The Judge As General: toward a scientific approach to therapeutic justice for military veteran in Veterans Treatment Courts

This essay examines an alternative to incarceration in the criminal justice system called “veteran’s treatment court” particularly in New York State. How did this type of treatment court arise and under what statutory authority does it exist? Elements of the Buffalo Veterans’ Treatment Court, along with a synopsis of a scaled-back version of veteran’s treatment court in Albany County called VetTrak will be discussed.  What does the data collected thus far for veterans treatment courts suggest?  Veterans’ treatment courts are a good idea; yet, to be viable for any length of time, the veterans’ treatment courts must at least overcome the hurdles examined.  All of the hurdles discussed will fall under a single umbrella: that “good ideas” in criminal justice must be empirically based, or will not (and perhaps should not) survive the test of time. Criminal justice is, after all, a social science and it has evolved as a mirror of the body of knowledge we draw on as human beings engaged in solving problems in a rational way; instead of solving problems in a merely thoughtful or metaphysical way. Being rational in the arena of criminal justice demands that we prove the methods we employ. Incarceration is based on a rational model, albeit one which is problematic upon close examination. Veterans Treatment Courts must not take a step backwards to a merely metaphysically-supported method of punishment or treatment of the criminal. Although it may seem to be intuitively superior to incarceration for the population it addresses, this alternative must provide data of its success, not just meaningful examples of why this alternative to incarceration makes sense.

To demonstrate why a rational model for a treatment court for veterans makes the most sense, it makes sense to take a step back and explore the story of rehabilitative techniques—of which Veterans Treatment Court is surely one—and how the techniques are viewed by criminologists.  In the 1970s, a study focusing on prison reform was published in a journal called The Public Interest. That study is now commonly referred to as the “Nothing Works” study. In it, many criminal justice techniques focused on “rehabilitating” prisoners were critically examined, and the shorthand conclusion of many commentators of the study was that many of the programs did nothing to reduce recidivism.[1] Funding for rehabilitative programs in prisons dried up at around the same time, and the 1980s, ‘90s and the 2000s saw the rise of their opposite—“deterrent-oriented” criminal justice programs (primarily bigger, tougher prisons) for prisoners.[2]

Now, progressive judges have begun to turn away from “tough-on-crime” solutions and towards problem-solving courts that offer alternatives to incarceration. But have these progressive judges learned from the past? Are they relying on data to prove their new courts work? Are military veterans who have been accused of crimes best served by treatment courts? 

            Veterans Treatment Court beginnings

Veterans Treatment Courts began as a criminal justice alternative to incarceration in New York State in Erie County in 2008. But an underlying question is, how did anyone get the idea? It is not a purely reflexive question. Comte believed that knowledge progressed through three stages: the theological (supernatural) metaphysical (philosophical, rational) and scientific (rational plus scientific method or proof)[3] Today, in criminal justice, practitioners are very concerned with empirical support for their work whether it be related to crime research or to the goal of punishment or treatment of defendants convicted of crimes.[4] Yet, treatment courts are often explained by way of the hands-on experience of judges in various criminal courts.[5] These judges watched nonviolent offenders cycle through the justice system again and again. Incarceration seemed to teach these offenders very little and recidivism (committing crimes after being incarcerated) was a problem the adversarial system of criminal justice seemed unable to mend.[6] High offender recidivism rates even after the “tough on crime” deterrence of incarceration paved the way for a different model of criminal justice described variously as “therapeutic,” “restorative,” or “problem-solving” justice. Often, it plays out in the form of a plea bargain that diverts defendants away from the typical adversarial system of justice and into an alternative to incarceration program.

