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February 3, 2014

Should there be a death penalty exemption for combat veterans with PTSD?

The provocative question in the title of this post is the issue raised in this intriguing article from The Crime Report authored by Curtis Stephen and headlined simply "The Death Penalty and Combat Vets." Here are excerpts:

At the sprawling Allan B. Polunsky Unit — which houses some 300 people on death row in Livingston, TX — John Darrell Thuesen awaits word of a Texas Court of Criminal Appeals ruling that he hopes will spare his life.  The appeal is being closely watched across the country.

Before Thuesen, 30, was convicted on capital murder charges following a highly publicized trial in 2010, and became Inmate No. 99957, he was a decorated U.S. Marine lance corporal in Iraq, where he served from August 2004 to September 2005.  The trauma he suffered in combat, Thuesen argues, left him with impaired mental capacity — and should therefore exempt him from capital punishment.

Many legal experts agree.  “If someone has combat-related post-traumatic stress disorder (PTSD) or a traumatic brain injury (TBI) related to something that occurred in war, (he or she) should be entitled to a categorical exemption from the death penalty,” argues Anthony Giardino, an Atlanta attorney and Iraq war veteran who proposed the exemption in an article published in The Fordham Law Review in 2009....

As America’s military presence in Iraq and Afghanistan draws down, the argument has become part of an emotional — and contentious — national debate about PTSD, with some experts claiming that it is just one of a number of factors that may drive violent criminality....

There is no current data on the number of American military veterans on death row; nor are there figures on the number of former soldiers incarcerated nationwide, including those who served in Iraq and Afghanistan.  The most recent U.S. Department of Justice statistics date to 2004, when 140,000 veterans — most of whom fought in Vietnam — were held in federal and state correctional facilities.  In that year, about 18,000 ex-soldiers were either serving life sentences or facing capital punishment.

But the impact of a proposed veterans’ exemption from the death penalty is potentially broad.  To date, more than two million Americans have, at some point, been deployed to Afghanistan and Iraq since the conflicts began in 2001 and 2003, respectively.  And while the vast majority of returning soldiers won't be diagnosed with PTSD, a 2008 RAND study found that some 300,000 veterans met the criteria for it....

Veterans advocates say the presence of veterans on criminal court dockets — including for violent, capital offenses — isn't surprising.  “You're talking about survivors who had multiple tours in war and are coming back with symptoms of layered PTSD,” says Shad Meshad, founder of the Los Angeles-based National Veterans Foundation.  “It's like a bomb waiting to go off for some people.”...

“We should be drawing short of taking the life of someone who was suffering mentally at the time of the crime,” says Bill Pelke, a Vietnam veteran and co-founder of the anti-violence advocacy group, Journey of Hope.

Nevertheless, critics argue there is no justification for excluding combat veterans from capital punishment on the grounds of health disabilities arising from their service.  “I am unaware of any case law, legal, medical or moral reasoning that could establish that all of those with PTSD or TBI should be exempt from the death penalty,” counters Dudley Sharp, a Texas-based victim's rights advocate.

Bret A. Moore, a former military psychologist, is similarly skeptical about the tendency to cite PTSD in criminal cases.  “It gives us an opportunity to blame the violence on something, he says.  “But there's no significant data showing that people with PTSD are any more violent than people without it.  My concern is that veterans are getting tagged as violent, which isn't accurate and does a disservice to those who are suffering from the disorder.”

February 3, 2014 at 06:56 PM | Permalink


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The problem is that there is nothing inherently special about "war zone" PTSD. It is not called Post-Warzone-Stress Disorder (PWSD); it is called PTSD. Now, it is an interesting question psychologically as to whether there SHOULD be such a disorder. Maybe there IS something categorically different about war zone disorder that distinguishes it from other types of PTSD. But if war zone disorder is conceptually distinguishable from other types of PTSD that fact should be derived from psychological research, not handed down by fiat from a judge.

Posted by: Daniel | Feb 3, 2014 8:04:13 PM

I don't think such sentencing should be "by fiat," but various guidelines in place probably involve choices by judges, juries or might be considered by prosecutors (or others) for which sound "psychological research" on this subject is relevant. Also, I think the article might raise a general policy question.

Posted by: Joe | Feb 3, 2014 8:50:16 PM

I'm obviously not a fan of the death penalty, so take this for what it's worth, but, while it's obviously mitigation (both the PTSD and the fact that you served in combat), I can't see justifying a categorical rule that leaves out so many others suffering from PTSD.

Posted by: Erik M | Feb 3, 2014 9:03:59 PM

If bitten by a dog, I get afraid of dogs, and avoid them. If traumatized in combat, I become afraid of conflict, guns, hurting people, and avoid them.

Military training implies, I have superior functioning, have received training, and passed by showing greater discipline than others. These make me more dangerous than other defendants.

So military veteran status should be an aggravating factor. Having PTSD and overcoming it and hurting people should be another aggravating factor.

