiatrists, 48 and psychologists 49 in the role. Regardless of the lack of specificity as to qualifications for mitigation specialists, they are a vital member of the defense team in a capital case. B. The Role of a Mitigation Specialist The jury in a capital case is instructed to consider the background and life of the defendant. In order to effectively present this information, counsel must prepare a complete social history of the defendant by engaging in a comprehensive investigation dissimilar to routine investigative efforts used in non-capital criminal cases. The time and resources required for a thorough investigation are tremendous. 50 In United States v. Thomas, the Navy-Marine Court of Military Review (NMCMR) recognized that conducting this intense psychosocial investigation “is not within the ken of a competent attorney.” 51 A mitigation specialist, however, has the training and necessary skill set to do such an investigation. The CAAF relied on a report adopted by the Judicial Conference of the United States to provide the following generalization concerning the role of a mitigation specialist: Mitigation specialists typically have graduate degrees, such as a Ph.D. or masters degree in social work, and have extensive training and experience in the defense of capital cases. They are generally hired to coordinate an investigation of the defendant’s life history, identify issues requiring evaluation by psychologists, psychiatrists or other medical professionals, and assist attorneys in locating experts and providing documentary material for them to review. 52 Useful evidence for mitigation may be found by examining the entire life of the defendant, beginning at conception. A mitigation specialist may even conduct a multi-generational investigation, looking for “genetic predispositions and environmental influences” 53 that may have impacted the defendant’s personality or behavior. Generally, the mitigation specialist will look for evidence that: (1) portrays any positive qualities the defendant possesses, (2) makes the defendant’s violent acts “humanly understandable in light of his past history and the unique circumstances affecting his formative development,” (3) tends to show that his life in prison would likely be productive, or at least not be threatening to others, (4) rebuts the prosecutor’s evidence of aggravating circumstances, and (5) provides evidence of extenuating circumstances surrounding the capital crime itself. 54 41 Id. at 368. 4 State v. Langley, 839 P.2d 692 (Or. 1992). 47 Tomes, supra note 44, at 367 (citing Boyd v. North Carolina, 319 S.E.2d 189 (N.C. 1984), cert. denied, 471 U.S. 1030 (1985)). 48 Id. (citing Ohio v. Slagle, No. 55759, 1990 Ohio App. LEXIS 2426 (Ohio Ct. App. June 14, 1990), cert. denied, 510 U.S. 833 (1993)). 49 Id. (citing Ohio v. Carter, No. C-920604, 1993 Ohio App. LEXIS 5233 (Ohio Ct. App. Nov. 3, 1993), cert. denied, 133 L. Ed. 2d 498 (1995)). 50 Id. at 365. “1 33 M.J. 644,647 (N.M.C.M.R. 1991). 52 United States v. Kreutzer, 61 M.J. 293, 302 (2005) (citing Subcommittee on Federal Death Penalty Cases, Committee on Defender Services, Judicial Conference of the United States, Federal Death Penalty Cases: Recommendations Concerning the Cost and Quality of Defense Representation, at Pt. I, § B.7 (May 1998), available at http://www.uscourts.gov/dpenalty/4report.htm) [hereinafter Judicial Conference Report]. The Judicial Conference of the United States adopted the subcommittee’s recommendations on 15 September 1998. Judicial Conference Report, supra, at cover. 53 Sullivan et al., supra note 39 (quoting Russell Stetler et al., Mitigation Introduction: Mitigation Evidence Twenty Years After Lockett, in CAL. DEATH PENALTY DEF. MANUAL 3 (1998)). 54 Tomes, supra note 44, at 365. FEBRUARY 2007 ° THE ARMY LAWYER ° DA PAM 27-50-405 Maternity and birth records may show problems in pregnancy suggesting the possibility of developmental problems.” Other records that must be reviewed, if available, include school records, foster care records, military records, medical records of both the defendant and his family, prison records, and employment records. 56 A criminal record may provide insight into the defendant, and the lack of a criminal record is strong mitigating evidence. 57 In addition to reviewing records, a mitigation specialist will conduct numerous interviews. These interviews will include “the defendant’s immediate and extended family, friends, neighbors, teachers, clergy, coaches, employers, co-workers, physicians or other therapists, and any lead suggested by any of the above records. 58 Interviews with the defendant’s family can be particularly challenging, because they too are frequently impacted emotionally by the government’s choice to pursue the death penalty. 9 Family members may be hesitant to discuss private family matters out of shame and a feeling of responsibility for a loved one’s actions. 60 Additionally, they may simply be hiding “dirty laundry ’61 out of embarrassment or fear. As one commentator noted, “law school prepares one to be an advocate, not an investigator. ’62 The defense team simply cannot locate, acquire, and analyze the quantity of potential mitigation evidence that a trained expert can. Perhaps this is why inadequate presentation of mitigation evidence is “the most common basis for claims of ineffective assistance of counsel in death penalty cases across the country. ’63 IV. Mitigation Specialists and the Law A. The Right and Responsibility to Present Mitigation Evidence As a practical matter, the defendant probably has little or no chance of avoiding the death sentence unless the defense counsel gives the jury something to counter both the horror of the crime and the limited -information the prosecution has introduced about the defendant. Thus, defense counsel must conduct an extensive investigation into the defendant’s background …. 64 The Supreme Court has held “that in capital cases the fundamental respect for humanity underlying the Eighth Amendment… requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.’6 5 For this reason, the Court struck down as unconstitutional the mandatory sentencing scheme in Woodson v. North Carolina, which made death the mandatory sentence for all persons convicted of first-degree murder. 66 55 Id. at 368 (noting that “[a] problem pregnancy, involving, for example, prolonged pre-term labor, can result in bleeding in the germinal matrix of the fetus’s brain that can cause adverse effects running from mild developmental delay to profound mental retardation.”). 56 Id. at 368-69. 5′ Id. at 370. 58 Id. at 369-70. 59 Elizabeth Beck et al., Seeking Sanctuary: Interviews with Family Members of Capital Defendants, 88 CORNELL L. REv. 382, 413 (2003) (noting that “[l]ike co-victims, offenders’ family members experience depression, cognitive changes, chronic grief, and symptoms consistent with (Post Traumatic Stress Syndrome]”). 60 Id. (noting “[t]heir shame is often intensified by the nature of mitigation which, though essential to the defense, may be interpreted as suggesting the defendant’s family is culpable.”). 61 Tomes, supra note 44, at 370 (noting the need to conduct interviews “beyond close family members” and the possibility that “[t]he defendant or his family may distrust the attorney”). 62 Id. at 364. 63 David D. Velloney, Balancing the Scales of Justice: Expanding Access to Mitigation Specialists in Military Death Penalty Cases, 170 MIL. L. REv. 1 (2001) (citing Stetler et al., supra note 53). 64 Tomes, supra note 44, at 364. 65 Woodson v. North Carolina, 428 U.S. 280, 304 (1976). 6 Id. at 305. The North Carolina statute read, in pertinent part, A murder which shall be perpetrated by means of poison, lying in wait, imprisonment, starving, torture, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, kidnapping, burglary or other felony, shall be deemed to be murder in the first degree and shall be punished with death. FEBRUARY 2007 • THE ARMY LAWYER • DA PAM 27-50-405 In 1978, the Supreme Court held that the “qualitative difference between death and other penalties calls for a greater degree of reliability when the death sentence is imposed. ’67 For that reason, the Court concluded: [T]he Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.bt The Supreme Court recently held that “a State cannot preclude the sentencer from considering ‘any relevant mitigating evidence’ that that defendant proffers in support of a sentence less than death., 69 The Court reaffirmed that the standard for relevance in a capital sentencing proceeding is the same as the general evidentiary standard. 7° The Supreme Court requires that a defendant facing the death penalty be viewed as an individual during sentencing. 71 It is the defense team’s responsibility to make this happen. The Eighth Amendment does not require a judge to instruct a jury on the concept of mitigating evidence generally, nor does it require an instruction on particular statutory mitigating factors. 72 The defense team alone must compile and present to the jury reasons for sentencing the defendant to something less than death. As discussed above, RCM 1004 governs capital punishment in the military. The rule provides that “[t]he accused shall be given broad latitude to present evidence in extenuation and mitigation., 73 Additionally, the military judge “shall instruct the members that they must consider all evidence in extenuation and mitigation before they adjudge death;, 74 a right not required by the Supreme Court. Military accused, like their civilian counterparts, are entitled to effective assistance of counsel. 75 As discussed below, failure to investigate and present mitigating evidence is grounds for reversal of a death sentence. B. Expert Assistance in Mitigation, Case Law and Statutes In 1985, the Supreme Court based its decision in Ake v. Oklahoma on the “Fourteenth Amendment’s due process guarantee of fundamental fairness, 76 holding: [W]hen a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense. 77 The Ake Court realized the importance of expert assistance at the sentencing phase as well: “We have repeatedly recognized the defendant’s compelling interest in fair adjudication at the sentencing phase of a capital case.” 7t The Court noted a state’s Id. at 286. 67 Lockett v. Ohio, 438 U.S. 586, 603 (1978). 61 Id. at 604. 69 Tenard v. Dretke, 542 U.S. 274, 285 (2004) (citing Payne v. Tennessee, 501 U.S. 808 (1991)). 70 Id. at 284 (holding the standard to be “any tendancy to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence”). 71 Tomes, supra note 44, at 363. 72 Buchanan v. Angelone, 522 U.S. 269 (1998). 73 MCM, supra note 25, R.C.M. 1004(a)(3). 74 Id. R.C.M. 1004(a)(6). 75 United States v. Murphy, 50 M.J. 4, 8 (1998) (citing United States v. Scott, 24 M.J. 186 (C.M.A. 1987)). 76 470 U.S. 68, 76 (1985). 77 Id. at 83. 78 d. at 83-84. FEBRUARY 2007 • THE ARMY LAWYER ° DA PAM 27-50-405 “profound interest ’79 in assuring it executes only the guilty and said “we do not see why monetary considerations should be more persuasive in this context than at trial.” 