“You could live a lifetime and never really get the smell of burning flesh out of your nose.” – J. D. Salinger
The acclaimed author, most famous for his best-selling book The Catcher in the Rye, stormed the beaches of Europe on D-Day with thousands of other Allied soldiers. Fighting from there to the Battle of the Bulge, Salinger witnessed death, destruction, and mutilation. War took its toll as the sarcastic writer struggled with depression and “battle fatigue” (a euphemism for a breakdown, and now considered to likely have been Post-Traumatic Stress Disorder). On May 8, 1945, when the German army surrendered, Salinger did not celebrate with the rest of the world. He sat, alone on his bed, staring at his .45-caliber pistol, wondering what it would feel like to fire his gun through his own hand. Luckily, Salinger had just enough presence of mind to recognize he was in trouble, and he checked himself into a Nuremberg hospital.
Post-Traumatic Stress Disorder (PTSD) is unique among mental disorders because it is caused by a specific traumatic event. This event is often called “the stressor.” The stressor feature may assist in PTSD validation. Juries might be more likely to accept a mental disorder based on an identifiable traumatic event rather than one based on clinical symptoms. People are also receptive to a “before and after” theory where it can be shown that some kind of transformation took place in the individual after experiencing trauma.
However, PTSD claims do face skepticism from judges because the evidence comes from the defendant’s own testimony. There are also structural barriers. The U.S. Sentencing Guidelines discourage judges from imposing lower-than-average sentences because of the offender’s mental or emotional condition unless it is extraordinary. Further complicating the issue, courts have been inconsistent in determining which conditions are considered extraordinary.
When War Comes Home by Michael King
Synopsis: “Three Iraq/Afghanistan War Veterans return home to discover their Post-Traumatic Stress affects not only their own lives, but the lives of their wives, children and friends. Witnessing these powerful stories and many others, retired Four Star General Peter Chiarelli leads the search for better treatment for these invisible wounds of war.”
Deep in the heartland of Indiana, Wes Carlile, a former U.S. Army Chaplin’s Assistant during the Iraq War, was overwhelmed by the death of friends and fellow soldiers. Returning home, Wes discovers his post-traumatic stress endangers his wife Andrea and their two daughters. Seeking help for his survivor’s guilt through his church and the local VA Hospital, Wes attempts to seek redemption from his violent behavior. Meanwhile, as affected family members, Andrea and the girls seek relief from their secondary trauma affect caused by Wes’s return.
Florida resident Emmanuel Bernandin served as both a Naval Technician in Afghanistan and in a Naval detainee camp in Iraq. He was inflicted with PTS, from the guilt of surviving his fourteen fellow brother-in-arms in a massive suicide bombing in Afghanistan. After returning home, the affliction leads him down a path of attempted suicide and commitments to mental institutions. He finds himself a burden on both his family and his girlfriend, Amanda, only finding solace with his dog, Bronze. Emmanuel’s struggle is to must break this cycle of despair in order to survive and lead the normal life he craves.
Living in the mountains of Colorado, Spencer Milo was once a Sergeant in the U.S. Army until an injury from a suicide bomber medically retired him. He now attempts to adjust to civilian life with his wife Sarah, his daughter, and the help of a service dog named, Nemo. Spencer has crippling anxiety and is grossly over medication from doctors who are still struggling to understand the nature of his illness. Damaged both physically and mentally, Spencer hopes that a path of helping other veterans can help him cope with his trauma.
Acclaimed Director Michael King, Executive Producers Debby Hyde and Jennifer Harris, When War Comes Home, is a documentary feature film focusing on the lives of these three soldiers returning from combat. They search for the courage to overcome their demons and painful memories of war. The crusading efforts of Seattle’s retired Four Star General Peter Chiarelli to find better solutions for treating post-traumatic stress and traumatic brain injury is an ongoing challenge to provide the help our Veterans need.
