O CARE FOR HIM WHO SHALL HAVE ORNE THE BATTLE”: THE …
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CARTWRIGHT 22 STAN. L. & POL'Y REV. 295 6/4/2011 10:13 AM 295 “TO CARE FOR HIM WHO SHALL HAVE BORNE THE BATTLE”: THE RECENT DEVELOPMENT OF VETERANS TREATMENT COURTS IN AMERICA Tiffany Cartwright* INTRODUCTION 1 When Owen Flaherty returned home from war, his family and coworkers described him as detached and angry, his mind would trick him into seeing enemies firing upon him with guns, and his violent episodes resulted in the police being called to his home on numerous occasions. 2 When Nic Gray returned home, he felt “numb and disconnected,” was haunted by nightmares, and one night broke down a stranger’s front door, smelling of alcohol and shouting gibberish about the military. 3 Their stories of returning home from combat are remarkably similar—but they are separated by more than a century. Owen Flaherty was a Union veteran of the Civil War who returned home in 1865 and was eventually committed to the Indiana Hospital for the Insane in 1876. 4 Nic Gray served in an armored battalion in Iraq and returned home in 2007. 5 In December 2009, his case was one of the first transferred to the new “Veterans Court” in El Paso County, Colorado. 6 In January, he pleaded guilty Law clerk to the Honorable Dana Fabe, Alaska Supreme Court. Stanford Law School, J.D. 2010. Stanford University, B.A. 2007. This Article began as a paper for Professor Joan Petersilia’s class on Sentencing and Corrections in Spring 2010. Special thanks to Guy Gambill and Dr. Stephen Xenakis for their invaluable guidance and feedback. 1. The title of this Article quotes from Abraham Lincoln’s Second Inaugural Address, given on Saturday, March 4, 1865. The quotation also appears in the handbook for the mentoring program in the Buffalo Veterans Treatment Court, and is used frequently by the Department of Veterans Affairs to describe its mission. 2. ERIC T. DEAN, JR., SHOOK OVER HELL: POST-TRAUMATIC STRESS, VIETNAM, AND THE CIVIL WAR 2 (1997). 3. Joel Warner, Can a Veterans Court Help Former GIs Find Justice Here at Home?, DENVER WESTWORD NEWS, Feb. 4, 2010. 4. DEAN, supra note 2, at 2-3. 5. Warner, supra note 3. 6. Id.
O CARE FOR HIM WHO SHALL HAVE ORNE THE BATTLE”: THE …
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BORNE THE BATTLE”: THE RECENT
DEVELOPMENT OF VETERANS
Tiffany Cartwright*
INTRODUCTION 1
When Owen Flaherty returned home from war, his family and coworkers
described him as detached and angry, his mind would trick him into
seeing enemies firing upon him with guns, and his violent episodes
resulted in the police being called to his home on numerous
occasions.2 When Nic Gray returned home, he felt “numb and
disconnected,” was haunted by nightmares, and one night broke down
a stranger’s front door, smelling of alcohol and shouting gibberish
about the military.3 Their stories of returning home from combat
are remarkably similar—but they are separated by more than a
century. Owen Flaherty was a Union veteran of the Civil War who
returned home in 1865 and was eventually committed to the Indiana
Hospital for the Insane in 1876.4 Nic Gray served in an armored
battalion in Iraq and returned home in 2007.5 In December 2009, his
case was one of the first transferred to the new “Veterans Court”
in El Paso County, Colorado.6 In January, he pleaded guilty
Law clerk to the Honorable Dana Fabe, Alaska Supreme Court.
Stanford Law School, J.D. 2010. Stanford University, B.A. 2007.
This Article began as a paper for Professor Joan Petersilia’s class
on Sentencing and Corrections in Spring 2010. Special thanks to Guy
Gambill and Dr. Stephen Xenakis for their invaluable guidance and
feedback.
1. The title of this Article quotes from Abraham Lincoln’s Second
Inaugural Address, given on Saturday, March 4, 1865. The quotation
also appears in the handbook for the mentoring program in the
Buffalo Veterans Treatment Court, and is used frequently by the
Department of Veterans Affairs to describe its mission.
2. ERIC T. DEAN, JR., SHOOK OVER HELL: POST-TRAUMATIC STRESS,
VIETNAM, AND THE
CIVIL WAR 2 (1997). 3. Joel Warner, Can a Veterans Court Help
Former GIs Find Justice Here at Home?,
DENVER WESTWORD NEWS, Feb. 4, 2010. 4. DEAN, supra note 2, at 2-3.
5. Warner, supra note 3. 6. Id.
CARTWRIGHT 22 STAN. L. & POL'Y REV. 295 6/4/2011 10:13 AM
296 STANFORD LAW & POLICY REVIEW [Vol. 22:1
to trespassing and received a two-year deferred sentence contingent
upon completion of treatment from the Department of Veterans
Affairs (VA), community service, restitution, and a letter of
apology to his victims.7
The story of the psychologically scarred combat veteran struggling
to readjust to civilian life is as old as war itself, but since
2001 a combination of factors—including the difficulties of an
all-volunteer military, the nature of combat in Iraq and
Afghanistan, and advances in medical technology that leave more
soldiers alive but severely injured—has focused new attention on
the number of veterans who wind up in the criminal justice system.8
Since January 2008, when the first court opened in Buffalo, New
York,9 “veterans treatment courts” have become an increasingly
popular way to address this reemerging problem. Modeled on drug and
mental health courts, veterans courts aim to divert low-level
offenders whose crimes are tied to the effects of their military
service away from incarceration and into treatment. This Article
will address whether these courts are the best option for
responding to veterans who are charged with crimes. First, I will
briefly address the status of American veterans in the criminal
justice system and the events since the start of the wars in
Afghanistan and Iraq that have drawn increased attention to the
problem. Then I will discuss why a separate treatment court for
veterans is preferable to including them in existing drug or mental
health courts, and provide an overview of how veterans treatment
courts operate, what the major criticisms of veterans courts are,
and where future developments appear to be headed. Finally, I will
discuss other options for veterans charged with crimes, and
conclude with some observations about the benefits and drawbacks of
treatment courts for both veterans and the criminal justice system
as a whole.
PART I. WHY DO WE NEED VETERANS TREATMENT COURTS?
A. Veterans in the American Criminal Justice System since
Vietnam
The experience of veterans of the Vietnam War led to the first
major research efforts regarding psychological trauma and its
impact on criminal activity. The number of soldiers returning from
Vietnam with severe and highly publicized mental problems is what
led to the diagnosis of post-traumatic stress disorder (PTSD) being
added to the Diagnostic and Statistical Manual of Mental Disorders
(DSM) in 1980.10 The Bureau of Justice Statistics began
7. Id. 8. Many veterans courts also serve active members of the
military who are prosecuted
through the civilian court system rather than the military justice
system. Throughout this Article, I will use the term “veteran” to
refer to veterans and current members of the military alike.