80 The court must look to “the probable value that the assistance of a psychiatrist will have in [sentencing], and the risk attendant on its absence. 81 United States v. Garries established that “as a matter of military due process, servicemembers are entitled to investigative or other expert assistance when necessary for an adequate defense, without regard to indigency.” 82 The COMA, however, noted that the servicemember must show “necessity for the services” ’83 as required in Ake. 84 Recognizing the government resources available to a military accused, the court noted that “[i]n the usual case, the investigative, medical, and other expert services available in the military are sufficient to permit the defense to adequately prepare for trial. 85 Rule for Courts-Martial 703(d) provides the procedure for requesting an expert witness at government expense. 86 While the rule “is silent on how to request other forms of assistance,” case law suggests “the process is the same regardless of whether defense counsel is requesting an expert witness or some other form of expert assistance.” 88 Under RCM 703(d), when defense counsel seek expert assistance at government expense, counsel must submit the request to the convening authority and provide notice to the prosecution. The request “shall include a complete statement of reasons why employment of the expert is necessary and the estimated cost of employment.” 89 If the convening authority denies the assistance, then defense counsel may renew the request before the military judge. The military judge “shall determine whether the testimony of the expert is relevant and necessary, and, if so, whether the Government has provided or will provide an adequate substitute.” 90 If the military judge grants the defense motion and the government fails to comply, then the judge may abate the proceedings. 91 Article 46 of the UCMJ provides that “trial counsel, defense counsel, and the court-martial shall have equal opportunity to obtain witnesses and other evidence in accordance with such regulations as the President may prescribe. 92 While not specifically stated, Article 46 applies to expert consultants in addition to witnesses. 93 In United States v. Allen, 94 the NMCMR held “[m]ilitary due process entitles a servicemember to the assistance of an expert when necessary to the preparation of an adequate defense.” 95 The court noted the servicemember requesting expert assistance has the burden to show necessity. 96 The court listed the following three criteria for evaluating necessity: “First, why the expert assistance is needed. Second, what would the expert assistance accomplish for the accused. Third, why is the 79 Id. at 83. ‘o Id. at 84. 81 Id. 82 22 M.J. 288, 290 (1986) (citations omitted). 83 Id. at 291 (citing Ake v. Oklahoma, 470 U.S. 68 (1985)). ‘ Ake, 470 U.S. at 82-83 (holding “[wihen the defendant is able to make an ex parte threshold showing to the trial court that his sanity is likely to be a significant factor in his defense, the need for the assistance of a psychiatrist is readily apparent.”). 85 Garries, 22 M.J. at 290. 86 MCM, supra note 25, R.C.M. 703(d). 87 Will A. Gunn, Supplementing the Defense Team: A Primer on Requesting and Obtaining Expert Assistance, 39 A.F. L. REV. 143, 146 (1996). 88 Id. 89 MCM, supra note 25, R.C.M. 703(d). 9 Id. 91 Id. 92 UCMJ art. 46 (2005). 93 United States v. Warner, 62 M.J. 114, 118 (2005) (“While the defense request in this case was for an expert consultant rather than an expert witness, Article 46 is still applicable.”). 94 31 M.J. 572 (N.M.C.M.R. 1990). 95 Id. at 623 (citing United States v. Garries, 22 M.J. 288, 288 (1986)). 96 Id. FEBRUARY 2007 • THE ARMY LAWYER * DA PAM 27-50-405 defense counsel unable to gather and present the evidence that the expert assistant would be able to develop.” 97 In United States v. Gonzalez, 98 the COMA favorably cited the three-part analysis set forth in Allen. 99 In addition, the COMA also noted they had “not drawn a distinction between a government or non-government investigator or expert.”” ° The CAAF briefly addressed the use of mitigation specialists in capital sentencing in United States v. Loving. 101 During a string of robberies, Army PVT Dwight J. Loving murdered two taxicab drivers and attempted to murder a third. 02 Authorities arrested Loving the next day and he confessed to the crimes on videotape. 03 A general court-martial at Fort Hood, Texas, convicted Loving and sentenced him to death. °4 On appeal, Loving raised seventy errors, including ineffective assistance of counsel for failure “to request funds for a mitigation specialist or to present a cohesive, comprehensible background, social, medical, and environmental history for [Loving].”‘ 05 Loving claimed that a mitigation expert is essential to all capital murder cases and that a mitigation expert could have presented evidence more logically and coherently than did his counsel. 106 In response, Loving’s defense counsel asserted tactical reasons for not utilizing experts. The CAAF found defense counsel’s tactical decisions reasonable, and “decline[d] to hold that such an expert is required.’ 07 “What is required is a reasonable investigation and competent presentation of mitigation evidence. Presentation of mitigation evidence is primarily the responsibility of counsel, not expert witnesses.”‘ 108 In another capital punishment case, the CAAF set aside the death sentence of Army SGT James Murphy on ineffective assistance of counsel grounds. 1°9 Murphy was found guilty of the heinous premeditated murders of his former wife and two young children. 0 He confessed to using a hammer to bludgeon his former wife and drowning her two children, leaving their bodies to decay in their apartment building.”‘ Murphy attempted to plead guilty to the charges, but he was not permitted to do so since he was charged with a capital offense.” 2 On appeal, the CAAF concluded “the record of trial and post-trial affidavits leave us with only one rational conclusion: SGT Murphy was defended by two attorneys who were neither educated nor experienced in defending capital cases, and they either were not provided the resources or expertise to enable them to overcome these deficiencies, or they did not request same.” ‘3 Only after the Army Court of Military Review affirmed Murphy’s death sentence was a social history conducted. Prior to sentencing, neither defense counsel traveled to Murphy’s hometown in North Carolina to investigate his background because they were “burdened by tasks from the trial defense service.” ’14 Rather, the defense counsel developed Murphy’s extenuation and mitigation case by writing letters and making telephone calls to those who responded to the letters.” 15 97 id. 9’ 39 M.J. 459 (C.M.A. 1994). 99 Id. at 461. 1oo Id. 101 41 M.J. 213 (1994). ’02 Id. at 229-30. 103 Id. at 230. 104 Id. at 231-32. ‘o’ Id. at 249. ’06 Id. at 250. 107 Id. 108 Id. 109 United States v. Murphy, 50 M.J. 4 (1998). 110 Id. at 5-6. .. Id. at 7. 112 Id. at 12. 113 Id. at 9. 114 id. “‘ Id. at 12. FEBRUARY 2007 -THE ARMY LAWYER • DA PAM 27-50-405 Five years after his conviction, Murphy’s appellate counsel succeeded in obtaining funding from the Judge Advocate General of the Army to hire an expert to investigate his social history. 16 The investigation, completed by a trained forensic social worker, was complemented by reviews of several other medical specialists. The investigations concluded that at the time of the offense, Murphy “suffer[ed] from a personality disorder and other psychological dysfunctions,” ”17 and that he had “indications of minimal or slight cognitive and neuropsychological dysfunction” 18 as well as “persistent and severe traumatic childhood abuse.” ‘”19 The CAAF found “reliability of result”‘ 120 to be the theme espoused by thirty years of Supreme Court death penalty precedent and listed “key ingredients”‘ 12 for the adversarial system to function properly. These ingredients include the following: “competent counsel; full and fair opportunity to present exculpatory evidence; individualized sentencing procedures; fair opportunity to obtain the services of experts; and fair and impartial judges and juries.”‘ 22 Finding that Murphy did not get a “full and fair sentencing hearing,”‘ 23 due to a number of issues including the “potential mitigating effect of the posttrial evidence,”‘ 24 the CAAF refused to affirm Murphy’s death sentence and remanded the case to the ACCA. 125 Two years after Murphy, the Supreme Court, applying the two-part Strickland v. Washington 126 test for ineffective assistance of counsel, overturned the death sentence of Terry Williams. 27 Williams confessed and a Virginia jury convicted him of robbery and capital murder and sentenced him to death. The Supreme Court agreed with Williams that he had been “denied his constitutionally guaranteed right to the effective assistance of counsel when his trial lawyers failed to investigate and to present substantial mitigating evidence to the sentencing jury.’ 128 In Williams’s case, the mitigation evidence was abundant and powerful. 129 His defense attorneys, however, offered only the testimony of his mother, two neighbors, and a portion of a taped statement by a psychiatrist. 30 They failed to provide the jury any of the “extensive records graphically describing Williams’ nightmarish childhood.’ 131 Instead, defense counsel relied solely on witness testimony that Williams was “a ‘nice boy’ and not a violent person.”‘ 32 Evidence uncovered at an evidentiary hearing held as part of state habeas corpus proceedings revealed “documents prepared in connection with Williams’ commitment when he was eleven years old that dramatically described mistreatment, abuse, and neglect during his early childhood, as well as testimony that he was ‘borderline mentally retarded,’ had suffered 116 Id. at 13. 117 Id. 118 Id. 119 Id. 120 Id. at 14. 121 Id. at 15. 122 Id. 123 Id. 124 Id. 125 Id. at 16. 126 466 U.S. 668, 687 (1984). 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. Id 127 Williams v. Taylor, 529 U.S. 362, 390 (2000). 128 Id. 129 Id. at 370. 130 Id. at 369 (citing app. 4-5) (“One of the neighbors had not been previously interviewed by defense counsel, but was noticed by counsel in the audience during the proceedings and asked to testify on the spot.” Additionally, “[tihe weight of defense counsel’s closing, however was devoted to explaining that it was difficult to find a reason why the jury should spare Williams’ life.”). 131 Id. at 395. 132 Id. at 369 (citing app. 4-5). FEBRUARY 2007 -THE ARMY LAWYER • DA PAM 27-50-405 repeated head injuries, and might have mental impairments organic in origin.”‘ 133 Juvenile records that defense counsel did not obtain could have painted a haunting picture of life in Williams’s childhood home. 134 Following the evidentiary hearing, the Virginia trial judge found that Williams’s attorneys had been ineffective during the sentencing phase of trial and recommended a rehearing on Williams’s sentence. 