The film puts a “spotlight” on how secondary trauma inflicts the Veteran’s families and children. As such the film provides insight to how post-traumatic stress affects our nation as a whole.
Awarding winning music composer Jeff Beal (Pollack and House of Cards) provides a moving, emotional and dramatic soundtrack for the film. For more information, please visit http://whenwarcomeshome.org/.
‘I Expected It to Happen/I Knew He’d Lost Control’: The Impact of PTSD on Criminal Sentencing after the Promulgation of DSM-5
Perlin, Michael L., ‘I Expected It to Happen/I Knew He’d Lost Control’: The Impact of PTSD on Criminal Sentencing after the Promulgation of DSM-5 (November 11, 2014). Utah Law Review, Forthcoming; NYLS Legal Studies Research Paper. Available at SSRN: https://ssrn.com/abstract=2523164.
Abstract: The adoption by the American Psychiatric Association of DSM-5 significantly changes (and in material ways, expands) the definition of post-traumatic stress disorder (PTSD), a change that raises multiple questions that need to be considered carefully by lawyers, mental health professionals, advocates and policy makers.
My thesis is that the expansion of the PTSD criteria in DSM-5 has the potential to make significant changes in legal practice in all aspects of criminal procedure, but none more so than in criminal sentencing. I believe that if courts treat DSM 5 with the same deference with which they have treated earlier versions of that Manual, it will force them to seriously confront – in a wide variety of cases – the impact of PTSD on sentencing decisions. And this may lead to more robust debates over the impact of mental disability generally on sentencing outcomes.
My optimism here is tempered by (1) the reality that courts deal teleologically with mental disability evidence in general (subordinating it when it is introduced by the defendant, and privileging it when introduced by the state), and (2) the power of sanism – an irrational prejudice of the same quality and character as other irrational prejudices that cause, and are reflected in, prevailing social attitudes such as racism, sexism, homophobia, and ethnic bigotry – in this entire inquiry.
On the other hand, we must also consider the impact of therapeutic jurisprudence on the question in hand. Therapeutic jurisprudence (TJ) presents a new model for assessing the impact of case law and legislation, recognizing that, as a therapeutic agent, the law that can have therapeutic or anti-therapeutic consequences. Although some scholars have considered TJ in the context of the Federal Sentencing Guidelines, it remains mostly an “under the radar” topic. I believe it is essential we give it a new and urgent focus.
I am convinced that, if courts take seriously the new treatment of PTSD in DSM 5, and couple that with an understanding of sanism and an application of TJ, that will lead to an important sea change in the ways that defendants with that condition – especially those who are Iraq and Afghanistan war veterans – are sentenced. This paper proceeds in this manner. First, I briefly review the law of sentencing as it relates to persons with disabilities, focusing on developments that followed the Supreme Court’s decision in United States v. Booker (making the Federal Sentencing Guidelines advisory rather than mandatory), the role of sanism, and the significance of therapeutic jurisprudence. Then, I look at how courts have, until this moment, treated PTSD in sentencing decisions. I will then look at DSM 5 to highlight its definitional changes. I then try to “connect the dots” to show how DSM 5 demands changes in sentencing practices and explain how this change can be consonant with the principles of TJ. I will end with some modest conclusions.
“Neuroscience, PTSD, and Sentencing Mitigation” by Betsy J. Grey, Cardozo Law Review (2012)
This law review article from Cardozo Law Review discusses PTSD, highlighting legislative and judicial developments and federal sentencing guidelines when dealing with PTSD in criminal cases. It reviews the theoretical justifications of sentencing mitigation and how they relate to PTSD. The article also discusses advances in neuroscience research that shows the biology involved when a person undergoes extreme stress and whether these advances justify changing our approach to PTSD in sentencing. Lastly, the article suggests that these advances may cause lawmakers and judges to come up with definitive polices on the use of PTSD in sentencing mitigation. Read the full article.
