Should service-related PTSD exclude veterans from the death penalty? An answer to this question could affect some of the estimated 300 veterans who now sit on death rows across the country, reported Mother Jones. But it's unclear how many of them suffer from PTSD or traumatic brain injuries, given how uneven the screening for these disorders has been.
Experts are divided about whether veterans with PTSD who commit capital crimes deserve what is known as a "categorical exemption" or "exclusion." Juveniles receive such treatment, as do those with mental disabilities. In 2009, Anthony Giardino, a lawyer and Iraq War veteran, argued in favor of this in the Fordham Law Review, writing that courts "should consider the more fundamental question of whether the government should be in the business of putting to death the volunteers they have trained, sent to war, and broken in the process" who likely would not be in that position "but for their military service." In a 2015 Veterans Day USA Today op-ed, three retired military officials argued that in criminal cases, defense attorneys, prosecutors, and judges often don't consider veterans' PTSD with proper due diligence. "Veterans with PTSD…deserve a complete investigation and presentation of their mental state by the best experts in the field," they wrote.
Courts "should consider the more fundamental question of whether the government should be in the business of putting to death the volunteers they have trained, sent to war, and broken in the process."
That idea is utterly unacceptable to Kent Scheidegger of the Criminal Justice Legal Foundation, a California-based victims-of-crime advocacy group, who contends a process already exists for veterans' defense attorneys to present mitigating evidence. To him, a categorical exclusion would be an "extreme step" that would mean "one factor—always, in every case—necessarily outweighs the aggravating factors of the case, no matter how cold, premeditated, sadistic, or just plain evil the defendant's actions may have been."
But presenting a case for service-related PTSD often doesn't happen. Richard Dieter, the former director of the Death Penalty Information Center and author of its report "Battle Scars: Military Veterans and the Death Penalty," says PTSD defenses can backfire for defense lawyers. "What I hear from lawyers is, 'Look, we're a little hesitant about bringing this issue up before a jury because it can cut both ways,'" Dieter says. "It sounds like you've got a very dangerous person on your hands with this PTSD. And this person is not getting better, and they're a threat to society."
Furthermore, the relatively small amount of relevant case law isn't consistent. The US Supreme Court overturned a Korean War veteran's death sentence in 2009 after finding that his original lawyers didn't provide the convicting jury enough background of his military service and the resulting physical and psychological wounds. ButAndrew Brannan, a Vietnam veteran with bipolar disorder who was rated as 100 percent disabled on account of his PTSD, was executed by lethal injection in January 2015 for murdering a Georgia deputy sheriff. Brannan had hoped his case would bring attention to the issue: "I am proud to have been able to walk point for my comrades," he said, according to one of his lawyers, "and pray that the same thing does not happen to any of them."
Dr. Stephen Xenakis, a retired general and an Army psychiatrist for 28 years, has served as an expert witness in a number of veterans' trials and says most of the men who've committed these crimes have had multiple problems—everything from traumatic brain injuries and depression to concussive symptoms and substance abuse—that can "lead to a situation and a state of mind where they commit these horrendous offenses." Soldiers who served in Iraq and Afghanistan have had a high rate of head and neck injuries; bullets are causing proportionately less damage than explosions from roadside bombs and IEDs, and highly trained medics are able to address the wounds more effectively than in the past. By 2012, an Institute of Medicine study estimated that between 13 and 20 percent of the 2.6 million Americans who'd served in Iraq and Afghanistan showed at least some of the symptoms of PTSD, according to Mother Jones.
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