9. Judge Robert T. Russell, Veterans Treatment Court: A Proactive
Approach, 35 NEW
ENG. J. ON CRIM. & CIV. CONFINEMENT 357, 364 (2009). 10. Thomas
L. Hafemeister & Nicole A. Stockey, Last Stand? The
Criminal
CARTWRIGHT 22 STAN. L. & POL'Y REV. 295 6/4/2011 10:13 AM
2011] VETERANS TREATMENT COURTS 297
keeping track of the number of veterans in federal and state
prisons in the early 1980s.11 The National Vietnam Veterans
Readjustment Survey, which consisted of interviews conducted
between 1986 and 1988 and is considered the most comprehensive
study of Vietnam veterans, found that fifteen percent of all male
combat veterans had PTSD, and that of those, nearly half had been
arrested at least once.12 By 1986, veterans accounted for twenty
percent of all state prisoners.13
Perhaps due in part to the unpopularity of the Vietnam War, there
was no widespread response to the specific problem of traumatized
veterans coming into contact with the criminal justice system. Many
criminal defense lawyers tried—for the most part, unsuccessfully—to
use PTSD as an insanity defense for veterans who had committed
serious violent crimes.14 Apart from those individual efforts, the
most notable response came from California, which enacted
legislation in 1984 allowing Vietnam veterans who were convicted of
felonies and suffering from mental health or substance abuse
problems to spend their sentences receiving treatment in federal
correctional facilities.15 Unfortunately, however, the federal
government never passed implementing legislation allowing federal
facilities to take control of those state prisoners, so no
offenders ever benefited from the legislation.16
As large numbers of veterans from the Vietnam era have aged, the
percentage of veterans currently serving time in prison has
declined, but studies from the Bureau of Justice Statistics still
reveal some interesting trends about
Responsibility of War Veterans Returning from Iraq and Afghanistan
with Posttraumatic Stress Disorder, 85 IND. L.J. 87, 94 (2010)
(citing CHRISTOPHER SLOBOGIN, ARTI RAI &
RALPH REISNER, LAW AND THE MENTAL HEALTH SYSTEM: CIVIL AND CRIMINAL
ASPECTS 20 (5th ed. 2008)).
11. The Bureau of Justice Statistics began asking questions about
military service in inmate surveys of local jails in 1983, state
prisons in 1986, and federal prisons in 1991. CHRISTOPHER J.
MUMOLA, U.S. DEP’T OF JUSTICE, BUREAU OF JUSTICE STATISTICS,
SPECIAL
REPORT: VETERANS IN PRISON OR JAIL 2 (2000). 12. CTR. FOR MENTAL
HEALTH SERVS. (CMHS) NAT’L GAINS CTR., RESPONDING TO
THE NEEDS OF JUSTICE-INVOLVED COMBAT VETERANS WITH SERVICE-RELATED
TRAUMA AND
MENTAL HEALTH CONDITIONS 6 (2008). The National GAINS Center
operates under the Substance Abuse and Mental Health Services
Administration, a subdivision of the U.S. Department of Health and
Human Services. The focus of the GAINS Center is on increasing
access to community services for adults in the justice system with
co-occurring substance abuse and mental health problems. GAINS
stands for “gathering information,” “assessing what works,”
“interpreting/integrating the facts,” “networking,” and
“stimulating change.” See About the Center, SAMHSA NAT’L GAINS
CTR., http://gainscenter.samhsa.gov/html/about/default.asp (last
visited Dec. 16, 2010).
13. Amanda Ruggeri, New Courts Give Troubled Veterans a Second
Chance, U.S. NEWS & WORLD REP., Apr. 3, 2009.
14. See generally Hafemeister & Stockey, supra note 10. 15.
Adam Caine, Comment, Fallen from Grace: Why Treatment Should Be
Considered
for Convicted Combat Veterans Suffering from Post Traumatic Stress
Disorder, 78 UMKC
L. REV. 215, 225 (2009). 16. Id. at 226.
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298 STANFORD LAW & POLICY REVIEW [Vol. 22:1
veterans in prison as a whole. In 2004, the most recent year for
which statistics have been published, ten percent of state
prisoners reported prior military service.17 Perhaps most relevant
to this Article, as discussed below in Part II.B, veterans are more
likely than other prisoners to have been convicted of a violent
crime. Among veterans, fifty-seven percent were convicted of a
violent crime, as opposed to forty-seven percent of nonveterans.18
This statistic is especially interesting given that the military,
through its recruitment practices, tries to select against many of
the factors that are correlated with committing crime, such as a
history of mental illness, a prior criminal record, or a history of
drug abuse.19 Other statistics from the 2004 report appear to
corroborate those recruitment efforts; veterans in prison tend to
have shorter criminal histories than nonveterans, are more likely
to be white, older, and better educated, and are more likely to
have been married.20 Although veterans are just as likely as other
prisoners to have mental health or drug abuse problems,21 it is
impossible to tell from these statistics whether those problems
began before, during, or after their military service.
B. Unique Challenges for Veterans Returning from Iraq and
Afghanistan
The prevalence of veterans in the criminal justice system suggests
that all major American conflicts produce veterans who have
difficulty readjusting to civilian life and often break the law in
the process. However, several unique features of the recent wars in
Afghanistan and Iraq, combined with several high-profile crime
spurts, have drawn new attention to the problem and prompted a
response that is both more widespread and targeted than those that
occurred after previous wars.
Undoubtedly, much of the public attention paid to this issue stems
from the high-profile reporting of serious violent crimes committed
by returning service members. First, within a six-week period in
2002, three sergeants from Fort Bragg, North Carolina, who had
recently served in Afghanistan, murdered their wives.22 Then, at
Fort Carson, Colorado, eight homicides were committed in twelve
months by six soldiers;23 ultimately, between 2006 and 2009,
ten
17. MARGARET E. NOONAN & CHRISTOPHER J. MUMOLA, BUREAU OF
JUSTICE
STATISTICS, U.S. DEP’T OF JUSTICE, SPECIAL REPORT: VETERANS IN
STATE AND FEDERAL
PRISON 2004 (2007). 18. Id. 19. Telephone Interview with Guy
Gambill, Soros Senior Justice Fellow, Justice Policy
Inst. (Apr. 25, 2010). 20. BUREAU OF JUSTICE STATISTICS, supra note
17. 21. Id. at 1 nn.17-18 & 20, 4 n.21 & 6. 22. Lizette
Alvarez & Deborah Sontag, When Strains on Military Families
Turn
Deadly, N.Y. TIMES, Feb. 15, 2008, at A1. 23. U.S. ARMY CTR. FOR
HEALTH PROMOTION AND PREVENTIVE MED., EPIDEMIOLOGIC
CONSULTATION NO. 14-HK-OB1U-09, INVESTIGATION OF HOMICIDES AT FORT
CARSON, COLORADO, NOVEMBER 2008-MAY 2009 ES1 (2009) [hereinafter
FORT CARSON REPORT].
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2011] VETERANS TREATMENT COURTS 299
members of a 3500-person brigade at Fort Carson would be charged
with murder, attempted murder, or manslaughter.24 Finally, in early
2008 The New York Times published a series of articles detailing at
least 121 cases in which veterans of Iraq or Afghanistan were
charged with homicide after returning home,25 and at least 150
cases of fatal domestic violence or child abuse involving service
members since the invasion of Afghanistan.26 An official military
report on the murders at Fort Carson found that rates of arrests
for major crimes in general had increased throughout the army since
2003.27
Around the same time that these events were publicizing the
possible violent consequences of combat stress, emerging data
suggested that a large percentage of new veterans were suffering
from psychological injuries. In 2008, the RAND Corporation
published a study entitled “The Invisible Wounds of War,” which
concluded that of the 1.64 million troops deployed since 2001,28
fourteen percent were probably suffering from PTSD, fourteen
percent from depression, and nineteen percent from traumatic brain
injury (TBI).29 Because these conditions often overlapped, the
study estimated that around 300,000 individuals were suffering from
PTSD or major depression and that around 320,000 veterans had
experienced a likely TBI; ultimately, one-third of those deployed
had at least one condition.30 The study further observed that
“[e]xposure to specific combat traumas was the single-best
predictor for both PTSD and major depression.”31 Similarly, the
report on the murders at Fort Carson found that the “[a]lleged
homicide perpetrators were clustered within one [brigade combat
team]” that “experienced significantly higher levels of combat
intensity” than comparison groups.32
The RAND study, news coverage of the crime waves mentioned above,
and the official military report on the murders at Fort Carson all
identified several characteristics of the Iraq and Afghanistan wars
that have contributed to the increase of psychological damage and
subsequent crime. These characteristics can be loosely grouped into
three categories: the modern structure of the American military,
the types of combat and injuries endured in
24. Dave Philipps, Casualties of War, Part I: The Hell of War Comes
Home, COLO. SPRINGS GAZETTE, July 24, 2009, at A1.
