Honoring Service, Advancing Safety
Supporting Veterans From Arrest Through Sentencing
Executive Summary
Studies show that service-related trauma exposure, combined with increased incidence of mental health and substance use disorders, elevates veterans’ risk of involvement with the criminal justice system. Veterans who have served in the military since September 11, 2001, may be especially at risk, in part because they have seen more combat deployments—and redeployments—than any previous cohort of service members. The Veterans Justice Commission has made three sets of findings and produced three corresponding recommendations to improve support for veterans at the “front end” of the criminal justice system, from arrest through sentencing. Each recommendation is accompanied by a discussion of the findings and a list of detailed actions to guide implementation.
Findings and Recommendations
1. Improve Definition and Identification of Veterans Involved in the Criminal Justice System
Finding: There are no reliable estimates of how many veterans are incarcerated, or have come in contact with the justice system more generally, and data-based tools designed to help law enforcement, correctional facilities, and courts verify veteran status are rarely used. Additionally, federal and state statutory frameworks and regulations use different definitions of veteran, which complicates the task of identifying them.
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.
2. Create a Continuum of Alternatives to Prosecution and Incarceration for Justice-Involved Veterans
Finding: Research demonstrates an association between combat exposure and negative behavioral outcomes. The nation has a responsibility to manage all veterans in a fashion that honors their service and helps them address the challenges their military service can create, including involvement in the justice system.
Recommendation: 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.
3. Establish a National Center on Veterans Justice to Improve Justice-Involved Veterans Programs Through Research and Coordination
Finding: A lack of coordination among programs for justice-involved veterans results in the duplication of efforts, a lack of proper program evaluation, and an inability to disseminate best practices. As a result, justice-involved veterans seeking assistance often confront a confusing and disjointed network of untested interventions.
Recommendation: The federal government should create a National Center for Veterans Justice to lead a coordinated effort to improve outcomes for veterans in the criminal justice system.
Introduction
“Once ensnared by the system, veterans often present a complex set of needs and risk factors that are distinctive from those characteristic of civilians without a military background.”
Veterans returning home face multiple challenges as they leave the structure of military life and attempt to reintegrate with civilian society. Most weather that transition admirably, but many struggle with addiction, mental health challenges, traumatic brain injuries, or PTSD. Studies show that deployment-related trauma exposure, combined with increased incidence of mental health and substance use disorders, elevate veterans’ risk of contact with the justice system. One in three of the nation’s 19 million veterans report having been arrested and booked in their lifetime, and more than 181,000 are behind bars. Once ensnared by the system, veterans often present a complex set of needs and risk factors that are distinctive from those characteristic of civilians without a military background. But multiple barriers prevent many veterans from receiving the targeted interventions they need.
The Veterans Justice Commission is assessing the extent and nature of veterans’ justice-system involvement, the adequacy of transitional assistance for service members as they return home, and the effectiveness of the justice system response when veterans break the law. Chaired by former U.S. Defense Secretary and U.S. Senator Chuck Hagel, the Commission includes former U.S. Defense Secretary and White House Chief of Staff Leon Panetta and 13 other leaders in science, the judiciary, the recovery field, healthcare, corrections, law enforcement, veterans' affairs, and the military. This report provides recommendations focused on the “front end” of the justice system, covering everything from arrest through criminal sentencing. These early stages of the criminal justice process are critical, as they provide a key opportunity to identify the challenges facing veterans and to connect them to services and benefits tailored to help them address those challenges. While mechanisms targeting justice-involved veterans on the system’s front end exist, the Commission’s careful consideration of current federal, state, and local policy suggests that they are relatively scarce, disconnected, and localized. Moreover, where existing initiatives have shown promise in early assessments, there is a lack of rigorous evaluation to guide the development and proliferation of best practices. Finally, data on justice-involved veterans is limited, making it difficult to identify the full scope of the problem.
The Commission has developed three recommendations to improve and expand support for veterans in the early stages of the criminal justice process. Each recommendation is accompanied by a summary of findings as well as a list of detailed actions to guide implementation. Future reports will examine problems veterans face during their transition from military to civilian life and at the back end of the justice system.
“The Commission has developed three recommendations to improve and expand support for veterans in the early stages of the criminal justice process.”
