Veterans Justice Commission calls for reform to help veterans in the criminal justice system

The Veterans Justice Commission was launched in 2022 as part of the Council on Criminal Justice. The Commission has 15 members nationwide, chaired by former Defense Secretary and U.S. Senator, Chuck Hagel, and including former Defense Secretary and White House Chief of Staff, Leon Panetta. Thirteen other top military leaders, veterans, and criminal justice front runners serve on the Commission.

The Commission found that recent veterans underwent historically high rates of multiple deployments and combat exposure. Both of these experiences are linked to post-traumatic stress disorder (PTSD), and traumatic brain injury (TBI).

Roughly 245,000 service members transition from the military each year. A last count estimate is that more than 181,500 veterans were incarcerated in state and federal facilities, and 33% of veterans report having been arrested at least once. The Commission concluded it's unconscionable that so many veterans land in our criminal justice system, in large part because susceptible transitioning veterans need help to manage the legacy of their military deployments.

This sad situation primarily results from the Department of Defense (DoD) not prioritizing the transition from the military back into civilian life. The DoD is not identifying and adequately supporting vulnerable service members as they transition, leaving many with untreated conditions that increase their risk of criminal behavior and other negative outcomes. But responsibility also lies with the Department of Veterans Affairs (VA). Some of the VA's policies and regulations cause a lot of harm to veterans. Congress, of course, oversees both departments and bears ultimate accountability.

This article will discuss some of the foremost issues that lead to veterans getting involved with the criminal justice system. It will also set forth the major recommendations the Commission is making to Congress to address those issues.

Issues within the DoD

Identification of veterans:

There are no reliable estimates of how many veterans are incarcerated, or have come in contact with the justice system because there is no reliable list of veterans. There are some data-based tools in existence, but they are notoriously unreliable and rarely used. Thus, when veterans come in contact with law enforcement or courts, their veteran status is often overlooked.

The Commission recommends improvement in the identification of veterans involved in the criminal justice system.

Definition of veteran

There is no standardized definition of who is a veteran. The definition found in 38 U.S.C. § 101 lacks clarity: "The term 'veteran' means a person who served in the active military, naval, air, or space service, and who was discharged or released therefrom under conditions other than dishonorable." In addition to this confusing federal definition, each state has various definitions of "veteran." Take California as an example of where there are many different statutory definitions of the word "veteran." A few are in these statutes, but there are many more: Gov't Code §§ 1940 et seq.; Mil. & Vet. Code § 980; Penal Code §§ 858, 1001,80, 1170.9, 1170.91.

To highlight why there's confusion, let's look at a hypothetical veteran who served in California's National Guard for five months. He was deployed by the Governor to quell a riot and was also sent for training in Central America by the President. Is that person a veteran? It would take too long to adequately respond to this hypothetical. Instead, note that some statutes set a time limit on who is a veteran. Others differentiate training from other deployments. Still others distinguish state service from federal service. It can get very complicated.

The Commission recommends the following uniform definition of veteran in order to know how many come in contact with the criminal justice system: "A veteran is defined as a person who swore an oath and entered any branch of the Armed Forces, including the National Guard or Reserve, and is either (1) currently serving in such branch and has not been discharged, or (2) was discharged or released from such service under any characterization except for those receiving a dishonorable discharge, unless the individual receiving the dishonorable discharge has been diagnosed with a substance use disorder (SUD), military sexual trauma (MST), traumatic brain injury (TBI), PTSD, or a mental health condition."

Depriving service members of their future veteran benefits

Congress established a standard for eligibility for veteran benefits in 1944 when it enacted the GI Bill of Rights in 38 U.S.C. § 101(2). It excluded the right to benefits only to those service members who were discharged or released "under conditions other than dishonorable."

Over and over, the military damages a soon-to-be veteran's benefits in the discharge process, especially when mental wounds are involved. Some active-duty service members act aggressively and have difficulty concentrating, the opposite of what is needed for good order and readiness. And sometimes they end up in the military justice system. And when they are discharged for the good of the military due to conduct resulting from their mental wounds, they often end up ineligible for many veteran benefits, including mental health treatment.