25. See Deborah Sontag & Lizette Alvarez, Across America,
Deadly Echoes of Foreign Battles, N.Y. TIMES, Jan. 13, 2008, at
A1.
26. Alvarez & Sontag, supra note 22. Some of these cases
overlap with the other homicides covered by the New York Times
series, and it seems from the article that not all of these cases
necessarily involve service members who served overseas or saw
combat.
27. FORT CARSON REPORT, supra note 23, at 10. 28. RAND CTR. FOR
MILITARY HEALTH POLICY RESEARCH, INVISIBLE WOUNDS OF
WAR: SUMMARY AND RECOMMENDATIONS FOR ADDRESSING PSYCHOLOGICAL AND
COGNITIVE
INJURIES 1 (2008) [hereinafter INVISIBLE WOUNDS OF WAR]. 29. Id. at
11. 30. Id. at 11-12. 31. Id. at 13. 32. FORT CARSON REPORT, supra
note 23, at ES3.
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300 STANFORD LAW & POLICY REVIEW [Vol. 22:1
Iraq and Afghanistan, and the barriers to receiving mental health
care upon return home.
The nature of the all-volunteer American military has increased the
strain on soldiers serving in major, long-term operations. Without
the ability to draft new recruits, professional soldiers are
required to serve longer deployments, are often redeployed, and
have shorter breaks between redeployments.33 The New York Times
estimated that at least a third of the troops in Iraq and
Afghanistan have been deployed more than once.34 These longer and
more frequent tours increase the risk of traumatic combat exposure
and psychological injury. A 2008 survey found that while only
twelve percent of soldiers who had served one tour reported
symptoms of PTSD, that number increased to more than twenty-five
percent for soldiers who had served three or four tours.35 The Fort
Carson Report similarly concluded that data “suggest a possible
association between increasing levels of combat exposure and risk
for negative behavioral outcomes.”36 The strains on the
all-volunteer active duty military have also required more units to
be activated from the Reserves and the National Guard. When
soldiers from these units return home, their transition is often
more difficult because they are thrust further outside the
structure of the military that has grown familiar and often live in
suburban or rural areas away from major centers of military
resources.37
The type of combat experienced in Iraq and Afghanistan, the coping
mechanisms that it produces, and the injuries that sometimes result
also contribute to the high rates of psychological trauma. The
insurgent, guerrilla warfare in both combat zones increases the
number of soldiers who are exposed to traumatic experiences;
without a traditional front line, even those soldiers who serve in
support capacities are often in danger.38 In order to cope with
this environment, many soldiers develop habits that later impede
their readjustment to civilian life. As a report from the Center
for Mental Health Services National GAINS Center observed,
“[b]ehaviors that promote survival within the combat zone may cause
difficulties during the transition back to civilian life.
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.”39 When these survival instincts fail
to protect a soldier, the injuries that result are
33. INVISIBLE WOUNDS OF WAR, supra note 28, at 1. 34. Sontag &
Alvarez, supra note 25. 35. Ruggeri, supra note 13. 36. FORT CARSON
REPORT, supra note 23, at ES3. 37. Lizette Alvarez, After the
Battle, Fighting the Bottle at Home, N.Y. TIMES, July 8,
2008, at A1; see also Telephone Interview with Guy Gambill, supra
note 19. 38. Hafemeister & Stockey, supra note 10, at 99; see
also INVISIBLE WOUNDS OF WAR,
supra note 28, at 11 (noting that “[c]urrent rates of exposure to
combat trauma . . . are relatively high”).
39. CMHS NAT’L GAINS CTR., supra note 12, at 5.
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2011] VETERANS TREATMENT COURTS 301
perhaps more likely than ever to leave a major psychological wound
as well. First, as a result of advances in armor and medicine,
despite long and repeated deployments the rates of killed or
physically wounded soldiers are lower than they have been in
previous wars. As a consequence, many service members are surviving
combat experiences that would have killed them in prior wars—
experiences that are likely to be the most intense and
traumatizing.40 Second, the common use by insurgents of improvised
explosive devices (IEDs) has led to at least thirty percent of
troops being exposed to blastwaves that result in mild TBI, and
thousands of soldiers with more serious brain injuries.41 Although
the long-term effects of mild TBI are still being studied, there is
growing concern that it could cause lasting damage to executive
brain function.42
Once soldiers do return home, they often face barriers to quality
mental health care. The RAND study found that of those new veterans
suffering from PTSD or major depression, only fifty-three percent
had sought professional help in the past year, and only half of
those who did seek care received minimally adequate treatment.43 Of
those veterans who had likely experienced TBI, fifty-seven percent
were never evaluated by a physician to determine if they had a
brain injury.44
By far the biggest barrier to treatment is stigma. The fear of
being labeled as weak or cowardly for seeking mental health
treatment has been a persistent problem in military culture.45 Of
those surveyed by the RAND study who declined to seek treatment, a
reason generally cited was a fear about treatment not remaining
confidential or harming the soldier’s career.46 News articles
covering the Fort Carson murders told multiple anecdotes of
sergeants who refused to let soldiers seek help, taunted them for
being weak, or punished those who did seek treatment.47 The
official military report on the murders found that stigma persisted
at several levels. Junior soldiers expressed fear of retaliation by
their peers or their leaders, and were concerned that they would be
labeled as weak.48 More senior soldiers were afraid that seeking
treatment would harm their career prospects, and soldiers from all
levels expressed a belief that off-base, civilian mental health
professionals did not understand the military experience.49 This
last problem is especially relevant for the high numbers of Reserve
and National Guard soldiers who have served in Iraq and
40. INVISIBLE WOUNDS OF WAR, supra note 28, at 1. 41. Id. at 2. 42.
Telephone Interview with Guy Gambill, supra note 19. 43. INVISIBLE
WOUNDS OF WAR, supra note 28, at 13-14. 44. Id. at 14. 45.
Telephone Interview with Guy Gambill, supra note 19. 46. INVISIBLE
WOUNDS OF WAR, supra note 28, at 14. 47. Philipps, supra note 24.
48. FORT CARSON REPORT, supra note 23, at 16. 49. Id.
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302 STANFORD LAW & POLICY REVIEW [Vol. 22:1
Afghanistan, because they are more likely to live away from
military installations and be limited to civilian health care
providers.
The structure and capacity of military mental health resources also
create barriers to care. The standard screening mechanisms for
psychological injuries are surveys that are given to soldiers right
before their return home. But giving the assessment at that point
can warp incentives; because many soldiers worry that reporting
problems will delay their return, it is possible that they minimize
the extent of their symptoms.50 Furthermore, many symptoms of
mental health problems do not appear until months after a soldier
comes home, often after a sort of honeymoon period. For that
reason, the military re-administers its post- deployment health
assessment six months after a soldier’s deployment ends. At that
six-month mark, positive screens for PTSD increased forty-two
percent for active duty army soldiers, and ninety-two percent for
Army Guard/Reserve members.51 But even when screening mechanisms
succeed, military mental health services are overburdened when it
comes to actually treating patients. The number of soldiers needing
psychiatric care increased so rapidly after the start of operations
in Iraq and Afghanistan that the military mental health system,
having adapted to a long period without major combat operations,
was simply unable to keep up. News reports described soldiers
waiting weeks or months for an appointment and unable to get
individual counseling,52 and a Pentagon task force concluded that
mental health services were overburdened, understaffed, and
inadequately financed.53
Faced with these barriers, many veterans resort to self-medicating
with drugs or alcohol.54 Between 2005 and 2006, the rate of
veterans involved in alcohol-related incidents such as drunk
driving, reckless driving, and disorderly conduct increased from
1.73 per 1000 soldiers to 5.71 per 1000 soldiers.55 At Fort Carson,
eighty percent of the soldiers accused of homicide had documented
alcohol or drug abuse problems.56 Like mental health services for
combat stress, many soldiers do not receive treatment for substance
abuse problems.
