States Seek Ways to Keep Veterans Out of the Criminal Justice System

Veterans were once half as likely as the general population to land in prison. Now, they’re twice as likely. State and local officials are trying to prevent this from happening.

By Carl Smith

Published Spring 2024

Nearly a quarter-century has passed since the terrorist attacks on the World Trade Center and the Pentagon. Since then, 4 million Americans have served in the armed forces, more than half of them in Iraq and Afghanistan. They have been deployed more often than any previous generation of veterans. Most manage the transition to civilian life successfully, but many struggle to emerge from their accumulated stresses and become entangled in the criminal justice system.

Over the past two years, the Veterans Justice Commission (VJC) has been working to identify ways to keep trouble with the law from becoming trouble for life. “We train our soldiers to do incredible things and they are part of the most lethal killing machine on Earth,” says Army Col. Jim Seward, who directs the commission, which is associated with the Council on Criminal Justice.

Generally speaking, there’s not a lot of empathy for criminal offenders, but veterans naturally elicit more support. Vets may face additional challenges as a result of their service. They often end up feeling anger, hostility, paranoia and defensiveness in waves, says Brock Hunter, an Army veteran and criminal defense lawyer whose practice focuses on veterans.

Too many of them aren’t identified as needing help until they are sitting in the back of a squad car or in jail. The departments of Defense and Veterans Affairs, as well as the criminal justice system, might all be running fairly smoothly on their own, Seward says, but there are policy gaps and misalignment that get in the way of bending down the curve of veterans who end up in prison.

It’s certainly not a new phenomenon for soldiers returning home to be changed by their experiences. The ancient Romans made warriors stay outside city gates for a year when they returned from war. A study after World War II found that a third of the convicts in 11 prisons were veterans. Nonetheless, in previous eras, American vets were half as likely as non-veterans to face incarceration. Now, they’re twice as likely.

A number of factors may contribute to this, among them frequency of deployment. The record among Hunter’s clients is 13 — five-and-a-half years of intense combat exposure over a 13-year career. Some have friends who’ve been deployed more than 20 times. As many as a third of veterans develop post-traumatic stress disorder; more deployments can intensify its impact.

Substance abuse disorders are also common, most often involving alcohol. There have been nearly 350,000 cases of traumatic brain injury diagnosed as a result of the wars in Iraq and Afghanistan. Veterans are only 6 percent of the overall U.S. population but make up 7 percent of those who are homeless, despite programs specifically designed to assist them at all levels of government. There are still yet more risk factors, with research ongoing to understand the ways they all overlap.

The Spread of Treatment Courts

Doors to help can be shut even before veterans leave the military. Superiors can interpret behavior resulting from a traumatic brain injury or PTSD, such as substance abuse, as a sign of “bad character.” If a veteran leaves the military with less than an honorable discharge, they become ineligible for VA programs designed to treat addiction and other behavioral health problems. Although the criminal justice system is offering more services to keep those likely to offend out of trouble, the military is doing the opposite, denying benefit eligibility to those most at risk. When veterans do leave service with benefits intact, they lose them once they are incarcerated.

Last year, the Veterans Justice Commission published its first set of recommendations for changes that could help veterans avoid prosecution and incarceration. This begins with identifying veterans as such when they come into contact with law enforcement. Most do not volunteer their veteran status, feeling they have dishonored it. Police rarely ask. VA search services do exist but are seldom used. Confusingly, federal and state regulations and statutes have varying definitions of “veteran.” The commission has called for changes to federal and state policy that could improve identification processes in criminal justice systems and courts.

Many states have diversion programs that offer certain types of offenders alternatives to sentencing. The first veterans treatment court was established in 2008 in Erie County, N.Y. Today, 600 such courts operate in the U.S., but their guidelines are inconsistent. In Minnesota, where Hunter is based, the state public defender ended support for veterans treatment courts in 2017 because of their dysfunction and disparate treatment of veterans. A nonprofit Hunter co-founded, the Veterans Defense Project, got a grant to convene stakeholders and to develop legislation that would standardize court practices.

In 2021, Minnesota enacted the Veterans Restorative Justice Act. The law allows vets to reach plea deals and avoid serving time if they accept treatment for problems such as PTSD and substance abuse disorder and don’t reoffend. Last year, Democratic Gov. Tim Walz signed an update that allows defendants to check their eligibility for the program if they suffer from conditions that were a result of military service.

The Minnesota bill was a valuable resource for a VJC working group as it developed a model policy framework for states. The resulting Veterans Justice Act was adopted as a model bill in November by the influential American Legislative Exchange Council. Proceeding from a clear definition of “veteran,” it provides judges with guidelines for programs that can enable veterans to avoid a record of conviction; have charges reduced in severity; and avoid incarceration through treatment and probation. The framework can be implemented in existing treatment courts, but it can also be utilized by any judge.

An Exceptional Case

One of Hunter’s first clients, former Army Ranger Hector Matascastillo, was home from an overseas deployment when an argument with his wife triggered a dissociative incident. He believed he was in Iraq on a mission and began clearing his house, room by room. His wife called the police, warning them that he was a veteran with mental health issues. They responded with guns drawn. Matascastillo came out of his fog when he found himself surrounded by eight police officers on his front lawn. No one was harmed, but he was charged with 14 felonies.

Hunter helped him get into treatment and he responded well. His prestigious military history helped him avoid felony convictions. After completing probation and treatment, he volunteered to return to Iraq and was awarded a Bronze Star. Matascastillo retired after 18 years of service and earned a master’s degree in social work. He’s now working as a licensed clinical social worker, finishing a Ph.D. in psychology.

Matascastillo’s case may be an extreme example, but it underscores the depth of the experience, resilience and leadership skills that veterans can bring to communities if they are given a chance to turn their lives around. Honor is a core value of military service. It’s a powerful incentive for veterans to complete diversion programs and avoid being labeled second-class citizens, unable to vote and hampered in their ability to contribute to society.

Some military leaders are concerned that bringing attention to the lingering impacts of combat deployment, and their relationship to future criminal justice problems, is one more barrier to recruiting candidates for an all-volunteer military. But the VJC believes acknowledging risk factors and showing American veterans that there are programs for them if they need help after they come home will improve recruitment and retention. “As a nation, we care about our veterans,” says Seward. “Nobody wants our veterans to go to prison.”

This piece was republished from Governing.com.