35 The Supreme Court agreed with the trial judge’s conclusion that “there existed ‘a reasonable probability that the result of the sentencing phase would have been different’ if the jury had heard that evidence.” ‘136 Certainly, this evidence would have been uncovered by an expert trained as a mitigation specialist. The Supreme Court again reversed a death sentence on ineffective assistance of counsel grounds in Wiggins v. Smith 137 when defense counsel failed to properly investigate and present mitigation evidence. A Maryland court convicted Wiggins of first-degree murder, robbery, and two counts of theft. Defense counsel unsuccessfully motioned for a bifurcation of sentencing, intending to first argue that Wiggins was not directly responsible for the death of the seventy-seven-year-old woman and then only present mitigation evidence if necessary. Despite defense counsel’s assertion to the jury that they would hear evidence of Wiggins’s “difficult life,” the defense failed to present such evidence. 38 In preparation for Wiggins’s post-conviction proceedings, a licensed social worker prepared a social history report. Just as in Williams, the potential mitigation evidence was abundant and “powerful.’ 139 Wiggins’s alcoholic mother severely abused him both physically and sexually and often left him and his siblings home alone for days “forcing them to beg for food and to eat paint chips and garbage.”‘ 140 “She had sex with men while her children slept in the same bed and, on one occasion, forced [Wiggins’s] hand against a hot stove burner …. Wiggins entered foster care at the age of six, was allegedly raped and abused by multiple foster parents, and lived on the streets from age sixteen. 42 The Court found that “[Wiggins] thus has the kind of troubled history we have declared relevant to assessing a defendant’s moral culpability.’ 143 Wiggins’s trial defense counsel, however, claimed they made a tactical decision to “focus their efforts on ‘retrying the factual case’ and disputing Wiggins’s direct responsibility for the murder”‘ 144 rather than conducting a thorough social history investigation. The Court rejected the post-conviction trial court’s conclusion that “when the decision not to investigate … is a matter of trial tactics, there is no ineffective assistance of counsel.’ 45 Instead, the Supreme Court noted that under Strickland, “‘the proper measure of attorney performance remains simply reasonableness under prevailing professional norms,”” 146 and that Wiggins’s counsel did not meet this standard. 147 The Court “emphasize[d] “‘” Id. at 370. 134 Id. at 395 (citing app. 528-529). The home was a complete wreck …. There were several places on the floor where someone had had a bowel movement. Urine was standing in several places in the bedrooms. There were dirty dishes scattered over the kitchen, and it was impossible to step any place on the kitchen floor where there was no trash …. The children were all dirty and none of them had on under-pants. Noah and Lula were so intoxicated, they could not find any clothes for the children, nor were they able to put the clothes on them …. The children had to be put in Winslow Hospital, as four of them, by that time, were definitely under the influence of whiskey. Id. I” Id. at 370. 136 Id. at 397. 1 539 U.S. 510 (2003). I ld. at 515. 139 Id. at 534. ’40 Id. at 516-17. 141 Id. at 517. 142 Id. 143 Id. at 535 (citing Penry v. Lynaugh, 492 U.S. 302, 319 (1989) (“‘[Elvidence about the defendant’s background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background … may be less culpable than defendants who have no such excuse[.]’)) (quoting California v. Brown, 49 U.S. 538, 545 (1987) (O’Connor, C.J., concurring)). ’44 Id. at 517. 141 Id. at 517-18. 146 Id. at 521 (citing Strickland v. Washington, 466 U.S. 668, 680 (1984)). 141 Id. at 534. FEBRUARY 2007 • THE ARMY LAWYER -DA PAM 27-50-405 that Strickland does not require counsel to investigate every conceivable line of mitigating evidence no matter how unlikely the effort would be to assist the defendant at sentencing.’ 48 The conduct must be reasonable under “‘[p]revailing norms of practice as reflected in American Bar Association standards and the like”” 149 that can be used to determine reasonableness. Wiggins’s defense counsel’s conduct fell short of these “well-defined norms.”‘ 150 C. American Bar Association Guidelines An attorney representing the accused in a death penalty case must fully investigate the relevant facts. Because counsel faces what are effectively two different trials -one regarding whether the defendant is guilty of a capital crime, and the other concerning whether the defendant should be sentenced to death – providing quality representation in capital cases requires counsel to undertake correspondingly broad investigation and preparation. Investigation and planning for both phases must begin immediately upon counsel’s entry into the case, even before the prosecution has affirmatively indicated that it will seek the death penalty.’51 The American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (ABA Guidelines) state that the defense team should contain an investigator and a mitigation specialist. 52 Moreover, the ABA Guidelines note that a mitigation specialist is “an indispensable member of the defense team throughout all capital proceedings,”‘ ’53 and that “[m]itigation specialists possess clinical and information-gathering skills and training that most lawyers simply do not have.”‘ ’54 “Perhaps most critically, having a qualified mitigation specialist assigned to every capital case as an integral part of the defense team insures that the presentation to be made at the penalty phase is integrated into the overall preparation of the case …. ,,5 The ABA Guidelines also note the importance the mitigation specialist plays “in maintaining close contact with the client and his family while the case is pending,”‘ ’56 and how that rapport “can be the key to persuading a client to accept a plea to a sentence less than death.’ 157 The CAAF has repeatedly refused to require military defense counsel in capital cases to meet the minimum requirements of the ABA Guidelines.58 In Loving, Judge H.F. “Sparky” Gierke noted: “Appellate defense counsel have repeatedly invited this Court to involve itself in the internal personnel management of the military services, and we have repeatedly declined the invitation.’, 159 The quality of representation, Judge Gierke held, “is determined by reference to Strickland v. Washington.”‘] 60 He also pointed out that the ABA Guidelines expressly provided “for such exceptions …as may be appropriate in the military.’ 61 This “military exception” was removed from the most recent edition of the ABA Guidelines. 62 141 Id. at 533. 149 Id. at 522 (citing Strickland, 466 U.S. at 688-89). “So Id. at 524. 151 American Bar Association, Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, 31 HOFSTRA L. REV. 913, 925- 26 (2003) [hereinafter ABA Guidelines]. 152 Id. at 952. 1 Id. at 959. 154 id. 155 id. 156 Id. at 960. 157 Id. 1 United States v. Loving, 41 M.J. 213, 300 (1994); United States v. Curtis, 44 MJ 106, 126-27 (1996); United States v. Murphy, 50 M.J. 4, 9-10 (1998). 159 Loving, 41 M.J. at 300 (citations omitted). 160 id. 161 Id. (citation omitted) (referencing the 1989 version of the ABA Guidelines). 162 See ABA Guidelines, supra note 151, at 921 (noting that “[tihe use of the term ‘jurisdiction’ as now defined has the effect of broadening the range of proceedings covered. In accordance with current ABA policy, the Guidelines now apply to military proceedings, whether by way of a court martial, military commission or tribunal, or otherwise.”). FEBRUARY 2007 • THE ARMY LAWYER • DA PAM 27-50-405 V. United States v. Kreutzer A. Background William Kreutzer, Jr. grew up fascinated with military history.’ 63 His dream of being a Soldier’ 64 came true when he enlisted in the Army in February, 1992.165 In March of 1993 he joined the 325th Airborne Infantry Regiment of the 82d Airborne Division in Fort Bragg, North Carolina. 66 Some of his superiors described him as a good Soldier.’ 67 Throughout his career, however, Kreutzer’s fellow Soldiers made fun of “his intelligence, his quiet demeanor and his thick glasses,”‘ 168 and he had trouble fitting in with his peers. 169 Military records show that “from nearly the beginning of his service… Kreutzer spoke persistently about killing.”‘ 7° One superior noted that he “seemed to be fixated on death.” Over time, Kreutzer lost the ability to deal with the derogatory remarks and practical jokes. He began responding with tears and anger, and told a friend “that he was losing control, that he was on the verge of killing himself or members of his squad.’ 72 Later, while standing guard duty, Kreutzer threatened to kill members of his unit, as he cried in frustration. 173 After that incident, he was brought to see Dr. (Captain) Darren Fong, his division’s mental health officer.’ 74 Dr. Fong’s report concluded that Kreutzer “has inappropriate coping mechanisms in dealing with his anger. This morning, [Kreutzer] said he wanted to kill his squad and he had plans using weapons and ammunition.”‘ 75 Kreutzer also told Dr. Fong that he had considered suicide on several occasions, and had gotten as far as holding a gun to his head. 176 Following that meeting, Dr. Fong approached Kreutzer’s leadership who then confiscated Kreutzer’s weapons and removed him to a camp containing noncombat personnel. 177 Despite his other remarks, Dr. Fong concluded that Kreutzer was not a danger to himself or others, 178 and chose not to refer Kreutzer’s case to a psychiatrist or psychologist. 79 “‘That may have been the biggest single mistake involving Kreutzer.” ‘180 Although he continued to have serious problems interacting with other Soldiers, Kreutzer was promoted to SGT in March 1995 and assigned as a weapons squad leader.’ 8′ Later that year, he began to fall apart. Fellow Soldiers continued to chide him and call him names such as “Wild Bill’ 182 and “Crazy Kreutzer.’ 83 In early October, Kreutzer was disciplined for 163 Richissin, supra note 2. 164 id. 165 United States v. Kreutzer, 61 M.J. 293, 296 (2005). 166 id. 167 id. 168 Richissin, supra note 2. 169 Kreutzer, 61 M.J. at 296. 170 Richissin, supra note 2. In looking at Kreutzer’s case, The News & Observer reviewed internal Army psychiatric evaluations that detail [Kreutzer’s] mental history, Army reports obtained through the Freedom of Information Act and more than 1,800 pages of investigative and court records. In addition, the N&O conducted extensive interviews inside and outside the military, including 12 hours of telephone interviews with Kreutzer himself. ld 171 Id. 172 id. 171 Kreutzer, 61 M.J. at 296. 174 Id. ’75 United States v. Kreutzer, 59 M.J. 773, 787 (Army Ct. Crim. App. 2004) (Currie, J., concurring). 176 Richissin, supra note 2. 177 Id. 171 Kreutzer, 61 M.J. at 296. 179 Richissin, supra note 2. 18o Id. (quoting Tony Martin, one of Kreutzer’s defense counsel). 181 United States v. Kreutzer, 59 M.J. 773, 787 (Army Ct. Crim. App. 2004) (Currie, J., concurring). 182 id. FEBRUARY 2007 • THE ARMY LAWYER -DA PAM 27-50-405 losing the barrel to an M-60 machine gun and “took it hard, again crying to other soldiers.”