C. Why Do Veterans Need a Separate Treatment Court?
The history and data presented above suggest that many crimes
committed by veterans are triggered by underlying mental health
problems or substance abuse that is a form of self-medication.
Because drug and mental health treatment courts already exist in
many jurisdictions, a common suggestion is to
50. See INVISIBLE WOUNDS OF WAR, supra note 28, at 3. 51. CMHS
NAT’L GAINS CTR., supra note 12, at 5. 52. Philipps, supra note 24.
53. Sontag & Alvarez, supra note 25. 54. FORT CARSON REPORT,
supra note 23, at 13. 55. Russell, supra note 9, at 363. 56. FORT
CARSON REPORT, supra note 23, at 17.
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2011] VETERANS TREATMENT COURTS 303
simply divert veterans into those programs rather than create a new
category of treatment courts entirely.
According to veterans’ advocates, that suggestion essentially
misses the point. The first veterans court in Buffalo, New York,
began because the judge who ran Buffalo’s drug and mental health
courts, Judge Robert Russell, noticed an increasing number of
veterans on his dockets and realized that they shared unique needs
that were not being addressed effectively in the existing treatment
courts.57 Treatment courts are designed to address the underlying
problem at the root of criminal activity: for drug courts, a
substance dependency, or for mental health courts, a mental
illness. But for combat veterans, their underlying problem is not
their substance abuse, or even their PTSD—it is their combat
trauma, and that is something that cannot be addressed as
effectively in a traditional drug or mental health court.58 Many
veterans have experienced things that are uncommon or unheard of
among civilian defendants. As noted in Part I.B, a common barrier
to treatment for veterans is a perception that civilian service
providers do not understand what they have been through. As harsh
as it might sound, lumping combat veterans in with civilian drug
users and schizophrenics might only reinforce that
perception.
Specialized veterans treatment courts address that problem in many
ways. First, veterans courts explicitly project the attitude that
participants should be honored for their service, and that they are
being diverted from traditional sentencing because the government
is grateful for their sacrifice. Recent legislation in Colorado
that will create veterans treatment courts statewide explicitly
finds that “as a grateful state, we must continue to honor the
military service of our men and women by attempting to provide them
with an alternative to incarceration when feasible, permitting them
instead to access proper treatment for mental health and substance
abuse problems resulting from military service.”59 Instead of
unintentionally creating a perception that veterans are being
pitied for being addicted to drugs or being mentally ill, this
attitude creates a culture of respect and understanding for the
veteran’s experience.
Second, specialized courts allow the judge, prosecutors, and public
defenders involved to develop expertise on veterans issues and to
connect participants with service providers that are also familiar
with the military experience.60 Third, when all of the eligible
veterans are gathered on the same
57. See Russell, supra note 9, at 363-64. 58. Telephone Interview
with Guy Gambill, supra note 19; Telephone Interview with
Dr. Stephen Xenakis, Brigadier Gen., ret., U.S. Army (Apr. 25,
2010). 59. H.B. 10-1104, 67th Gen. Assemb., 2d Reg. Sess. § 1(1)(f)
(Colo. 2010). This
legislation was signed into law on April 15, 2010. Press Release,
Office of Governor Bill Ritter, Jr., Gov. Ritter Signs National
Guard Armory and Veterans Treatment Court Bills Into Law (Apr. 15,
2010), available at
http://www.colorado.gov/cs/Satellite/GovRitter/GOVR/1251573904930.
60. See Russell, supra note 9, at 363-64.
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304 STANFORD LAW & POLICY REVIEW [Vol. 22:1
docket and in the same courtroom, they support each other. Seeing
other defendants who have similar past experiences and problems
helps to break down the stigma associated with treatment, and a
program filled with veterans in some ways replicates the
camaraderie of the military.61
Finally, and perhaps most importantly, most veterans courts have a
mentoring program that pairs each participant with a volunteer
mentor who comes from a similar background. The mentoring program
is the most direct response to the observation that veterans
respond better to treatment when they work with other veterans.62 A
wide pool of volunteers (there are currently thirty-five in the
Buffalo program)63 usually allows the court to match a participant
with a mentor based on their branch of service, the war they fought
in, as well as their age, ethnicity, and gender (something
particularly important for the increasing number of women who have
seen combat in Iraq and Afghanistan). In the words of Jack
O’Connor, the Buffalo mentoring coordinator, “A young marine from
Iraq needs to talk to another young Marine from Iraq, and now he
does.”64 Some mentors are also paired with participants based on
their special skills; for example, in Buffalo, one mentor who was a
lawyer assisted his mentee with a case in housing court.65 Even if
a participant has to navigate service providers that are unfamiliar
with the military, the mentor can act as an advocate who really
understands what the participant has been through, especially in
areas where the court is not formally involved. Volunteer mentors
in the Buffalo court help participants with everything from getting
to appointments, to finding an apartment, to retrieving their cars
from impoundment.66 The mentor’s perspective can also alert the
court to areas where the participant needs help that a person
unfamiliar with the veteran’s experience might not notice.67
Along with breaking down stigmatic barriers to treatment, diverting
veterans into a separate treatment court solves some logistical
problems. One benefit for veterans who need treatment is that they
often have access to federally funded services that similarly
situated civilians do not, and thus securing appropriate treatment
does not place an additional burden on their
61. Id.; see also Telephone Interview with Dr. Stephen Xenakis,
supra note 58. 62. See Russell, supra note 9, at 364; see also
BUFFALO VETERANS TREATMENT COURT,
BUFFALO VETERANS COURT AND VETERANS MENTOR HANDBOOK § 2.1 (2010)
[hereinafter BUFFALO MENTOR HANDBOOK].
63. The Value of Establishing Veterans Courts: Hearing Before the
H. Comm. on Veterans Affairs, 111th Cong. 56 (2009) [hereinafter
Hearing] (statement of Jack O’Connor, Mentor Coordinator, Buffalo
Veterans Treatment Court).
64. Id.; see also BUFFALO VETERANS COURT: MENTORING AND VETERANS
HOSPITAL
PROGRAM POLICY AND PROCEDURE MANUAL § 3.6 (2010) [hereinafter
BUFFALO POLICY
MANUAL]. 65. Hearing, supra note 63 (statement of Jack O’Connor,
Mentor Coordinator, Buffalo
Veterans Treatment Court). 66. Id. 67. See BUFFALO MENTOR HANDBOOK,
supra note 62, § 2.3.
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local community. In fact, ensuring that veterans get the federal
services they are eligible for frees up more state and local
resources for civilian participants in drug or mental health
courts.68 But accessing those federal services can be difficult and
complicated; for example, Veterans Administration (VA) health
system records can only be accessed on certain secure computers.69
By consolidating all of the veterans into a single docket, the
Buffalo court made it worthwhile for the VA to send an employee
with a secure VA computer to every court session, which enables the
treatment court to immediately check eligibility for benefits, set
up appointments, and receive toxicology test results, among other
things.70
PART II. HOW VETERANS TREATMENT COURTS WORK: DETAILS, CRITICISMS,
AND NEW DEVELOPMENTS
A. How Veterans Treatment Courts Operate
The first official veterans treatment court opened in Buffalo, New
York in January 2008, although an earlier, informal program was
started in Anchorage, Alaska in 2004.71 Following the publicity and
anecdotal success of the Buffalo court, similar treatment courts
have spread quickly throughout the country over the past two years.
