Recommendation One
Improve Definition and Identification of Veterans Involved in the Criminal Justice System
Findings
Forty-five years ago, President Jimmy Carter issued a Presidential Review Memorandum on Vietnam Era Veterans. The President noted that “we lack comprehensive information about imprisoned veterans” and subsequently directed federal agencies to collect accurate data on this population.1 Sixteen years later, Congress began requiring that states have a policy for identifying the veteran status of incarcerated people in order to be eligible for certain correctional grants.2 Despite these and other actions through the years, reliable estimates of how many veterans are currently incarcerated-or have come into contact with the criminal justice system more generally-do not exist.
This lack of knowledge is the product of several interrelated complications. First, criminal justice agencies and courts tend to rely on individuals to self-report their veteran status. Studies show that when asked about their status by law enforcement, many former service members are hesitant to identify as veterans. Some worry about losing benefits, while others report feeling a sense of shame or fear being viewed as a threat.3 Research in California found that two out of three incarcerated veterans failed to self-identify as a veteran when asked.4
The Department of Veterans Affairs (VA) has created tools that allow law enforcement, jails, and courts to independently verify the veteran status of individuals, but usage of these systems is extremely low. The Veterans Reentry Search Service (VRSS), designed for correctional facilities and courts, has been adopted by only 11% of the 3,100 local jails nationwide.5 Among law enforcement, the Status Query and Response Exchange System (SQUARES) similarly can be utilized for veteran status identification, but is currently used in just 9 of the country’s 18,000 police agencies.6 Little is known about why adoption of these systems is low, but outreach by the Commission to those working in the criminal justice system has identified lack of awareness and the absence of incentives to use the systems as key factors.7
Further complicating the identification challenge is an inconsistent definition of the term veteran. Federal and state statutory frameworks and regulations use different definitions. For example, being defined as a veteran for federal hiring preference requires 180 days of continuous, active-duty service, but it’s 90 days for state hiring preference in Idaho and 30 days in Rhode Island.
Among those frequently excluded from eligibility for veteran benefits are individuals who received an administrative “other than honorable” discharge or a punitive bad-conduct discharge, often grouped together under the characterization “bad paper” discharges.8 This exclusion presents a challenge for an increasingly large portion of America’s veterans. Since World War II, the share of service members receiving an other than honorable discharge has increased fivefold. More than 6% of post-9/11 veterans receive such discharges annually,9 with 10% of Marines being discharged under other than honorable conditions in 2011.10 Overall, more than 548,000 service members, representing roughly 7% of all characterized discharges, have received some type of bad paper discharge since 1980.11
“Studies show that when asked about their status by law enforcement, many former service members are hesitant to identify as veterans.”
Given that these individuals are often not eligible for federal veteran benefits, it is not surprising that they may fail to identify as a veteran when asked for their status by a law enforcement officer, jail staff, or court personnel. This lack of identification is made more important when considering that veterans with bad paper discharges are disproportionately likely to suffer from a known physical and or mental health diagnosis.12 One study of more than 443,000 veterans found that 45% of veterans discharged for misconduct were diagnosed with at least one mental health or substance abuse disorder, compared to 20% of those discharged under routine conditions.13 Further, veterans with bad paper discharges are overrepresented within the justice-involved veteran population, making up roughly 18% of veterans in prison and jail-more than double their share of the overall veteran population.14
Similar complexities in defining veterans in the criminal justice system can be found in the 2016 Comprehensive Addiction and Recovery Act, which specifies a veteran’s eligibility for certain justice-related programs.15 This law gives eligibility to any veteran who “served on active duty in any branch of the Armed Forces, including the National Guard or Reserves,” but it does not define “served on active duty.” Further, it uses the definition applicable to eligibility for VA benefits — “discharged or released from such service under conditions other than dishonorable” - but notably specifies that recipients of dishonorable discharges are eligible if “the reason for the dishonorable discharge was attributable to a substance use disorder.”16 Although Congress sought to expand veteran eligibility for justice programs with this terminology, it perpetuated existing dilemmas. These include the question of how to determine whether a given discharge was “other than dishonorable” and how to establish whether a dishonorable discharge can be attributed to a substance use disorder.
The Commission finds that the lack of consistent definition and identification of veteran status prevents many justice-involved veterans from receiving appropriate and effective benefits and services.17 Without policy improvements, numerous justice-involved veterans will continue to be excluded from the growing number of programs designed to help them, and the most vulnerable veterans, including those receiving other than honorable discharges, will be affected most of all.
Recommendation
Federal, state, and local criminal justice agencies and courts should improve processes for identifying veterans in the criminal justice system and adopt a uniform definition of “military veteran” for use in those processes.
Implementation Steps
1
Congress and state legislatures should codify the following definition of a military veteran for the purposes of criminal justice system identification: A military “veteran” is defined as a person who:
a. Swore an oath and entered any branch of the Armed Forces, including the National Guard or Reserve; and is either
i. Currently serving in such branch and has not been discharged; or
ii. Was discharged or released from such service under any characterization of discharge that was not a dishonorable discharge, unless the individual receiving the dishonorable discharge has been diagnosed with Substance Use Disorder, Military Sexual Trauma, Traumatic Brain Injury, Post-Traumatic Stress Disorder, or a mental health condition.18
2
Congress should authorize and appropriate funding for a comprehensive study of SQUARES and VRSS. The study should focus on a wide range of questions, including:
a. Can SQUARES and VRSS serve as databases that can be used effectively by law enforcement agencies, jails, and courts to accurately determine whether a person they encounter is a veteran, as defined in implementation step one?
b. What changes or improvements must be made to ensure these databases are effective for this purpose? For example:
i. Why have so few agencies adopted these systems (particularly SQUARES)? What incentives and/or resources could be offered to increase the number of agencies using these systems effectively?
ii. What difficulties exist for agencies that have adopted the systems?
iii. What resources are required to make these systems work effectively and efficiently?
iv. Instead of a contract with individual law enforcement agencies, could access and a requirement to use these systems be part of 911 and 988 system requirements?
v. How accurately do the databases capture veteran status? What types of service members are being missed by the current databases? What needs to change to make the databases accurate and capable of identifying veterans (as defined in implementation step one) for criminal justice system purposes? What needs to change to allow linkages to persistent individual identification tracking numbers at the federal and state level?
c. Who should have access to SQUARES and VRSS data?
