Veterans in the Criminal Justice System: Defending Conditions of the Mind

By Ken Strutin, Published on April 20, 2012

Post Traumatic Stress Disorder (PTSD)1 and Traumatic Brain Injury (TBI)2 are two notable conditions3 that can result from military service.4 And they have become particularly important in understanding and defending veterans involved in the criminal justice system.5 At the same time, specialty courts6 and legal projects7 specific to veterans are gaining traction. Overall, these developments highlight the ongoing dialogue between criminal justice and medical science in fairly adjudicating the responsibility and mitigating the punishment of veterans charged with crimes.

This article surveys recent and notable studies and guides, web resources for further research, and directories for legal assistance specific to veterans.







1 "PTSD is an anxiety disorder that can happen after exposure to a life-threatening event. Life-threatening events can include: combat, car accidents, natural disasters like earthquakes, floods, or tornadoes, physical or sexual assault, or seeing someone else badly hurt." About TBI and PTSD in Center for Neuroscience and Regenerative Medicine (CNRM).

2 "TBI can be classified as mild, moderate, or severe, depending on the nature and extent of the injury. A concussion is an example of mild TBI. Most cases of TBI (over 75%) are mild." About TBI and PTSD in Center for Neuroscience and Regenerative Medicine (CNRM).

3 "Mild TBI is not well defined and does not always result in obvious impairments. Many of its signs and symptoms overlap with those of PTSD. PTSD and mild TBI can occur together but they don't have to. In a combat zone, it is possible that the very same event that causes a concussion or mild brain injury could also be life-threatening and lead to PTSD." About TBI and PTSD in Center for Neuroscience and Regenerative Medicine (CNRM). See generally TBI & PTSD Quick Facts (Force Health Protection & Readiness Policy and Programs).

4 See generally One in Five Iraq and Afghanistan Veterans Suffer from PTSD or Major Depression, RAND Corp. Press Rel., Apr. 17, 2008.

5 See, e.g., Veteran Acquitted on Drug Case, N.Y. Times, Sept. 20, 1980, sect. 1, at 9 ("The syndrome [Vietnam syndrome or post-traumatic stress] is recognized as an emotional illness by the American Psychiatric Association and the Veterans Administration. Psychiatrists say victims seek to relive the danger and excitement of combat experiences. The syndrome has been used successfully by defendants in trials in California and Pennsylvania, but today's verdict was the first acquittal in connection with a nonviolent, premeditated crime."). The tolls associated with serving in war have been recognized for a long time, but not well understood until the advent of modern psychology and medicine. See, e.g., Anna Mulrine, Sgt. Robert Bales and Multiple Tours of Duty: How Many Is Too Many?, Christian Sci. Monitor, Mar. 23, 2012 ("The tremendous burden that battle places on soldiers – and the notion that it can push some to their breaking point – has long been one of the fatalistically accepted miseries of war. During the Civil War, this breaking point was called, alternately, 'soldier's heart' and 'exhausted heart.' In World War I, it was 'war neurosis,' 'gas hysteria,' and 'shell shock.' Sigmund Freud had his own theory about the 'inner conflict' between a soldier's 'peace ego' and its 'parasitic double,' the 'war ego.'").

6 See Missouri Looks to Join States Expanding Veteran Courts, News Tribune, Apr. 15, 2012; Nicole Santa Cruz, O.C.'s Combat Veterans Court Helps Ex-Warriors Fix Their Lives, Los Angeles Times, Mar. 26, 2012; Michael M. Phillips, Convicted Combat Vets Watch Each Other's Backs to Stay Out of Prison, Wall. St. J., Mar. 23, 2012; Neale Gulley, Nation's First Veterans Court Counts Its Successes, Reuters, Jan. 9, 2011.

7 See, e.g., Simon Akam, Back Home, and in Need of Support, N.Y. Times, Jul. 7, 2009 ("A new pilot program called the Veterans Project, announced on Tuesday and set to begin in Queens, Brooklyn and Nassau County, aims to help keep them out of prison. . . .The project — a collaboration between county prosecutors, the Department of Veterans Affairs and health care providers — will try to divert veterans who commit nonviolent crimes away from prison while helping them with underlying issues like homelessness or substance abuse.").

8 In addition to the traditional sources for counsel in criminal cases, there are a growing body of resources, e.g., bar association projects, pro bono programs or law school clinics, directed at the needs of active servicemembers, veterans and their families in both civil and criminal matters.