Veteran Criminal Defense Attorneys – Eliminate the Threat

 

Recently media outlets reported the Navy Seal responsible for shooting and eliminating Osama bin Laden was charged with DUI.  Now, this special-ops veteran, willing to sacrifice his life to protect the United States, its people, and the government finds himself being prosecuted by that very same institution.

While the majority of veterans return home stronger and wiser from their service, many others bring their war home. Silently suffering from invisible injuries like Post-Traumatic Stress Syndrome (PTSD) and Traumatic-Brain-Injury (TBI). Feeling as if their native land is enemy territory, post-combat veterans may become confused and threatened. Trained to eliminate the threat, veterans fall victim to alcohol and substance abuse. As time progresses these symptoms worsen. When self-destructive, reckless and violent behavior turn to criminal behavior, should we be all that surprised?

Eliminate the Threat:

Early on and as part of a soldier’s training, the United States government employs an intensive psychological conditioning program encouraging violent reactions to threats. Fortunately for civilization, the vast population is not wired to kill and doing such is unnatural. In order to simulate warfare, combat-training focuses on turning that unnatural act into a natural one. Doing so not only enhances the likelihood of survival, but success and victory as well. Soldiers minds are shaped to reactively eliminate all threats. The end product yields an instinctive killing machine.  However, once service concludes, they are not adequately deprogrammed. When such unnatural training joins forces with psychological trauma, violent and criminal acts are a real possibility.

A Veteran’s War at Home:

Psychological trauma has long been a recognized consequence of veteran combat. Service related illnesses such as post-traumatic-stress-disorder (PTSD) and traumatic brain injury (TBI) have been associated with struggling veterans re-entering society post-tour. Veterans trying to cope with the battlefield horrors and families and communities unable to understand make American returns especially difficult. These invisible-injuries are often unreported and untreated, leading veterans to self-medicate with alcohol and drugs. Over time these substances exacerbate symptoms before the troubled veteran spirals downward into self-destructive, reckless, violent or criminal behavior. Even treated, medical professionals have linked anti-depressants to manic-like reactions, aggressiveness, suicide, loss of impulse control and violence. ¹ It has been a reported there are 22 veteran suicides a day. That’s 22 a day!

While recorded history dating back to early wars suggest psychological trauma may manifest into criminal behavior, only recently has this been studied. ²

The National Science Institute of Medicine (IOM) in 2012 released a report finding, “PTSD is commonly associated with substance abuse, unregulated anger, aggressive behavior, and hazardous use of alcohol, all of which are, themselves, associated with legal problems and incarceration.” ³

Prior to that report, in 2009, following a highly publicized wave of homicides and other violent crimes committed by returning soldiers, the Army commissioned a study known as the Epidemiological Consultation, or EPICON. ⁴ EPICON attributed two major factors to post-deployment violent behavior: (1) repeated deployments and (2) the intensity of combat in those deployments. The more soldiers were exposed to combat, the more they showed effects. This study is especially troubling in light of America’s most recent war and the number of multiple combat tours troops have served. Reports show a large number served at least two tours, with special-ops serving over twelve tours. ⁵ In contrast during World War II and Vietnam the majority of troops served only one combat tour. ⁶ The above mentioned IOM report listed over 500,000 PTSD diagnosed veterans from Iraq and Afghanistan and expects that number to climb. [see Comm. on the Assessment of Ongoing Efforts in the Treatment of Post-traumatic Stress Disorder, Inst. of Med. of the Nat’l Academies, Treatment for Post-traumatic Stress Disorder in Military and Veteran Populations: Initial Assessment at 322. [/ref] That number does not include the many veterans who are self-medicating and yet to be medically diagnosed. The evidence clearly supports there is a high number of post-combat veterans in America wrestling their inner-demons.

The State of the Criminal Justice System and Veterans:

In the past, post-combat trauma turning into criminal behavior had been discarded by the criminal justice system. Veterans were sentenced to prisons, asylums, or chronic homelessness. In fact, a 2004 report by the Bureau of Justice Statistics found, despite having shorter criminal records, veterans reported longer prison sentences than nonveterans (on average 22 months longer). ⁷ The justice system viewed soldiers as a threat, instead of focusing on the actual threat, their mental health.

Fortunately progress is being made. The federal government, for example, under Section 5H1.11 of the U.S. Sentencing Guidelines illustrates the need to distinguish the veteran defendant from other defendants via service and experiences. Similarly the United States Supreme Court in Porter v. McCollum (2009) highlighted failure of defense counsel to present the veteran’s combat service and resulting trauma at sentencing was sufficient grounds to support a claim of IAC.

State courts have followed suit implementing a number of veteran courts specifically designed to treat as opposed to sweeping soldier’s internal issues under the rug. Low-level offenses often end in dismissal under these programs, allowing veterans the opportunity to expunge or erase the incident entirely. Houston courts have initiated such programs for veterans.

Growing sympathy for veterans from the prosecutorial side has even shown to be significant. A study polled 35 prosecutors from various states and found “overall, prosecutors view veterans as less-blameworthy for low-level offenses than nonveterans.” It was also shown veterans were offered heavy treatment programs as opposed to jail or probation like the counterpart nonveteran defendants. ⁸ Jennifer Kelly Wilson, et al., Prosecutor Pretrial Attitudes and Plea-Bargaining Behavior Toward Veterans With Post-Traumatic Stress Disorder, 8 Psychol. Services 319, 322. 326 (2011). From a practice standpoint, I have found prosecutors eagerly willing to listen and accept documents supporting a veterans criminal case.

Defending the Veteran:

Similarly, defense counsel for veterans have become more aware of mental illnesses a veteran may be struggling with. Using such things as VA medical records, service records, honorable discharges, honors and awards, etc., criminal defense attorneys are able to paint a complete picture to the trier of fact. This picture provides an outlet for the decision maker – whether it be the dismissal of charges, a not guilty verdict, or a mitigating sentence.

One cannot predict who will and will not suffer from these silent and invisible injuries. I know and have spoken with veterans who have come back and been able to channel their inner-struggles into something positive. Strong community ties and supports systems assist them greatly. Unfortunately, not everyone is able to shake what they have endured and witnessed. I have great admiration and respect for all veterans. For those still at war with themselves we must continue providing healing environments. We must eliminate the threat.