CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Friday, November 12, 2010

Veterans’ Courts: The Return of the Abuse Excuse? (Dripps)

Dripps don Writing in the Veteran’s Day edition of the New York Times, Ronald D. Castille, Chief Justice of the Pennsylvania Supreme Court, and a Viet Nam veteran himself, celebrates the growing movement to provide specialized courts for offenders with a record of military service. 

            Justice Castile writes that “too many proud veterans resist” assistance from the VA and allied private organizations, and “as a result, find themselves on the wrong side of the law, for reasons related more to their experience in service to country than to criminal intent.”  As Justice Castille notes, the first such court in recent memory was established through the efforts of Judge Robert T. Russell, Jr. in Buffalo, New York.  According to Justice Castille, Judge Russell’s program has been completed by 90% of those who enter it, without any case of recidivism.  Similar courts are being experimented with throughout the country, including in Orange County, just up the road here in Southern California.

            In general I applaud anyone who dares to attempt less punitive experiments in American criminal justice.  But I find this particular experiment troubling, because:

(1)  It sounds to me very like the “abuse excuse” long rejected by the law, and denounced with particular certitude by conservatives.  Are veterans responsible for criminal conduct or are they not?  If the answer is “sometimes” or “kind of sort of”, what then of the cases like State v. Norman, where if defendant’s evidence were believed she had a much rougher time than many whose, undeniably admirable, military service included noncombat roles even in active theaters of war?  


     I do not think it an adequate reply that these courts as currently envisioned are limited to “nonviolent” crimes including “nonviolent” felonies, because 

     (a)  “Nonviolent” may include such offenses as dealing drugs and DUI that our legislatures have resolutely classified as harmful and dangerous.  If the conduct isn’t really harmful it shouldn’t be criminal for anyone.  If it is, then people with military service records shouldn’t get special treatment, so long as they have criminal responsibility  (i.e., are not legally insane).  It is worth pointing out that claiming the insanity defense successfully triggers automatic civil commitment, which is obviously not part of these special court proceedings.  We return to the question of whether “partial responsibility” is a plausible notion, and to the consensus that it wasn’t a plausible notion when claimed by civilians. 

     (b)  In some ways these low-level diversion decisions are the most invidious, because they involve

          (i)  Imprisonment for some, and freedom for others.  Explain, please, to one of the usual suspects that “you, sir, are being sent to jail because you did not serve in the war.”  Even the most hapless of the usuals might well reply:  “Where is that in the statute?”; and

          (ii)  The felony classification disenfranchises.  So a special break to veterans whose conduct and mental state otherwise render them felons has the effect of privileging the political demographic represented by the military, to the disadvantage of the political demographic represented by nonmilitary felons.

          (iii)  When push comes to shove, i.e., in domestic violence and, ultimately, homicide, cases, are the proponents of specialized veteran courts ready to renounce a free-standing (i.e., without insanity’s automatic commitment consequences) defense?  If the line is to be drawn there, then the whole experiment is unprincipled; vets are not responsible for modest crimes, but are responsible for big ones.  How’s that? 

(2)   I thought conservatives were impressed by the power of deterrence.  Is there something especially undeterrable about veterans?  The very “camaraderie” said to unite veterans includes scuttlebutt—the in-group knowledge that informs members of a unit what regulations matter in this outfit and what don’t.  That word will get around in a hurry—“no worries, you drive, there’s a vets courts for the first one.”  People can (and if it hasn’t happened yet, eventually will) get killed that way.   

     But if we doubt the power of the legal threat to deter veterans, why should we think the legal threat deters others, many of them too dysfunctional even to be eligible for service? 

(3)  By way of retributive justice, how about special courts for, say, parents who have recently buried the body of a child who died below the age of ten?  

     But if that’s a case to be conceded, you can easily see the long parade of private catastrophes, unassociated with national honor, that can credibly be described as imposing unbearable pressure.  The Norman case is suggestive but sadly very far from exhaustive.  Military life can be tough.  Find me an easy life.  That, at least, has been the law’s response to victims of domestic violence, victims of childhood sexual abuse, heroin addicts, the mentally retarded, and on and on. 

(4)  Why is the criterion for diversion said to be military service, rather than military service linked by evidence to PTSD?  The modern military has an enormous ratio of tail to tooth; many military assignments are functionally identical to private sector jobs.  Why should somebody whose military service (admirable and honorable as it surely is) involved driving a truck in Hawaii be eligible for more lenient criminal justice than civilians who’ve had awful lives they didn’t volunteer for?  Maybe these military-only diversion programs screen for that, but it is by no means clear from Justice Castille’s op-ed whether or how they do this. 

(5)  I am impressed by the pragmatic case for diversion of an offending demographic with special rehabilitative needs.  But why limit this to veterans?  In Orange County, for example, the veterans court is one among many for identifiable “special needs” populations.  Do we really think that veterans are uniquely reformable, anymore than we think they are uniquely undeterrable?  And before giving a standing ovation to Justice Castille’s report that Judge Russell’s court has a 90% success rate, we might

     (a) recall the disappointing history of rehabilitation generally, especially the consistent difficulty of replicating local successes led by charismatic (and I mean this absolutely without irony, the folks who do this really are) local heroes;  and

     (b)  note that Judge Russell’s program is only now a pilot for replication by various agencies. The Eerie County program has, according to this last site, “successfully graduated dozens of veterans who have steered their lives away from the traps that many others before them have fallen into in the absence of such a program. “  What would you say of a trial rehab program for, say, inner-city juvenile offenders, that could boast “dozens” of graduates without providing data on entry selection (keep the likely failures out and the success rate will be high) and does not report how many enrollees fail to “graduate” along with the “dozens” of successes? 


(6)  I know the Feeney case upheld a veterans’ preference in state employment despite disparate impact against women.  Still, it is one thing to pass out goodies; it is another to send people to prison.  Recall that a preference for veterans in criminal sentencing is available to women only on a basis limited de facto, and available not at all, de jure, to the openly gay or to people with disabilities.  To say that there might be some rational basis for these discriminations within the military itself, in the interests of military efficacy, is one proposition.  To bootstrap a discriminatory rule of criminal punishment from this premise is a very different matter indeed.  Recall our previous sentencing colloquy, modified as follows:  “You, sir, are being sent to prison, and losing your right to vote, and to possess firearms, because you did not serve in the war.”  “But, your honor, they wouldn’t let me.”  “That’s no concern of ours here, the law’s the law.” 

 Who could be against that?

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