The military's approach to performance issues stands in stark contrast to best practices in the civilian criminal justice field. The military stresses punishment. In the civilian world, emphasis is placed on providing evidence-based rehabilitative services to individuals with the highest risk and need.

Advances in medicine have generated sophisticated treatments that are uniquely designed to help service members and veterans, such as dialectical behavior therapy. Systematic reviews consistently show the benefit of these treatments.

The Commission recommends the military integrate evidence-based practices into military justice cases.

Issues within the VA

Treating incarcerated veterans:

Many veterans end up incarcerated because they commit crimes due to some condition they suffered as a result of their military service, and the VA is the best at treating these conditions. For almost 100 years, the VA went into jails and prisons and delivered health care to veterans.

Certainly not the only reason, but part of the reason Congress passed a law in 1986 was Son of Sam. When the public realized serial killer David Berkowitz was receiving Social Security benefits while incarcerated, it was outraged. The statute that was enacted, 38 U.S.C. § 1710 (h), states that the VA is not obligated to provide health care to veterans who are under the supervision of another government agency that has a duty to furnish health care. Jails and prisons have a duty to furnish health care to their inmates.

Note that the 1986 statute did not function as a prohibition on providing health care to incarcerated veterans. Rather, it said the VA did not have an obligation to provide it. Nonetheless, in 1999, the VA created 38 C.F.R. § 17.38 (c)(5). It states that medical benefits do not include "Hospital and outpatient care for a veteran who is either a patient or an inmate in an institution of another government agency if that agency has a duty to give the care or services."

In his research project, Dr. Evan Seamone, a former Army Major and an advisor to the Commission until he died in July 2023, wrote that the regulation was housed within a massive rulemaking petition. He said it was created through the VA rulemaking process rather than through a more visible congressional mandate. The final regulation was issued without supportive analysis or input from incarcerated veterans, congressional representatives, or veteran organizations.

Ramifications resulting from the regulation were immediately evident. Incarcerated veterans were denied the ongoing treatment they had been receiving as well as their much-needed medications. Many public entities could not afford to furnish the treatment veterans needed.

The VA's regulation might seem reasonable if the care of an inmate involves a bone fracture or an emergency appendectomy. But when the prisoner has PTSD following combat or after being raped, or TBI resulting from an explosion, how is the typical prison doctor or nurse capable of appropriately responding? Ask the same question about a small-town jail and the whole notion is preposterous.

The Commission recommends providing VA healthcare to incarcerated veterans. It notes that veterans who do not receive VA health care experience poorer health outcomes, particularly those with PTSD and TBI. Such conditions, if untreated, have been linked to a greater propensity for criminal behavior.

Denying benefits for reasons not established by Congress:

When the veteran shows up at the VA and asks for benefits, the VA conducts its own Character of Discharge determination. Under 38 C.F.R. 3.12, the VA permits itself to interpret Congress's words "under conditions other than dishonorable" to include a lot more reasons than provided under federals statutes. According to authors Kuzma, Montalto, Gwin and Nagin in their book "Military Discharge Upgrade," the VA decides if the discharge was dishonorable for VA purposes by setting up its own regulatory bars to receiving veteran benefits. The book points to a study that revealed 29% of veteran benefit denials were based on statutory bars, while 71% were based on the VA's internal regulatory bars. Thus, the VA has twisted Congress's mandate to deny benefits only to those who did not serve "under conditions other than dishonorable" to include many more circumstances. And the VA has the court's approval to its regulatory bars to veteran benefits. In Camarena v. Brown (1994) 6 Vet.App.565, the Court of Veterans Appeals held that 38 C.F.R. is a valid regulation and consistent with 38 U.S.C. § 101(2).

The Commission recommends that veteran benefit eligibility be expanded as directed by Congress in 1944 in the GI Bill of Rights.

Erroneous payments of benefits:

Sometimes the VA erroneously makes payments to incarcerated veterans. Upon release from prison, the error is often spotted, and the veteran is cut off from further payments until the money is paid back. This situation results in those reentering veterans struggling with accumulated debt along with the many other challenges that accompany release from incarceration.