As of October 2010, at least thirty-eight courts were in operation
in eighteen states,72 with a total of twenty to thirty courts
opening during 2010.73
All of the courts have similar, though not identical, restrictions
on which veterans are eligible. As a general matter, most of the
courts restrict eligibility to veterans of an active duty branch, a
reserve branch, or the National Guard
68. Hearing, supra note 63 (statement of C. West Huddleston, CEO,
National Association of Drug Court Professionals).
69. See BUFFALO POLICY MANUAL, supra note 64, § 2.2. 70. Id. 71.
See Ruggeri, supra note 13. 72. Justice for Vets: The National
Clearinghouse for Veterans Treatment Courts,
NAT’L ASS’N DRUG CT. PROFS. (NADCP),
www.nadcp.org/learn/veterans-treatment-court- clearinghouse (last
visited October 11, 2010). Courts currently operate in: Montgomery,
Alabama; Anchorage, Alaska; Tucson, Arizona; Lonoke County,
Arkansas; Los Angeles, California; Orange County, California; San
Bernardino, California; Santa Clara, California; Tulane County,
California; Colorado Springs, Colorado; Cook County, Illinois;
Madison County, Illinois; Ingham County, Michigan; Ionia, Michigan;
Oakland County, Michigan; Hennepin County, Minnesota; Kansas City,
Missouri; St. Louis, Missouri; Washoe County, Nevada; Amherst, New
York; Buffalo, New York; Brooklyn, New York; Rochester, New York;
Mansfield, Ohio; Creek County, Oklahoma; Tulsa, Oklahoma; Allegheny
County, Pennsylvania; Philadelphia, Pennsylvania; Scranton,
Pennsylvania; Dallas County, Texas; El Paso County, Texas; Harris
County, Texas; Nueces County, Texas; Tarrant County, Texas; Pierce
County, Washington; Spokane County, Washington; Thurston County,
Washington; Rock County, Wisconsin.
73. Warner, supra note 3.
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306 STANFORD LAW & POLICY REVIEW [Vol. 22:1
who were discharged under honorable conditions, although the
Buffalo court will also accept family members of veterans.74 Among
current jail and prison inmates who are veterans, about twenty
percent received other-than-honorable discharges and thus would not
qualify.75 The requirement that participants have discharges under
honorable conditions seems to serve two purposes. First, it
reflects the sense that participants deserve the help provided in
the treatment court because of their honorable service, as
discussed in Part I.C. Second, it ensures that most of the
participants will be eligible for federally funded services through
the VA (access to VA health care depends in part on discharge
status).76
Other restrictions vary and usually pertain to the nature of the
defendant’s crime and how it relates to his military service and
any mental health or substance abuse problems. For example, the
Anchorage court currently accepts only misdemeanors, but deems
veterans eligible so long as their charge is associated with a
medical, behavioral, or socio-economic issue that can be treated
through the VA.77 The Buffalo court accepts non-violent felonies
and misdemeanors, but requires that eligible defendants have a
substance abuse or mental health problem.78 Almost all of the
courts are restricted to non-violent crimes, although it appears
that some will accept low-level domestic violence charges.79
Different courts also vary as to when in the adjudication process
veterans are diverted into the treatment court. In accordance with
due process, all courts require that the defendant voluntarily
agree to participate in the treatment court program. In Anchorage,
veterans are required to plead guilty or no contest to at least one
charge before entering the treatment court, and their sentencing is
delayed while they complete treatment; if they succeed, their
sentence is then reduced.80 In Buffalo, because the court accepts a
wider variety of crimes, some defendants’ charges are dismissed
upon successful completion of treatment while other defendants are
assured of a sentence that will not include
74. See Matthew Daneman, N.Y. Court Gives Veterans Chance to
Straighten Out, USA
TODAY, June 1, 2008, at 3A; see also, e.g., Christy Hoppe, Dallas
County Creating Specialized Court for Veterans with Combat Trauma,
DALLAS MORNING NEWS, Mar. 31, 2010; ALASKA COURT SYS., ALASKA
VETERANS COURT (2008), available at
http://www.courts.alaska.gov/forms/pub-121.pdf.
75. CMHS NAT’L GAINS CTR., supra note 12, at 3. 76. Id. at 4. 77.
ALASKA COURT SYS., supra note 74; ALASKA COURT SYS., ALASKA
VETERANS
COURT: POLICIES AND PROCEDURES (forthcoming 2010) (manuscript at
8-9) (on file with author). The Anchorage court is currently in the
process of updating its policies and procedures, and is considering
accepting felonies on a case-by-case basis.
78. BUFFALO POLICY MANUAL, supra note 64, at 2. 79. Tracy Carbasho,
Veterans Court Provides Support and Services for Local
Veterans, J. ALLEGHENY COUNTY B.A., Jan. 29, 2010, at 4. 80. ALASKA
COURT SYS., supra note 74.
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2011] VETERANS TREATMENT COURTS 307
incarceration.81 In Allegheny County, Pennsylvania, the court
postpones adjudication of the charges pending against the defendant
until he completes the treatment program.82 In all of the courts,
if a defendant fails to complete treatment, he will go through a
traditional adjudication or sentence.
Once a defendant has been accepted into the veterans treatment
court, his treatment strongly resembles a program in a drug or
mental health court, with the exception of volunteer mentoring by
other veterans and the coordination with the VA as described above
in Part I.C. The Buffalo court has identified ten “key components”
to a veterans treatment court that have been modified from similar
protocols for drug and mental health courts: The veteran should
receive integrated treatment for alcohol, drugs, or mental health
problems; the prosecutor and defense counsel should work together
using a non-adversarial approach to protect both public safety and
the veteran’s rights; the court should try to identify eligible
veterans early in the process; the court should provide access to a
continuum of rehabilitation services, including “ancillary”
services such as primary health care, housing, education, job
training, and family counseling; the veteran should be monitored by
frequent testing for drugs and alcohol; the court should use a
continuum of graduated responses to noncompliance with the
treatment program; the court should promote ongoing judicial
interaction with the veteran; the court should design monitoring
and evaluation to measure the progress of the veteran’s
achievement; veterans court staff should have ongoing
interdisciplinary training; and the court should forge partnerships
with interested groups.83
B. Criticisms of Veterans Treatment Courts
Although most of the publicity surrounding veterans treatment
courts has been positive, they have been criticized by some
veterans’ advocates and civil libertarians. The criticisms mostly
fall into three categories: concerns about the message projected by
a court just for veterans, concerns about the fairness to veterans
who do choose to participate in the courts, and concerns about the
many veterans who are not eligible to participate.
Criticisms in the first category come from two directions. On one
hand, groups such as the American Civil Liberties Union (ACLU) have
criticized the courts for making it seem like veterans are a
special class of defendants who receive a “get out of jail free”
card just by virtue of having served in the military. As Mark
Silverstein, the legal director of the Colorado ACLU, has pointed
out, “veteran” is a term that can be both over- and
under-inclusive.84 Many military veterans served in peacetime and
were never exposed to combat
81. BUFFALO POLICY MANUAL, supra note 64. 82. See Carbasho, supra
note 79. 83. Russell, supra note 9, at 365-67. 84. Warner, supra
note 3.
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308 STANFORD LAW & POLICY REVIEW [Vol. 22:1
trauma; and despite the guerrilla nature of the war in Iraq, there
is a wide range of exposure to combat.85 At the same time, some
civilians also suffer from PTSD.86 In response to the first
criticism, some of the newer veterans courts, such as those in
Texas and Nevada, are requiring a tighter nexus between a
participant’s crime and exposure to combat.87 Regarding the second,
civilians whose crimes are related to mental illness are often
eligible for specialized mental health treatment courts; as noted
above in Part I.C, the same diagnosis in a veteran and a civilian
might require different treatment, and moving veterans into a
specialized court allocates resources more effectively for both
groups.