The Drug Court Model

Veteran Treatment Courts are specifically modeled after Drug Court, a problem-solving court which evolved as a result of criminal court judges taking an activist role in fixing the typical criminal justice system approach to fighting crime. Elements of drug court include a judge who takes a parens patriae approach to clients (that is, an almost parental view of the defendants before the bench) along with substance abuse treatment, urine screens, job or schooling requirements, and weekly court appearances. These elements are in place in order to help defendants overcome underlying addiction problems that result in crimes. Mentoring between past and present defendants is often an element of Drug Court, as well as positive reinforcement of good behavior such as public applause for clean time and a graduation ceremony.[7]

Veterans’ treatment courts utilize a therapeutic model that addresses underlying problems in a treatment-oriented way, rather than simply punishing people for committing crimes and hoping incarceration will deter future criminality. According to information provided by the Hon. Thomas K. Keefe, presiding judge of Albany’s VetTrak, sometimes “as with low level misdemeanors, the criminal matter before the treatment court may be disposed of without the need for formal written agreements and with only one or a few court appearances, limited monitoring, and conditional discharges, but where significant drug addiction, alcoholism, or mental illness seem to be an issue, veterans execute a participation agreement and often must enter a plea of guilty at the outset of the treatment court.” [8]

Veterans Treatment Courts are very similar to Drug Courts except that they serve a special population of defendants: military veterans. Court of Common Pleas Judge Michael E. McCarthy, involved in a Veterans Treatment Court in Allegheny County in Pennsylvania, makes the case that individuals “who served our country warrant consideration and any help that we can give them. It’s not just about putting the flag out on Veterans Day; it’s about not leaving anyone behind.”[9]  

Keefe explained that there are two types of veterans served by veterans’ treatment diversion programs: newly returning veterans and elderly veterans. Newly returning veterans (recently home from Afghanistan and Iraq) often commit crimes as a result of underlying issues such as war-related trauma, head injuries and post-traumatic stress disorder (PTSD).[10] In the appellant’s brief in Supreme Court case Cone v Bell,  one Army Captain related the following example: “[A] fellow soldier . . . committed a murder after he returned home . . . In war, the soldier was taught to solve “very dangerous problems by using violence and the threat of violence as his main tools. He was congratulated and given awards for these actions. This builds in a person the propensity to deal with life’s problems through violence and the threat of violence.”[11] 

In the brief for the appellant in Cone v Bell, war-related trauma was put another way:  “You are unleashing certain things in a human being we don’t allow in civic society, and getting it all back in the box can be difficult for some people.”[12]

            Keefe first makes it clear that in VetTrak in the Capitol Region only nonviolent offenders are eligible for the treatment court, and explains the goal for these returning veterans with PTSD or substance abuse problems. “We do not want them becoming a forgotten criminal population,” he said, “like older vets often were.”[13]

Elderly veterans have similar issues as returning soldiers. Often, PTSD and depression are at the forefront of their problems. Exacerbating these mental health problems are the stressors of homelessness, joblessness, and sometimes, a long history of crime.[14]  Addressing these issues is what makes Veterans Treatment Court so successful, say proponents. Problem-solving courts match veterans with Veterans Administration (VA) coordinators or community-based program coordinators who provide housing options, drug and alcohol treatment programs, and employment opportunities. The courts also couple defendants with veterans who act as mentors, a critical component of the programs.[15]

Statutory authority for Veterans Treatment Courts

In New York State, Veterans Treatment Court is authorized pursuant to a law which allows defendants to be removed from felony or misdemeanor proceedings and to be sent, instead, to drug court.[16] Elsewhere, support for the courts comes via legislation. California and Minnesota have enacted statutes that directly address the possibility of treatment instead of incarceration for convicted veterans.[17]

VetTrak in Albany County

In Albany, veterans’ treatment court is scaled down, but the elements of it remain the same: numerous court appearances, substance abuse and mental health treatment components, and mentors. Keefe says, “They can’t pick and choose which components they want to do. For instance, they can’t decide to stop taking their medication halfway through the program….they have to do the whole thing.” [18]  VetTrak partners with the local VA and community agencies, and a case manager is assigned to oversee the participating veteran.[19] Peer monitors are an essential component. They are veterans in the community who volunteer to provide peer support for defendants involved in VetTrak. Housing and educational or vocational services are also provided, primarily through the VA.[20]  