The Commission recommends that the VA be prevented from collecting benefit arrearages resulting from its own errors.

Issues within Congress's bailiwick

Transition from the military to civilian life:

As set forth above, the DoD is not identifying and adequately supporting vulnerable service members as they transition from military to civilian life. Many are left with untreated conditions that increase their risk of criminal behavior and other negative outcomes.

The Commission recommends the DoD make transition a core mission. It is only Congress that can impose statutory requirements on the DoD to compel it to make the transition a core mission.

Alternatives to prosecution:

Veterans Treatment Courts (VTCs), and diversion for veterans' programs have sprung up all over the country. But many exclude the veterans who need the most help by making those accused of committing a felony ineligible for VTC admittance. Other VTCs refuse admittance to veterans with "bad paper," meaning those who have anything other than an honorable discharge.

The Commission created a model policy framework designed to augment VTCs and diversion programs. It calls for the creation of a Veteran Sentencing Option where adjudication of a criminal case against a veteran is postponed pending completion of a case plan that may consist of diversion/probation and treatment. Veterans who successfully complete their case plan are able to avoid a term of incarceration and have a presumption in favor of either having their case dismissed and their conviction not recorded, or having their felony conviction converted to a misdemeanor. While Congress cannot compel state courts to adopt any of these recommendations, it can compel federal courts to do so. Congress can also offer incentives to states to adopt them.

Note that as of Jan. 1, 2025, California offers veterans everything the Commission recommends regarding alternatives to prosecution for veterans, and more. Beginning at the time of arraignment, every defendant in California is informed of the benefits available to veterans. Veterans who committed an offense as a result of sexual trauma, TBI, PTSD, substance abuse, or mental health problems stemming from service in the United States military are eligible to enter VTCs and diversion programs. Even if they do not enter a program, if the crime they committed is probation-eligible, the sentencing court "shall" consider the veteran's statutory condition in favor of granting probation. And whether or not the crime committed is probation-eligible, the sentencing court "shall" shall consider the condition as a factor in mitigation when imposing a sentence. Penal Code §§ 858, 1001,80, 1170.9, 1170.91.

Housing for veterans:

Conflicting legal definitions and requirements in federal statutes create barriers for veterans trying to secure housing. Many veterans have no family support structure and some get involved in the criminal justice system because they have no place to live. There are organizations trying to help them but complicated bureaucratic statutory and regulatory language hampers everyone involved.

An example of this problem was highlighted in an article in the Los Angeles Times last August about homeless disabled veterans. The U.S. Department of Housing and Urban Development (HUD), had a rule that counted a veteran's disability compensation as income. That compensation can raise a veterans' income above the maximum allowed for housing that is restricted to low-income residents. HUD attorneys insisted the requirement could not be changed. After years of pressure from public interest lawyers, however, HUD announced that most disabled veterans will no longer be excluded from subsidized housing.

The Commission recommends the elimination of barriers to housing eligibility. It is Congress that oversees federal agencies. Only Congress can corral them and make them standardize their rules and regulations in an equitable and less-bureaucratic way so that homeless veterans have access to housing.

Employment of veterans:

There is no large-scale collaboration among industry and government leaders focused on hiring people with criminal convictions who served in our nation's military.

The Commission recommends to Congress that it prioritize the recruiting and hiring of justice-involved veterans.

Conclusion

The coup de grace of the Commission's recommendations is that Congress should establish a National Center on Veterans Justice to improve justice-involved veterans programs through research and coordination. There are estimates of over 60,000 veteran organizations nationwide, all trying mightily to assist veterans. All of this effort results in untested, disjointed interventions. A national center would be the place for all of these groups to avoid duplication of efforts and see what works the best for veterans.

Support for the Veterans Justice Commission comes from The Arthur M. Blank Family Foundation, the Just Trust, LinkedIn, the National Football League, Craig Newmark Philanthropies, T. Denny Sanford, Southern Company Foundation, and the Wilf Family Foundations as well as the John D. and Catherine T. MacArthur Foundation and other CCJ general operating contributors.