On the other hand, veterans groups have long opposed the
perpetuation in the media of the “wacko vet myth.” After all, most
soldiers return home from war without problems.88 Even as far back
as World War I, “the American Legion passed a resolution asking the
press ‘to subordinate whatever slight news value there may be in
playing up the ex-service member angle in stories of crime.’”89
Similarly, modern groups are concerned that special treatment
courts might make it seem like the justice system is so overwhelmed
by veterans that it has to create a new court system just to handle
them.90
Criticisms regarding the fairness to veterans who participate in
the treatment courts are mostly related to whether diversion takes
place before or after a defendant pleads guilty. From a due process
perspective, providing diversion and treatment only at sentencing
ensures that the intervention occurs after a defendant has had a
chance to exercise his normal constitutional rights.91 But from the
perspective of rehabilitation, entering a plea of guilty and having
a conviction on the defendant’s record—even if it is later expunged
and the record sealed—can create collateral consequences that might
prevent the veteran from readjusting to a completely normal life.92
Especially in an era where more jurisdictions are posting criminal
records online, and background checks are required for more jobs
and other benefits, once certain information is attached to a
defendant it can be hard to unring the bell.
The greatest concern about the effectiveness of veterans treatment
courts, however, is that they are not helping enough veterans who
need their services. First, there are issues of access and
eligibility. Veterans courts tend to be created in large
metropolitan areas; in the wake of two wars that have relied
heavily on Reserve and National Guard units that are more likely to
be from
85. Id.; Philipps, supra note 24. 86. Warner, supra note 3. 87. See
infra Part II.C. 88. INVISIBLE WOUNDS OF WAR, supra note 28, at 10.
89. Sontag & Alvarez, supra note 25. 90. See Ruggeri, supra
note 13. 91. See GREG BERMAN & JOHN FEINBLATT, GOOD COURTS: THE
CASE FOR PROBLEM-
SOLVING JUSTICE 111-12 (2005). 92. Telephone Interview with Guy
Gambill, supra note 19.
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suburban or rural areas, as noted above in Part I.B, many veterans
who fit the proper criteria might not have access to a treatment
court.93 The requirement that veterans have other-than-dishonorable
discharges might also arbitrarily shut certain defendants out. For
example, if a veteran had PTSD that led to infractions while he was
still in the military, he might receive a less-than- honorable
discharge and thus be ineligible for treatment in a veterans court.
However, if that same soldier received a medical discharge for his
PTSD, or if he did not start showing negative behavioral symptoms
until he had been discharged, he would remain eligible.94
Second, the common limitation to non-violent crimes might fence out
many of the veterans whose crimes are most tied to their combat
trauma. A common criticism of treatment courts generally is that
they “widen the net”; rather than diverting offenders who would
otherwise be incarcerated, they provide services to low-level
offenders who might be able to seek treatment and recover on their
own or through normal probation services. For veterans courts, this
problem is exacerbated because the effects of severe combat stress
from Iraq and Afghanistan often manifest themselves in violent
actions. As discussed above in Part I.B, many soldiers learned in
combat to remain hyper- vigilant and to respond to threats with
violence. When a veteran returns home, these behaviors can escalate
an everyday conflict into a violent confrontation.95 Similarly,
this paranoia can lead many veterans to constantly carry weapons
even after they return home, and in many jurisdictions being armed
can elevate some offenses into violent crimes. Furthermore, the
increasing rates of substance abuse as a coping mechanism lead to
many arrests for minor offenses such as bar fights, reckless
driving, and domestic violence.96
One response to this criticism is that diversion through a
treatment court is meant to be an early intervention to prevent
criminal behavior from escalating. In a news article reporting on
the Fort Carson murders, the commander of Fort Carson spoke of a
pattern he called “the crescendo,” in which a returning soldier’s
behavioral problems start out small, but then grow until they
“explode.”97 The article provided the example of Jose Barco, who
served two tours in Iraq and was badly injured in one. First Jose
“was arrested on suspicion of domestic violence. Then drunken
driving. Then burglary with a deadly weapon. Then he got divorced.
Finally, he was arrested and accused of taking a pistol to a house
party.”98 The official Fort Carson Report seemed to corroborate
this pattern, noting that eighty percent of the alleged homicide
perpetrators who suffered from drug or alcohol problems had been
“charged for
93. Id. 94. See Warner, supra note 3; Philipps, supra note 24. 95.
See Warner, supra note 3. 96. Alvarez, supra note 37. 97. Dave
Philipps, Casualties of War, Part II: Warning Signs, COLO.
SPRINGS
GAZETTE, July 28, 2009, at A1. 98. Id.
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310 STANFORD LAW & POLICY REVIEW [Vol. 22:1
criminal activity while in the military but prior to the alleged
homicide.”99 By providing an intensive intervention after a
veteran’s first offense, the treatment courts hope to prevent the
type of crimes that would not qualify for diversion from happening
in the first place. But, as the Jose Barco example illustrates, in
many cases the veteran’s first offense still qualifies as
“violent,” rendering him ineligible for a treatment court. In fact,
many of the soldiers charged with murder at Fort Carson had
previously committed minor violent offenses, particularly domestic
violence.100
Ironically, the focus on low-level offenses might also keep out
soldiers whose crimes are too minor for the punishment to provide
an incentive to choose treatment. By volunteering to participate in
the treatment court, most veterans are agreeing to accept
supervision that will last much longer than a conventional
sentence. Most participants in the Buffalo court remain in
treatment for a year or more,101 whereas a conventional sentence
for a minor crime might only consist of a fine and a few days in
jail. One of the first veterans to participate in the Anchorage
court had to undergo an eighteen- month treatment program instead
of a jail sentence that would have been less than thirty days.102
Given the choice between a few days in jail or a year or more of
intense supervision by a judge and the VA, it is not surprising
that some veterans forego the opportunity for treatment. This is of
particular concern for veterans of Iraq and Afghanistan, who are
often very young and might not be able to appreciate the value of
early treatment.103
C. Recent and Potential Future Developments for Veterans Treatment
Courts
The past two years have seen two major developments for veterans
treatment courts. First, several states have passed legislation to
implement statewide court programs. Second, federal legislation to
finance veterans treatment courts around the country has been
proposed. Some of this legislation addresses the concerns set forth
in Part II.B, but for the most part it has been subject to the same
types of criticisms.
Illinois, Nevada, and Texas have recently passed legislation
authorizing the creation of veterans treatment courts statewide.104
One criticism that both Nevada and Texas address is the concern
that “veteran” is over-inclusive. The Nevada legislation requires
that substance abuse or mental illness “appear to be related to
military service, including, without limitation, any readjustment
to
99. FORT CARSON REPORT, supra note 23, at 17. 100. See Warner,
supra note 3. 101. Daneman, supra note 74. 102. Ruggeri, supra note
13. 103. Telephone Interview with Guy Gambill, supra note 19. 104.
H.R. 4212, 96th Gen. Assemb., Reg. Sess. § 15(e) (Ill. 2010);
Assemb. 187, 75th
Leg., Reg. Sess. (Nev. 2009); S. 1940, 81st Leg., Reg. Sess. §
617.002(a) (Tex. 2009).
