For veterans on death row, question of whether war trauma matters

Nearly 300 former soldiers, many of them combat veterans who fought from Southeast Asia to Afghanistan, sit on death rows across the United States – nearly 10 percent of the US death row population, according to a new study.

Legal rulings have tended to dismiss the connection between battle trauma and home front violence – even amid an 89 percent rise in homicides by veterans following the invasion of Afghanistan, compared with a six-year period before 9/11, the report states.

Soldiers who kill civilians at home are seen as a troubling contradiction to the traditionally valorous picture of returning soldiers, says Richard Dieter, author of the report by the Death Penalty Information Center, an anti-death penalty advocacy group. There have been 280 clemencies given to death row inmates since 1976, but none that mentioned military service.

“We want smiling veterans returning home,” Mr. Dieter says in an interview with the Monitor. “But the side of somebody who goes off to the dark side and commits murder, we don’t … want to explore those wounds.”

He adds in the report: “For [those soldiers] who have crossed an indefinable line and have been charged with capital murder, compassion and understanding seem to disappear.”

In general, defense attorneys are loath to bring up wartime service because “in most cases it has little mitigating value” for the defendant, Kent S. Scheidegger, the legal director of the Criminal Justice Legal Foundation, told the Los Angeles Times. In short, he said, defense lawyers “don’t think it’ll work for the jury.”

But a 2009 United States Supreme Court ruling, requiring that combat stress be considered during sentencing in death penalty cases, suggests that the issue is beginning to gain at least some legal traction in court. 

The number of veterans on death row is slightly disproportionate to their share of the overall American population (about 7 percent).

The report comes as Americans are learning more about post-traumatic stress syndrome (PTSD). While many Vietnam Vets struggled to reenter a sometimes-hostile society, since 9/11 PTSD has become better understood, and treatments have improved.

But that shift hasn’t translated into the criminal justice system, Dieter contends. His report cites Andrew Brannan, a Vietnam vet who was the first person executed in 2015. Mr. Brannan won battle medals in Vietnam and qualified for 100 percent disability from the Pentagon because of PTSD and other diagnoses of mental illness.

“With all we know in this day and age about combat trauma, that we would still be putting veterans to death is unbelievable,” Brock Hunter, a Minnesota lawyer who works with the Veterans Defense Project, told The Huffington Post. “Their service should be taken into account.”

Other cases show that legal attempts to argue combat stress as a mitigating factor have had mixed success:

• In 2009, the Supreme Court threw out the death sentence for a Korean War veteran, George Porter, who had been convicted in the 1986 murders of an ex-girlfriend and her new boyfriend. The jury never heard about his post-deployment struggles. Ruling that combat stress must be considered by any death penalty jury, the court unanimously wrote: “The relevance of Porter’s extensive combat experience is not only that he served honorably … but also that the jury might find mitigating the intense stress and mental and emotional toll that combat took on Porter.”
• In 2010, Alabama jury convicted Army veteran Courtney Lockhart for his role in a carjacking that led to the murder of an Auburn University freshman, but it declined to impose the death penalty because of a PTSD diagnosis. Mr. Lockhart had watched 64 fellow soldiers die during battles around Ramadi, Iraq. The judge, however, overturned that sentence and sent him to death row, as Alabama law allows.
• In July, the California Supreme Court upheld the death sentence for veteran John Cunningham, who was convicted of killing three people. His confession to the murders referenced “dreams and experiences in Vietnam," as well as relief at being caught.

Dieter argues that more legal and medical help from the Department of Veterans Affairs is needed, as a well as further societal understanding of the human impacts of war.

“We’re at the really early stages of understanding and knowing how to deal with this,” says Dieter. “That doesn’t mean you walk [away from punishment], but this is all about how extreme the punishment should be, and the understanding that people who served and who have been wounded mentally deserve help.”