By Margaret Wadsworth
A diagnosis of PTSD can help veterans with lighter sentences, grounds for appeal, treatment in jail, and early parole.
If you are a veteran suffering from post-traumatic stress disorder (PTSD) and you have been convicted of a crime, your lawyer may be able to use your diagnosis of PTSD to help you appeal, get a reduced sentence, or get services while incarcerated.
How PTSD Can Help With an Appeal
If you pled “guilty,” your opportunities to appeal your conviction are limited. But if you pled “not guilty,” there are several appeal opportunities. For example, if the court that convicted you did not recognize PTSD as an illness, this can be a ground for appeal. Or, if you were convicted in a state that recognized PTSD as a legitimate ground for self-defense or an insanity defense and the judge failed to recognize these arguments as even legally possible, this may be a ground for appeal as well.
If you do not have the grounds to appeal your conviction, you may still have grounds to appeal your sentencing. You will need the advice of an attorney to know if this is possible.
Getting Your Sentence Reduced
In certain states, there are some limited opportunities to obtain a reduced sentence based on post-traumatic stress disorder. Having PTSD from military service can be a mitigating factor. For example, if your PTSD was not diagnosed until after sentencing, your lawyer may be able to argue that you would have received a lesser sentence had it been known (in certain state courts). Or, the argument could be made that you would not have been convicted had your PTSD been known about and introduced during trial.
If you suffered from PTSD prior to trial, but your lawyer did not discuss your PTSD in court, then you might be able to get a new lawyer who could argue that your first lawyer was not competent.
Even in states where these arguments are possible, there are strict deadlines for when these arguments can be made.
Asking for a New Trial
There are also limited time frames during which a new trial can be requested if your PTSD was not raised as a defense at your first trial. Know, however, that it is very rare for any defendant (not just veterans) to be granted a new trial.
Lawyers can sometimes request a new trial based on new evidence (evidence that wasn’t known during trial) or can ask to withdraw a guilty plea (if you made one). So if your lawyer can honestly state that he or she was not aware of your PTSD, and through diligent effort could not have become aware of your PTSD, then you may have a good argument for a new trial.
Beware: new trials can sometimes result in a more severe sentence than you received in an initial trial. You will need to rely on the advice of a criminal defense attorney in this matter.
PTSD and Habeas Corpus
If you have no grounds for appeal or you have lost all of your appeals, you may be able to challenge your conviction using a procedure called “habeas corpus.” There are strict time limits for requesting this procedure, typically one year from the date of the final appellate (appeal court) decision. Any issues already raised in your appeal cannot be raised a second time under habeas corpus.
Basically, the habeas corpus procedure lets you raise violations of your rights under the Constitution. For example, if your lawyer was aware of your PTSD and didn’t raise your PTSD as an issue during the trial or sentencing, you may be able to file a habeas corpus petition arguing that you had ineffective assistance of counsel. This is a limited procedure that you will want to discuss with an attorney.
How PTSD Can Help With Jail Placement
If your sentence has been handed down already, and it includes jail time, having PTSD can help you get sentenced to a jail where a treatment program is available. But this is true only in state courts; if you are tried in federal court, the judges will not have any ability to be lenient with you. That is because federal judges are required to follow strict sentencing guidelines and are not permitted to take your military service into consideration.
If you are sentenced to a jail term and you are currently receiving VA benefits, or would like to apply for them, you should be aware of how the VA handles benefits for incarcerated veterans. Read Nolo’s article about how being in prison can reduce your VA benefits.
How PTSD Can Help With Parole
The opportunity for early release through parole is often not available. But if you are in a state that allows for parole and you receive treatment for your PTSD while incarcerated, your lawyer can argue that you are less likely to commit future crimes based on your mental health treatment. It will be important to have evidence and/or testimony from your treatment providers (for instance, psychiatrists and psychologists) at your parole hearing, and to demonstrate to the parole board your commitment to continuing your mental health treatment after your release from prison.
If you haven’t had any treatment, it can still be useful to present evidence about your PTSD and your plans to receive treatment post-release.
If the jail you are in doesn’t offer any treatment programs for PTSD, you may be able to request a transfer to an institution that does offer such a program. Or, you could contact your local VA Transitional Program (see below) to ask if they can start a PTSD treatment program in your facility.
Leaving Jail: Transitional Programs
The VA and the U.S. Department of Labor offer transitional programs to help veterans getting released from prison to transition back into society. Take advantage of these programs to help you successfully move back into your community.
Health Care for Reentry Veterans
The Health Care for Reentry Veterans (HCRV) program is operated by the VA and provides support for community needs (not just health care needs) to incarcerated veterans leaving prison. Each state has reentry specialists who provide outreach and assessment services. To find a specialist in the state where you’re incarcerated, use theHCRV Directory. Reentry specialists can help you find a home, a job, and provide you with services you may need, such as counseling, medical care, or social services.
To do some planning on your own, use the HCRV state specific resource guides.
Incarcerated Veterans Transition Program
The Incarcerated Veterans Transition Program (IV-TP) is coordinated by the Veterans’ Employment and Training Service (VETS) of the U.S. Department of Labor. This program does not provide direct services; rather it provides grants to local organizations that provide support services to incarcerated veterans.
The purpose of these grant-funded programs is to help you find a home and a job as you are preparing to be released from prison and to counsel you and connect you with services as you make the transition back into society.
To be eligible to receive services from the Incarcerated Veterans Transition Program you must be scheduled for release from prison with 18 months, have served on active military duty, and have received a discharge under conditions other than dishonorable.
How Do I Find a Local Program?
Not all states offer these programs, but some do. For a list of programs by state, see the guide “Planning for Your Release: A Guide for Incarcerated Veterans”. This guide is produced for the Veterans’ Employment and Training Service by the National Coalition of Homeless Veterans.
You can also request information about local transitional programs by writing to the Veterans’ Employment and Training Service.:
U.S. Department of Labor
Veterans Employment and Training Services
200 Constitution Avenue, NW, Room S-1325
Washington, DC 20210
If you were arrested but haven’t yet been convicted of a crime, read Nolo’s article on help for veterans suffering from PTSD who are accused of crimes.