The offense that results in these draconian and inhuman penalties against our country's finest and bravest often amounts to no more than swearing or slapping a table. Just a loud argument may be sufficient. Perhaps no more than a glare or looking mean is cause to see them arrested and jailed.
There are many thousands of veterans in Colorado Springs and surrounds who have completed multiple combat tours in Iraq and Afghanistan, though this problem is by no means unique to Colorado. These veterans inevitably suffer from some level of post traumatic stress disorder (PTSD) and many of them suffer severely. Problems include: sleeplessness that may result in suicidal ideation and suicide; flashbacks and violent awakenings; hypervigilance that may result in an attack on someone who startles them, particularly if from behind; nightmares in which they kick and fight while asleep; dissociation from events or reality; and impotence. Anyone who has had to awaken a veteran has probably had the experience of them coming up swinging.
And post traumatic means just that. Often these symptoms don't express themselves for months or years after the events. Or only one or two of the symptoms may be present initially with the problems getting worse with time if untreated or the veteran is redeployed.
We also have thousands of veterans who have received head wounds or who have been blown up but survived. Their injuries may or may not be visible and are referred to as traumatic brain injuries (TBI). Veterans with TBI frequently suffer from moderate to severe PTSD as well.
Common disabilities associated with TBI include problems with cognition (thinking, memory, and reasoning), sensory processing (sight, hearing, touch, taste, and smell), communication (expression and understanding), and behavior or mental health (depression, anxiety, personality changes, aggression, acting out, and social inappropriateness).
Moderate to severe TBI often impacts speech and language skills, and wounds may involve the jaw, tongue, vocal cords, or speech centers of the brain itself. Motor skills may also be affected and they may stagger when they walk. Convulsions and seizures may also make them appear crazy or drunk in public or private.
Clearly, within an intimate relationship PTSD and TBI are going to have many of the characteristics of abusive and violent behavior as defined by current domestic violence laws. When a wife or girlfriend becomes concerned or frightened by the erratic behavior, the seizures, or other symptoms, and dials 911 for help the police commonly arrest the veteran. Their often slurred speech, socially inappropriate behavior, and aggression will all be used against them in court and in jail, where essential medications may be denied.
With current mandatory arrest laws for domestic violence (DV), frontline police officers are often left with little option but to make an arrest. And often an arrest is necessary for the public safety for veterans who commonly will not admit they have a problem until they've spent a night in jail and find themselves handcuffed before a judge in an orange jumpsuit.
After a cold and sleepless night in jail, or several, a disabled and often disoriented veteran will typically be brought into our notorious Fast Track court without ever being given a chance to speak to a defense attorney. Then a prosecutor will demand they agree to a plea bargain without any explanation of the consequences of a guilty plea. Should the befuddled defendant sign what may amount to a death sentence, they will often be given a restraining order forbidding them to go home, and cast into the street. If they have enough of their senses left to plead not guilty, veterans are commonly told they will be held in jail until trial six months away. In his 2008 book on Domestic Violence, former Marine and retired police lieutenant Richard L. Davis refers to us as The Colorado Star Chamber.
Since ca. 1600, to convict a defendant of a crime English law has required the prosecution prove the defendant acted purposefully, knowingly, recklessly, willfully, and intentionally (mens rea); and prove the defendant voluntarily committed a criminal act (actus reus); and both must be proven beyond a reasonable doubt before a jury of one's peers.
The model penal code specifically describes what are considered involuntary acts and thus not criminal: (1) a reflex or convulsion; (2) a bodily movement during unconsciousness or sleep; (3) conduct during hypnosis or resulting from hypnotic suggestion; (4) a bodily movement that otherwise is not a product of the effort or the determination of the actor, either conscious or habitual. There is little question veterans suffering from PTSD and TBI may often meet these criteria but no attempt was being made to help them.
