Following their service to their country, U.S. military veterans are eligible for a wide range of benefits—health care, education, loans, insurance, and employment, among others—and deservedly so. Should they also enjoy benefits in criminal court? For instance, if a veteran is on trial for murder, should that person’s history of military service be considered a mitigating factor? If so, why?
These are the questions that Professor Youngjae Lee wrestles with in “Military Veterans, Culpability, and Blame” 7 Criminal Law and Philosophy 285 (2013). Lee’s abiding interest in criminal law theory has yielded an extensive and provocative body of work. A Swarthmore College graduate with high honors in philosophy and economics, a Fulbright Scholar, and a magna cum laude graduate of Harvard Law School with experience as an attorney for the U.S. Department of Justice, Lee brings to his work an array of insights stemming and developing from his academic and practice backgrounds.
In this excerpt of his recently published article, he examines the impact that post-traumatic stress disorder may have on veterans’ criminal activity and whether the State has the standing to blame them to the full extent.
In Porter v. McCollum in 2009, the United States Supreme Court, citing “a long tradition of according leniency to veterans in recognition of their service,” held that a defense lawyer’s failure to present his client’s military service record as mitigating evidence during his sentencing for two murders amounted to ineffective assistance of counsel.1 While the Porter Court’s invocation of the “long tradition of … leniency” for military veterans is not incorrect, the legal system’s treatment of this issue has not been uniform. Neither is it the case, despite its long history and prominence, that there is a clear understanding of normative justifications for treating military service background as a mitigating factor. The purpose of this Article is to come to a better understanding of the grounds to believe that veterans who commit crimes are to be blamed less by the State than offenders without such backgrounds. Because much of the debate in this area takes place in terms of post-traumatic stress disorder (PTSD), this Article focuses on PTSD-based arguments in favor of mitigation. How should we morally evaluate veterans who commit crimes while suffering from PTSD? Are offenders with military backgrounds, all other things being equal, less blameworthy than others, and can the State blame them to the full extent of their blameworthiness?
PTSD can cause a variety of symptoms. The Diagnostic and Statistical Manual of Mental Disorders (DSM) requires “clinically significant distress or impairment in social, occupational, or other important areas of functioning” in order for one to be diagnosed with PTSD, and the symptoms of PTSD can range from “persistent symptoms of increased arousal” (such as “difficulty falling or staying asleep” and “difficulty concentrating”) to “persistent avoidance of stimuli associated with the trauma” (such as “inability to recall an important aspect of the trauma”) in combination with a “feeling of detachment or estrangement from others” and “restricted range of affect (e.g., unable to have loving feelings),” to “persistent reexperience” of the traumatic event (such as “acting or feeling as if the traumatic event were recurring”).2
Among the types of symptoms outlined in DSM, only the last one, which could involve “dissociative states,” where “the person behaves as though experiencing the event at that moment,” is obviously related to criminal culpability.3 “For people with posttraumatic stress disorder,” according to one expert, “remembering trauma feels like reliving it.”4 People may experience “intrusive recollections,”5 which manifest as “flashbacks” in extreme cases, and such recollections are “so vivid that it seems as if the trauma is actually happening again,” meaning that “the person may see, hear, smell, or feel the original sensations while remembering the trauma.”6 Flashbacks can occur even among people who did not experience the traumatic events themselves; sometimes being in a close relationship with a victim of a traumatic event, such as a murder victim, is sufficient.7 People who are experiencing flashbacks can react physically, a phenomenon known as “psychophysiologic reactivity.”8 This is where extreme cases of PTSD may produce criminal behavior.
The link between criminal behavior and PTSD may exist in other ways, although the exact mechanism is not always clear. Nevertheless, multiple pathways have been hypothesized, and here I mention a few. First, people who experience traumas tend to rely on drugs and alcohol to avoid confronting the painful memories. Drugs and alcohol can in turn diminish one’s capacity to control oneself.9 Second, one common symptom of PTSD is hyperarousal and sensitivity to potential sources of danger and threat.10 Third, veterans with PTSD can have “anger regulation deficits” and have trouble controlling their anger and aggression.11 Fourth, PTSD may bring about the “sensation seeking syndrome,” often characterized by a tendency to engage in risky activities in order to recreate the level of arousal and excitement they experienced in combat.12 These factors, each by itself or in combination, can lead to criminal behaviors. And since PTSD has the effect of diminishing one’s capacity to control one’s own behavior, it reduces one’s culpability for conduct committed while one’s self-control is compromised due to it.
But that is not all. Even if it is the case that PTSD does not diminish one’s culpability, the State cannot blame military veterans to the full extent of their blameworthiness. To see why this is, we should start by understanding the meaning of punishment. When the State punishes, it blames, condemns, and stigmatizes the offenders.
Two things follow from this. First, the State must ensure that its acts of condemning are fair to, and are in fact deserved by, their recipients. Second, even if the intended recipients of the State’s blaming are blameworthy, the State’s standing to blame—and to punish—may be undermined for various reasons. One of those reasons is that the State itself is partly responsible for the wrongdoing that it seeks to condemn.
