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Advanced Novel Legal Issues
A UNIQUE EXERIENCE IN LEARNING LAW
National and State Interest in Supporting Veterans
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In 2009, the United States Supreme Court reemphasized that “[o]ur Nation has a long tradition of according leniency to veterans in recognition of their service, especially those who fought on the front lines.”[5]
While states are not responsible for federal government-created problems associated with veterans’ national service,[6] Texas has a policy of supporting and helping veterans. For example, in Governor Greg Abbott's 2023 budget proposal to the Texas Legislature for FY 2024-2025, he stated that Texas "should lead the nation in its approach to supporting those who have served our country." And further, that Texas "has a long, proud history of serving those who have served us – which we will continue by expanding programs [...] to increase the availability, access, and delivery of support services for veterans."[7]
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The expansion of programs to "increase the availability, access, and delivery of support services for veterans" was made in reference to part of Governor Abbott's 2017 reelection campaign, his "Front of the Line” policy proposal to create greater economic opportunity, improve access to healthcare, and provide proper mental health treatments for veterans in Texas.
Significantly, neither the Governor's statements about Texas leading "the nation in its approach to supporting those who served our country," nor his "Front of the Line" policy, mention justice-involved veterans or veterans treatment court.
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Nevertheless, Texas voluntarily provides a veterans treatment court program. Arguably, in doing so, the state voluntarily assumes the nation’s legitimate interests in the welfare and rehabilitation of justice-involved veterans. For example, as the "Resolution Establishing Liberty County Veterans Court" proclaims:
"WHEREAS, the Commissioners Court of Liberty County, Texas, acknowledges the immense debt of gratitude owed to veterans of the United States Armed Forces; and
"WHEREAS, the Commissioners Court of Liberty County, Texas, believes that the rehabilitation of these veterans should be of paramount importance[.]"
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Unfortunately, despite an underlying worthy intent of the state's veterans treatment court program, barriers related to identification & placement, program eligibility, and funding exist and, consequentially, impede or outright deny justice-involved veterans' access to and participation in veterans treatment court program, which raises questions of constitutional importance.[8]
CONSTITUTIONALITY 0F JIVs' PARTICIPATION IN THE VTC PROGRAM
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While there is no statute or precedent expressly addressing how to challenge a Texas justice-involved veteran’s (JIV) denial of participation in a veterans treatment court (VTC) program by the attorney representing the state, constitutional principles, provisions of the Texas Code of Criminal Procedure, and common law unquestionably establish that a JIV’s eligibility to participation determination compels but one rational decision under unequivocal and well-established legal principles: the right to due process.
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Absent an expressed ministerial duty mandated by statute or an expressed liberty or property interest created by statute, a “clear right” is recognized when the right in question can “be found when the combined weight of our precedents clearly establishes the proposition of law on which relief is predicated. The weight-of-precedent finding of a ministerial duty [or a statutorily created liberty or property interest] can occur when a lower court’s action flies in the face of legal principles that are rightly characterized as foundational, being basic to the system and longstanding.”[9]
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As a threshold matter, it “shall be the primary duty of all prosecuting attorneys […] not to convict, but to see that justice is done.”[10]
“The Government’s interest in veterans cases is that justice be done.”[11]
“The government’s interest in veteran cases is not that it shall win, but rather that justice shall be done, that all veterans so entitled receive benefits due to them.”[12]
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A JIV’s eligibility to participate in a VTC program is dependent on the consent of (1) the attorney representing the state, and (2) the court “in which the criminal case is pending.”[13]
“[T]he consent [of the attorney representing the state] requirement is not merely procedural but implicates the trial court’s authority to preside over a particular type of proceeding.”[14] For example: a trial court has “no inherent authority to dismiss a charging instrument without the consent of the State.”[15]
However, the trial court has limited authority to act without the consent of the State when “authorized by constitution, statute or common law.”[16]
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By whatever name -- problem-solving court, diversion court, or specialty court -- a veterans treatment court program is a benefit offered to justice-involved veterans.[19] The program provides “access to a continuum of alcohol, controlled substance, mental health, and other related treatment and rehabilitative services.”[20]
“For at least a quarter-century, this Court has made clear that even though a person has no ‘right’ to a valuable government benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests.”[21]
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To have a protected liberty or property interest, “a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.”[22]
The answer to “when and how a person acquires an ‘interest in specific benefits’ which will trigger the due process clause” may be established by “long tradition in our nation” that “embrace[s] [the] assumption of a particular government [benefit].”[23]
The ”Due Process Clause specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition.”[24]
“Our Nation’s history, legal traditions, and practices thus provide the crucial guidepost for responsible decision-making, that direct and restrain our exposition of the Due Process Clause.”[25]
