'To care for him who shall have borne the battle': the recent development of veterans treatment courts in America.

• Author: Cartwright, Tiffany

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 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.'?

1. 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 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 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.

2. 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 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 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...