Vets With PTSD Put New Strain On Courts
By THOMAS B. SCHEFFEY
The Connecticut Law Tribune
August 17, 2012
To Barry Schaller, appellate judge and bioethics scholar, the numbers are staggering. And
worrisome.
In the past 10 years, roughly 2 million veterans have returned home after serving in Iraq
and Afghanistan and, according to studies, between 15 percent and 30 percent have posttraumatic stress disorder. But that could be just the tip of the iceberg. Studies of Vietnam
veterans indicate it can take decades for problems to surface; about 70 percent receive a
PTSD diagnosis at some point in their lives.
Already, many Iraq and Afghan vets with emotional problems have found their way into the
criminal justice system. Soon, the numbers could be overwhelming.
"I do think you're talking about hundreds or thousands of people predictably coming into
the system," said Schaller, a former state Supreme Court justice. "In the book I dealt mostly
with the dramatic criminal problems [including homicides]. The cases we see in print and
follow after every war are the serious crimes." But more common, said Schaller, are
domestic violence, substance abuse, alcohol abuse and prescription drug abuse. "I had a
veteran say to me the other day, I realized pretty soon that for the first year after getting
back, veterans should not drink and they should not buy a gun."
Schaller's third and latest book, "Veterans on Trial – The Coming Court Battles Over PTSD,"
explores the military side of post-traumatic stress disorder and spends a significant amount
of time discussing its potential impact on the judicial system. While Schaller is not in favor
of Connecticut establishing special veterans courts, as some states have done, he praises
screening methods to identify vets with PTSD issues and non-prison diversionary programs
that emphasize rehabilitation over punishment.
"In Connecticut," said Schaller, "there are two courts where [Veterans Administration]
outreach workers have a small office, with a desk, and it's very easy for them to stay in touch
[with judges and prosecutors]. The VA outreach workers try to identify veterans and where
possible divert them, to the VA, primarily," he said. "In other courts, they don't have a base.
It's a cooperative thing, and sometimes it depends on the judge presiding on [the criminal
docket.]."
New Stressors
In previous wars, the survival rate for the seriously wounded was low. A side effect of nearmiraculous medical advances is that soldiers now survive ever more horrible physical
devastation, Schaller noted.
That alone is a major reason why combat-related PTSD is on the rise. But the incidence of
PTSD is also growing as the definition of the term becomes more inclusive. It's a diagnosis
that's only been officially recognized by the American Psychiatric Association's Diagnostic
and Statistical Manual of Disorders (DSM), since 1980. Since then, there have been
successive changes to the DSM definition, with a fifth version currently slated for release.
Today, Schaller said, "when you talk about claiming PTSD, it is something quite different
than it was in 1980." Initially, the trauma had to be an extreme, unusual stressor. Now it can
be diagnosed for someone who has been observing risk or danger of death or injury to
someone else. It is also increasingly diagnosed in people who were never in combat. Heart
attack survivors, for instance. "I've read that jurors who sit on cases with really gruesome
evidence can sometimes be diagnosed with PTSD when they're diagnosed with a stress
reaction to" photos they view.
And so just who has PTSD? And how did it affect his or her actions? Schaller said it often it
falls to the courts to give PTSD legal legitimacy, as in cases where it is raised as a defense to
a crime, akin to the insanity defense. The history of PTSD as a criminal defense is mixed and
inconclusive, so far, Schaller said. "It now gets established and validated in court, with cases
on the books. There are some successes and some failures."
Vietnam Fallout
Schaller's idea for the book grew out of his studies at Yale, where he teaches bioethics
courses. As he surveyed the history of soldiers in past wars, long before the term PTSD was
coined, he found that historians hadn't focused much on the ordinary soldiers on the cutting
edge of battle.
"The history of war used to be the history of generals — their movements and their
strategies," Schaller said. "Once you began looking at them, in all wars the soldiers felt
pretty much the same about what was happening to them. If you read about the Civil War,
from a soldier's point of view, it wasn't a happy experience. Even in World War II, which is
considered the good war for a great patriotic cause, soldiers still felt pretty much the same
way about service."
The soldier's point of view wasn't covered very much until after Vietnam, Schaller noted.
America didn't welcome its Vietnam veterans the way it had welcomed others, but it began
to take seriously the psychic damage that had previously been ignored.
Since Vietnam, "I think there's a recognition of a mental health component for veterans
when they get into the criminal justice system. How that's taken into account, and the
struggles of the veterans, that's what I'm getting at," Schaller said.
Unlike the other branches of government, the judicial system doesn't engineer public policy
or budget public funds to deal with social problems. As such, courts will be dealing with the
fallout from PTSD after the fact. "You can't say, 'If there are problems in criminal behavior,
divorces and domestic violence, the courts will be pro-active and clean them up," Schaller
said. "That's not the courts' job."
Veterans Courts?
Some states have tried establishing special veterans' courts where the judges have extensive
experience with veterans issues. Schaller doesn't endorse that prescription, on the grounds
that it undermines the concept of equal justice for all. A court designed to give special
treatment for veterans at the time of finding guilt or sentencing "would run counter to the
U.S. system of justice," Schaller writes in the final chapter of his book.
Attorney Francis Brady, of the Hartford office of Murtha Cullina, is Connecticut's delegate
to the American Bar Association, and as president of the state bar association in 2011, took a
heightened interest in the legal problems veterans face. Brady said that when the ABA
raised the issue of special veterans courts, Connecticut voted against the idea, agreeing with
Schaller.
And yet there is a strong urge in society to take steps to help the veterans whose problems —
physical, psychological and legal — are rooted in their times of personal sacrifice for their
country. Diversionary programs are one such approach.
In the past legislative session in Connecticut, lawmakers gave veterans added opportunities
to avoid a criminal record. Most people have but one chance to enter accelerated
rehabilition — a program in which non-violent offenders can avoid jail and a criminal record
by completing counseling and completing a probationary period without getting into trouble
with the law. Now veterans have two cracks at AR.
"I am in favor of courts having diversionary programs," said Schaller. "I like it when it's not
a special court for a special class of people, because I don't think that gives a good message
to the public or to victims."
But other policies work against some vets. Attorney Margaret Middleton, the executive
director of the Connecticut Veterans Legal Center based in West Haven's Errera Center, said
there is continuing controversy over extending special legal benefits to veterans who have
not seen combat, or who have not been honorably discharged. The problem is, this could
exclude the PTSD sufferers who need care the most, Middleton notes.
Schaller is adamant that the other branches of government should also look for ways to
address problems of vets. And he spends part of his book cautioning the nation's leaders
about committing U.S. forces to a war without considering the long-term consequences —
including PTSD.
"The public will never see the number of DWI cases, the number of domestic violence cases,
the mental health diversions into the VA unless everybody talks about it," he said. "The
public sees the prominent cases, but that's just the tip of the iceberg...When you add a
criminal justice problem to the mix of depression, impulsive behavior and substance abuse,
the veteran has one more obstacle to overcome."
The book has been attracting substantial notice in the press, and Schaller has already been
interviewed on National Public Radio. But he seems just as gratified by the feedback he's
received from veterans. "I go out to the Errera Center in West Haven, because I have contact
with a lot of the veterans there. They tell me the book is clear and speaks to them, because it
cuts through a lot of the gobbledygook."•