There are many components to the Erie County Veterans Treatment Court, according to the Hon. Robert Russell, presiding. The treatment court integrates alcohol, drug treatment, and mental health services with “justice system case processing.”[21]It “sets down the typical adversarial system and the District Attorney works collaboratively with the defense bar… As in Drug Court, noncompliance is met with graduated responses and cooperation is rewarded… Particular emphasis is placed on behavior modification” writes Judge Russell, “and the idea of being mindful of the people, places, and things that participants associate with. Certain people, places, and things can cause a participant to resort back to negative behaviors. Identifying these triggers is helpful for the participants in gaining self-awareness.”[22]

According to Jack O’Connor, Buffalo Veterans Treatment Court Mentor Coordinator, the Eric County Veterans Treatment Court (the first of its kind in the country) started in January 2008; there have been 170 people in program; there have been 38 graduates; and no re-arrests. He notes that six people did drop out for various reasons.[23] Veterans Court, he wrote, is a hybrid treatment court “packed with veteran services.”  He went on to explain, “Our goal is to get them drug free or taking appropriate meds . . . [they] must be in school or working before graduation. Finally, O’Connor noted that criminal charges are dropped upon successful completion of the program.[24]

Data collection and metrics of statistics for Veterans Treatment Court and VetTrak

In some courts, data collection has not yet begun for veterans treatment courts. The rationale for lack of data has been that the courts are too young. In Pittsburgh, Pennsylvania, for example, McCarthy said, “It’s too early to provide information about the court’s effectiveness,” said McCarthy. “I’m just proud to be a small part of it.”[25]

In others courts, collecting data did not begin when the courts did. In Albany County, for example, Judge Keefe said of VetTrak: “It’s still evolving. There is no data collection yet.”[26]

            What should data collection for veterans’ treatment courts focus on? Is recidivism the measure veterans treatment courts should rely on, if the programs are based on a therapeutic model? Should the goalpost be the physical and mental health of the veteran? Proponents of the veterans treatment court do sometimes speak about lowering recidivism when defending the veterans treatment courts, but just as often, commentary in the media, at Capitol Hill, and at the courts themselves suggest that we owe veterans a debt of gratitude, even those in the criminal justice system. For example, Keefe explained, “there is a greater public acceptance on the part of the general public that we should treat our veterans with a social work point of view—that problem solving aspect of social work—that a “they’ve done so much for us” attitude should be taken.” [27] Similarly, Bob Filner, chair of the House Veterans Affairs Committee, said, “Veterans’ treatment courts provide an opportunity for a more humane response to those who bring the war home with them. We sent these kids to war and war has affected their mental and psychological condition. Providing support for returning veterans is an obligation we owe to those who have sacrificed so much for our country.”[28] Whether data collection focuses on recidivism, or other metrics of success such as social bond strengthening, long-term sobriety of participants, or a reduction in homelessness, data collection should occur in the veterans’ treatment courts.

Philosophical rather than scientific approach to Veterans Treatment Courts

Some of the proponents of Veterans Treatment Court have explained the justification of the courts by describing soldiers who were left without structure after leaving the military, structure which had enabled them to succeed. This structure is re-introduced in the veterans’ treatment courts.[29]  

At the other end of the spectrum, Russell, presiding judge in Buffalo, NY, seems to understand the importance of a more scientific approach to the courts that would at least confirm the hands-on experience of judges who started these courts. Granted, that is not the same thing as showing with empirical data that incarceration did not work, and that this court was likely to be more successful. But at least the Erie County court is studying what has already been introduced in the criminal justice system, to see if the data matches expectations. Judge Russell wrote, “Program monitoring provides oversight and periodic measurements of the program’s performance against its stated goals and objectives. Additionally, information and conclusions developed from periodic monitoring reports, process evaluation activities, and longitudinal evaluation studies may be used to modify the program.”[30] The very fact that he sees the need for evaluation studies suggests more than a merely metaphysical approach to the courts.

