Defending the Combat Veteran in Criminal Court

"To deny the frequent connection between combat trauma and subsequent criminal behavior is to deny the evidence and to discard another generation of troubled heroes." 

Brock Hunter as quoted in Across America, Deadly Echoes of Foreign Battles, by Deborah Sontag and Lizette Alvarez, New York Times, Jan. 13, 2008.

More than 1.8 million Americans have now served in Iraq or Afghanistan. A recent RAND Corporation study found that over 300,000 of those troops are suffering from Post-Traumatic Stress Disorder ("PTSD"), and another 320,000 from Traumatic Brain Injury ("TBI").[1] Only about half of those troops, it found, had reported or sought help for their condition.[2] Tragically, increasing numbers of these psychologically-injured veterans are first surfacing in the criminal justice system.

Prior to becoming an attorney, Brock Hunter served as a U.S. Army Recon Scout and now represents many combat veterans who find themselves in the criminal justice system. Notable among them, was Anthony Klecker, a young Iraq war veteran whose Dakota County, Minnesota criminal vehicular homicide case received national attention. Brock persuaded the Court in that case to sentence Anthony to treatment through the Veterans Administration ("VA") instead of prison. Brock regularly lectures fellow defense attorneys, locally and nationally, on representing combat veterans in criminal court.

Pioneering Legislation

Brock also serves as the Legislative Chair for the Minnesota Association of Criminal Defense Lawyers ("MACDL") and in 2007 and 2008 he drafted and led passage of Minnesota's pioneering legislation to encourage treatment over incarceration of veterans whose service-related psychological injuries played a role in their criminal offense.

Brock and other Minnesota veteran advocates are now working on a national level on behalf of veterans in the criminal justice system. They have traveled to Washington D.C. regularly over the past year to push for passage of federal legislation to increase resources for veterans-focused courts and a resolution encouraging other states to follow Minnesota's lead in enacting treatment-focused sentencing legislation. They are also working directly with groups in over a dozen states to assist in drafting and passage of such legislation.

Avoiding Mistakes of the Past

Through his representation and advocacy for veterans, Brock hopes to help avoid the tragic mistakes our society made a generation ago in dealing with troubled returning Vietnam veterans. Hundreds of thousands of psychologically-injured Vietnam veterans returned home to a largely hostile American public who had come to blame them for an unpopular war. These veterans were often stigmatized and discarded, particularly when their psychological injuries led to criminal behavior.

Our society has paid a staggering price for our abandonment of the Vietnam generation. The side-effects of their untreated trauma have cost us in many unforeseen ways. Even now, more than 30 years after that war, hundreds of thousands of those veterans remain incarcerated, homeless, and/or chemically-addicted across America. Countless families have been destroyed, jobs lost, and taxpayer dollars spent on treatment that came too late to make a difference.

Today, Americans appear to have learned valuable lessons from the Vietnam experience. We recognize that in a democracy our elected leaders bear the responsibility for failed policies, not the servicemen and women who dutifully and selflessly carry them out. We are now embracing the Vietnam generation with long-overdue recognition of their sacrifices and are awakening to the tragic long-term consequences of their abandonment.

Today's Forces Under Strain

After eight years of war in Iraq and Afghanistan, our military is now under enormous strain. Unlike every other extended conflict in American history, we have not imposed a draft to ensure a large pool of combatants. Instead, we have chosen to fight this open-ended conflict with a relatively small military force that we are recycling back into combat over and over. Most active-duty troops have now served at least two tours. Many, especially our ground combat troops have served more. Some are now on their fourth and fifth combat tours. Our National Guard and Reserves have also been tapped to an unprecedented level with some now deploying for their second and even third tours. Compare this with Vietnam, in which the vast majority of combatants served only one 12-month tour.

We have no modern precedent with which to compare our current situation and the end of the current conflicts are nowhere in sight. One thing is certain; the levels of combat trauma in our forces will continue to rise. A recent Army study found that, not surprisingly, the incidence of PTSD among troops rises significantly with each additional tour.[3]

Though initially unprepared for the wave of psychological injuries from Iraq and Afghanistan, the military is now doing more than ever to identify and treat psychological casualties on the battlefield. The VA was also initially overwhelmed but, with the help of significant recent funding by Congress, is rapidly expanding its treatment capacity. PTSD treatment methods have also evolved rapidly in the past few years. Cutting edge "exposure" therapies are showing great promise. The key to long term recovery, experts say, is early intervention and treatment.

PTSD's Enduring Stigma

Unfortunately, PTSD still carries significant stigma within the military. The military's "warrior" culture necessarily values and rewards strength, both physical and mental. Troops are expected to operate effectively and complete their mission under unimaginably stressful life or death situations. Within a combat unit, a soldier's standing and reputation is largely based on how "cool" they are under fire. This mindset becomes deeply ingrained and many psychologically-injured warriors deny they have a problem, even to themselves. Others refuse available help out of fear that they will lose the respect of their comrades, jeopardize their security clearance or harm their chances of promotion.[4] Many veterans carry this value system with them even after they leave the military and come home.

Contact with the Criminal Justice System

Untreated, psychologically injured veterans often resort to self-medication with drugs or, more often, alcohol, in order to calm their nerves and sleep. These substances only exacerbate their symptoms, however, often leading to self-destructive, reckless or violent behavior. In this way, many troubled veterans first surface in the criminal justice system.

Advocating for a New Approach

The question we now face in criminal courts across the country is, what do we do with Iraq and Afghan War veterans whose criminal offenses are tied to their untreated psychological war injuries and related addictions? Do we repeat the mistakes of the past, demonizing and discarding this generation, as we did in the wake of Vietnam? Or do we pursue a more informed approach, one that focuses on intervention and treatment over incarceration?

As the current conflicts generate increasing numbers of psychological injuries, growing numbers of Americans are reflecting on the mistakes made with the Vietnam generation and are professing a commitment to "support our troops" this time, whether we personally support the current conflicts or not. We are recognizing that to truly "support our troops" we need to apply our lessons from history and newfound knowledge about PTSD to help the most troubled of our returning veterans when they come into contact with the criminal justice system.

Links:

Historical Perspective of PTSD

Links Between Combat Trauma and Criminal Behavior

Minnesota 's Pioneering Legislation

Appendix of Combat Trauma-Related Criminal Cases

[1] Invisible Wounds of War: Summary and Recommendations for Addressing Psychological and Cognitive Injuries, Tanielian T, Jaycox LH, Schell TL, Marshall GN, Burnam MA, Eibner C, Karney BR, Meredith LS, Ringel JS, Vaiana ME, and the Invisible Wounds Study Team, Santa Monica, Calif.: RAND Corporation, MG-720/1-CCF, 2008, 64 pp.

[2] Id.

[3] Mental Health Advisory Team (MHAT) V, Operation Iraqi Freedom 06-08: Iraq; Operation Enduring Freedom 8: Afghanistan; 14 February 2008, United States Army Medical Command.

[4] Invisible Wounds of War: Summary and Recommendations for Addressing Psychological and Cognitive Injuries, RAND Corporation.

Brockton D. Hunter P.A.

Lake Calhoun Executive Center

3033 Excelsior Boulevard, Suite 550

Minneapolis, MN 55416

612.874.1625

brock@brockhunterlaw.com[i]

Brockton Dane Hunter