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civilian life which is necessary after combat service.”105 Texas
goes further and requires that participants “suffer from a brain
injury, mental illness, or mental disorder . . . that (A) resulted
from . . . military service in a combat zone or other similar
hazardous duty area; and (B) materially affected . . . criminal
conduct . . . in the case.”106
Perhaps because they require a tighter nexus between a
participant’s military service and his culpability, both Nevada and
Texas also allow their treatment courts to accept veterans who are
charged with a broader range of crimes than, for example, the
Anchorage court. The Texas courts are allowed to accept both
misdemeanors and felony offenses.107 Nevada will accept offenses
that involved the use or threatened use of force or violence, so
long as probation is not prohibited for the offense and the
prosecutor stipulates to the defendant’s assignment to veterans
court.108
Nevada’s legislation also attempts to address the concern that
providing treatment post-guilty plea will nevertheless lead to
collateral consequences for the veteran. While the defendant
sometimes is still required to plead guilty at first, so long as
probation or the suspension of the sentence is not prohibited by
statute, the court may then suspend the proceedings without
actually entering a judgment of conviction and place the defendant
on probation subject to the terms of the treatment program.109 If
the veteran completes treatment, the conviction will never actually
be imposed, and three years later all of the documents will be
sealed; if he violates the terms, the court can enter the
conviction and impose a normal sentence.110 Proposed statewide
legislation in other states reflects similar developments. In
Colorado, the judge would be able to suspend proceedings before
entering a conviction, and then dismiss the proceedings if the
participant completes the treatment program.111 In California,
judges would be provided with flexibility to adjudicate
participants in three different ways: they could dismiss the
charges so long as a defendant completes a treatment program, they
could accept a guilty plea but delay entering it and expunge it
upon the defendant’s completion of treatment, or they could accept
a guilty plea but sentence the defendant to treatment rather than
the conventional sentence provided by statute.112
At the federal level, Senators Daniel Inouye, John Kerry, and
Lisa
105. Nev. Assemb. 187 § 7(2)(b). 106. Tex. S. 1940 § 617.002(a).
107. Id. 108. Nev. Assemb. 187 § 8(1)-(2). 109. Id. § 8(1). 110.
Id. §§ 8(3)-(4), 9(1). 111. H.R. 10-1104, 67th Gen. Assemb., 2d
Reg. Sess. (Colo. 2010) (as introduced),
available at
http://www.leg.state.co.us/clics/clics2010a/csl.nsf/fsbillcont3/
12F20F4D87558DB3872576A80027AE89?open&file=1104_01.pdf.
112. Email from Dr. Stephen Xenakis, Brigadier Gen., U.S. Army,
retired, to author (Apr. 26, 2010) (on file with author).
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312 STANFORD LAW & POLICY REVIEW [Vol. 22:1
Murkowski have sponsored the Services, Education, and
Rehabilitation for Veterans Act (SERV Act),113 which would
authorize the Attorney General to make grants to states, state
courts, local courts, local governments, and Indian tribal
governments to either develop and implement veterans treatment
courts or to expand existing drug courts to better serve
veterans.114 The eligibility requirements provided by the SERV Act
basically incorporate the standard criteria from the various courts
already in operation: participants must have received an
other-than-dishonorable discharge,115 must have substance abuse or
mental health problems,116 and must be non-violent offenders.117
However, as discussed above in Part II.B, because a defendant
qualifies as a “violent offender” under the law if he “carried,
possessed, or used a firearm or dangerous weapon,”118 that
requirement might exclude a large number of veterans who are
suffering from serious combat trauma. The SERV Act requires courts
that receive grants to meet the previously established federal
criteria for drug courts, and to provide the “integrated
administration” of oversight measures: mandatory substance abuse
testing, substance abuse and mental health treatment, penalties for
noncompliance, and aftercare services such as education, vocational
training, and housing placement assistance.119
PART III. OTHER SENTENCING PROGRAMS FOR VETERANS
Although veterans treatment courts have garnered the most publicity
in the past two years, other government efforts to assist veterans
involved in the criminal justice system have occurred at both the
state and federal levels.
At the state level, both California and Minnesota have passed
broader “diversion” legislation intended to provide veterans with
treatment instead of incarceration through the regular court
system. As discussed earlier in Part I.A, California passed similar
legislation after the Vietnam War intending to divert veterans from
state prisons into federal treatment facilities, but was unable to
secure federal implementation. In 2006, Governor Schwarzenegger
signed an updated version of that legislation that went into effect
at the start of 2007.120 The new law requires the court, if the
defendant so requests, to conduct a hearing to determine whether
the defendant is a veteran who suffers from PTSD, substance abuse,
or other psychological problems as a result of combat service.121
If the defendant meets these criteria and is eligible for
probation, the
113. S. 902, 111th Cong. § 1 (2009). 114. Id. § 2(b). 115. Id. §
7(1). 116. Id. § 3(1). 117. Id. 118. Id. § 7(3)(A)(i). 119. Id. §
3(1). 120. See Caine, supra note 15, at 227-28. 121. Id. at
228.
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court can then place him on probation and order him into an
appropriate treatment program.122 The treatment period, however,
cannot exceed the period that the defendant would have served in
prison or jail had he received a traditional sentence.123 Although
that provision may satisfy some due process concerns, in practice
it could decrease the effectiveness of the diversion, because
length of treatment is an incredibly important factor in the
treatment’s success.
Legislation passed in Minnesota in 2008 amends the state’s
procedures for pre-sentence investigations. Rather than conduct a
hearing upon the defendant’s request as in California, the law
mandates that every felony defendant be provided with a
pre-sentence investigation that includes an inquiry into military
status, and allows the court to order such an investigation for
misdemeanor offenses as well.124 If the court finds that a
defendant is a veteran and has been diagnosed with a mental
illness, the court may consult the VA as to treatment options for
the defendant and consider those options at sentencing.125 Unlike
the California statute, the Minnesota legislation is neutral to the
type of offense (it does not require that the defendant be eligible
for probation) and is more flexible regarding treatment options (it
does not limit treatment to the length of a conventional
sentence).
At the federal level, the Veterans Health Administration is in the
process of expanding outreach programs to assist veterans at
several stages in the criminal justice system. For example, along
with involvement after veterans begin court proceedings, the
Veterans Justice Outreach (VJO) program aims to divert veterans
into appropriate treatment when they first come into contact with
law enforcement or emergency services.126 At the opposite end of
the spectrum, the Health Care for Reentry Veterans (HCRV) program
targets veterans who are about to leave jail, prison, or
psychiatric institutions and return to their communities.127
Although federal law requires that the correctional institution
rather than the VA care for veterans while they are incarcerated,
many of them are still eligible for VA benefits once they return
home. The VJO and HCRV projects can enter correctional institutions
to identify eligible defendants, advise them regarding services,
conduct pre-release assessments, and help the veteran design a
transition plan.128 In order to facilitate these programs, the
Veterans Health Administration is recommending that every VA
medical center
122. Id. 123. Id. 124. Id. at 230-31. 125. Id. 126. MICHAEL J.
KUSSMAN, DEP’T OF VETERANS AFFAIRS, UNDER SECRETARY FOR
HEALTH’S INFORMATION LETTER: INFORMATION AND RECOMMENDATIONS FOR
SERVICES
PROVIDED BY VHA FACILITIES TO VETERANS IN THE CRIMINAL JUSTICE
SYSTEM 2 (2009), available at
http://www1.va.gov/vhapublications/ViewPublication.asp?pub_ID=2019.
127. Id. 128. Id. at 2-7.
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appoint a “Veterans Justice Outreach Coordinator” who will be
responsible for partnering with local criminal justice
authorities.129 As of 2008, only one-third of VA medical centers
were engaged in such cooperation.130
A very recent development at the federal level is the decision by
the United States Sentencing Commission to promulgate amendments to
the federal sentencing guidelines that advise federal judges to
take a defendant’s military status into account at sentencing.
Traditionally, the federal guidelines (although they are now only
advisory) have directed judges that factors such as “age, mental
and emotional conditions, physical condition, and military service”
were “not ordinarily relevant” in determining whether a departure
from the guidelines was warranted.131 The new amendments now
instruct judges that such factors are relevant “if they are
relevant to an unusual degree and distinguish the case from the
typical case.”132 In addition, the new amendments expand by one
offense level the zones in the guidelines sentencing table that
allow for alternative sentencing options, and provide that a
departure from the guidelines may be appropriate where the crime
“is related to a treatment issue such as drug or alcohol abuse or
significant mental illness and sentencing options such as home or
community confinement or intermittent confinement would serve a
specific treatment purpose.”133 Taken together, these changes could
be very significant for veterans who are charged in the federal
system.
