When Owen Flaherty returned home from war, his family and coworkers described him as detached and angry, his mind would trick him into seeing enemies firing upon him with guns, and his violent episodes resulted in the police being called to his home on numerous occasions. (2) When Nic Gray returned home, he felt "numb and disconnected," was haunted by nightmares, and one night broke down a stranger's front door, smelling of alcohol and shouting gibberish about the military. (3) Their stories of returning home from combat are remarkably similar--but they are separated by more than a century. Owen Flaherty was a Union veteran of the Civil War who returned home in 1865 and was eventually committed to the Indiana Hospital for the Insane in 1876. (4) Nic Gray served in an armored battalion in Iraq and returned home in 2007. (5) In December 2009, his case was one of the first transferred to the new "Veterans Court" in El Paso County, Colorado. (6) In January, he pleaded guilty to trespassing and received a two-year deferred sentence contingent upon completion of treatment from the Department of Veterans Affairs (VA), community service, restitution, and a letter of apology to his victims. (7)
The story of the psychologically scarred combat veteran struggling to readjust to civilian life is as old as war itself, but since 2001 a combination of factors--including the difficulties of an all-volunteer military, the nature of combat in Iraq and Afghanistan, and advances in medical technology that leave more soldiers alive but severely injured--has focused new attention on the number of veterans who wind up in the criminal justice system. (8) Since January 2008, when the first court opened in Buffalo, New York, (9) "veterans treatment courts" have become an increasingly popular way to address this reemerging problem. Modeled on drug and mental health courts, veterans courts aim to divert low-level offenders whose crimes are tied to the effects of their military service away from incarceration and into treatment. This Article will address whether these courts are the best option for responding to veterans who are charged with crimes. First, I will briefly address the status of American veterans in the criminal justice system and the events since the start of the wars in Afghanistan and Iraq that have drawn increased attention to the problem. Then I will discuss why a separate treatment court for veterans is preferable to including them in existing drug or mental health courts, and provide an overview of how veterans treatment courts operate, what the major criticisms of veterans courts are, and where future developments appear to be headed. Finally, I will discuss other options for veterans charged with crimes, and conclude with some observations about the benefits and drawbacks of treatment courts for both veterans and the criminal justice system as a whole.
PART I. WHY DO WE NEED VETERANS TREATMENT COURTS.'?
A. Veterans in the American Criminal Justice System since Vietnam
The experience of veterans of the Vietnam War led to the first major research efforts regarding psychological trauma and its impact on criminal activity. The number of soldiers returning from Vietnam with severe and highly publicized mental problems is what led to the diagnosis of post-traumatic stress disorder (PTSD) being added to the Diagnostic and Statistical Manual of Mental Disorders (DSM) in 1980. (10) The Bureau of Justice Statistics began keeping track of the number of veterans in federal and state prisons in the early 1980s. (11) The National Vietnam Veterans Readjustment Survey, which consisted of interviews conducted between 1986 and 1988 and is considered the most comprehensive study of Vietnam veterans, found that fifteen percent of all male combat veterans had PTSD, and that of those, nearly half had been arrested at least once. (12) By 1986, veterans accounted for twenty percent of all state prisoners. …