Military Attorney, Major Evan R. Seamone, Proposes Use of Local Veterans Treatment Courts to Obtain Treatment and Preserve VA Benefits for Active Duty Wounded Warriors Facing Court-Martial Charges

LOS ANGELES, California — Although estimates vary, approximately 20% of combat veterans suffer invisible wounds of war including Posttraumatic Stress Disorder (PTSD), a figure that increases dramatically with the number and length of repeated deployments. [1]  In less than four years, over 88 Veterans Treatment Courts (VTCs) have emerged across the Nation in recognition that traditional confinement options often fail to treat the underlying mental health needs of war-traumatized veterans. [2]  These special court dockets, which combine treatment from the federal Department of Veterans Affairs, veterans mentors, and an interdisciplinary treatment team led by a judge with special experience and training, are the most comprehensive programs in a line of innovations that recognize the societal cost of criminalizing mental illness.  These costs include aggravation of the mental condition in confinement and the increased likelihood of repeat offenses once released.  Other notable trends to prevent a public health epidemic of veteran crime include police patrols with veteran counselors in major cities like Chicago and Los Angeles, [3] special therapeutic dormitories in jails just for veterans within the Florida Department of Corrections, [4] requirements to inquire about veteran status at criminal sentencing hearings in California and Minnesota, [5] and the ability of PTSD-afflicted veterans to list the diagnosis on their drivers’ licenses in Georgia with the goal of de-escalating conflicts with law enforcement officers during traffic stops .[6]

Ironically, while many civilian agencies have modified the criminal justice system to respond to the treatment needs of veterans based on trauma they suffered during active duty military service, military offenders with psychological wounds of war receive far less favorable consideration while serving, even though these offenders are closer to the source of the trauma.  Although a 2010 study of 77,881 deployed Marines revealed an 11 times greater likelihood of serious criminal conduct for Marines diagnosed with PTSD, [7] and a 2012 Army report emphasizes how military leaders “cannot deal with health or discipline in isolation,” [8] military judges and juries are prohibited from ordering probation that would allow for mental health treatment.  Instead, the court-martial system considers suspension of sentences as a matter of clemency reserved only for commanding generals who may have only a few minutes to peruse volumes of court-martial testimony and records.  Studies of military clemency in the Army and the Navy in 2007 revealed a trend in which commanders have granted clemency in less than five percent of cases, with suspensions of confinement and punitive discharges occurring far less frequently. [9]

 

For offenders with mental illness who increasingly populate courts-martial, the punitive discharge can become lethal.  According to the military’s own sentencing guides, this form of punishment, with no civilian counterpart, “deprives one of substantially all benefits administered by the Department of Veterans Affairs.” [10]  Recognizing how the court-martial system can prevent all hope of future VA treatment for combat veterans who are most needy of continued care, Army lawyer Major Evan R. Seamone, a veteran of Operation Iraqi Freedom, has proposed a method to suspend the sentences of active duty offenders, provide them treatment through local VTCs, and preserve the VA benefits they earned through their service to the Nation.  His book-length article examines historical lessons from rehabilitation efforts for offenders in past wars and incorporates them into a series of practical tools for use by military commanders, military and civilian attorneys, and judges.  By providing model sentencing guides, jury instructions, and pretrial agreement terms that consider mental conditions, eligibility, treatment, and funding mechanisms, Major Seamone demonstrates that the proposal can be accomplished today, incorporating civilian treatment innovations without the need to change a single law.

Reclaiming the Rehabilitative Ethic in Military Justice is divided into nine major sections with a nine-part expanded appendix that provides a treatment-based alternative to incarceration and discharge that helps serve the interests of both the service member and society at large.

Introduction: Divergent Approaches in the Sentencing of Similarly-Situated Offenders with PTSD

The Common Aims of the Treatment Court Movement
Precedents from Military Discharge Remission Programs
Court-Martial Practices as Windows to the Rehabilitative Ethic
Comprehensive Tools for Treatment-Based Contingent Court-Martial Sentences
Pretrial and Post-Trial Agreements Contemplating Suspension of Sentences for Treatment of Mental Conditions
Functional Considerations Across the Military Justice Spectrum
Intergovernmental and Cross-Jurisdictional Cooperation
Reclaiming the Rehabilitative Ethic in Military Justice

To obtain a free electronic copy of Major Seamone’s article, “Reclaiming the Rehabilitative Ethic in Military Justice: The Suspended Punitive Discharge as a Method to Treat Military Offenders With PTSD and TBI and Reduce Recidivism,” visit the Volume 208, Summer 2011, edition of The Military Law Review at: http://www.loc.gov/rr/frd/Military_Law/Military_Law_Review/pdf-files/208-summer-2011.pdf

ABOUT THE AUTHOR:
Major Evan R. Seamone has served as a military prosecutor, defense attorney, capital litigation attorney, and Chief of Military Justice.  He has published widely in scholarly journals on topics from national security and international law to medical malpractice.  Aside from writing about techniques to help attorneys effectively represent combat veteran clients with PTSD, he has instructed courses on this topic to public defenders, military disability evaluators, judges, and members of the Veterans Health Administration.  He authored the first publication with standards to improve family court assessments of parents with PTSD for the purpose of child custody determinations in the Family Court Review (April 2012) and contributed a chapter to the forthcoming 2012 book from the National Veterans Foundation, Attorney’s Guide to Defending Veterans in Criminal Court, the first practical guide of its kind that highlights special considerations in addressing the needs and realities of veterans in conflict with the law.

REFERENCES:

1. Marcia G. Shein, “Post-Traumatic Stress Disorder in the Criminal Justice System: From Vietnam to Iraq and Afghanistan,” Federal Lawyer, Sept. 2010, at 42, 46.

2. R. Norman Moody, “Veterans Court Focuses on A Trend of Treatment: Center Seeks Behavioral Help for Vets Who End Up on Wrong Side of Law,” www.FloridaToday.com (Jan. 10, 2012).

3. Penny Coleman, “Why Are We Locking Up Traumatized Veterans for Their Addictions Instead of Offering Them Treatment?,” www.alternet.org (Nov. 11, 2009).

4. Barbara Liston, “Florida Debuts New Prison Dorms for U.S. Veterans,” www.reuters.com (Nov. 9, 2011).

5. Sean Clark et al., “Development of Veterans Treatment Courts: Local and Legislative Initiatives,” 7 Drug Court Review 171, 189-92 (2010) (Table 2).

6. Lily Gordon, “Gov. Sonny Perdue Signs PTSD License Bill, Columbus Ledger-Enquirer,” June 10, 2010.

7. Robyn M. Highfill-McRoy et al., “Psychiatric Diagnoses and Punishment for Misconduct: The Effects of PTSD in Combat-Deployed Marines,” 10 BMC Psychiatry 1, 6 (2010).

8. U.S. Dep’t of Army, “Army 2020: Generating Health & Discipline in the Force Ahead of the Strategic Reset” (2012) (comments of General Peter W. Chiarelli).

9. Major John A. Hamner, “The Rise and Fall of Post-Trial–Is it Time for the Legislature to Give Us All Some Clemency?,” Army Lawyer, Dec. 2007, at 1, 16; Lieutenant Michael J. Marinello, “Convening Authority Clemency: Is it Really an Accused’s Best Chance for Relief?,” 54 Naval Law Review 169, 169-70, 195 (2007).

10. U.S. Dep’t of Army, Pamphlet 27-9, “Military Judge’s Benchbook” instruction 2-5-22, at 70 (1 Jan. 2010) (“Types of Punishment”).

 

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