SOLDIERS AND VETERANS WITH MENTAL DISABILITIES DEEMED TO BE DANGEROUS
John Weston Parry, J.D.
What the United States should do about the hundreds of thousands of soldiers and veterans who, because of their combat-related mental impairments, may be deemed to be dangerous is becoming an increasingly important social concern. Do they deserve to be treated better than other people in our society who have serious mental impairments, especially those whose conditions originated due to abuse, neglect, and violent trauma when they were children? If so, are we going to have two systems of civilian justice that will have more lenient standards and dispositions for veterans and soldiers than for everyone else? Or will we be smart enough to make a good faith effort to meet everyone's mental health needs, especially those who are likely to be deemed dangerous, if they do not received needed care and treatment?
Currently, we have systems of health, disability, and mental health care and treatment in this country that separate veterans and soldiers from everyone else. Ironically, the military model is based on the single payer system that the insurance companies and most politicians oppose so vehemently. While it definitely has had its problems and scandals, particularly in recognizing various combat-related mental conditions and impairments, the VA appears to operate better—or more correctly not as badly—as the civilian health care systems in serving those who have serious mental impairments. One substantial difference is that when soldiers and former soldiers are denied necessary mental health care and treatment, there are some people in our society who are willing to speak out and litigate, particularly veterans groups. When our children have been traumatized, brutalized, abused, and neglected, which has resulted in their having severe mental impairments, typically there have been even fewer people acting on their behalf.
Legally, however, while some soldiers and former soldiers with mental impairments may receive special treatment due to a particular sympathy for their situations and recognition of their service to this country, we do not have—and should not have—two systems of justice. If separate but equal does not work, then separate and unequal is even worse for the fabric of our society. The current exceptions are: (a) military justice, which is reserved for those who commit crimes while they actively serve in the military; and (b) veterans courts, which are extremely limited in their scope and jurisdictions, and do not really apply to former soldiers who are deemed to be dangerous.
What is happening to soldiers and veterans who have served in recent wars, and have mental impairments as a result, is addressed in Mental Disability, Violence and Future Dangerousness: The Myths Behind the Presumption of Guilt (Rowman & Littlefield, October 2013), as section of Chapter 6 “Dangerousness and the Unconscionable Failure to Provide Care and Treatment to Persons with Serious Mental Disabilities.” Brief copyrighted excerpts without the references are reprinted below with permission of the publisher and author, along with reflections based on the book and other materials. Excerpts are in bold with italics.
Scope of the Problem
A substantial percentage of the several million veterans and soldiers, who have served in the military in recent decades going back to the Vietnam War, have combat-related mental disabilities. This has been particularly true for those soldiers who served in Iraq and Afghanistan where multiple tours of duty and women soldiers being sexually assaulted became commonplace. At a time when our resources for mental health and related care and services are being downsized, this huge influx of potential veterans with serious mental impairments has had a devastating impact, not only on the VA and the military, but also civilian mental health care and related services.
This influx also has created a substantial and growing population of new American citizens and residents with mental disabilities who are being deemed dangerous in the media and our legal systems. Veterans with post-traumatic stress disorder and other serious mental conditions have become staples for television, movies, and video games. Moreover, suicides by soldier have been increasing. Also, reports of reckless behaviors by soldiers leading to self-harm and harm to others have been increasing. Furthermore, once soldiers return home many experience serious problems re-adjusting to civilian life, including fitting in with their families and friends.
In terms of presumed dangerousness, former soldiers with mental disabilities not only are saddled with the typical societal view that people with serious mental disabilities are inherently dangerous, but they also have to overcome the perception that they have had sophisticated training that has taught them to kill their enemies without qualms or hesitation.... Thus, combat veterans... may be deemed dangerous … at rates that are considerably higher than those of the general population, even though a vast majority of them will never act violently as civilians.