“Military Service-Related PTSD and the Criminal Justice System: Treatment as an Alternative to Incarceration” by Erinn Gansel, Southern California Interdisciplinary Law Journal (2013)
Abstract: The article discusses the application of military service-related post-traumatic stress disorder (PTSD) and the criminal justices system as an alternative to incarceration. Topics discussed include the history, modern understanding, and treatment of veterans with PTSD, PTSD’s use in the criminal justice system in the insanity defense, the diminished capacity defense, and in mitigating sentencing, along with the shortcomings of these criminal defenses and alternative sentencing. Read the full article.
“Last Stand? The Criminal Responsibility of War Veterans Returning from Iraq and Afghanistan with Posttraumatic Stress Disorder” by Thomas L. Hafemeister and Nicole A. Stockey, Indiana Law Journal (2010)
Abstract: As more psychologically scarred troops return from combat in Iraq and Afghanistan, society’s focus on and concern for these troops and their psychological disorders has increased. With this increase and with associated studies confirming the validity of the Posttraumatic Stress Disorder (PTSD) diagnosis and the genuine impact of PTSD on the behavior of war veterans, greater weight may be given to the premise that PTSD is a mental disorder that provides grounds for a “mental status defense,” such as insanity, a lack of mens rea, or self-defense. Although considerable impediments remain, given the current political climate, Iraq and Afghanistan War veterans are in a better position to succeed in these defenses than Vietnam War veterans were a generation ago. This article explores the prevalence and impact of PTSD, particularly in war veterans, the relevance of this disorder to the criminal justice system, and the likely evolution of related mental status defenses as Iraq and Afghanistan War veterans return from combat. Read the full article.
“Combat Veterans, Mental Health Issues, and the Death Penalty: Addressing the Impact of Post-Traumatic Stress Disorder and Traumatic Brain Injury” by Anthony E. Giardino, Fordham Law Review (2009)
Abstract: More than 1.5 million Americans have participated in combat operations in Iraq and Afghanistan over the past seven years. Some of these veterans have subsequently committed capital crimes and found themselves in our nation ‘s criminal justice system. This essay argues that combat veterans suffering from post-traumatic stress disorder or traumatic brain injury at the time of their offenses should not be subject to the death penalty. Offering mitigating evidence regarding military training, post-traumatic stress disorder, and traumatic brain injury presents one means that combat veterans may use to argue for their lives during the sentencing phase of their trials. Alternatively, Atkins v. Virginia and Roper v. Simmons offer a framework for establishing a legislatively or judicially created categorical exclusion for these offenders, exempting them from the death penalty as a matter of law. By understanding how combat service and service-related injuries affect the personal culpability of these offenders, the legal system can avoid the consequences of sentencing to death America’s mentally wounded warriors, ensuring that only the worst offenders are subject to the ultimate punishment. Read the full article.
“Incidence of Drug Problems in Young Adults Exposed to Trauma and Posttraumatic Stress Disorder” by Philip L. Reed, James C. Anthony, and Naomi Breslau, Archives of General Psychiatry (2007)
CONTEXT: Most estimated associations of posttraumatic stress disorder (PTSD) with DSM-IV drug dependence and abuse are from cross-sectional studies or from prospective studies of adults that generally do not take into account suspected causal determinants measured in early childhood.
OBJECTIVE: To estimate risk for incident drug disorders associated with prior DSM-IV PTSD.
DESIGN: Multiwave longitudinal study of an epidemiologic sample of young adults first assessed at entry to first grade of primary school in the fall semesters of 1985 and 1986, with 2 young adult follow-up assessments.
SETTING: Mid-Atlantic US urban community.
PARTICIPANTS: Young adults (n = 988; aged 19-24 years) free of clinical features of DSM-IV drug use disorders at the first young adult assessment and therefore at risk for newly incident drug use disorders during the 1-year follow-up period.