Paternalism offers little room for disagreement with VA

The paternalistic posture of the Veterans Affairs coordinators and volunteers, who often are in charge of the treatment recommendations for participant veterans, offers little room for disagreement by individuals.[31]  And, “[b]y their nature, custom, training, and experience, many former military members ha[ve] an ingrained respect for governmental authority and would accept an unfavorable decision, even if they disagreed with it. Given the monolithic size and power of the VA bureaucracy, effective dissent with a VA decision [i]s not practical for the individual veteran….”[32]   This power by the VA could, however, be mitigated by defense attorneys in structuring the conditions of the plea reached for veteran participants, essentially providing a voice for each veteran who may not be able to speak, in open court, about any misgiving he or she may have about the conditions he or she is agreeing to in the veterans’ treatment court.

Benefits of Veterans Treatment Courts

            Lower recidivism; lower costs to city, county and state governments due to less incarceration; and stronger communities are some of the possible benefits to veterans’ treatment courts. And, Judge Keefe notes that more than lowered recidivism is at stake, citing the health of the veteran, as well as the potential for connecting that veteran with community resources, such as housing and treatment.[33]

Public Support for alternative to incarceration for veterans

Bob Filner, who chairs the House Veterans’ Affairs Committee, has commented on the rationale for Veterans Treatment Courts, and his comments seem to mirror the stance many public officials take on the problem-solving court. In January 2010 he said: 

“Providing support for returning veterans is an obligation we owe to those who have sacrificed so much for our country. These courts save money, but more importantly, they save lives. Nearly two million veterans have returned from combat operations in Iraq and Afghanistan. Often, veterans struggle to adjust to the sudden loss of military camaraderie. Some return with anxiety, post-traumatic stress, or other psychological wounds of war and may self-medicate with drugs and alcohol. When veterans suffer from substance-dependency disease, jobs are lost, marriages are tested, and families suffer.” [34]

 

As Judge McCarthy said, “We have an obligation to try to help these folks.”[35]

Conclusion

Courts and judges involved in Veterans treatment Courts have so far skirted much empirical support, but only insomuch as the courts are a new phenomena and providers can say “No data yet!” Without empirical data, courts may not expand nor continue past the “bench life” of these impassioned judges’ tenures. While some data collected in other states on drug courts suggest that treatment courts are far superior to an adversarial court (at least in terms of lower recidivism and cost savings), that data may not be generalizable since data collection thus far has focused on drug courts, not veterans treatment courts.[36] Furthermore, that data weakness that researchers call ‘multiple treatment interference’ may occur since more than one treatment variable (drug treatment and veteran-specific treatment) is used and the analysis treats them as the same thing.[37] Collecting and analyzing data seems worth it for veterans. In an NPR story, one member of the Buffalo Veterans’ Treatment Court, Darryl Harper, found himself with criminal charges when he turned on the oven in his house to kill himself. He was charged with attempted arson. In Veterans’ Treatment Court, Judge Russell ordered him to stay on his medication and see a counselor. According to the NPR story, Harper’s son was killed a few months ago, and Russell’s staff has responded by keeping a close watch on him. Harper’s response to that attention and direction?  He said: “This is how I look at it: He’s my general, who has ordered me to do these things.”[38]

Many veterans, both elderly and newly returning, may share that view of the judge they see while they are a part of veterans’ treatment court. But the “generals” who spearhead these courts must be able to cite statistics not only at election time, but in order to continue to convince the District Attorneys and the defense bar to support this alternative to incarceration and funnel cases there.