Mental Health Care and Treatment
Programs for soldiers and veterans with various mental disorders have received a great deal of publicity in recent years, but in reality, as with our civil mental health systems, the promises have fallen well short of fulfilling the actual needs. Scandal after scandal has been uncovered related to soldiers and veterans not receiving humane care and treatment. Moreover, the military still has a well-entrenched prejudice against—and an unwillingness to reward—soldiers who sustain mental injuries in combat as “fallen heroes.” The military culture…continues to be particularly insensitive in dealing with mental disabilities. Soldiers with mental injuries are not even eligible to receive the Purple Heart for injuries sustained in combat. They feel so stigmatized that many—and probably most—of them are reluctant to participate in treatment programs. It is not surprising that many returning soldiers try to hide their mental anguish, often turning to alcohol, drugs, and increasingly suicide.
Many lawsuits have been filed and a number of decisions rendered against the federal government because [m]ilitary doctors and the VA... often overlook, ignore, or try to minimize mental disorders.... Five years after the VA was cited for “manipulating disability ratings to save money” and a special appeals process had been created, not a single case had been heard. On the other hand, the military misdiagnosed “at least 31,000 service members” as having mental disorders, so that commanders could discharge soldiers they viewed as having maladaptive behaviors. Similar to many double standards in the law involving dangerousness, psychiatric diagnoses tend to be marginalized if they are being used to help soldiers or veterans received benefits from the federal government and are embraced and enhanced when they can be used by the military against soldiers or recruits to further military objectives.
Special courts have been established in this country that address the problems created by particular groups of people with special needs, including persons with mental disorders, drug addictions and those who are homeless or who suffer the effects of fetal alcohol syndrome. Originally, the stated intent of such courts was to address palpable differences in culpability by providing less punitive and more therapeutic dispositions for defendants charged with criminal offenses who had mental disabilities. After the Reagan Revolution and the Hinckley verdict, sentiments shifted from rehabilitation and proportional culpability towards more punishment and implementing measures to protect community safety above everything else, but particularly above individual rights. Those who protected civil liberties became vilified and those who pursued therapeutic jurisprudence were largely dismissed.
As a result, these special courts took on very different characteristics, which allowed them to expand and gain public acceptance. They still operated, at least ostensibly, to provide opportunities for rehabilitation, care, and treatment, but the post-modern versions of these courts embraced community safety as the primary directive. This has meant that almost any disposition which might be perceived by the public as compromising safety has been rejected as inappropriate. Above all else this has meant that defendants who commit violent crimes, regardless of their individual circumstances, are ineligible for these special dispositions. Moreover, predictions of dangerous have been used to further exclude defendants from such programs. Thus, the eligible offender population is largely composed of those who commit nuisance crimes, misdemeanors, and non-violent crimes, who in addition have no documented, subjective history of dangerous-like behaviors. (Perhaps a special court for priests would work well under these conditions, although in today’s world it probably would be problematic as well.)
Unfortunately, for those who are pushed into these programs in order to receive needed care and treatment, the risks are high and the penalties for breaching intrusive conditions of participation are substantial. The risks are high because once defendants (and their counsels) agree to allow these special courts to have jurisdiction, the subjects of these proceedings are transformed from criminal defendants with the right to heightened due process into program participants who have contracted away most of those rights. Special courts can assert jurisdiction over these defendants indefinitely. Each and every violation of the rules can result in extensions of the courts' authority over the defendant’s life, as well as strict penalties including incarceration. Slowly but surely these courts have become mechanisms for supervising, monitoring, and controlling the lives of these “special” individuals, until the courts are satisfied that there will be no public outcry if they are released unconditionally. For every success story in which an offender is rehabilitated in a time-frame that corresponds with the criminal sentence they would have had to serve, there appear to be far more cases in which offenders have remained in governmental custody far longer than if they served a regular sentence, especially for relatively minor crimes.
