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Introduction
Justice-involved veterans face unique challenges within the criminal justice system, especially when presenting defenses rooted in trauma, such as Post-Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), and Military Sexual Assault (MST). Despite widespread acknowledgment of the mental and emotional toll that military service can take, many veterans struggle to receive fair consideration of their service-related conditions during criminal proceedings, including participation in veterans treatment court (VTC) programs. Skepticism, stigma, and a lack of education regarding combat-related trauma frequently undermine the presentation of such defenses, leading to outcomes that fail to account for the root causes of criminal behavior.
The Intersection of Criminal Law and Veterans’ Mental Health
The Intersection of Criminal Law and Veterans’ Mental Health
The Intersection of Criminal Law and Veterans’ Mental Health
The scholarly works by Burgess, D., et al. (2010). Reviving the "Vietnam Defense", and Gohara, M. (2019). In Defense of the Injured, explores the intersection of criminal law and veterans’ mental health and seeks to provide a comprehensive framework for leveraging trauma-informed advocacy to secure appropriate treatment options for justice-involved veterans.
Domestic Violence Offenses
The Intersection of Criminal Law and Veterans’ Mental Health
The Intersection of Criminal Law and Veterans’ Mental Health
“The link between veterans and rates of domestic violence can be explained by examining the mental health issues and environmental factors veterans can face. Post-traumatic stress disorder can contribute to domestic abuse in veterans.” - Solara Mental Health, Veterans Program, Veterans & Domestic Violence. See, Pyramid Health Care, What Causes Domestic Violence in Veterans?
The work of Gourley, S. (2016). Possible Causes of Increased Domestic Violence among Military Veterans: PTSD or Mefloquine Toxicity?, even explores the “possibility of being wrong about PTSD or potentially there may be some previously unrecognized confounder that has not been looked at yet,” namely, Mefloquine - an anti-malaria pill.
Reviving the "Vietnam Defense"
1. Main Findings
Historical Context of PTSD: The paper discusses the evolution of PTSD from the Civil War through Vietnam, highlighting its formal recognition by the American Psychiatric Association in 1980.
Combat-Related PTSD: Many Vietnam veterans returned with PTSD, leading to difficulties reintegrating into society and increased suicide and criminal behavior rates.
Iraq/Afghanistan Veterans: Similar PTSD challenges are seen in veterans from more recent wars due to prolonged deployments and public debates about the wars' moral justifications.
2. Criminal Behavior and PTSD
2. Criminal Behavior and PTSD
The paper identifies three PTSD typologies that may lead to criminal acts:
Dissociative Reactions: Veterans may act automatically in perceived combat situations.
Sensation-Seeking Syndrome: Veterans may engage in risky or illegal behaviors to replicate combat-related arousal.
Depression-Suicide Syndrome: Feelings of guilt and hopelessness can lead to criminal behavior or "suicide by cop."
3. Legal Defenses
3. Legal Defenses
2. Criminal Behavior and PTSD
Insanity Defense: The paper reviews the M’Naghten and ALI tests for insanity. Veterans in dissociative states may have success under these tests, though those with sensation-seeking or depression-suicide syndromes are less likely to succeed.
Unconsciousness Defense: This defense may apply to PTSD veterans acting on automatic, but it’s rarely used.
4. Conclusion
3. Legal Defenses
4. Conclusion
Veterans with PTSD face legal and societal challenges when using PTSD as a criminal defense. Education for jurors, proper presentation of evidence, and testimony from unbiased witnesses are critical in mitigating juror skepticism and ensuring fair assessments of PTSD defenses.
In Defense of the Injured
1. Why Trauma Matters
Trauma is common among criminal defendants, many of whom have experienced violence, poverty, neglect, or abuse. Current sentencing practices often ignore the impact of these factors, except in capital and juvenile life without parole cases. Gohara argues for expanding trauma-informed sentencing across all cases.
2. Limits on Trauma Consideration in Noncapital Sentencing
2. Limits on Trauma Consideration in Noncapital Sentencing
The Supreme Court recognizes the relevance of trauma in extreme cases (e.g., capital cases) but does not require similar considerations in noncapital cases. This creates an unjust disparity, especially as trauma can affect behavior in ways that diminish culpability.
3. Defense Lawyers' Obligation
5. Supreme Court Precedent on Childhood Adversity
2. Limits on Trauma Consideration in Noncapital Sentencing
Noncapital defense lawyers should be obligated to investigate and present their clients' social and trauma histories during sentencing. This would ensure courts consider trauma as a mitigating factor.
4. Case Examples
5. Supreme Court Precedent on Childhood Adversity
5. Supreme Court Precedent on Childhood Adversity
The paper highlights two cases:
A capital case in which the court vacated the death sentence due to unpresented trauma evidence.
A noncapital case where presenting the client’s trauma history led to a reduced sentence and rehabilitative treatment.
5. Supreme Court Precedent on Childhood Adversity
5. Supreme Court Precedent on Childhood Adversity
5. Supreme Court Precedent on Childhood Adversity
Cases like Miller v. Alabama and Graham v. Florida establish that childhood trauma and developmental immaturity are relevant to culpability. The same logic should apply to noncapital adult defendants.
6. Recommendations for Change
6. Recommendations for Change
6. Recommendations for Change
In conclusion, Gohara emphasizes the need to shift sentencing practices to account for trauma, ensuring that punishment is fair, rehabilitative, and reflective of the broader social context.