‘ 4 Soon after, he failed an inspection.185 Kreutzer “felt increasingly depressed, suicidal, and angry.6 Remembering that he had told Dr. Fong he would seek help if he felt he was going to lose control, Kreutzer did so on 21 October 2005.87 He received no response to his request for help.’ 88 Kreutzer called a friend, Specialist (SPC) Mays, and told him he was “going to shoot the run the following day.”‘ m89 Kreutzer spent the night of 26 October 1995 in a motel room, loading magazines in preparation for his attack.’ 90 He later described that he felt like he was operating on “automatic pilot” that night and that he “had two goals: (1) to send a message to the Army that the upper ranks did not care about the lower ranks and that he was an NCO willing to kill and die for his men, and (2) to be killed.”‘ 191 The next morning, SPC Mays brought the threats to the attention of his superiors. 92 As they dismissed his threats, Kreutzer prepared to kill. Earlier that morning, Kreutzer parked his car, left a suicide note, 193 and found a hiding place. “At 0631, [Kreutzer] methodically opened fire on his fellow soldiers. He wounded eighteen soldiers and killed one.”‘ 194 Kreutzer admitted that he was the shooter and said he was attempting to send a message that his unit did not care about its men. 95 On 26 January 1996, charges against Kreutzer were referred to a capital general court-martial. 96 Shortly thereafter, Kreutzer’s detailed defense counsel filed a request to the convening authority for the assistance of a mitigation specialist. 197 The convening authority denied that request. 98 Defense counsel renewed their request before the military judge. Defense counsel provided a copy of the request they had made to the convening authority in which they asserted that they lacked “the experience and scientific expertise to uncover all potentially mitigating events or factors in SGT Kreutzer’s case.” They also provided an extensive affidavit from a “mitigation specialist” that explained the necessity of a mitigation investigation in capital cases, the scope of that investigation, and the role of a mitigation specialist. 99 183 Todd Richissin, Shooting Victims Testify in Bragg Trial, NEWS & OBSERVER (Raleigh, N.C.), June 11, 1996, at A3. 184 Richissin, supra note 2. 185 Id. 186 Kreutzer, 59 M.J. at 788 (Currie, J., concurring). 187 Richissin, supra note 2. 188 Kreutzer, 59 M.J. at 789 (Currie, J., concurring) (“[Kreutzer] stated that he attempted to get mental health phone support … but no one answered the phone.”). 189 United States v. Kreutzer, 61 M.J. 293, 296 (2005). ’90 Kreutzer, 59 M.J. at 788 (Currie, J., concurring). 191 Id. 192 Kreutzer, 61 M.J. at 296. ‘9’ Kreutzer, 59 M.J. at 789 (Currie, J., concurring). In [the car] was a suicide note dated 21 October: The bad dreams just won’t end. I don’t care where I go as long as its [sic] away from here. I’m a loser who just keeps on losing. I have nothing to look forward to. Fuck the world! Suicide is the ultimate test of faith. It shows one is ready to risk all to see if his God will accept him. I love my parents, my sisters, my brother, and my closest friends, but I must leave them. I don’t want to hurt them, but there is no other way. AA Self-Storage-sell the contents of unit A-130 to pay for the funeral-sell my car too. Id. 194 Id. at 788. ‘9’ Kreutzer, 61 M.J. at 296. 196 Id. at 297. 197 Id. 198 Id. 199 Id. FEBRUARY 2007 • THE ARMY LAWYER • DA PAM 27-50-405 Despite defense counsel’s lack of training and claim that they could not conduct an appropriate mitigation investigation, the military judge denied the request. 200 Kreutzer refused to accept a plea agreement that included life imprisonment with the possibility of parole. 201 His counsel, without the assistance of a mitigation specialist, had regular meetings with him, attempting to convince him to accept the plea. 202 Counsel later noted, “Our failure to get SGT Kreutzer to make a timely decision and accept the plea was of tragic proportions.” 203 The members took two hours to return a finding of guilty as charged. 204 They returned a sentence in less than four hours: “The court martial, all of the members concurring, sentences you to be reduced to the grade of E- 1, to total forfeiture of all pay and allowances, to be dishonorably discharged from the service, and to be put to death., 205 B. The Court of Appeals for the Armed Forces’ Decision The Army Judge Advocate General asked the CAAF to “determine whether the Court of Criminal Appeals erred in finding that the Government did not meet its burden of demonstrating that the erroneous denial of a mitigation specialist was harmless beyond a reasonable doubt., 206 Therefore, the court did not directly address the lower court’s ruling “that the military judge erred in denying Kreutzer’s request for a mitigation specialist.” 207 The court began its discussion by noting the possible sources of the right Kreutzer was denied: The right to the expert assistance of a mitigation specialist in a capital case is determined on a case-by-case basis. Where such a request is erroneously denied, that ruling implicates the right to present a defense, compulsory process, and due process conferred by the Constitution, the right to obtain witnesses and evidence conferred by Article 46, UCMJ, and the right to the assistance of necessary experts conferred by R.C.M. 703(d). 208 With no further discussion, the CAAF relied on solely due process grounds and held the denial of the expert an “error of constitutional magnitude.” 209 Judge Susan J. Crawford, in dissent, found the majority’s decision “unfortunately consistent with this Court’s recent overreliance on due process, often without articulation of the source for that reliance.” 210 The rest of the majority decision focused on the test for prejudice of the constitutional violation. The court noted that the ACCA used the proper standard-harmlessness beyond a reasonable doubt-yet “went on to misstate the nature of the inquiry. 211 200 Id. (“The military judge denied the motion without entering any findings of fact by simply stating: ‘I find the law here at United States v. Loving 41 M.J. 213, 250. I don’t find the showing requiring me to order one.”‘). 201 Affidavit of James Anthony Martin, United States v. Kreutzer, 59 M.J. 773, 811 (Army Ct. Crim. App. 2004) (James A. Martin served as one of Kreutzer’s defense counsel). 202 Id. 203 Id. 204 Richissin, supra note 2. 205 Id. 206 United States v. Kreutzer, 61 M.J. 293, 295 (2005). 207 id. The Judge Advocate General of the Army made a decision to certify a precise issue relating to the lower court’s finding of prejudice. Despite the opportunity to bring the lower court’s ruling before this court…, TJAG chose not to do so. Under these circumstances, we conclude that the lower court’s ruling that the military judge erred in denying Appellee’s request for expert assistance is the law of the case. Id. (citation omitted). 200 Id. at 298 (citation omitted). 209 Id. 210 Id. at 310 (Crawford, J., dissenting) (citations omitted). 2’ Id. at 299. FEBRUARY 2007 • THE ARMY LAWYER -DA PAM 27-50-405 The CAAF then conducted a de novo review of the denial of Kreutzer’s request for a mitigation specialist. 212 Specifically, the court reviewed the general role of a mitigation specialist and how one could have been used in Kreutzer’s case. The court noted “it is likely that a mitigation specialist may be the most experienced member of the defense team in capital litigation.” 213 The court found Kreutzer’s case “replete with evidence or information indicating that Kreutzer’s mental health was dubious.” 214 “[T]he presentation of the defense case-in-chieq, however,] include[d] testimony from only three individuals about Kreutzer’s performance, behavior and reputation, and expert testimony from a single mental health professional.” 215 The entire trial took approximately nineteen hours; the defense’s entire case-two hours and forty-seven 216 minutes. The CAAF could have achieved the same result on non-constitutional grounds. “The rights given to service members in the pretrial, trial, and post-trial stages are often more protective than the rights given citizens in both the federal and state courts. 217 Thus, the court could have found the right to a mitigation specialist in a capital case rooted in Article 46 of the UCMJ. 218 While specifically noting the denial of a request for a mitigation specialist implicated Article 46, the court analyzed the denial on due process grounds. Less than two months after deciding Kreutzer, the court chose to base its related holding in United States v. Warner 219 on a statutory interpretation of Article 46, rather than due process grounds. 220 In Warner, the court held that Article 46 entitles defense counsel to an expert reasonably comparable to the government expert. Rejecting Judge Crawford’s reliance on the Sixth Amendment in dissent, the court said “Congress was free to, and did, adopt a more protective statutory system for military accused than the Constitution provides for civilians in a criminal trial.”, 221 The court could have used the same logic in Kreutzer by expanding its interpretation of Article 46, but chose instead to find the denial of a mitigation specialist “error of constitutional magnitude., 222 VI. After Kreutzer-Questions Unanswered A. What Showing Is Now Required? Before the Kreutzer decision, the three-part analysis laid out by the NMCMR in Allen provided the framework for defense counsel’s request for expert assistance. 223 The CAAF did not discuss the required showing in Kreutzer. It did say, however, that “when a defendant subject to the death sentence requests a mitigation specialist, trial courts should give such requests careful consideration in view of relevant capital litigation precedent and any denial of such a request should be 212 The court stated the burden on the government: The Government must demonstrate there is no reasonable possibility that the absence of a mitigation specialist contributed to the contested findings of guilty, or, in this case, that not even a single member would have harbored a reasonable doubt after considering the mental health evidence that the mitigation specialist could have gathered, analyzed, and assisted the defense in presenting. Id. at 302. 213 Id. at 299. 214 Id. at 303. 215 Id. “The only mental health professional called by the defense on the merits was Doctor (Major) Carroll J. Diebold, the Chief of the Department of Psychiatry and Neurology at Womack Army Medical Center, Fort Bragg, North Carolina.” Id. “Doctor Diebold was called as a defense witness despite his recommendation to defense counsel ‘that they should reconsider calling me to testify’ and he specifically indicated that his ‘testimony might not be helpful in front of the panel.”‘ Id. at 303 n.13. 216 Richissin, supra note 2. 217 Francis A. Gilligan, The Bill of Rights and Service Members, ARMY LAW., Dec. 1987, at 3. 218 UCMJ art. 46 (2005). 219 62 M.J. 114 (2005). 220 Id. at 119 (“Providing the defense with a “competent” expert satisfies the Government’s due process obligations, but may nevertheless be insufficient to satisfy Article 46 if the Government’s expert concerning the same subject matter area has vastly superior qualifications.”). 