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
“Studies show that when asked about their status by law enforcement, many former service members are hesitant to identify as veterans.”
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
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?
3
Upon completion of the study, Congress should require the Departments of Defense and Veterans Affairs to use the findings to improve SQUARES and VRSS.
4
Congress should incentivize the use of these improved systems by state and local law enforcement officers, jail staff, and court personnel (including non-criminal courts),19 by requiring the adoption and implementation of the systems before certain federal funds and other resources (such as federal justice grants or the use of VA personnel in Veterans Treatment Courts) can be accessed.
Recommendation Two
Create a Continuum of Alternatives to Prosecution and Incarceration for Justice-Involved Veterans
Findings
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.
Recommendation
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.
Implementation Steps
1
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
2
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.
3
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
4
State and federal statutes should establish or expand record clearance (“clean slate”) policies for veterans.
5
Law enforcement, court (judges, prosecutors, and public defenders), and corrections personnel should receive special training in the handling of cases involving veterans, including their exposure to violence, trauma, and PTSD/TBI.
6
The federal government should encourage states to adopt the state statutory frameworks described above through incentives for states receiving Department of Justice, VA, and other related federal grants.
Recommendation Three
Establish a National Center on Veterans Justice to Improve Justice-Involved Veterans Programs through Research and Coordination
Findings
Assessing how well our nation is managing justice-involved veterans requires determining the size of the affected populations. Unfortunately, we have few clues. Approximately one third of veterans indicate that they have been arrested at least once in their lifetime, but that statistic relies on self-reported data.39 In addition, the most recent estimate of incarcerated veterans comes from 2011; it identified 181,500 veterans in state and federal prisons and local jails.40 These two findings underscore an unfortunate truth: reliable data on justice-involved veterans and the circumstances surrounding their criminal offending is sorely lacking. Despite that fact, there has been tremendous growth in the number of organizations dedicated to the problem, and to veterans generally. Estimates place the number of veteran support organizations in the U.S. between 20,000 and 60,000. Many are doing commendable work, but duplication of effort, and a lack of structured connectivity, hamper their potential broad-scale impacts. While there have been initiatives to coordinate the efforts of these groups at a local level, the Commission knows of no national organization with the mission or capacity to facilitate coordination on a broader scale, or between veterans’ organizations and federal and state agencies.41 Within this criminal justice system, some police, prosecutors, courts, and corrections agencies have modified their policies and programs to address military veterans’ criminogenic risks and needs. Still, veteran-specific interventions are rare, and program approaches vary substantially. For example, in a 2021 national scan of more than 2,300 prosecutors’ offices, only 36 reported operating veteran-specific diversion programs.42 Similarly, of the 3,100 local jails nationwide, only 46 operate special veteran housing units.43
“The Commission finds that the lack of coordination between programs for justice-involved veterans results in the duplication of efforts, a lack of proper program evaluation, and an inability to disseminate best practices.”
While veteran-specific interventions are few, some that do exist have been widely replicated without the benefit of rigorous program evaluation. Law enforcement Veteran Response Teams, Veteran Treatment Courts (now numbering more than 600),44 and VA Veterans Justice Outreach (with nearly 400 Veteran Justice Outreach specialists)45 are examples of veteran-specific programs that have spread across the U.S. over the last decade but lack proper study. Champions of each of these interventions share powerful stories highlighting the success of individual participants, and many contend that the programs are based on analogous best practices established among a general justice-involved population (e.g., drug treatment courts as a basis for Veterans Treatment Courts). The Commission does not dispute that many positive outcomes appear to flow from such initiatives. But while it makes sense to gradually expand veteran access to these programs, the Commission cannot unequivocally endorse their rapid spread absent validation by research. The Commission finds that the lack of coordination between programs for justice-involved veterans results in the duplication of efforts, a lack of proper program evaluation, and an inability to disseminate best practices. As a result, justice-involved veterans seeking assistance often confront a confusing and disjointed network of untested interventions.
Recommendation
The federal government should create a National Center for Veterans Justice to lead a coordinated effort to improve outcomes for veterans in the criminal justice system.
Implementation Steps
1
The National Center for Veterans Justice should be responsible for:
a. Enhancing the coordination of information, data, and best practices between and among programs serving justice-involved veterans.
b. Identifying research gaps in veterans’ programs.
c. Funding original research and technical assistance to fill those gaps and encouraging programmatic innovation to expand evidence-based practice for justice-involved veteran interventions.
