Reclaiming the Rehabilitative Ethic in Military Justice: The Suspended Punitive Discharge as a Method to Treat Offenders with PTSD and TBI and Reduce Recidivism

After ten years of sustained combat operations, a legal system has emerged in response to the special needs of servicemembers who have sustained Posttraumatic Stress Disorder and other unseen injuries in combat. Recognizing that these wounded warriors experience symptoms that often manifest in criminal conduct, this justice system incorporates advanced "problem-solving" strategies in its sentencing practices. It provides offenders with a "second chance" to escape the disabilities of a conviction by dismissing or expunging their charges upon successful completion of a demanding treatment program. In contrast to the "problem solving" approach, an alternative justice system adjudicates cases for combat veterans with the same mental conditions. However, it considers treatment as collateral to the sentencing task. In this second system, the prosecutor diminishes the wounded warrior's injuries and experiences in efforts to downplay the bases for mitigation and extenuation. While one would expect courts-martial to foster the problem-solving approach based on the active duty origin of these mental conditions, the initial legal approach resides exclusively in the domain of civilian Veterans Treatment Courts (VTCs).

As it relates to offenders with these unseen injuries, the military justice system is at odds with more than VTCs; it is at odds with itself - in the way it undermines the stated sentencing philosophy of rehabilitation of the offender, the way it erodes the professional ethic by denying core values, and the way it defies the moral obligation to advance the interests of both the veteran and the society he will rejoin. By perpetuating the belief that treatment has no place in military sentencing, the military justice system also undermines Major General Enoch Crowder's very basis for instituting the suspended court-martial sentence at the time of its origin in the early 1900s. In contrast to problem-solving courts, which target the illness underlying criminal conduct, courts-martial function as problemgenerating courts when they result in punitive discharges that preclude mentally-ill offenders from obtaining Veterans Affairs (VA) treatment. Such practices create a class of individuals whose untreated conditions endanger public safety and the veteran as they grow worse over time.

This thesis proposes convening authority clemency as a method to implement treatment-based suspended punitive discharges for combat-traumatized offenders. Without rewriting the law, military justice practitioners can make slight modifications to their practices that promote "intelligent" sentencing consistent with the historical notion of the "second chance." Recognizing that panels, military judges, and convening authorities have consistently attempted to implement treatment-based sentences, this thesis proposes a comprehensive framework to embody the innate rehabilitative ethic in military justice. Carefully-drafted pretrial agreement terms indicate how offenders can enroll in existing VTCs within the convening authority's jurisdiction. A modified Sentence Worksheet provides an additional section alerting panel members about their right to recommend treatment-based suspended sentences. Specially-tailored panel instructions expand on this system by addressing treatment considerations. At a time when both the Commander-in-Chief and the Chairman of the Joint Chiefs of Staff have endorsed VTCs, military justice practitioners should consider the ways in which these programs promote individualized sentencing, protect society, and honor the sacrifices of wounded warriors with unseen injuries.

Note: Abstract extracted from PDF file via OCR.

TJAGSA Thesis 2011 Seamone;

Published: 208 Mil. L. Rev. 1 (2011).