As to prior service as a debt, discounting any price to be paid for hurting people? Leona Helmsley was charged with deducting $4 million in work done at her private home as a real estate business expense. At trial, she argued she had paid $400 million in commercial real estate taxes, and should receive some kind of credit or discount. Jury replied, no. She went to jail. So no discounts for prior good conduct in the criminal law.

Now. Play the Twilight Zone opening title music. We are definitely entering it with the lawyer here.

Posted by: Supremacy Claus | Feb 3, 2014 11:06:46 PM

With 5 million violent crimes, 3 million injuries from crashes, millions of other injuries, think of PTSD as the common cold of mental health. Most people recover in a few days or weeks, as with the common cold. Some vulnerable people die of a cold, so those with serious problems from PTSD must be examined for other factors, such as intoxication, addiction, criminal personalities. While traumatic brain injury has made some people impulsive and goofy, none has ever caused a career of profit making crime.

Posted by: Supremacy Claus | Feb 3, 2014 11:20:31 PM

Daniel, Joe, and Erik, you are right that combat PTSD is not medically different from any other PTSD, but the underlying cause of combat-related PTSD is what makes it especially mitigating. Veterans get PTSD by serving us. We send them to war zones. We put them in harm's way. We owe them a special duty that we don't owe others.

I'm not arguing that PTSD should give veterans a free pass. PTSD is mitigation, not an excuse. Veterans who commit serious crimes should still be seriously punished. But someone whose crime can be tied to service-related PTSD should get consideration at sentencing that others don't.

(Note: I represent an Iraq combat veteran in a non-capital Ohio Supreme Court case involving how combat-related PTSD should be evaluated at sentencing.)

Posted by: Stephen Hardwick | Feb 4, 2014 8:39:09 AM

In that case, I agree. I think it's double mitigation, while PTSD in a general sense would be single mitigation. At the same time, if the PTSD was triggered by childhood abuse, that's also mitigation. It's perhaps not of the same weight, but I do think it's possible the circumstances are just as powerful mitigation as the circumstances of the combat vet.

Posted by: Erik M | Feb 4, 2014 9:39:19 AM

Stephen Hardwick --

"[S]omeone whose crime can be tied to service-related PTSD should get consideration at sentencing that others don't."

I agree with that, but it falls short of establishing what Doug was talking about, a death penalty "exemption" for veterans.

Why should there be a preemptive "exemption?" The thing to do is make to the jury exactly the argument you made here, to wit, that service to the country, and the emotional disabilities that may have stemmed from that service, warrant mitigation of punishment.

Why wouldn't juries be able to evaluate that argument fairly? The juries I saw certainly would.

Posted by: Bill Otis | Feb 4, 2014 10:46:40 AM


I was responding to the comments, not to Doug's point. Out of respect for my colleagues who handle death penalty cases, I prefer not to comment on the general application of the death penalty. As to this particular Texas case, based on the article Doug links to, it doesn't look like Thuesen is making a categorical argument. Quoting the appellate lawyer, it says Thuesen argues that the trial court didn't let the jury have all relevant information about PTSD:

"And while Thuesen's experiences in Iraq were examined at the trial, his appeal argues that the jury wasn't fully apprised of his psychiatric afflictions.

“The defense had a [Veterans Administration] doctor who wasn't allowed to testify about John's PTSD,” says Frank Blazek, an attorney for Thuesen.

“The state pushed back against the diagnosis with testimony about what police observed at the time of the shooting, (but) John is hopeful that the courts will seriously review his case.”

Posted by: Stephen Hardwick | Feb 4, 2014 11:34:20 AM

Thanks for the input Stephen Hardwick.

To be clear, I don't know the medical particulars here.

Posted by: Joe | Feb 4, 2014 11:40:34 AM

"We owe them a special duty that we don't owe others."

Do we? Why? Perhaps I have a different conception of duty than you but I've always thought that duty represents an obligation and the people who served in those wars were volunteers. I might perceive the situation differently if such veterans had been compelled by a draft to join. If a draft was in place then it makes sense to argue that society imposed a duty on them and now society has a duty to mitigate whatever harm they suffered as a result of performing that duty.

But there was no duty here. As Obama said recently regarding brain injuries and the NFL: these people are grown men, they knew what they were getting into. They chose to do so freely and voluntarily. I do not perceive that society owes veterans any special duty in return, at least in criminal justice.

Posted by: Daniel | Feb 4, 2014 11:52:38 AM

"I do not perceive that society owes veterans any special duty in return"

When a family member or friend, voluntarily, does something that puts themselves in harm's way or in some other way serves my interests in a way that they need not (in fact, they could spend their time in safer and often more profitable ways), the fact it is a choice doesn't lead me to suddenly think I don't have a "special duty" to honor their efforts.

The comparison of vets to football players is rather insulting. But, at least it is evenhandedly -- both sides of the death penalty debate will likely have many who would find comparing a football player risking injuries for money to a vet doing so in the military, in part so others need not, a bit off. YMMV.

What about as to "criminal justice"? Somewhat different given the special issues there, but when it comes to sentencing, e.g., the fact a person has used their life doing something useful instead of just being some reprobate tends to be a mitigating factor. Being a vet uniquely wouldn't be a mitigating factor there (there could be other jobs of that sort), but it warrants some "special" respect when weighing mitigating.

