PTSD Must Be Considered In Criminal Sentences

Post-traumatic stress disorder, or PTSD, is an increasingly visible condition in veterans who are interacting with the criminal justice system. Understanding this condition will be increasingly important in not only assisting these veterans, but in ensuring that the criminal justice system treats defendants with PTSD fairly. The following is an edited excerpt from an article on this topic by Atlanta criminal defense attorney Marcia G. Shein.

Some veterans of the wars in Iraq and Afghanistan have faced troubles as they re-enter civilian life. One researcher has suggested that these troubles may be the result of their military training (for example, killing in the military is seen as a more natural act), unemployment, homelessness, substance abuse, and domestic issues. Whatever the reason, the criminal justice system is facing many similar issues relating to PTSD endured by veterans of the current wars that it has faced for years with Vietnam veterans, including lesser sentences for veterans with PTSD, and the viability of PTSD as a defense.

For example, in United States v. Perry, (1995), the district court was faced with a request for a downward departure from the sentencing guidelines based on the defendant’s PTSD. He had served in the Persian Gulf War, which, like the current war in Iraq, exposed servicemembers to many situations that might lead to the development of PTSD. In granting the departure, the court acknowledged the government’s argument that U.S. Sentencing Guidelines Manual § 5K2.13 should not apply, because the guidelines state that mental illness is not ordinarily relevant and because so many people are “potentially victims of post-traumatic stress disorder.”

However, the court ultimately rejected this argument and granted the departure from the guidelines, explaining that it is “important to recognize that § 5K2.13, while an exception to a general rule, should not be interpreted in such a way as to make it a ‘dead letter.'” The court explained that its “inquiry into the defendant’s mental condition and the circumstances of the offense must be undertaken ‘with a view to lenity, as section 5K2.13 implicitly recommends.'”

The court then examined the disruption that PTSD had caused in the defendant’s life, and decided that a departure from the guidelines was warranted, and found that the departure should be five levels. That five-level departure under the guidelines is significant because it could result in a substantial decrease in the amount of time served; in Perry it resulted in a sentence of six months to one year, rather than a sentence of 18-24 months.

In October 2009, an American service veteran was tried for murder in Oregon, and his “PTSD was successfully considered to mitigate the circumstance of [the] crime.” The defendant, a law-abiding citizen, had killed the man he believed raped his girlfriend. The defendant was “rated as 100% disabled due to PTSD he developed while deployed in Iraq.”

Specifically, the defendant convinced the jury to find him not guilty by reason of insanity based on his PTSD. In Iraq, the defendant had “witnessed the death of a friend from an IED [improvised explosive device] explosion, which commanders reported drastically changed [the defendant’s] mental state.”

The defense case consisted, in part, of expert testimony. As a person associated with the case said, “[t]his [was] a significant decision, for [the defendant] and for Vets around the country, who were law abiding citizen[s] before they went to war and who have been accused of crimes since returning home. The military and the VA have not done enough to diagnose soldiers and Veterans with PTSD and provide them with the needed counseling and support to ease their readjustment to civilian life.”

As more and more veterans suffering from PTSD return from the wars in Iraq and Afghanistan, the criminal justice system will certainly be forced to cope with and adapt to the use of PTSD as a defense and as a source for a departure from the guidelines or a variance at sentencing. Practitioners should be prepared to argue these factors when it is appropriate to do so.

Source: The Federal Lawyer, “Post-Traumatic Stress Disorder in the Criminal Justice System: From Vietnam to Iraq and Afghanistan,” Marcia G. Shein, September 2010