[1] D MARTINSON, ROBERT. “What Works? Questions and Answers About Prison Reform.” The Public Interest 35 (Spring 1974): 22–54 citation from <a href=”http://law.jrank.org/pages/1938/Rehabilitation-BIBLIOGRAPHY.html”>Rehabilitation – Bibliography</a>

 

[2] See e.g. Michael B. Mushlin in RGTSPRISON § 3:78 Generally at FN 7 “there has been a shift in the view that rehabilitation is the overriding goal of prisons.” Sheldon Kranz, Corrections and Prisoners’ Rights 207 (1989). See also Francis A. Allen, The Decline in the Rehabilitative Ideal in American Criminal Justice, 27 Clev. St. L. Rev. 147 (1978) (prison programs have declined because of the views of many that they do not work and that their availability shows that the public is being too soft on offenders). As a result, some states have even changed their laws to indicate that the purpose of confinement is punishment, not rehabilitation. See Cal Penal Code § 1170(a)(1) . . .“

[3] Research Methods in Criminal Justice and Criminology/Frank E Hagan –Seventh Edition pp.28-29. Also see e.g http://plato.stanford.edu/entries/comte/#LawThrSta which illustrates:

“The law states that, in its development, humanity passes through three successive stages: the theological, the metaphysical, and the positive . . .In the theological stage, the human mind, in its search for the primary and final causes of phenomena, explains the apparent anomalies in the universe as interventions of supernatural agents. [In the] second stage …supernatural agents are replaced by abstract entities. In the positive state, the mind stops looking for causes of phenomena, and limits itself strictly to laws governing them; likewise, absolute notions are replaced by relative ones. . .”

 

[4] See e.g. Research Methods in Criminal Justice and Criminology/Frank E Hagan –Seventh Edition pp.3-7, 7, which concluded after contrasting ‘common sense’ approach to criminal justice problems to a more rigorous scientific approach that “[s]ystematic application of the scientific method to research problems provided major breakthroughs in the development of knowledge.”

 

[5] e.g.  Hon. Thomas K. Keefe, Albany County VetTrak Presiding Judge [in an interview on September 28, 2010]; Hon. Robert Russell, Erie County Veterans Treatment Court Presiding Judge [quoted in an NPR story on April 28, 2008 at http://www.npr.org/templates/story/story.php?storyId=90016059%5D; and Judge McCarthy  in Allegheny County Court of Common Pleas in Pittsburgh, PA [Tracey Carbasho, VETERANS’ COURT PROVIDES SUPPORT AND SERVICES FOR LOCAL VETERANS, 12 No. 3 LAWYERSJ 4, January 29, 2010]  all cited their own experience to explain the start of veterans’ treatment courts.

[6] Recidivism data for 2006, the most recent statewide data available from the Department of Criminal Justice System (DCJS) suggests recidivism, when defined as Probationer Felony Arrests Following Sentence, is currently at between 17-21%. (see Table at http://dpca.state.ny.us/pdfs/statewiderecidivismdata.pdf) This measure of recidivism does not, however, include such offenders as non-probationers, and also does not include persons who committed felonies which were reduced to misdemeanors as part of a plea agreement. Thus, the number may be artificially low.

[7] Personal Communication in March 2008 with Mike Green, the District Attorney of Monroe County. 

[8] Excerpt, from “What is the Albany Regional Drug Court Veterans Track (VetTrak)” page 2. See attached.

[9] Tracy Carbasho, Veterans’ Court Provides Support and Services For Local Veterans, 12 No. 3 LAWYERSJ 4 (January 29, 2010)

[10] Interview with Hon. Thomas K. Keefe, September 28, 2010.

[11]From Cone v Bell appellant’s brief, which cites Deborah Sontag & Lizette Alvarez, War Torn; Across America, Deadly Echoes of Foreign Battles, N.Y. Times, Jan. 13, 2008 (quoting a letter from Capt. Benjamin D. Tiffner, a criminal defendant’s former platoon leader, who was killed in Iraq in November 2007).

[12] 2008 WL 4217234 (U.S.) (Appellate Brief) Supreme Court of the United States. CONE v BELL September 12, 2008 at *15-16

[13] Interview with Hon. Thomas K. Keefe, September 28, 2010.

[14] Id.

[15] Id.