Finally, if we want to be just plain pragmatic, draft or no draft, there is always some incentives granted to military service. The "special duty" is part of that too, if we want to be that cynical about it.

Posted by: Joe | Feb 4, 2014 2:36:17 PM


There is a difference between making a claim that cutting veterans a break is something we /should/ do versus the claim that cutting veterans a break is something society has an /obligation/ to do. I was in no way comparing football players to military veterans in terms of their social value--I was comparing them only to illustrate the point that they are both risky activities that people engage in voluntarily. So it doesn't make any sense to me to use the language of obligation when in fact what is meant is social value.

Having said that, I still find the social value argument troubling though I concede it is a closer case. My difficultly is that the social value argument is the same argument that many rich people make...that even though they are criminals and stole a lot of money they should be cut a break at sentencing because they gave 10% of the ill-gotten gains to charity.

Now, the counterargument to that point is that giving a few million dollars to the arts council is by no means comparable to risking one's life for one's country. That there is something so inherently special about military service that it deserves a break that no one else gets, even to volunteers.

I have two thoughts on that counterargument. The first is that naturally military men feel that what they do is so spacial that it deserves a break. Lots of people feel that what they do is so special it deserves a break. The difficult question is whether this type of normative judgement is best left to the courts or whether if society genuinely feels so strongly about the specialness of military service that Congress should pass a law to that effect that veterans get a break. Congress had no trouble passing the GI Bill on the civil front. It seems Congress could do so on the criminal front if it really wanted to.

Which leads me to my second thought. If Congress really thought that military service in these wars was so special then why didn't it pass a draft? Congress could have forced people into military service to fight in Iraq: it did not. It asked for volunteers.

So the fact is that Congress never forced people to go to war in Iraq and it has never passed a law exempting veterans from any criminal penalties because of that volunteered service--this doesn't offer convincing proof of anything--yet it tends to undercut the claim that military service in Iraq was ever viewed by society as anything so special or extraordinary that military members who commit a crime deserves a break that other criminals do not get. Even if it is "good policy" to give veterans a break in criminal sentencing the fact remains that such policy should come from Congress, not the courts, and Congress has chosen to pass no legislation on the issue.

Posted by: Daniel | Feb 4, 2014 3:33:29 PM

Daniel, you begin your reply cutting things thin. If we "should" do something, it sounds to me as a sort of "obligation." What is an "obligation" if not something we "should" do for some reason? You compared football players to possibly lethal military service in a certain context. I think my reply appropriate in context.

Serving the military to me is not the "same" as merely giving a certain amount of money to charity. Putting one's life on the line is different from supplying some amount of surplus income. Even there, if someone really sacrificed, such as a person who gave their life to service like a nun or non-religious role, they are treated somewhat differently than some lazy reprobate. As I noted originally, the military is not unique there.

You realize this sentiment. Your first response doesn't challenge it -- it just suggests legislatures should set the rules. Fine. Let them. The second challenges the breadth of the sentiment since the draft isn't applied. That still doesn't really negate the argument military service is different. Congress and others do treat vets special in various respects.

Posted by: Joe | Feb 4, 2014 4:25:59 PM

Tim McVeigh. Killed babies with a gigantic bomb because the government was coming after his guns.

Veteran. PTSD from Gulf War. Also paranoid schizophrenic.

Mitigation or aggravation? Only in the lawyer Twilight Zone would that be a subject of discussion. No McVeigh in article.

Posted by: Supremacy Claus | Feb 5, 2014 5:38:40 AM

Actually, Ohio, where my case is, did "pass a law to [the] effect that veterans get a break[,]" at least some of the time:

R.C. 2929.12(F)"The sentencing court shall consider the offender's military service record and whether the offender has an emotional, mental, or physical condition that is traceable to the offender's service in the armed forces of the United States and that was a contributing factor in the offender's commission of the offense or offenses."


It's also a federal sentencing factor:

Posted by: Stephen Hardwick | Feb 5, 2014 9:07:58 AM

Mr. Hardwick: Why don't you tell us the military service of your client, any effect on his mental state, his alleged crime, and how it related to his military service.

Posted by: Supremacy Claus | Feb 5, 2014 9:30:02 AM

The way that I see it is the dispute is whether it is an exemption (implying that the jury has to be specifically instructed that they may not impose a death sentence if they find that the defendant has PTSD from military service) or is merely a factor included with other potentially mitigating and aggravating factors.

Everything is arguably a proper factor (although some things that the "experts" see as mitigating is actually seen by jurors as a reason why the defendant is so dangerous that he must be executed), but exemptions should be cautiously given. Once something is declared an exemption then all future litigation will focus on whether a jury erred in finding that the defendant did not fit within the exemption and it will become something that a defense counsel must present as a defense (even if perhaps they had a stronger case for a non-exempt mitigating factor).

Posted by: tmm | Feb 5, 2014 12:20:46 PM

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