Key Element Three
Sentencing Mitigation
A broad range of veterans will benefit from the interventions laid out in the previous key elements. But there are several reasons why individuals may be ineligible for a VSO. Many veterans may be unable to obtain a VSO because the level of violence involved in their offense means it is not eligible for probation. Research has found an association between military combat exposure and adverse behavioral outcomes, with a particular link drawn between repeated combat deployments and post-deployment violent behavior.1 The importance of this connection is underscored by the greater frequency of multiple deployments among post-9/11 veterans.2 One study of nearly 300,000 post-9/11 veterans, for example, found that 33% were redeployed at least once.3
The fact that post-9/11 veterans are more likely to experience service conditions associated with violent behavior highlights the public safety imperative of addressing these conditions. Notably, veterans are 22% more likely than non-veterans to be sentenced for violent crimes, 11% more likely to receive sentences of ten years or more, and 78% more likely to serve life sentences or receive the death penalty.4 Thus, while the reasons for excluding veterans charged with certain violent offenses from a VSO may be justified, doing so also means that many justice-involved veterans would not have their service recognized by the system at all. As a result, these veterans will be placed into prison for lengthy sentences in part because of conditions created by the government that is prosecuting them.
Key Element Three addresses this limitation, recognizing veterans who are not otherwise eligible for a VSO by offering them a pathway to sentence mitigation.
BERLYNN FLURY served in the Marine Corps as a bulk fuel specialist. She recalls being trained to kick in doors to hunt insurgents. She also recalls a darker side to her military service—sexual victimization by another Marine and exposure to methamphetamine by senior enlisted personnel. As Flury’s mental health deteriorated, she was offered discharge papers rather than a therapeutic intervention.
Struggling to readjust to civilian life, Flury found herself homeless and addicted to amphetamines at 22. She also faced multiple arrest warrants in several counties. One day, Flury overdosed and stopped breathing. While she survived, the warrants caught up with her and criminal charges followed.
Because the court recognized her veteran status, Flury was able to avoid prison and instead receive treatment and probation. Using a potential prison sentence as leverage, the court helped Flury get control of her addiction and complete treatment for her trauma.
Today, Flury is a certified peer support specialist and health and wellness coach at the VA. She has earned a bachelor's degree, owns a home, and serves on the board of two veterans organizations.
Implementation Steps
1
Veterans who are not eligible for a VSO, as detailed in Key Element One, should have their veteran status recognized as a factor in determining their sentence.5
2
This sentencing mitigation statute should contain the following elements:
- At arraignment, the court must notify veterans of the potential mitigating value of their veteran status.
- The court should offer veterans the ability to communicate their veteran status through counsel or by other means; this avoids the need for self-identification in open court, which may discourage some veterans from providing their true veteran status.6
- Veteran status may not be used as an aggravating factor, meaning that veterans cannot receive a more severe punishment by virtue of being a veteran.7
- Veteran status mitigation should be considered in addition to any other existing mitigation a jurisdiction provides for mental health conditions.
- Other trauma suffered by the veteran outside of military service should not be used to deny the existence of military trauma.8
- When considering sentencing mitigation, the court may take into consideration the following: overseas deployment, exposure to danger, individual merit earned during service, and service-connected disability ratings. When considering multiple factors, the court should award additional credit for each factor.9
- The court should not mandate a connection between the offense and a condition from military service in order to consider a veteran for sentencing mitigation.
- When the veteran can show a clear connection between the offense and a condition related to military service, and can show progress in treating that condition, prison is inappropriate in all but the most severe cases.