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While “[t]he principle of entitlement was almost completely foreign to Americans of the late nineteenth century,”[27] “[o]ur Nation has a long tradition of according leniency to veterans in recognition of their service.”[28]
“No thoughtful person questions the obligations which the nation is under to those who have done faithful service in its army or navy.”[29]
“Throughout the legislative reports and debates leading to the birth of [the Veterans’ Preference Act of 1944] is evident a consistent desire to help [veterans].”[30]
“Our country has a long-standing policy of compensating veterans for their contributions by providing them with numerous advantages. This policy has always been deemed to be legitimate.”[31]
Clearly, government has an “interest in the welfare of its veterans.”[32]
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Veterans are the entitled recipients of a long history of preference, benefits, and leniency. The very nature of the government function involved -- the veterans treatment court program -- requires more procedural protection than “delegate[ing] basic policy matters” to the attorney representing the state for resolution of a justice-involved veteran’s eligibility to participate in the veterans treatment court program “on an hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.”[33]
“By whatever name, our national interest in helping veterans “is valuable and must be seen within the protection of the Fourteenth Amendment.”[34]
GEORGE PORTER AND VETERANS TREATMENT COURT
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George Porter, an honorably discharged combat veteran of the United States Army, 2nd Infantry Division, was wounded and decorated for his active participation in two major battles during the Korean War. A neuropsychologist later determined that his combat experience had left him traumatized and changed. After his discharge, he began drinking heavily, getting into fights, and ultimately, in 1986, he murdered his former girlfriend, Evelyn Williams, and her boyfriend Walter Burrows, for which crimes he was convicted and, in 1990, he was sentenced to death in Williams’ case.[35]
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If Porter had committed his offenses in Texas after 2009, statutorily, he would NOT have been automatically excluded from participating in the Veterans Treatment Court (VTC) program just because of his arrest, charge, and conviction for two murders. See, Texas Government Code, § 124.002(a) ("… any offense") (emphasis added). Granted, the prosecutor has broad discretion in such cases, and it is most certain that no prosecutor in the State of Texas would consider allowing Porter to participate in a VTC program because of his offenses. Of course, this is an extreme example. Yet, it involves an issue of national and state importance: How should the criminal justice system treat justice-involved veterans given their service to our country?
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An interesting observation about Porter’s case is how the lower courts, state and federal, saw no harm in his attorney’s failure to present mitigating evidence at trial, see footnote 1, infra. Fortunately, the United States Supreme Court saw it differently. Unfortunately, in Texas, there is no formal record or review of the reason(s) for a prosecutor’s withholding of consent to a justice-involved veteran’s participation in a VTC program. It could simply be because the offense was murder, or domestic violence, or DWI, or whatever. Whether the offense was or could have been connected to the veteran's military service doesn’t matter at all; the reason for withholding consent is all the same: the offense.
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Such a policy (not law) of the state’s district attorney’s offices flies in the face of both the history of “specialty courts” and the Texas legislative intent of the VTC program. Surely, principles of justice and fairness dictate that justice-involved veterans deserve better treatment than that.
Notes
1. Rashawn Williams is a highly decorated combat veteran with three enlistments. In his first involvement with the criminal justice system for domestic violence, he was denied veterans treatment court despite being a poster-child candidate.
2. See Tex. Government Code Ann. Sec. 124.001(a)(3)("In this chapter, 'veterans treatment court program' means a program that has the following essential characteristics: [...] early identification and prompt placement of eligible participants in the program[.]"
3. See, Judge Robert T. Russell, Veterans Treatment Court: A Proactive Approach, 35 New Eng. J. on Crim. & Civ. Confinement 357, 365-66 (2009)(“Early identification of veterans entering the criminal justice system is an integral part of the process of placement in the [VTC] program. It creates an immediate crisis and can compel recognition of inappropriate behavior into the open, making denial for the need of treatment difficult for the veteran.”). See also, LeRoy J. Kondo, Advocacy of the Establishment of Mental Health Specialty Courts in the Provision of Therapeutic Justice for Mentally Ill Offenders, 28 Am. J. Crim. L. 255, 299 (2001)(recognizing “early identification” as a factor of successful jail diversion programs).
4. See also, Honoring Service, Advancing Safety Supporting Veterans From Arrest Through Sentencing, Council on Criminal Justice (CCJ), Veterans Justice Commission (2023) (report on how to "improve identification of veterans when they come in contact with the criminal justice system).
5. Porter v. McCollum, 558 U.S. 30, 43, 130 S.Ct. 447, 455 (2009). See also, Regan v. Taxation With Representation of Washington, 461 U.S. 540, 551, 103 S.Ct. 1997, 2004 (1983)(“Our country has a long-standing policy of compensating veterans for their past contributions by providing them with numerous advantages. This policy has ‘always been deemed to be legitimate.’”)(quoting Personnel Adm’r of Massachusetts v. Feeney, 442 U.S. 256, 279 n.25, 99 S.Ct. 2282, 2296 n.25 (1979)); In re Agent Orange Product Liability Litigation, 635 F.2d 987, 991 (2nd Cir. 1980)(Federal Government has an “interest in the welfare of its veterans.’).
6. "[T]he conditions of their underlying criminality are partially created by the government that prosecutes them." Council on Criminal Justice, Veterans Justice Commission, Honoring Service, Advancing Safety: Supporting Veterans From Arrest Through Sentencing (Report, 2023)(citing, Lee, Y. (2013). Military veterans, culpability, and blame. Criminal Law & Philosophy, 7, 285-307. https://www.doi.org/10.1007/s11572-013-9207-z ).