The relevance of military service has even been recently noted at
the federal constitutional level. In November 2008, the United
States Supreme Court unanimously decided, without even hearing oral
argument, that a lawyer for a defendant in a capital murder case
was constitutionally ineffective for failing to present evidence of
his client’s service in the Korean War and the trauma he suffered
as a result.134 In reversing the death sentence, the Court found
that it was objectively unreasonable for lower courts to have
concluded that a jury would not have reached a different result had
they heard the combat service evidence.135
Finally, many lawyers are using arguments about their clients’
combat service in individual criminal cases. Even when there is no
diversionary program to take advantage of, or a client’s crime is
too serious to qualify for treatment at sentencing, attorneys are
raising combat trauma in plea
129. CMHS NAT’L GAINS CTR., supra note 12, at 3. 130. KUSSMAN,
supra note 126, at 3. 131. Press Release, U.S. Sentencing Comm’n,
U.S. Sentencing Commission Votes to
Send to Congress Guideline Amendments Providing More Alternatives
to Incarceration, Increasing Consideration of Certain Specific
Offender Characteristics During the Sentencing Process (Apr. 19,
2010), available at
http://www.ussc.gov/PRESS/rel20100419.htm.
132. Id. 133. Id. 134. See Porter v. McCollum, 130 S. Ct. 447
(2009). 135. Id.
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negotiations, at sentencing, and as evidence for the defendant’s
state of mind.136 However, modern lawyers are generally not trying
to excuse culpability with a full-fledged insanity defense, but
instead are attempting to explain to the judge or jury the source
of the defendant’s behavior in hopes of winning understanding and
leniency.137
CONCLUSIONS AND RECOMMENDATIONS
The rapid development of veterans treatment courts has implications
not only for veterans who encounter the criminal justice system,
but for all veterans returning from Iraq and Afghanistan, as well
as for the development of other types of treatment courts. For
those who do participate in veterans treatment courts, the results
seem to be positive. Although the courts are too new to have any
real data, the earlier version of the Anchorage court had only one
re-arrest out of thirty-four graduates in two years,138 and to date
none of the graduates of the Buffalo court have been rearrested.139
Another good sign is that, like participants in other treatment
courts,140 the veterans tend to stay in treatment longer than
voluntary clients. The Buffalo court estimates that ninety-three
percent of treatment appointments are kept, compared to a rate of
thirty-five percent at general treatment clinics.141
But there is a very real concern that veterans treatment courts are
not serving enough of the veterans who most need their help. Many
combat veterans live outside of the areas served by the treatment
courts and cannot access them; many veterans suffering from severe
combat stress are ineligible because their first crimes were
violent; and focusing on veteran status rather than combat-related
stress might not serve the original purpose of the courts. Early
data from the Anchorage court presents another potential problem:
between 2004 and 2007, seventy-nine percent of veterans who
received treatment through the court were between the ages of
forty-one and sixty, suggesting that the courts might have trouble
reaching younger veterans from current conflicts.142
It seems that the ideal program would have two major
characteristics. First, it would combine treatment courts in the
areas that can support them with
136. Deborah Sontag & Lizette Alvarez, In More Cases, Combat
Trauma Taking the Stand, N.Y. TIMES, Jan. 27, 2008, at A1.
137. Id. 138. Ruggeri, supra note 13. 139. Veterans Treatment Court
Resources, NAT’L ASS’N DRUG CT. PROFS. (NADCP),
http://www.nadcp.org/learn/veterans-treatment-court-clearinghouse/veterans-treatment-
court-resources (last visited May 26, 2009).
140. See BERMAN & FEINBLATT, supra note 91, at 156. 141.
Ruggeri, supra note 13. 142. ALASKA VETERANS COURT, 2009 UPDATE
WITH JULY 2004-JULY 2007 DATA 2
(2009) (on file with author).
CARTWRIGHT 22 STAN. L. & POL'Y REV. 295 6/4/2011 10:13 AM
316 STANFORD LAW & POLICY REVIEW [Vol. 22:1
broader diversionary legislation such as Minnesota’s. The close
supervision and camaraderie of a veterans-only docket is certainly
beneficial, but there must be a capacity for judges outside of the
treatment court to consider a defendant’s combat experience and
order him into the appropriate treatment. Second, the ideal program
would allow diversion for a broader range of crimes, but require a
tighter nexus between the criminal behavior and the defendant’s
combat experience. Although it might be politically unpopular to
allow diversion into treatment for any “violent” criminals, fencing
out offenders who carried a gun or got into a bar fight right after
coming home from Iraq seems to miss the point. At the same time,
requiring that substance or mental health issues be linked to
combat trauma would counter the notion that “veterans” are becoming
a special class of defendants. An ideal program would also adopt a
flexible model for when diversion occurs, as the pending California
legislation does. For example, a defendant who is charged with a
minor offense could be diverted post-arrest, and the entire case
dismissed if he completes treatment, preventing any collateral
consequences. On the other hand, a defendant charged with a more
serious crime could be required to plead guilty but be promised a
reduced sentence or lesser charge if he completes treatment.
Regarding new veterans as a whole, the attention lavished on
treatment courts and other interventions in the criminal justice
system should not distract from the real problem: that too many
soldiers are returning from war without the mental health,
substance abuse, and reentry counseling that they need. Ideally,
these soldiers should be receiving treatment for combat stress and
related substance abuse or ancillary problems before they ever
commit a crime. To that end, the initial success of treatment
courts should serve as an example of how reentry services for
veterans should be coordinated. The positive response to the peer
mentoring programs in the courts might also provide an example of
how to reach troubled veterans more effectively.
The use of peer mentoring is also the biggest lesson that can
perhaps be applied to other forms of treatment courts. It is
unsurprising that participants in the veterans treatment courts
responded better to mentors who understood their background, and
similar tactics are used by programs like Alcoholics Anonymous,
which assigns “sponsors” to new members. Although it might be
harder to transfer to drug or mental health courts, assigning a
participant a mentor who comes from the same neighborhood, or
speaks the same language, or is the same age and gender, might
improve treatment outcomes for all types of groups. In many ways,
veterans are an ideal demographic for developing new types of
diversionary treatment programs: there is a serious need for help,
veterans are a sympathetic population, and there are already a
number of federally-funded services at their disposal. By working
to expand and study veterans treatment courts and other sentencing
reforms for veterans, advocates and researchers can both help those
who sacrificed for their country and learn more about what
diversion methods really work.
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<FEFFc7740020c124c815c7440020c0acc6a9d558c5ec0020be44c988b2c8c2a40020bb38c11cb97c0020c548c815c801c73cb85c0020bcf4ace00020c778c1c4d558b2940020b3700020ac00c7a50020c801d569d55c002000410064006f0062006500200050004400460020bb38c11cb97c0020c791c131d569b2c8b2e4002e0020c774b807ac8c0020c791c131b41c00200050004400460020bb38c11cb2940020004100630072006f0062006100740020bc0f002000410064006f00620065002000520065006100640065007200200036002e00300020c774c0c1c5d0c11c0020c5f40020c2180020c788c2b5b2c8b2e4002e>
/LTH
<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>
/LVI
<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>
/NLD (Gebruik deze instellingen om Adobe PDF-documenten te maken
waarmee zakelijke documenten betrouwbaar kunnen worden weergegeven
en afgedrukt. De gemaakte PDF-documenten kunnen worden geopend met
Acrobat en Adobe Reader 6.0 en hoger.) /NOR
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/POL
<FEFF004b006f0072007a0079007300740061006a010500630020007a00200074007900630068002000750073007400610077006900650144002c0020006d006f017c006e0061002000740077006f0072007a0079010700200064006f006b0075006d0065006e00740079002000410064006f00620065002000500044004600200070006f007a00770061006c0061006a01050063006500200077002000730070006f007300f3