It is in this context that special courts for “veterans emerged across the country....”[T]hese …programs have been few and far between and typically only attempt to serve the needs of veteran offenders who have committed nonviolent crimes and are not viewed as being a threat to the community. Thus, former soldiers who are deemed to be at the greatest risk… receive relatively little or no rehabilitation, care, and treatment.
In consumer law, this would be called a bait and switch. Nevertheless, the legal profession, judges, and mental health experts hold these courts out as examples in which society is responding to the needs of veterans, even though so little assistance is available until and unless a non-violent crime is committed and the perceived risk to the community, no matter how far-fetched, is viewed as being negligible. As a consequence, these former soldiers, if they are deemed dangerous, will be subject to the same draconian measures that are imposed on other people with mental disabilities, creating a potential cascade of new inequities and injustices in our legal system.
SOLDIERS, PRO FOOTBALL PLAYERS, AND PRIESTS: WHY NO PREDICTIONS OF DANGEROUSNESS FOR THEM?
By John Weston Parry, J.D.
It seems obvious, based on available anecdotal and other media evidence, soldiers and veterans who have experienced combat, professional football players, and priests commit dangerous or dangerous-like behaviors at rates that are far higher than the general population. Members of these groups also seem to engage in behaviors that by traditional societal norms may be viewed as abnormal or deviant, which often appear to be triggers for their perceived dangerousness. Nevertheless, no one has done risk assessments on them, which undoubtedly would demonstrate that members of these groups are much more likely to be dangerous than other people.
So far, we only have done these studies and clinical assessments on people with diagnosable mental disorders. By and large, these groups have “proven” to be slightly more dangerous than normal. Without additional studies and assessments, however, we only have been willing to use our criminal and civil laws to protect society against “crazy people.” We continue to ignore other more easily identifiable groups that probably pose a much higher statistical risk of being a loosely defined danger to self or others.
This looming threat seems especially severe with regard to our soldiers and veterans who have experienced combat. Currently, there appear to be millions of these potential “time bombs” in communities throughout the United States. Nonetheless, we continue to insist on allowing them to have the same fundamental rights as anyone else, even though we have compelling examples which indicate that these soldiers and veterans are much more likely to be dangerous due to their training and combat experiences. Sometimes we even give them more rights based on their service to this country.
Yet, almost every day newspapers, television, radio, and the Internet have stories about soldiers and veterans with combat experience, professional football players, or priests who have engaged in violent or extreme antisocial behaviors. Not only do we allow members of these groups to run amok in our communities, we tend to prosecute or intrude upon their criminal or antisocial behaviors less frequently and less severely than we do for normal people. There is only one group of dangerous people we are willing to target in order to ensure that we can apply different legal standards and procedures when they are compelled to appear in civil and criminal courts: people with diagnosable mental disorders. Our unwillingness to expand these special laws is extremely shortsighted and inevitably leads to many more people being killed and harmed in our society, particularly our valiant police.
We have bravely refused to allow the American Civil Liberties Union (ACLU) and other human rights organizations of that ilk to interfere with our laws and policies that use predictions and estimates of dangerousness to target people with diagnosable mental disorders. As a result, we now have many highly beneficial laws and policies that mandate those people be confined or otherwise placed in government custody indefinitely, with fewer due process protections than anyone else in our society. We should not allow organizations with a civil liberties agenda to interfere with our efforts to expand these special laws and policies, so that we also may protect ourselves and our loved ones from soldiers, veterans, professional football players, and priests.
If these special laws prove successful—we can be confident that they will, based on the hundreds of thousands of people with diagnosed mental disorders who currently find themselves in government custody—Americans can confidently move on to target, as potentially dangerous, members of gangs, hip hop artists, children who have experienced severe abuse or poverty, and immigrants who follow Islam in ways that do not appear to be American. Apparently our citizens have the ultimate right to be safe in their homes and on their streets that outweighs all of the lesser civil liberties, rights, and freedoms that may inconveniently stand in the way.