221 Id. at 121 (citation omitted). 222 United States v. Kreutzer, 61 M.J. 293, 298 (2005). 223 See United States v. Gonzalez, 39 M.J. 459, 461 (C.M.A. 1994); United States v. Allen, 31 M.J. 572, 623 (1990). FEBRUARY 2007 * THE ARMY LAWYER * DA PAM 27-50-405 supported with written findings of fact and conclusions of law., 224 In light of the constitutional right found by the CAAF in Kreutzer, has the burden on defense counsel lessened? Judge Crawford, in dissent, claimed the majority expanded the Supreme Court’s holding in Ake “by finding in the U.S. Constitution a right of an accused to a death penalty mitigation specialist on the defense team without the accused first demonstrating the need for such an expert. 225 The majority said only that an accused is entitled to mitigation specialists “where their services would be necessary to the defense team., 226 The ACCA held that the defense team had made the appropriate showing under the Gonzalez three-pronged test and found the military judge’s legal conclusion unsupported by the facts. 227 Judge Crawford disagreed, finding that Kreutzer’s defense team failed to meet the Gonzalez test despite the evidence relied on by both the lower court and the CAAF’s majority. 228 Ignoring counsel’s lack of experience or training in capital cases, and in spite of tremendous support to the conclusion that capital cases differ profoundly from non-capital cases, Judge Crawford concluded “defense counsel are expected to educate themselves to obtain competence in defending an issue presented in a particular case. 229 Is Judge Crawford right to assume the Gonzalez test is no longer required following Kreutzer? Had the Judge Advocate General of the Army certified the question whether the military judge erred in denying Kreutzer’s request for expert assistance, the court likely would have answered that question. One can certainly predict that military trial judges will be more lenient in granting defense requests for mitigation specialists in capital cases following Kreutzer. What showing is required, however, is yet to be seen. B. Ex Parte Access Is it unfair to require the defense to disclose its trial strategy to the government to seek litigation support funds, while the trial counsel bears no similar requirement to reveal his or her trial strategy to the defense? Should the military justice system instead follow the federal model-as it does in so many other areas-by permitting the defense to appear before the judge in an ex parte hearing to try to establish the necessity of funding for an expert witness or other litigation support? 230 In Ake, the Supreme Court held that “[w]hen the defendant is able to make an ex parte threshold showing to the trial court that his sanity is likely to be a significant factor in his defense, the need for the assistance of a psychiatrist is readily apparent.”, 231 Likewise, 18 U.S.C. § 3006(e) provides an ex parte hearing for a person financially unable to obtain expert and other services. Legislative history of 18 U.S.C. § 3006A(e) 232 details concern that without ex parte access, defense counsel may be forced to disclose their strategy prematurely. 233 In contrast, the military justice system requires defense counsel to make the showing of necessity for the expert assistance to the convening authority. If the convening authority denies the assistance, then defense counsel may renew the request before the military judge. In both instances, however, the defense risks providing the prosecution valuable information about its case and strategy. To prevent this disclosure and harm to the defense’s case, counsel may request an ex parte hearing. Accused in the military justice system, however, are not guaranteed an ex parte hearing, and such a hearing “will only be used if the 224 Kreutzer, 61 M.J. at 298. The military judge in Kreutzer’s trial “denied the motion without entering any finds of fact… ” Id. at 297. 221 Id. at 306 (Crawford, J., dissenting). 226 Id. at 305. 227 See United States v. Kreutzer, 59 M.J. 773, 778-79 (Army Ct. Crim App. 2004). 228 Kreutzer, 61 M.J. at 311 (Crawford, J., dissenting). 229 Id. “Judge Crawford has at times signaled her intent to drive a wedge between the American servicemember and his Constitutional rights.” United States v. Taylor, 41 M.J. 168, 174 (C.M.A. 1994) (Sullivan, J., dissenting). 230 H.F. “Sparky” Gierke, Five Questions About the Military Justice System, 56 A.F. L. REv. 249, 256 (2005) (as part of the overall question: “[S]hould the structure of the military trial judiciary be changed?”). 23 1 Ake v. Oklahoma, 470 U.S. 68, 82-3 (1985). 232 18 U.S.C. § 3006A(e) (LEXIS 2007). 233 Mary M. Foreman, Military Capital Litigation Meeting the Heightened Standards of United States v. Curtis, 174 MIL. L. REv. 1, 35 (2002) (citing Criminal Justice Act of 1963: Hearings on S. 63 and H. 105 7 Before the Senate Comm. on the Judiciary, 88th Cong. 173 (1963) (“the penalty for asking for funds and services may be the disclosure, prematurely, and ill-advisedly, of a defense”)). FEBRUARY 2007 °THE ARMY LAWYER ° DA PAM 27-50-405 circumstances are ‘unusual.’ 234 Nor does 18 U.S.C. § 3006(e) apply to the military. 235 In Kaspers, the CAAF realized this rule forces defense counsel to “make a choice between justifying necessary expert assistance and disclosing valuable trial strategy, 236 yet held the military judge’s discretion to allow an ex parte hearing on the issue a sufficient remedy. 237 If defense counsel requesting expert assistance must still satisfy the three-part Gonzalez test in order to show necessity, the lack of a right to an ex parte hearing will continue to be a significant issue. Despite the importance of obtaining a mitigation specialist, counsel may determine that the disclosure required to meet the Gonzalez test outweighs the benefit of expert assistance. Regardless of counsel’s choice, the defense’s case will suffer. VII. Conclusion [O]ne of the most frequent grounds for setting aside state death penalty verdicts is counsel’s failure to investigate and present available mitigating information. 238 The role of a mitigation specialist in capital cases is paramount in preventing the death sentence because defense attorneys do not have the knowledge, experience, or capability to handle that aspect of the case. The CAAF has held that the law does not require the appointment of a mitigation specialist in every capital case. 239 As noted above, however, the Supreme Court will look to “‘[p]revailing norms of practice as reflected in American Bar Association standards’ ‘240 in determining the reasonableness of counsel’s performance under the Strickland standard for ineffectiveness of counsel. The ABA Guidelines note that “the use of mitigation specialists has become ‘part of the existing standard of care’ in capital cases, ensuring ‘high quality investigation and preparation of the penalty phase.’ 241 Additionally, the Judicial Conference of the United States found that a mitigation specialist’s “work is part of the existing ‘standard of care’ in a federal death penalty case. 242 Most recently, the CAAF held that erroneous denial of a request for a mitigation specialist “was error of constitutional magnitude. 243 In light of the Kreutzer decision, prudent military defense counsel in capital cases should request the services of a mitigation specialist and convening authorities should provide funds for the expert assistance absent rare circumstances. The penalty of death differs from all other forms of criminal punishment, not in degree but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity. 2” 234 United States v. Kaspers, 47 M.J. 176, 180 (1997); see also 1 FRANCIS A. GILLIGAN & FREDRIC I. LEDERER, COURT-MARTIAL PROCEDURE § 14-63.20 (2d ed. 1999). 235 United States v. Garries, 22 M.J. 288, 290 (1986) (“The provisions of 18 U.S.C. § 3006A concern representation of indigent defendants in federal district courts and are inapplicable to the military.”). 236 Kaspers, 47 M.J. at 180. In Garries, the “defense refused to make a showing of necessity on the record.” Garries, 22 M.J. at 291. Likewise, defense counsel in Kaspers initially asked for an ex parte hearing, but “opted to reveal strategic information necessary to obtain an expert,” after the military judge refused such hearing. Kaspers, 47 M.J. at 179. The court found persuasive Kaspers argument that “defense counsel often treads lightly with the famous Sword of Damocles hanging over them when attempting to justify expert requests to the military judge.” Id. at 180. 237 See Kaspers, 47 M.J. at 180. 238 Judicial Conference Report, supra note 52, at pt. I, § B.3.4 239 United States v. Kreutzer, 61 M.J. 293, 305 (2005). 240 Wiggins v. Smith, 539 U.S. 510, 522 (2003) (quoting Strickland v. Washington, 466 U.S. 668, 688 (1984)). 241 ABA Guidelines, supra note 151, at 960 (citations omitted). 242 Judicial Conference Report, supra note 52, at recommendation 7 cmt. 243 Kreutzer, 61 M.J. at 305. 244 Furman v. Georgia, 408 U.S. 238, 306 (1972) (Stewart, J., concurring). FEBRUARY 2007 • THE ARMY LAWYER • DA PAM 27-50-405
review the following: The Mississippi law around participation in veterans’ courts: https://law.justia.com/codes/mississippi/2014/title-9/chapter-25/section-9-25-1The announcement for such a court fro
Veterans Treatment Court research: Participant characteristics, outcomes, and gaps in the literature Janice D. McCall a,b , Jack Tsai c,d,e , and Adam J. Gordon f,g aCenter for Health Equity Research and Promotion (CHERP), Veterans Affairs Healthcare System, Pittsburgh, PA, USA; bDepartment of Social Work, Carlow University, Pittsburgh, PA, USA; cVeterans Affairs New England, Mental Illness Research, Education, and Clinical Center (MIRECC), West Haven, CT, USA; dDepartment of Psychiatry, Yale University School of Medicine, New Haven, CT, USA; eVeterans Affairs National Center on Homelessness Among Veterans, West Haven, CT, USA;fInformatics, Decision-Enhancement, and Analytic Sciences Center (IDEAS 2.0), VA Salt Lake City Health Care System, Veterans Affairs Salt Lake City, UT, USA; gProgram for Addiction Research, Clinical Care, Knowledge and Advocacy (PARCKA), Division of Epidemiology, Department of Internal Medicine, University of Utah, School of Medicine, Salt Lake City, UT, USA ABSTRACTIn the United States, there are increasing numbers of Veterans Treatment Courts (VTCs) that have been developed to improve Veteran reintegration. Our scoping study examined VTC scholarship published between 2008 and 2016 and sum- marized participant profiles, services provided, and effective- ness and implementation of VTCs. Of 1,207 sources pertaining to VTC, 206 sources were included for review, and 48 sources were selected for the analytic sample. The majority of VTC participants are White males, middle-aged (30–50 years of age), and had mental health and substance abuse disorders. Studies of VTC effectiveness reported mixed findings. Future rigorous research should expand on VTC outcomes, variability in VTC jurisdictions, and the role of peer