MAIN OUTCOME MEASURES: During the 12-month interval between the 2 young adult follow-up assessments, newly incident (1) DSM-IV drug abuse or dependence; (2) DSM-IV drug abuse; (3) DSM-IV drug dependence; and (4) emerging dependence problems (1 or 2 newly incident clinical features of DSM-IV drug dependence), among subjects with no prior clinical features of drug use disorders.
RESULTS: Prior PTSD (but not trauma only) was associated with excess risk for drug abuse or dependence (adjusted relative risk, 4.9; 95% confidence interval, 1.6-15.2) and emerging dependence problems (adjusted relative risk, 4.9; 95% confidence interval, 1.2-20.1) compared with the no-trauma group controlling for childhood factors. Subjects with PTSD also had a greater adjusted relative risk for drug abuse or dependence compared with subjects exposed to trauma only (adjusted relative risk, 2.0; 95% confidence interval, 1.1-3.8) controlling for childhood factors.
CONCLUSIONS: Association of PTSD with subsequent incident drug use disorders remained substantial after statistical adjustment for early life experiences and predispositions reported in previous studies as carrying elevated risk for both disorders. Posttraumatic stress disorder might be a causal determinant of drug use disorders, possibly representing complications such as attempts to self-medicate troubling trauma-associated memories, nightmares, or painful hyperarousal symptoms. Read the full article.
Porter v. McCollum, 130 S.Ct. 447 (2009)
The U.S. Supreme Court unanimously held that the Eleventh Circuit erred when it held that the Appellant’s Sixth Amendment right to counsel was not violated when his attorney failed to present evidence of Appellant’s war record and service-related mitigation, including a possible diagnoses of PTSD, during sentencing. The Court wrote that there was a reasonable probability that Appellant’s sentence would have been different if the judge and the jury had heard this mitigating evidence. Read the full opinion.
United States v. Oldani, CRIM.A. 3:09-00010, 2009 WL 1770116, at *7 (S.D.W. Va. June 16, 2009)
In this case, Defendant pled guilty to conspiracy to steal property from the Marine Corps. The defendant guideline range was 46-57 months. The judge departed from this range to give the defendant five months, with three months of probation, based on Defendant’s veteran status and, more specifically, because the Bureau of Prisons (BOP) would not be able to adequately address his need for medical care.
At the appellate level, the court detailed Defendant’s role as a Marine Corps combat engineer responsible for disposing of IEDs. Additionally, the court took note of two “extreme incidences” of combat experienced by the defendant and recognized that the defendant’s combat experience had left him with PTSD.
“The Bureau of Prisons (“BOP”) would undoubtedly be able to provide basic treatment for the conditions of PTSD, TBI and tinnitus. See Mark Simpson Ph.D., Letter to U.S. Attorney’s Office, May 26, 2009, Def.’s Exh. 2 Doc. 36. This treatment, however, would not be equivalent to that which Timothy Oldani could receive from the VA. The BOP is not uniquely situated, as is the VA, to treat the signature injuries from the United States’s current military engagements. Counselors at the BOP would be less likely to have received specific training to treat veterans and deal, for example, with the type of events that brought on a soldier’s PTSD. Finally, group sessions conducted by the BOP would likely be available to the entire prison population (at least those subject to a specific disability) rather than being limited to veterans. For these reasons the Court FINDS that the defendant’s medical condition warrants a prison sentence lower than that recommended by the guidelines so that he may benefit, as much as possible, from the treatment provided by the VA.”
United States v. Cope, 282 Fed. Appx. 369 (6th Cir. 2008)
In upholding a sentence for drug offenses, the Sixth District rejected Defendant’s claim that the lower court placed did not put enough emphasis on his military service during the Vietnam War and his accompanying PTSD. The district court remarked that “even individuals with [this] disorder[ ] have to take responsibility for their actions.”
United States v. Graham, 32 F.3d 571 (8th Cir. 1994)
The district court rejected Defendant’s argument that PTSD from serving during the Vietnam War caused him to abuse drugs and possess methamphetamine, for which he was convicted. Court understood its authority to depart but declined to do so.