2
The U.S. Department of Justice’s Office of Justice Programs, in collaboration with the Department of Veterans Affairs (VA), Department of Defense (DOD), Department of Justice (DOJ), Social Security Administration (SSA), Department of Homeland Security (DHS), Immigration and Customs Enforcement (ICE), and law enforcement agencies, should issue a Request for Proposal to support the creation of a National Center for Veterans Justice. Proposals should be assessed based on how effectively they address the center’s ability to:
a. Hold, organize, and maintain for review current information about governmental and nongovernmental programs serving justice-involved veterans. This information should be made easily accessible, allowing justice-involved veterans to identify practitioners and organizations listed by specialty and geographic region.
b. Maintain systems used to identify justice-involved veterans (per Recommendation One) and permit review by anyone entitled to that information.
c. Establish practices to allow veteran service programs to coordinate with each other, including greater sharing of data and best practices identified through program evaluation.
d. Establish data sharing arrangements with the VA, DOD, DOJ, SSA, DHS, ICE, law enforcement agencies, prosecutors, jails, and courts.
i. Explain how this data sharing will be utilized to identify how many veterans are encountering the criminal justice system.
ii. Explain how the National Center will analyze the disparities and outcomes among these veterans and address those disparities and outcomes.
e. Establish sources of funding for the National Center’s ongoing operations, including support from the VA, DOD, DOJ, SSA, DHS, and ICE.
f. Provide technical assistance grants to support the innovation, expansion, and evaluation of new and existing interventions for justice-involved veterans.
g. Conduct, support, and oversee research on current levels of justice involvement among veterans, as well as evaluations of existing interventions designed to aid this population. Initial research and evaluation should cover the following topics related to the front end of the criminal justice system:
i. The number of veterans experiencing different contact points at the front end of the criminal justice system (e.g., arrest, pretrial detention, jail) overall and by race, ethnicity, gender, benefit eligibility, employment and housing status, and other demographic characteristics.
ii. The pathways to criminal justice involvement by veterans overall and by veterans with specific demographic characteristics, such as race, ethnicity, and gender.
iii. The pathways to criminal justice involvement by veterans’ employment and housing status, benefit eligibility, character of discharge, and non-criminal court involvement (such as child custody, family law, and domestic violence matters).
iv. The number of veterans reached by, and the effectiveness of, interventions at different stages of the front end of the criminal justice system (diversion, arrest, detention, prosecution, sentencing).46
Conclusion
With these recommendations, the Commission has provided a roadmap to help policymakers and other leaders strengthen and expand support for veterans as they encounter and move through the first phase of the justice system. As detailed above, identification of veterans is the crucial foundation for this work. Improving systems that allow local, state, and federal agencies to identify individuals who have served in the military will enable a larger number of veterans to benefit from interventions that have been tailored to address their unique challenges. As more veterans access these interventions, a greater number of jurisdictions should adopt frameworks that provide veterans with an alternative to prosecution and incarceration. Finally, the creation of a National Center for Veterans Justice is needed to provide rigorous evaluations of these interventions, accelerate the proliferation of those that are effective, and coordinate the vast array of resources committed to aiding justice-involved veterans. This is the first of several reports the Commission will be publishing as it continues its work over the next two years. With its examination of the front end of the criminal justice system concluded, the Commission now shifts its focus to the transition service members make from military to civilian life. This phase is critical, particularly given that 45% of recent veterans reported feeling inadequately prepared for their return to life outside the military, 61% had difficulty paying their bills following discharge, and 41% reported challenges with alcohol or drug misuse.47 Drawing upon research and the expertise of military leaders who have either experienced military transition firsthand or have overseen it, the Commission will develop recommendations for policy changes to better support veterans as they turn in their uniforms and return home. Following its recommendations on military transition, the Commission will finish its work with an examination of challenges facing veterans during incarceration, release, and community reentry.
Suggested Citation: Council on Criminal Justice. (2023). Honoring service, advancing safety: Supporting veterans from arrest through sentencing. https://counciloncj.foleon.com/veterans-commission/vjc-reports/arrest-through-sentencing