mentors. KEYWORDSVeterans Treatment Court; mental illness; offender rehabilitation; community- based rehabilitation; substance abuse There is national concern in the U.S. Department of Veterans Affairs (VA) and outside the VA about veterans being involved in the criminal justice system after their military service. Many veterans have had problems read- justing to civilian life and have been found to have extensive healthcare and psychosocial needs (RAND Corporation,2008). Following the develop- ment of drug and mental health courts in the past three decades, specialized Veterans Treatment Courts (VTCs) have emerged for criminal justice-involved veterans in the past decade (Frederick,2014). As early as 2004, a diversion program in Anchorage, Alaska began for military veterans with behavioral health problems allowing its participants to enter a VA treatment program rather than serving jail time (Smith,2012). However, it was in January 2008 when wide recognition as the first VTC model was CONTACTJanice D. McCall [email protected] Department of Social Work, Carlow University, 3333 Fifth Ave., Pittsburgh, PA 15213, USA. 2018 Taylor & Francis Group, LLC JOURNAL OF OFFENDER REHABILITATION 2018, VOL. 57, NO. 6, 384–401 https://doi.org/10.1080/10509674.2018.1510864 attributed to the VTC presided by Judge Robert Russell in Buffalo, New York (Russell,2009; Cartwright,2011; Cavanaugh,2010). VTCs are led by a judge and involve an interdisciplinary team to advance the sobriety, recovery, and stability of criminal justice-involved veterans (Edelman, 2016). Having representatives from the VA healthcare system is an import- ant and unique component of the interdisciplinary teams working with VTCs and interfacing between courts and VA medical facilities. For veter- ans in a VTC, participation may entail frequent appearances in court for status review hearings, requirements to undergo frequent drug and alcohol testing or other surveillance procedures, and the receipt of incentives for accomplishments and sanctions for infractions; successful graduates may avoid a criminal record or receive a substantially reduced sentence (Johnson et al.,2016). Today, there are more than 461 VTCs nationally, and they are continu- ing to be developed (Edelman,2016; Flatley, Clark, Blue-Howells, & Rosenthal,2016; McGuire, Clark, Blue-Howells, & Coe,2013). Though VTCs have proliferated across judicial systems in the U.S., the growing body of studies on VTCs suggests wide variability in eligibility, court oper- ations, geographic placement of VTC sites, and potential impact on the recovery and recidivism of VTC participants. However, no systematic reviews could be found to summarize the key concepts and gaps underpin- ning this research area, specifically in regards to the profile of participants, services provided, and impact on recidivism within the current knowledge base. Therefore, we mapped relevant literature related to VTCs using a scoping study methodology. A scoping study methodology was selected as it provides a way to examine emerging evidence (Levac, Colquhoun, & O’Brien,2010) and to rapidly map key concepts underpinning a research area (Mays, Roberts, & Popay,2002). Methods Our choice of a scoping study was informed by two reasons as articulated by Arksey and O’Malley (2016). First, a systematic review typically requires an established knowledge base from which appropriate study designs can be identified in advance; second, systematic reviews aim to examine a rela- tively narrow range of quality assessed studies. A scoping study method- ology was used to address the broader topical area of VTCs where many different study designs might be applicable. Scoping studies are used to col- lect and evaluate a new knowledge base that is not mature or dense enough for systematic, meta-analytic, or other structured reviews. The following describes our stage-based approach, which is similar to a previously pub- lished scoping study (Broyles, Conley, Harding, & Gordon,2013). JOURNAL OF OFFENDER REHABILITATION 385 Stage 1: Identifying the research question This study asked,“What are the primary topical areas of interest among scholars of VTCs since 2008, the year when the VTC concept was modeled by Buffalo, New York?”Specifically, we sought to examine what is known about VTC participants, the operational aspects of the VTC treatment model, its effectiveness to reduce recidivism, and important gaps in the lit- erature regarding VTCs. Stage 2: Identifying relevant studies Relevant studies were identified among seven key Internet databases (e.g., Criminal Justice Abstracts, PsycINFO, PubMed, Academic Lexis-Nexis, HeinOnline, JSTOR, and SSRN-Social Science Research Network), manual searches of two representative Veterans Health Administration Veterans Integrated Service Network (VISN) web-based resources, and manual searches from two major VTC web-based resources. All searches were lim- ited to the English language and dates between January 2008 and December 2016. Search criteria included broad key words“veteran ”and “court”, and were augmented to“specialized courts”and“veteran ”or “vet- erans treatment court” for searches in JSTOR, HeinOnline, and Academic Lexis-Nexis due to a return of articles in excess of 300,000. Selection crite- ria were narrowed to titles or abstracts demonstrating direct relevance to VTC practices or VTC participants. Stage 3: Study selection The first exclusion of publications occurred due to duplicate returns from web-based sources (Figure 1). Among the initial 1,207 sources, 150 were removed. Next, titles and abstracts were reviewed for their use of the term “veterans treatment court”or the use of a specific“veterans”context in a treatment court setting. Then, 791 studies were removed due to titles and abstracts not focused or having any mention of VTC. Finally, 266 publica- tions underwent a full-text review and 60 studies were excluded because they did not contain content related to VTCs. Stage 4: Charting the data The lead author reviewed all articles and worked closely with senior authors to refine topical areas of interest and the inclusion of appropriate source material. In summary, the scoping study began in November 2016 with all review of the literature concluding in February 2017. Final selec- tions of studies occurred in March 2017 with manuscript preparation 386 J. D. MCCALL ET AL. completed through May and June 2017. A total of 1,207 sources were ini- tially collected and a total of 1,001 publications were removed due to dupli- cation and for content deemed unrelated to VTCs (e.g., Medicare fraud, nonveteran related, military court, workers’compensation cases). Stage 5: Collating, summarizing, and reporting results The remaining 206 studies were organized based on the source type and subject matter, and a subgroup of scholarly sources (n¼48; e.g., journals, books, other research materials such as policy reports and white papers) was more closely examined for content pertaining to VTC participants, court characteristics, and other key topical areas. Nonscholarly sources Figure 1.Flow of scoping study source selection. JOURNAL OF OFFENDER REHABILITATION 387 included newspapers, magazines, press releases, and manuals and opera- tions sources. Results We found two distinct source categories: scholarly sources (n¼48, 23%), and nonscholarly sources (n¼158), which included newspapers, magazines, and press releases (n¼59) and manuals and operations sources (n¼97). Among the 48 scholarly sources, herein referred to as the final literature sample, we found a majority of articles discussing the operations and struc- ture of VTC (n¼26), single-state case studies (n¼11), historical summa- ries (n¼7), legislative or policy histories pertaining to VTCs (n¼6), and one theoretical application to VTCs (n¼1). There were 15 articles that characterized study participants, and these articles were also evaluated for sample size, study period, and available demographics. Eleven sources were also identified as outcome studies. Four studies utilized a qualitative method component (Table 1). Descriptive components of VTCs Seven studies chronicled the historical origins of the VTC model and its operational structure (Cavanaugh,2010; Frederick,2014; Hawkins,2010; Huskey,2015; Jacobs, McFarland, & Ledeen,2012; Pratt,2010; Russell, 2009). In addition, Clark, McGuire, and Blue-Howells (2010), Jones (2013), Shah (2014), and National Center for State Courts (2009) included a chron- ology of pertinent legislative initiatives informing the establishment of VTC, while two other studies provided state-level legislation in the context of a VTC case example (Adams, Hobart, & Rosenberg,2016; Caron,2013). A number of sources focused on personnel: for example, the role of the prosecutor-as-gatekeeper was suggested in Erickson (2016); Baldwin (2016) surveyed 114 VTCs and reported on key VTC structural components such as funding, jurisdiction, stages within the VTC, and VTC procedures; Baldwin and Rukus (2015) incorporated qualitative observations of VTC sessions and team meetings in their study; Smee et al. (2013) called for more forensic clinicians as VTC stakeholders; and the Honorable Eileen Moore penned her observations on the role of mentors within a VTC (Moore,2012). A“promising practices”discussion paper funded by the National Institute of Corrections provided a range of interviews from key stakeholders and advocates of the VTC model (Edelman,2016). Among the final literature sample, a number of state-specific sources described specific VTC planning and implementation activities in Illinois (Adams et al.,2016), Alabama (Glassford,2013), Connecticut 388 J. D. MCCALL ET AL. Table 1.Characteristics of VTC participant studies (n¼15) and outcome studies (n¼11) within the final literature sample. Author(s) QualitativeStudy period Study location Study subjects Key points Tsai et al. (2016) a,b No July 2010–November 2015 National, varied rural/urban N=8,083 (VTC participants)Purpose: To compare characteristics and outcomes between veterans who participated in VTCs and veterans involved in criminal justice who participated in other TCs or who participated in neither VTCs or TCs. Among VTC participants: mean age: 44 years; females 5%; White 69%, Black 27%. Major findings: No sociodemographic disparities in access to VTCs. VTC participants were more likely than non-TC participants to have drug or public-order offenses, and they were more likely than other-TC participants to have DUI offenses. VTC and other-TC participants were more likely to have jail sanctions and new incarcerations compared with non-TC participants. Housing and employment outcomes also reported. Ahlin and Douds (2016) a Yes April 2014–March 2015 Local, rural suggested, “central Pennsylvania” N¼10 VTC team interviews, N¼12 VTC participants interviews, N¼7 (focus group)VTC participants; females 0%; White 67%, Black 33% Baldwin (2016) a 2012 National, rural/urban N¼114 VTCsAdditional demographics of: VTC personnel respondents, VTC region within U.S., VTC goal types, target population, eligibility requirements, graduation requirements, funding, jurisdiction, mentor