State v. Mizell, 773 So. 2d 618, 620-621 (Fla. Dist. Ct. App. 2000)
War veterans in some jurisdictions can raise self-defense claims when there is a diagnosis of PTSD “supported by findings that the disorder impacted a defendant’s cognitive and emotional state and causes him or her to react to a situation differently than would otherwise be expected” in a reasonable person. In State v. Mizell, the First District Court of Appeal for Florida held that the Defendant’s service-related PTSD was admissible as state of mind evidence, as opposed to diminished capacity evidence. The court also held that the expert testimony of PTSD is relevant to the defendant’s actual belief that the danger was real in the same way that battered women’s syndrome is admissible and relevant. Read the full opinion.
United States v. Perry, 1995 WL 137294 (D.Neb., 1994) (unpublished)
The court granted a five-level downward departure under §5K2.13 (Diminished Capacity). The court found that the defendant’s criminal activities were related to a substance abuse problem that he had developed after serving in the Persian Gulf War and developing PTSD.
United States v. Risse, 83 F.3d 212 (8th Cir. 1996)
In this decision, the U.S. Circuit Court of Appeals upheld a downward departure from a range of 57-71 months to 18 months under 5K2.13 (Diminished Capacity), because the defendant’s suffered from PTSD after serving in the Vietnam War. Read the full opinion.
United States v. Cantu, 12 F.3d 1506 (9th Cir. 1993)
Defendant had served for two years during the Vietnam War and suffered from a “grave affliction,” including flashbacks and anxiety. The Ninth Circuit held that the district court erred in determining that it could not depart from guideline range.
Johnson v. Singletary, 612 So. 2d 575, 581 (Fla. 1993)
In this case, the defendant was sentenced to death, but Justice Gerald Kogan’s concurring opinion acknowledges several facts that the trial judge neglected to consider during the sentencing phase. Justice Kogan’s opinion covers the level of detail that should be reached when investigating military service as a mitigating factor. “I am gravely disturbed that [Larry Joe] Johnson was not even permitted the tiniest mitigating value for his physical and mental disabilities, nor for the one thing that caused them: his years of good and productive service in the military.” Justice Kogan highlights that the trial court seemed to wholly ignore the fact that the defendant was “decorated during two tours of duty totaling some fifteen month in Vietnam.” Johnson v. Singletary, 612 So. 2d 575, 578 (Fla. 1993). Moreover, Justice Kogan points out “[t]here was psychological testimony at trial suggesting the reasons why the Defendant lost control of his own mind. An expert in post-traumatic stress disorder suffered by Vietnam veterans indicated that “the 1974 injury not only may have left some brain damage, but it also reawakened the nightmarish experiences that Johnson had endured in Vietnam.” Johnson v. Singletary, 612 So. 2d 575, 578–79 (Fla. 1993). Additionally, Justice Kogan comments on the psychological effect watching friends die in combat had on the defendant. Read the full opinion.
State v. Twelves, 463 So. 2d 493, 493 (Fla. 2d DCA 1985)
The Second District Court of Appeal held that the trial court in this case did not abuse its discretion when it suspended Defendant’s 10-year sentence based upon fact that Defendant’s military record discloses “a substantial amount of combat, the receipt of a Purple Heart and a Bronze Star.” Although Defendant acquired criminal history after his service, there was competent expert evidence that he suffered from PTSD which could be remedied by a veterans outreach program.
“Understanding PTSD with the Veteran Population” by Camellia A. Westwell (2015)
This PowerPoint presentation outlines how PTSD affects veterans and how they can best be treated. View the full presentation.
“Developing and Presenting Trauma Evidence” by Larry Miller and Sara Cohbra, CACJ/CPDA Capital Defense Seminar (2013)
This PowerPoint presentation outlines the best practices for developing and presenting evidence of trauma for the purposes of mitigation. View the full presentation.