The idea for a special veterans court originated with Judge Robert Russell in Buffalo, New York. He recognized that veteran's disabilities were often leading them ever deeper into the justice system and that these men and women were often being incarcerated unjustly. In January 2008 Judge Russell began a docket to deal with the many veterans appearing before him.
When I became aware of this idea on July 10, 2008, I emailed then District Attorney John Newsome and suggested that Colorado's 4 th Judicial District consider setting up a similar court to deal with the thousands of cases here. Newsome liked the idea and began working with us to help troops on an individual basis. We also began developing an outline for a pilot program for a trauma/veterans court here, attempting to define what agencies and what personnel would need to be involved. Judge Ronald Crowder, a retired Army National Guard Major General, was considering the same idea and we joined forces.
In August 2008 we began discussions with the Veterans Administration, who were ramping up their own programs to deal with unprecedented numbers of disabled veterans. We also took our outline to El Paso County Sheriff Terry Maketa to get his input and cooperation. We found the only practical intercept point for these cases is the county jail (CJC) and our sheriff has been very cooperative.
But the real gatekeeper for any special court is the district attorney. At that point a new 4 th Judicial District Attorney, Dan May, was elected. He has promised his cooperation but is severely constrained by a falling budget although there is every indication a trauma/veterans court will greatly reduce recidivism and overall court costs.
It quickly became apparent that for the program to succeed a full-time paid coordinator would have to be hired. Fortunately, in November 2008 the mental health division of the Colorado Dept. of Human Services (CO DHS) received a $2 million grant from SAMSHA at the federal Dept. of Health and Human Services to establish a jail diversion program for veterans in Denver. A number of representatives from Fort Carson, Judge Crowder, the VA, and Equal Justice Foundation representatives, met with the Colorado DHS at Fort Logan in November 2008 and explained that Colorado Springs has much larger problems. As a result the program was divided in two and Robert Alvarez was named chair of the Colorado Springs half of the CO DHS program.
At present the intention is to hire the coordinator for the trauma/veteran court by June 15, 2009, and begin a pilot program with the first cases circa August 1 st . A basic objective is to monitor and reduce recidivism as well as ensure veterans receive needed treatment for their disabilities.
As presently envisioned, defendants who are identified as active-duty military or veterans while in the county jail will be screened by the coordinator with the cooperation of jail staff for possible eligibility in the trauma/veterans court. The initial screening will be on the basis of whether they have been in combat and their medical records show they are suffering from PTSD or TBI.
The coordinator will collect records and documentation for defendants who appear eligible and present them to the district attorney. The DA then makes a disposition as to whether to prosecute, offer a plea bargain, or decline to prosecute and dismiss. The district attorney is currently conducting a pre-plea investigation for many cases and this will probably be an extension of that practice.
If the defendant is accepted into the trauma/veteran court pilot program, and we anticipate initially only a very few felony cases will be, the district attorney will have several options. Assuming the defendant is confirmed to have PTSD or TBI, and that their disability was a significant factor in the crime they are charged with, the DA might defer prosecution on the basis they seek and receive appropriate treatment for their condition, offer a plea bargain to a reduced charge with a deferred sentence probably including treatment, or, if no other option, proceed to trial.
Ultimately, unless the DA agrees to dismiss, the veteran will either accept a plea bargain (guilty plea) or stand trial in the trauma/veterans court, initially Judge Crowder. As a veteran, Judge Crowder is well qualified to consider the effects of a veteran's condition when passing sentence. One assumes that in most such cases, even though the veteran is found guilty of a crime, the judge will impose treatment whenever possible in lieu of incarceration. We have also had success in individual cases with active-duty military of sentencing them to base restriction with the consent of their command, electronic monitoring bracelets, and community service where appropriate.
A DV conviction, however minor, invokes all the pains and penalties tabulated above, and the veteran's life is destroyed. In such cases the prosecutor might consider deferring prosecution on the basis the veteran undergo treatment and then dismiss the charges after treatment is successfully completed, particularly when that is what their partner desires in order to preserve their family.