7. Governor’s Budget 2024-2025 (Presented to the 88th Legislature February 2023), p. 12.
8. During a Texas Association of Specialty Courts (TASC) podcast ("PodTASC") on April 27, 2024, Episode #7, Beyond the Bench: A Conversation on Specialty Courts and Leadership, with Judge Larry Phillips, 59th District Court of Grayson County, Texas, the subject of constitutional rights of defendants/participants was brought up. During the discussion, it was acknowledged that, among people tasked with developing best practices, the subject is "not talked about enough" even though it is "a very important piece of the puzzle that has to be considered." PodTASC, Episode #7, supra., at 19:00 - 20:32.
9. In re Smith, 665 S.W.3d 449, 454 (Tex. Crim. App. 2022)(A clear right to relief “can sometimes appear in cases of first impression.”)(internal quotation and citation omitted)(emphasis added).
10. Texas Code of Criminal Procedure, art. 2.01(emphasis added).
11. Perciavalle v. McDonough, 35 Vet. App. 11, 30 (2011).
12. Barrett v. Nicholson, 466 F.3d 1038, 1043 (Fed. Cir. 2006), comparing, Campbell v. United States, 365 U.S. 85, 96, 81 S.Ct. 421, 427 (1961)).
13. Texas Government Code, sec. 124.002(a).
14. In re State ex rel. Ogg, 618 S.W.3d 361, 365 (Tex. Crim. App. 2021).
15. State v. Mungia, 119 S.W.3d 814, 816 (Tex. Crim. App. 2003).
16. Id. (internal quotation and citation omitted).
17. United States v. Nixon, 418 U.S. 683, 711, 94 S.Ct. 3090, 3110 (1974); United States v. Krzyske, 836 F.2d 1013, 1021 (6th Cir. 1988)(the court has a “duty to uphold the law and to apply it impartially.”).
18. Veterans for Common Sense v. Nicholson, No. C-07-3758 SC, 2008 WL 114919, at 16 (N.D. Cal. 2008)( Proposed Order Granting Injunctive and Declaratory Relief by Veterans United for Truth, Inc, Veterans for Common Sense). See, Tex. Government Code, sec. 21.001(b)(“A court shall [,,,] control the proceedings so that justice is done.”)(emphasis added).
18a. Notably, in the Veterans Justice Commission's (VJC) implementation of its 2023 recommendations to the Council on Criminal Justice, the VJC urged veterans' treatment court programs to '[e]nsure judges retain discretion to decide eligibility in individual cases."
19. See, e.g., Commonwealth v. McCabe, 230 A.3d 1199, 2020 Pa. Super.74 (Pa. Super. Ct. 2020)(“The targeted treatments and programming afforded by the VTC are themselves a benefit.”).
20. Texas Government Code, sec. 124.001(a)(4).
21. Perry v. Sinderman, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697 (1972), overruled on other grounds, Rust v. Sullivan, 500 U.S. 173, 111 S.Ct. 1759 (1991).
22. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 576, 92 S.Ct. 2701, 2709 (1972).
23. Blackburn v. City of Marshall, 42 F.3d 925, 941 (5th Cir. 1995)(emphasis added).
24. Washington v. Glucksberg, 521 U.S. 702, 720-21, 117 S.Ct. 2258, 2268 (1997)(internal quotation and citation omitted)(emphasis added).
25. Id., 521 U.S., at 722, 117 S.Ct., at 2268 (emphasis and underscore added).
26. Abraham Lincoln, Second Inaugural Address (March 4, 1865).
27. James Marten, et al. Those Who Have Borne the Battle: Civil War Veterans, Pension Advocacy, and Politics, 93 Marq. L. Rev. 1407, 1408 (2010).
28. Porter v. McCollum, 558 U.S. 30, 43, 130 S.Ct. 447, 455 (2009)(emphasis and underscore added).
29. Keim v. United States, 177 U.S. 290, 295, 20 S.Ct. 574, 576 (1900).
30. Mitchell v. Cohen, 333 U.S. 411, 418, 68 S.Ct. 518, 522 (1948).
31. Regan v. Taxation With Representation of Washington, 461 U.S. 540, 551, 103 S.Ct. 1997, 2004 (1983)(emphasis and underscore added).
32. In re Orange Product Liability Litigation, 635 F.2d 987, 991 (2ndCir. 1980).
33. Grayned v. City of Rockford, 400 U.S. 104, 108-09, 92 S.Ct. 2294, 2298-99 (1972).
34. Morrissey v. Brewer, 408 U.S. 471, 482, 92 S.Ct. 2593, 2601 (1972).
35. Porter v. McCollum, 558 U.S. 30 (2009). In 2009, Porter’s death sentence was reversed by the United States Supreme Court due to ineffective assistance of counsel for failing to present mitigating evidence at the state trial of Porter’s “abusive childhood, his heroic military service, and the trauma he suffered because of it, his long-term substance abuse, and his impaired mental health and mental capacity.” However, his conviction stood, based on his plea of guilty, making Porter eligible for parole. According to research, he was released from prison on December 5, 2013.