The most obvious aspect of the State involvement in the soldiers’ participations in war is that the soldiers are not out there on their own. First, they engage in acts of violence in their official capacity, as extensions of the State itself. Second, soldiers are placed in the types of situations—such as combat situations—that are likely to give rise to symptoms of PTSD by the State itself. That is, a foreseeable consequence of sending soldiers to battlefields is that many of them would end up psychologically damaged. War can be, in short, criminogenic for those susceptible. If the soldiers, while working as agents of the State in places and situations designated by the State as their mission sites, develop symptoms of PTSD, which drive them toward criminal activities post-deployment, the State’s standing to condemn their behavior is undermined because the State itself has caused the conditions leading to the crimes.
One mechanism by which soldiers act as agents of the State is through a system of commands. Such commands are mandatory, accompany a strict system of hierarchy and a clear chain of commands in the military, and disobedience within the military is an offense that can result in court martial and punishment. Thus, a State that orders its soldiers to participate in wars cannot then turn around and blame the soldiers for having followed the commands. It is not that soldiers who follow orders are either justified or excused and hence rendered blameless. Rather, the argument is that X who orders Y to do P lacks standing to criticize Y for having done P.
The State’s involvement is in fact deeper than a mere issuance of commands backed up with sanctions. There is a powerful ethos of obedience that runs throughout the institutions of the military, and indeed the military actively cultivates a culture of obedience.13 There are many reasons of efficiency and effectiveness to cultivate such a culture. But one of the most powerful reasons perhaps is that soldiers are frequently required to do something that people generally find very difficult to do: kill other human beings. In the often discussed study by General S.L.A. Marshall, it was discovered that only about fifteen to twenty of every hundred American soldiers in a battle with enemies consciously fired at the other side.14 The study is controversial, but its basic findings that soldiers are extremely reluctant to kill and that they try to find ways to avoid shooting even if the situations they are in call for them to shoot are accepted as valid.15 The lesson of the Marshall study was that an important part of the military training had to be about overcoming such human inhibitions to kill, and by all accounts, the military has achieved some success in doing so.16
Importantly, whether this argument applies or not does not turn on whether the State has involved itself in a just or unjust war. The State’s standing can be compromised even if the State has not done anything wrong. Even if the State engages only in morally justified conflicts and even if we grant that the State’s efforts to train soldiers to obey orders and overcome their inhibitions to killing are not wrongful, the State’s total, intimate, and intrusive involvement in shaping the soldiers’ psyche and day-to-day lives makes it difficult to declare that the State is not to share the blame in soldiers’ criminal behaviors, no matter the justness of the source of the criminality. In other words, to the extent that the State has created and operated the military and turned individuals into those capable of killing efficiently and deployed them into combat, the State must share the blame for some of the foreseeable negative manifestations of such training and deployments, even if we cannot say that the State has done anything wrong. Therefore, if a veteran’s PTSD symptoms contribute to his criminal behavior, he should not be punished to the full extent of his blameworthiness because the State, through its involvement in the production of his criminality, has undermined its standing to blame him.
1 Porter v. McCollum, 130 S. Ct. 447, 455 (2009).
2 Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 468 (4th ed., text rev. 2000).
3 Id. at 464.
4 Richard J. McNally, Remembering Trauma 105 (2003) (describing the phenomenon of “intrusive recollections” that “come to mind even when the person does not want to think about it”).
6 Id. at 106.
7 Id. at 116.
8 Id. at 106, 118-20.
9 J. Douglas Bremner et al., Chronic PTSD in Vietnam Combat Veterans: Course of Illness and Substance Abuse, 153 Am. J. Psychiatry 369 (1996).
10 Matthew J. Friedman, Posttraumatic Stress Disorder Among Military Returnees from Afghanistan and Iraq, 163 Am. J. Psychiatry 586 (2006); J. Douglas Bremner et al., Chronic PTSD in Vietnam Combat Veterans: Course of Illness and Substance Abuse, 153 Am. J. Psychiatry 369 (1996); Natasha B. Lasko et al., Aggression and Its Correlates in Vietnam Veterans with and without Chronic PTSD, 35 Comprehensive Psychiatry 373 (1994).
11 Claude M. Chetomb et al., Anger Regulation Deficits in Combat-Related Posttraumatic Stress Disorder, 10 J. Traumatic Stress 17 (1997); Claude M. Chetomb et al., Anger, Impulsivity, and Anger Control in Combat-Related Posttraumatic Stress Disorder, 62 J. Consulting & Clinical Psychol. 827 (1994); Edward M. Carroll et al., Vietnam Combat Veterans with Posttraumatic Stress Disorder: Analysis of Marital and Cohabiting Adjustment, 94 J. Abnormal Psychol. 329 (1985).
12 John P. Wilson & Sheldon D. Zigelbaum, The Vietnam Veteran on Trial: The Relation of Post-Traumatic Stress Disorder to Criminal Behavior, 1 Behav. Sci. & L. 69, 74 (1983).
13 Dave Grossman, On Killing: The Psychological Cost of Learning to Kill in War and Society 141-48 (Rev. ed. 2009).
14 Id. at 3.
15 Randall Collins, Violence: A Micro-Sociological Theory 47-48 (2008).
16 Grossman, at 252-63.