program, stage-based, treatment, procedures Erickson (2016) b Unknown Local, urban Broward County, FL (264 participant cases), Colorado Springs, CO (289 cases), Anchorage, AK (147 cases)Case study to examine whether 3 VTCs were meeting their intended goals Major findings: Average enrollment time¼1 year or more recidivism rates not significantly different or lower than similar traditional courts. Colorado Springs VTC required a guilty plea before participation and conviction entered, Broward County VTC and dismissed all criminal charges after successful completion of VTC. Hartley and Baldwin (2016) a,b Late 2010–May 2014 Local, urban n¼144 VTC participants; n¼157 comparison groupPurpose: Impact evaluation of rearrest in a treatment group and a comparison group of veteran probationers in a large urban VTC. Among VTC participants: Mean age: 35 years; females 12%; and White 32%, Black, 15%, Hispanic: 52%; legal history, risk/needs scores, supervision level also reported. (continued) JOURNAL OF OFFENDER REHABILITATION 389 Table 1. Continued. Author(s) QualitativeStudy period Study location Study subjects Key points Major findings: At 12-month mark, recidivism rates were 8.7% for VTC graduates, 14.2% VTC general participants, and 21.1% for the comparison group. At the 24-month mark, recidivism rates increase to 11.4% for VTC graduates, 20.2% for VTC general participants, and 34.1% for the comparison group. At 36 months, recidivism rates were 20% for VTC graduates, 31.7% for VTC general participants, and 50.0% for the control group. Johnson et al. (2016) b October 2011–September 2013 National, rural/urban N¼302 VTCsPurpose: To identify which court components were most predictive of a court’s percentage of terminations from their program. Major findings: Higher rates of termination based on programs conducting frequent drug and alcohol testing, and programs for which sanctions are more severe for failing immediate goals. Lower rates of termination associated with later phases permitting less stringent testing, behavioral contracts, and brief incarcerations. Knudsen and Wingenfeld (2016) a,b Unknown Local, urban N¼86 VTC participants referred from single-site quality of life, sleep quality also reported pretrial centerPurpose: Examined efficacy of VTC on trauma-affected veterans. Mean age: 41; females 5%; White 50%, Black 47%; service era, combat experience, mental health and behavior improvement, Major findings: Participants improved in mental health, substance use, emotional, well-being, sleep, and relationship with others/family. Baldwin (2015) a June 2012–December 2012 National, rural/urban N¼3,649 veterans who have ever partici- pated in any of 79 VTCsAge: 26–30 (21%), 31–40 (23%), 41–50 (23%), females 6%; White 62%, Black 30%, Hispanic 12%; reserves status, service era, branch of armed forces, trauma experience, legal issues, social determinants, reasons why participants opted in or opted out of VTC, reasons for termination also included. Baldwin and Rukus (2015) a Yes Phase I: September 2011–December 2011 Phase II: May 2012–September 2012 Local, rural/urban in one “VTC in Southern United States”(Baldwin & Rukus,2015, p. 187) N¼123 veteransFemales 5%; White 56%; age groups, preliminary diagnoses, discharge status, branch of armed forces, conflict era, observations of team meetings, court sessions, and veterans interviews also included. Canada et al. (2015) a Yes Unknown Local, rural/urban unknown, “this particular Midwest county”(Canada et al.,2015, p. 119) N¼7 VTC participants, andN¼6 VTC staffVTC participants: Mean age¼46 years; females 0%; White 86% 390 J. D. MCCALL ET AL. Johnson, Graham, et al. (2015) b June 2010–April 2012 Local, urban N¼53 participants sanctioned by presiding judgePurpose: Does veteran’s mental health diagnosis or the initial criminal charge committed before enrollment relate to a greater propensity for sanctions, relapse, or overall compliance. Major findings: Infractions most associated with jail sanctions were unex- cused absence, failure to complete a task, substance use relapse, and miss- ing a hearing. Substance-related relapses placed veterans at greatest risk of noncompletion of the program. Johnson, Stolar, et al. (2015) b 2009–2014 Local, urban N¼100 VTC participantsPurpose: Examined veteran’s propensity for arrest following separation from VTC and if it was associated with veteran’s length of stay in VTC, type of discharge, or judicial sanctions issued. Major findings: Arrests following separation from the VTC was inversely associated with length of stay in the program, a history of TBI was not associated with rearrest and a prior diagnosis of opiate misuse was predict- ive of arrest following separation. Larsen (2015) a,b Yes Part I: 2001–2011 Part II: November 2011–April 2013 (O) Local, rural/urban “central California”(Larsen,2015, p. 41) Part I:N¼70 matched pairs of veterans and civilians in drug court Part II (O):N¼41 VTC participantsPurpose: The second aim of this dissertation evaluated participants’mental health, alcohol/drug abuse severity, employment problems, and program satisfaction. Part I: Among 35 veterans from matched pairs: females 3%; European American 71%, Latino/a 20%, Black 6%, Asian 3%; Part II: females: 2%; White non-Hispanic 58%, Hispanic-Mexican 24%, Other Hispanic 9%, American Indian 6%, Black non-Hispanic 3%; age, marital status, educational attainment, service status, branch of armed forces, years of service, dis- charge status, deployment experience, combat exposure, behavioral health interviewed indicators, and traumatic stressors also included. Qualitatively examined barriers and access to mental health treatment. Major findings: At three months into treatment compared to baseline, VTC participants reported: fewer symptoms of PTSD, reduction in depression, reduced alcohol use, reductions in drug abuse severity, reduction in employment. problems. Baldwin (2014) a 2012 National, rural/urban N¼3,649 participants across 79 VTCAge: 26–30 (21%), 31–40 (22%), 41–50 (23%); females 6%; White 62%, Black 30%, Hispanic 12%; military vs. reserves, service era, branch of armed forces, legal issues, behavioral and social determinants, stage within justice system at which veteran participant were identified, supervision, perspectives of respondents regarding VTC operation, among others. Clark, McGuire, and Blue-Howells (2010) a September 2008–February 2013 National, rural/urban N¼3,166 (n¼1,168 with minor children, n¼1,998 without)Family circumstance of veterans. Mean age with minor children¼38 years, without¼47 years; females 4%; overall: White 64%, Black 31%; marital status, military service era, branch of service, homelessness, employment, medical/psychiatric history, and health care use also included. Caron (2013) a,b (continued) JOURNAL OF OFFENDER REHABILITATION 391 Table 1. Continued. Author(s) QualitativeStudy period Study location Study subjects Key points July 2010–June 2012 Local, urban N¼131 participantsPurpose: Two-year review of VTC in Hennepin County, MN whether VTC was meeting program goals. Mean age¼44 years; females 3%; White 63%; gross misdemeanor 43%, common misdemeanor (32%), felony (25%); employment, marital status, housing, educational attainment, branch of service, VTC satisfaction also included, among others. Major findings: During the first six months of VTC, 83% committed fewer offenses than during the 6 months prior. Graduates tested positive for drug/alcohol related issues at a lower rate than terminated; more than half of graduates completed inpatient treatment, maintained/increased their level of employment from entry to graduation; housing was maintained in private residence for nearly three fourths of graduates. Slattery et al. (2013) a,b Unknown, “over a period of three years” (Slattery et al., 2016, p. 924) Local, urban N¼83 participantsPurpose: Evaluation of VTC in Colorado Springs for reductions of stress in post- traumatic disorder diagnoses and improvements in symptoms. Age:“Just under 30 years”; females 5%; White 76%; substance use, social functioning, employment and housing stability, PTSD and TBI screening scores also included. Major findings: Participants did not significantly improve unstable housing or unemployment, but mental health did improve. Improvements in were significant from baseline to 6-month interview and sustained from 6- to 12-month. Smith (2012) a,b July 1994–December 2010 Local, urban N¼147 participants in VTC (38 graduates)Purpose: Examine recidivism of VTC participants in AK. Age: 41% were born between 1950 and 1959; females 7%; White 53%, Black 30%, Native American 2%, Hispanic 2%, Asian 1%; financial ability (appointment of counsel), classification of offenses among graduates also included. Major findings: 17 of 38 graduates reoffended within three years at a recid- ivism rate of 45% (AK rate¼50%). Holbrook and Anderson (2011) a 2009–2010 National, rural/urbanN¼14 VTCsCharacterization of surveyed VTCs include: enrollment criteria, when partici- pant is identified, referral source, and various participant factors: treatable health condition, eligibility for VA benefits, types of eligible offenses, among others. Note.VTC: Veterans Treatment Courts; PTSD: posttraumatic stress disorder; TBI: traumatic brain injury; VA: Veterans Affairs. Scholarly sources in the final literature sample include jour- nals, books, other research materials such as policy reports and white papers, and a thesis. aArticle focusing on VTC participant characteristics.bOutcome study. 