Co-authored by Joshua London
We are good at providing veterans with sentiment, in moving advertisements and rousing cheers in airports. We are less good at dealing with their realities, which are sometimes complex and difficult. One solid step towards accepting our national responsibility for veterans would be to stop executing them when they are convicted of crimes. Because the link between service-related injuries and violence exists but is not yet fully understood, our nation should exclude veterans from the brutal mechanisms of capital punishment. It is not an abstract issue, but a very real one; a new report from the Death Penalty Information Center estimates that about 300 veterans are currently on death row in the United States.
Already, some categories of individuals are exempt from the death penalty. The Supreme Court has categorically barred the execution of those who committed their crimes as juveniles and those who are "mentally retarded" (as they were described in the 2002 opinion that so held). In both cases, the primary reason for the categorical bar was a diminished capacity. While war-related brain injuries diminish the mental capacities of some veterans, there is an additional and compelling reason that would apply in any case involving a veteran: our moral debt to those who have served our nation and suffered from war-related trauma on our behalf.
Such a rule would be consistent with the increasing realization in this country that sending people to war has consequences, and one of those consequences is the high incidence of psychological and physiological harm that combat causes. The National Academy of Science's Institute of Medicine reported that up to 20 percent of the 2.6 million Americans who served in Iraq and Afghanistan are suffering from PTSD. Experts believe that a similar number of Vietnam vets suffered from the same condition, which can affect how the brain reacts to stimulation and often leads to angry outbursts with little or no provocation.
In addition to PTSD, veterans returning from the Afghan and Iraqi wars have experienced an unprecedented incidence of Traumatic Brain Injury (TBI). This is largely because improvements in body armor technology allow soldiers to survive a blast that previously would have been fatal, while the head is left exposed to a concussive shockwave. Symptoms of TBI include hyper-vigilance -- a trait that can easily lead to violent crime.
Outside the realm of capital cases, the law has adjusted to the reality of psychologically and physically injured veterans who commit crimes. Five states, starting with California and Minnesota, have enacted legislation requiring that a veteran's service and resulting psychological injuries be taken into account at sentencing. As of 2012, 168 veterans' treatment courts had been established in the United States, largely to deal with the influx of cases involving veterans of the conflicts in Iraq and Afghanistan.
Even the United States Supreme Court, in 2009, held that combat trauma must be revealed to a sentencing jury in capital cases. That doesn't mean the executions will stop though; juries can, and will, continue to find death an appropriate sentence for some veterans with service-related disabilities. One current example is John Thuesen, a veteran of the conflict in Iraq who had checked himself into a V.A. hospital because he was suicidal and hearing voices. He was sentenced to death in Texas in 2010, after the jury heard at least some evidence of his post-traumatic stress, and his case remains under consideration in the appeals courts. In general, juries don't seem to cut a break for veterans -- a 2004 Bureau of Justice Statistics report showed that among defendants charged with the same crime, veterans received sentences an average of 22 months longer, despite having shorter criminal records.
We have not reached the most logical conclusion of all: That combat veterans suffering from combat injuries should be categorically excluded from execution. The satisfaction that our society might take from the execution of a criminal is not worth the moral cost of killing those who have served us. Federal law should be amended to bar the execution of veterans within the federal system, and the Supreme Court should accept an appropriate case and consider a similar categorical bar under the Eighth Amendment (which would apply to the states). Such a restriction could be limited to those with service-related injuries, though the still-developing science in this area may compel a broader rule that applies to all veterans.
It simply isn't right to send a young man into combat, subject him to PTSD and TBI, and then kill him if he commits crimes which are linked to those injuries. To do so is cruel, unusual, and contrary to the core values our nation expresses on this one day a year we commit to our veterans.
Joshua London is an Associate at the Law Office of Brockton D. Hunter, which specializes in veteran's issues.