[16] The law, NY CRIM PRO § 180.20, reads:

“Proceedings upon felony complaint; removal of action from one local criminal court to another . . . ‘3. Notwithstanding any provision of this section to the contrary, in any county outside a city having a population of one million or more, upon or after arraignment of a defendant on a felony complaint pending in a local criminal court having preliminary jurisdiction thereof, such court may, upon motion of the defendant and with the consent of the district attorney, order that the action be removed from the court in which the matter is pending to another local criminal court in the same county which has been designated a drug court by the chief administrator of the courts, and such drug court may then dispose of such felony complaint pursuant to this article.’”

[17] “State sentencing statutes tend to vary as much as the fifty individual states themselves. California and Minnesota have enacted sentencing statutes with the common goal of providing treatment for veterans suffering from PTSD.”  Adam Caine, Fallen from Grace: Why Treatment Should Be Considered for Convicted Combat Veterans Suffering from Post Traumatic Stress Disorder, 78 UMKC L. Rev. 215, 224-25 (2009)

[18] Interview with Hon. Thomas K. Keefe, September 28, 2010.

[19] WHAT IS THE ALBANY REGIONAL DRUG COURT VETERAN’S TRACK (VetTrak), page 2, See attached.

[20] Id.

[21] Hon. Robert Russell, 35 NENGJCCC 357, 368 New England Journal on Criminal and Civil Confinement VETERANS TREATMENT COURT: A PROACTIVE APPROACH Summer, 2009.

[22] Id. at 369

[23] Personal communication with Jack O’Connor, Buffalo Treatment Court Mentor Coordinator, on Oct 18, 2010.

[24] Id.

[25] Tracy Carbasho, Veterans’ Court Provides Support and Services For Local Veterans, 12 No. 3 LAWYERSJ 4 (January 29, 2010)

[26] Interview with Hon. Thomas K. Keefe, September 28, 2010.

[27] Id.

[28] Tracy Carbasho, Veterans’ Court Provides Support and Services For Local Veterans, 12 No. 3 LAWYERSJ 4 (January 29, 2010)

[29] Comments by Patrick W. Welch are one example:  “Many of these veterans in the court did not have a good support system before the military and lack that support system when they returned. Yet while in the military many thrived because of a strong and structured support system, so it is an obvious conclusion that they can for the most part become productive citizens if provided with some type of support structure and the veterans court, with a Judge, the VA and the Veteran mentors, provides just that. . . . .” Statement of Patrick W. Welch, PhD., Director, Veterans Service Agency Erie County, New York, Before the House of Representatives Committee on Veterans Affairs on September 16, 2009 available at http://www.erie.gov/veterans/veterans_court.asp

[30] Hon. Robert Russell, 35 NENGJCCC 357, 367 New England Journal on Criminal and Civil Confinement VETERANS TREATMENT COURT: A PROACTIVE APPROACH Summer, 2009.

[31] Victoria L. Collier, Drew Early, Cracks in the Armor: Due Process, Attorney’s Fees, and the Department of Veterans Affairs, 18 Elder L.J. 1, 10 (2010)

[32] Id.

[33] Interview with Hon. Thomas K. Keefe, September 28, 2010

[34] Tracy Carbasho, Veterans’ Court Provides Support and Services For Local Veterans, 12 No. 3 LAWYERSJ 4 (January 29, 2010)

[35]Retrieved October 27, 2010  at National Law Journal online at http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202426915992&slreturn=1&hbxlogin=1

[36] Study Shows Cost-Saving Benefits of Drug Courts explained “The Judicial Council of California, in a six-year study of nine drug courts, found that drug courts save money while also reducing recidivism….The study concluded that drug courts were effective in lowering recidivism rates, and that, with the exception of treatment agencies, all agencies involved with drug courts saved money.” A summary of the report can be obtained at: http://www.courtinfo.ca.gov/programs/collab/.

[37] Research Methods in Criminal Justice and Criminology/Frank E Hagan –Seventh Edition p.85

2 thoughts on “The Judge As General: toward a scientific approach to therapeutic justice for military veteran in Veterans Treatment Courts

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