392 J. D. MCCALL ET AL. (Garza,2013), Maryland (Totman,2013), Minnesota (Caron,2013), South Carolina (Wall IV,2013), Pennsylvania (McCormick-Goodhart,2012), Tennessee (Tennessee Administrative Office of the Courts,2012), Michigan (Ingham County Veterans Treatment Court,2010), and Wisconsin (Bjerke,2009). VTC participant characteristics Among the final literature sample, there were 15 studies where veterans’ demographics, psychological diagnoses, and other characteristics among par- ticipants were reported. In these studies, sample sizes ranged from seven to 144 participants at a single site (Ahlin & Douds,2016; Baldwin & Rukus, 2015; Knudsen & Wingenfeld,2016) to national samples with 3,649–22,708 study participants across over 100 sites (Tsai, Flatley, Kasprow, Clark, & Finlay,2016; Baldwin,2014,2015,2016; Holbrook & Anderson,2011). There were a few studies using qualitative methods that illuminated partic- ipants’perceptions of the VTC experience (Ahlin & Douds,2016; Canada, Brinkley, Peters, & Albright,2015; Larsen,2015; Baldwin & Rukus,2015). For example, Ahlin and Douds (2016) semi-structured interviews and focus group data revealed an“almost universal response”that prior military experience“distinguishes veterans as members of a subculture”(p. 87). In Baldwin and Rukus (2015), 92% of their study participants also commented on the camaraderie of the military community in the VTC. For example, one participant shared,“They respect you. Everyone has respect for you in the veteran court because they are soldiers and I’m a soldier. They under- stand me”(Baldwin & Rukus,2015, p. 193). Baldwin and Rukus (2015) also reported on the“comfort”felt by VTC participants in such statements as “Just the atmosphere there. You could tell they’re there to help you. They’re not there to crucify you. I recommend [VTC] highly. I think all courts should work like that”(p. 196). VTC treatments and services Examination of scholarly sources revealed that very little known about the treatment veterans receive through their participation in a VTC. For example, we found only one study that provided a table listing the frequen- cies of 13 types of intervention or service received (Knudsen & Wingenfeld,2016). Knudsen and Wingenfeld (2016) reported that most of their 86 VTC study participants received case management (87%) and received outpatient mental health (79%); these researchers also reported use of other services such as inpatient mental health services (22%), vocational services (36%), and emergency room services (36%). In this study, the JOURNAL OF OFFENDER REHABILITATION 393 remaining service types included outpatient substance abuse treatment, physical therapy, psychiatric medication, peer mentor services, transporta- tion services, housing services, trauma-specific treatment, and residential substance abuse treatment (Knudsen & Wingenfeld,2016). Other sources in the final literature sample of our scoping study mentioned therapeutic journaling (Canada et al.,2015) and another source offered clinical recom- mendations for the use of motivational interviewing and adaptive treatment strategies to encourage engagement among participants (Borsari, Conrad, Mastroleo, & Tolou-Shams,2014). VTC outcome studies Among the final literature sample, we identified 11 evaluation studies that examined a range of topics including behavioral health improvement (Knudsen & Wingenfeld,2016; Slattery, Dugger, Lamb, & Williams,2013) and recidivism in terms of new arrests (Hartley & Baldwin,2016; Tsai et al.,2016), new incarcerations (Tsai et al.,2016), and court characteristics that were associated with VTC participant termination (Johnson, Graham, Sikes, Nelsen, & Stolar,2015; Johnson et al.,2016). One publication exam- ined the VTC model in a theory-driven restorative justice context (Baldwin & Rukus,2015) and another publication presented Pennsylvania’s adopted performance measures for its VTCs (Cheesman,2015). Studies included in our review reported recidivism, broadly defined, in the range of 2.5–56% (Tsai et al.,2016; Erickson,2016; Hartley & Baldwin, 2016; Smith,2012). Effectiveness of VTCs to reduce recidivism remain mixed. In Alaska’s VTC, 17 of the 38 graduates reoffended within three years at a recidivism rate of 45%–an improvement from the 50.4% recid- ivism rate of the state (Smith,2012). However, in Tsai et al. (2016) national study, VTC participants when compared with nontreatment court partici- pants were more likely to have jail sanctions (19.7% vs. 10.4%), more likely to have new arrests (10.1% vs. 7.2%), and more likely to have new incarcer- ations (4.0% vs. 1.5%). Despite these differences, it is important to note that recidivism may not be reported consistently as some sites may not col- lect recidivism or re-arrest data and may be anecdotally reported (Erickson, 2016). Definitions of recidivism also vary by study and by participant sta- tus. For example, Hartley and Baldwin (2016) provided recidivism rates of VTC graduates (8.7%) alongside VTC participants who were terminated from their VTC program (56.3%). Various sampling was used in these 11 outcome studies. Some studies were based on one VTC at a single site (Caron,2013; Johnson, Stolar, Wu, Coonan, & Graham,2015; Knudsen & Wingenfeld,2016; Slattery et al., 2013; Smith,2012), some utilized sample sizes of less than 200 veterans 394 J. D. MCCALL ET AL. (Caron,2013; Hartley & Baldwin,2016; Johnson, Graham, et al.,2015; Johnson, Stolar, et al.,2015; Knudsen & Wingenfeld,2016; Larsen,2015; Slattery et al.,2013; Smith,2012), and others used much larger samples and included multiple VTCs across various states (Johnson et al.,2016; Tsai et al.,2016). Lastly, no efficacy studies were identified. Gaps in the VTC knowledge base The majority of articles among the final literature sample acknowledged the primacy of participant needs and characteristics, the importance of the multidisciplinary team, and the urgency for more formative evaluations. A minority of articles examined the implementation of component parts of the VTC model such as the role of mentors (Moore,2012; Ahlin & Douds 2016) or geographical considerations where VTCs are sited in urban, sub- urban, and rural contexts (Smee et al.,2013). These semi-implementation studies reflect important examinations of facets of the VTC model. Additionally, mixed findings regarding VTC outcomes suggest this is an area that needs much greater study and examination. Outcome studies with more rigorous designs with larger sample sizes are needed. Furthermore, data on the type and intensity of treatment mandated by VTCs is lacking and would be important to analyze. Discussion Presently, the VTC knowledge base includes scholarship that addresses the descriptive histories of the VTC emergence as a specialty court, a descrip- tion of VTC participant characteristics, and a few outcome-oriented studies. Our final literature sample reported that most VTC participants were White males with mean ages ranging between 30 and 50 years of age, with alcohol and drug use disorders as well as mental illness. There was broad multidisciplinary interest in VTC and its juncture at the intersection of law, behavioral health, and psychosocial spheres of practice and research. However, few sources provided information about the types of treatments received by VTC participants or geographic variation. VTCs have been broad and swift in their adoption across the country in a variety of jurisdictions. However, one of the underdeveloped areas within our scoping study sources was the largely unexplored geographical contexts of where VTC operate (Smee et al.,2013; Ahlin & Douds,2016; Larsen, 2015). Health care needs of veterans in rural areas are not adequately met, their access to care may be lacking, and there may be higher personnel costs to the VA to operate primary care practices (Smee et al.,2013; Wallace et al.,2010; Weeks, Wallace, West, Heady, & Hawthorne,2008). JOURNAL OF OFFENDER REHABILITATION 395 Rural recruits are overrepresented in current conflicts (Wallace et al.,2010) and 39% of returning veterans who served in Iraq or Afghanistan and are receiving VA services reside in rural areas (Smee et al.,2013). In Smee et al. (2013), the practice of Web-Cam Court in rural Oregon was summar- ized as a possible method for those courts seeking a rural adaption. In this court, veterans are able to comply with court sessions through web-cam appearances to inform the court about treatment status, goals, and plans (Smee et al.,2013). Future research is encouraged to examine rurality as this model proliferates. A truly unique court typology is nurtured within VTCs that is not uni- formly present among other specialty court settings. One characteristic of this court is the peer-mentoring program which is a“particularly unique and vital component”(Russell,2009, p. 369) that operates in partnership with the VTC and the VA. The benefits from peer mentors have been described to“[increase] the likelihood that a veteran will remain in treat- ment and improves the chances for sobriety and law-abiding behavior in the future”(Russell,2009, p. 366). However, a mentor’s role, designation, and operationalization remain varied. For example, in one study peer men- tors were a service type and grouped with other treatments received by vet- erans (Knudsen & Wingenfeld,2016). Other studies noted that mentors were not an official member of the VTC team (Canada et al.,2015), or were unpaid volunteers (Holbrook & Anderson,2011), and were also varied in whether VTCs required mentors to be a veteran themselves (Holbrook & Anderson,2011). In Knudsen and Wingenfeld (2016), only 57% of veter- ans were assigned a veteran peer mentor, but peer mentoring positively predicted improvements in social connectedness (p<.05) and emotional limitations (p<.05). In Knudsen and Wingenfeld (2016), VTC treatment improvements were notable when participants were provided a combin- ation of trauma-specific treatment, peer mentor services, and medication. In Slattery and colleagues’(2013) study, the average time to graduate their VTC program was approximately 17 months, however, they also reported the mean number of total treatment appointments related to VTC partici- pation (16 per month) which included court appearances, meetings with probation officers, treatment appointments, substance use monitoring, as well as“meetings with peer mentors and service providers”(p. 928). When asked about the impact of peer mentors on their success in the program, 87% of these VTC participants attributed“some”or“all”of their success to the help of their peer mentors (Slattery et al.,2013, p. 928). While the inclusion of mentors appear to support the overall veteran culture within the context of a VTC, future inquiry is encouraged to expand upon the uses, influences, and impact of mentors as a component of VTC. 396 J. D. MCCALL ET AL. It is important to note that 11 sources discussed a range of criticisms of the VTC concept. It has been purported by some as special treatment and has also been criticized for diagnostic misuse, veteran malingering, and possible avoidance of the penalty of law (Berenson,2010; Borsari et al., 2014; Frederick,2014; Hawkins,2010; Jones,2013; Perlin,2012; Russell, 2009). One law journal article discussed the potential need for VTCs’own legislative mandate to maintain democratic legitimacy to also ensure that the“judiciary respects the separation of powers doctrine”(Shah,2014). This seeming contradiction to the popularity of the VTC model promotes future research that may satisfy supporters and opponents alike. In summary, there continues to be tremendous support and adoption of the VTC model across the United States. VTCs target the underlying psy- chological and behavioral needs to try and eliminate recurrence of their undesirable behaviors (Frederick,2014). Supporters of the VTC model challenge the perception of preferential treatment by noting that VTCs are an effort to better target the needs of participants by reconceptualizing crime (Huskey,2015) and taking into account the circumstances due to exposure to military experience (Hawkins,2010). Limitations of our study include the potential exclusion of studies published before 2008, studies indexed under different key words, and journals not indexed among our list of online databases. Acknowledgements Dr. McCall was supported with use of facilities at the Pittsburgh, VA and the Office of Academic Affiliations Advanced Fellowship in Women’s Health. The contents of this manuscript do not represent the views of the U.S. Department of Veterans Affairs or the United States Government. ORCID Janice D. McCall http://orcid.org/0000-0003-1138-3716 References Adams, J., Hobart, J., & Rosenberg, M. (2016). 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