A Mounting Social Crisis: Veterans Of Iraq and Afghanistan At The Crossroads Of Justice by Guy Gambill

Originally published in The Daily Journal

Reproduced with permission of the author and publisher

May 11, 2010 — In May 2008, national veterans advocates met with medical professionals, justice and legal professionals, active duty military personnel and Federal staff to discuss growing concern about the number of veterans, many with trauma-related health issues, who were coming into contact with the justice system. Hosted by the National GAINS Co-Occurring Disorders and Justice Center, the convening resulted in the creation of a brief, Responding to the Needs of Justice-Involved Combat Veterans with Service-Related Trauma and Mental Health Conditions. The development of this brief couldn't have been more timely. Within six months, six state veterans' jail diversion pilots were launched. Since then, another 12 Federally-funded State Jail Diversion efforts that preference veterans have been created.

What justifies the increasing attention to justice-involved veterans, featured so often in public media over the past few years? From a statistical-historical standpoint the issue first rose to the surface of public attention in 1985; in that year, the National Vietnam Veterans Readjustment Study (NVVRS), which was mandated by Congress and implemented by the Vietnam Veterans of America, surveyed a large and representative sample of Vietnam veterans. This study yielded a wealth of information on a broad range of social markers that today we would categorize under the heading “readjustment factors.” The NVVRS noted that 11% of all surveyed had been convicted of a felony, while 34.2% had been arrested for a misdemeanor offense. Though it was not released publicly until 2000, the Department of Justice, Bureau of Justice Statistics (DOJ-BJS) report, Veterans in Prison or Jail noted that in 1985, 21% of all men in prison were veterans — a total of 154,600. By 1998, that number had risen to 225,700.

The DOJ-BJS 1985-1998 statistical portrayal was sound, with one critical exception: the press release that accompanied the report stated there was “no significant difference between incarceration rates amongst veterans and the general population.” While the percentages are roughly the same, this does not take into account that the military selects against many of the factors that are correlated with justice involvement, such as a history of mental illness, a prior criminal record, and drug abuse. All else being equal, one would expect veterans to have less justice involvement. Also, as noted in both the 2000 DOJ-BJS report and in the follow up to that in 2007 (which added additional information through 2004), an exceedingly high percentage of men who served in Vietnam had justice contact. The 2007 report noted that already 4% of all inmates were Iraq or Afghanistan veterans, although at that point in time (2004), few Americans had served in those conflicts and even fewer had returned to civilian life.

Understanding the scope of involvement by veterans in the justice system has proven to be a challenge. Without knowing whether someone is a veteran at the time of arrest or incarceration, it is difficult to formulate effective programs and policies. The Federal Data Privacy Act was passed in 1968 (and amended in 1972) at a time in our national history when many veterans were ambivalent about their status as such. The Act created rules regarding the gathering, maintenance and dissemination of veterans' information. Corrections and law enforcement agencies often did not gather information on veterans as a result. For example, in the State of Minnesota, only two out of eighty-seven Counties ask at point of booking about veterans status or military service. As a result, isolated snap-shots in time must be used to estimate the scope of the issue of veteran justice involvement. Travis County (Austin), Texas, for instance, which has a population of about 100,000, issued a report indicating that in one 90-day period of 2008, 454 veterans were booked into the County Jail.

Through what data we do have, as well as the “anecdotal” information from around the country, it's clear that the problem of veterans returning home only to end up behind bars is colossal — and getting worse. While the next national survey on the part of DOJ-BJS is not due until 2013, we cannot wait until then to take steps to reduce the number of veterans who, primarily as a result of post-traumatic stress disorder, chemical addiction and other problems related to their combat service, are engaging in behaviors that culminate in contact with the justice system.

I am often asked how, as it relates to becoming justice-involved, Iraq and Afghanistan veterans compare to those from previous conflicts. I believe the numbers of justice-involved veterans from these current wars will exceed those of Vietnam. This is partially due to changes in sentencing: in 1985 we did not yet have many of the current domestic abuse statutes, enhancements for drug offenses, mandatory minimums, zero tolerance or an array of firearms possession charges.

Other factors or considerations are also of great import. The minority composition of the Army in Vietnam hovered around 20% or less of the total. Today's Army is comprised of over 40% soldiers of color. Persistent racial disparities, specific cultural characteristics (the high resistance on the part of African-American men to seeking mental health care, for instance), and the lack of mental health and justice professionals of color who understand veterans issues does not bode well for the future. The unprecedented use of the National Guard and Reserve, the nature of the conflicts where our soldiers are serving, and the difficult economic climate to which our military are returning all play a role.

The current approaches to this issue — The Veterans Courts and Justice Initiatives — were born from a broad national recognition that we inappropriately responded to large numbers of veterans during the Vietnam era in a punitive or reactive manner (the criminal justice system) when a set of supportive and preventative responses (a public health approach) would have proven far more effective. By now focusing on the public health approach, the hope and expectation is that we will not generate large numbers of veterans who tumble through multiple systems for decades, facing not only incarceration but homelessness, poverty and social isolation.

However, the emerging model derives out of the Miami-Dade Drug Court model. Most veterans courts limit participation to non-violent offenses alone; not surprisingly, given the manifestations of PTSD, this eliminates many veterans. It is my belief that eligibility for veterans court programs should not be based on category of crime, but upon whether a service-related mental health disorder was at the root of the offense.

Currently, all of the veterans courts are post-plea. What veterans advocates and the public are led to believe is that if a participating veteran successfully completes all the court requirements, the court will erase the justice record. That is simply not true and, in my opinion, a real disservice to the veteran. In this age of data-harvesting, an arrest record never really goes away. And as we've seen with drug courts, the natural process of relapse and recovery can cause a person to “fail” the court, and then end up with a conviction that, through true diversion or the regular judicial process, he might have avoided.

Unfortunately, the recommendations of those who understand this issue in an experiential and professional sense are often not heeded. In the GAINS brief mentioned earlier, one of the five recommendations regarded building capacity for peer services. I believe this is the single most important piece in reducing veteran justice involvement. Despite all of the well-meaning professionals involved, without peer involvement beginning from the first day back on U.S. soil, we will surely end up with a scenario every bit as bad as that of the post-Vietnam era.

What might be the most lasting impact of the 2008 convening was that brought together a wide variety of individuals who had led efforts within their respective States or, at the Federal level. At that time, one could find very little activity at either Federal or State levels with regard to justice-involved veterans. At this juncture, over thirty States have some type of legislation underway addressing one or more aspects of the problem — and a growing number of veterans advocates are gathering in support of Vets Court legislation in the State of California.

Without a doubt, we have a long way to go to create a truly comprehensive response to veterans returning from combat. Whatever resources it will take to come up with that response, though, will certainly be less than those that will be expended — in our criminal justice system and elsewhere — if we do nothing.

Guy T. Gambill

Soros Senior Justice Fellow

Justice Policy Institute

Valley Forge Village

(612)-208-1815

(612)-749-0576 (cell)

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Added May 15, 2010

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