Create a Continuum of Alternatives to Prosecution and Incarceration for Justice-Involved Veterans
Veterans who commit offenses as a result of a service-related condition represent a unique class of defendant in our criminal justice system. Put simply, the conditions of their underlying criminality are partially created by the government that prosecutes them.20 Research demonstrating an association between combat exposure and negative behavioral outcomes suggests that America sends its men and women to war with an understanding that some will bring the war home with them in the form of criminal conduct against the fellow citizens they once fought to protect.21 America, in turn, has a responsibility to manage all veterans in a fashion that honors their service and helps them address the multiple challenges that service can create.
Combat training advancements by the U.S. military have produced soldiers and other service members who are more effective than ever at winning the nation’s wars.22 For most veterans, such training translates into a professionalism and resourcefulness that can be significant assets in the civilian world. However, for veterans who transition to a civilian life that includes criminal justice involvement, these skills can pose a significant public safety risk, highlighting the importance of therapeutic interventions and accountability to minimize this threat.
Research on the sentencing and supervision of veterans in the justice system is sparse. The few studies that have compared state prison sentences for veterans with non-veterans indicate that veterans are 22% more likely to be sentenced for violent crimes. That finding may explain why veterans are also 11% more likely than non-veterans to receive sentences of ten years or more, and 78% more likely to serve life sentences or receive the death penalty.23
Veterans Treatment Courts (VTCs) have become a popular approach to diverting veterans from incarceration, but the 600 such courts currently operating across the country vary widely in their approaches to legal incentives (e.g., allowing an individual to avoid a record of conviction) and eligibility.24 For example, a national survey of VTCs found that nearly 60% exclude veterans with at least one type of violent felony charge, while 35% do not permit veterans with “bad paper.”25
“America, in turn, has a responsibility to manage all veterans in a fashion that honors their service and helps them address the multiple challenges that service can create.”
Twelve states have created post-conviction statutory schemes, separate from VTCs, that recognize veteran status as a mitigating factor in sentencing. Many of these statutes, however, are now antiquated, in that they do not take sufficient account of mental health considerations and do not allow veterans the opportunity to avoid conviction records.26 While the Commission knows of no research that has been done on these veteran statutes specifically, a study of expungement among the general population in Michigan highlights the importance of laws allowing veterans to avoid a conviction record. This study found that people receiving criminal record expungement had five-year rearrest rates of 7.1%,27 indicating a relatively low public safety impact. In addition, those receiving criminal record expungement in Michigan saw their wages increase by 22%.28
More broadly, some states have codified rehabilitative best practices for justice-involved veterans in statutes that cast a wider net. Such laws ensure that all veterans have access to rehabilitative interventions, sentencing mitigation, probation, or parole considerations, when appropriate. California and Minnesota have adopted two of the most comprehensive and well-developed veterans sentencing statutes.29 Notably, both provide veterans with significant legal incentives to address conditions underlying their criminal behavior. The California law does so by allowing a conviction to be expunged upon a showing of rehabilitation. The Minnesota statute accomplishes this by permitting veterans to avoid a record of conviction on non-prison cases and to avoid prison on some more serious offenses.
The Commission finds that these two state laws provide useful frameworks and common elements that should inform statutory efforts to better support the nation’s justice-involved veterans.
Federal and state governments should adopt statutory frameworks that incentivize and improve veterans’ diversion, deferred adjudication, participation in treatment courts, sentencing mitigation, and record clearance.
State and federal statutes should create or expand judicial diversion30 and deferred adjudication programs that incentivize veterans to take responsibility for their actions and help them resolve the issues underlying their criminal behavior.31 These programs should:
a. Permit participation using a broad definition of “veteran” (e.g., the definition provided in Commission Recommendation One32) and include veterans charged with felonies and most violent crimes (except those that would require predatory offender registration), as well as veterans who are not eligible for a VTC.
b. Ensure judges retain discretion to decide eligibility in individual cases.33
c. Clearly define the individualized behavioral goals that veterans must meet to successfully complete the programs, including restoration of victims/survivors.
d. Offer strong legal incentives, such as early termination of supervision and case dismissal, to encourage veterans to complete their individualized case plans and avoid the collateral consequences of a criminal conviction.
e. Allow veterans to transfer supervision to their county of residence.
f. Ensure opportunities for victims/survivors and family members to be involved in the supervision and treatment process, including the opportunity to be heard at final case dismissal hearings.34
States should establish statutory authorization for VTCs that specifies eligibility criteria, best-practice standards, evaluation requirements, and other parameters.35
a. The U.S. Department of Justice should give federal funding priority to state, local, and tribal VTCs that work with individuals who would be diverted from prison, including diverting those under threat of revocation for violating the terms of their probation, parole, or other supervised release.36
b. Congress should eliminate the prohibition on treatment-court participation by people who have committed violent offenses and allow states to set eligibility based on their criminal codes and public safety needs.37
c. The federal judiciary should create a VTC in each U.S. Magistrate Court that has a military installation within its jurisdiction and permit the participation of active-duty service members.
State and federal statutes should permit courts to take veterans’ national service and military experiences into account at sentencing.
a. Courts (and corrections agencies) should consider whether and how military service, including combat exposure, is connected to the criminal offense in determining appropriate case dispositions and establishing individualized case plans.
b. Veteran status should be considered as a potential mitigating factor in sentencing decisions, including enumerating veteran status as a mitigating factor in systems with sentencing guidelines.38