Help for Vets With PTSD in the Criminal Justice System

Veterans with post-traumatic stress disorder (PTSD) often face significant hurdles when re-entering civilian life. Adjusting to a new routine, maintaining connections with family and friends, and finding employment can be difficult for vets even in the best of times, but these challenges are often compounded for veterans who are struggling with their mental health.

Some veterans who have PTSD aren't effectively able to manage their symptoms as they transition out of active duty, turning to drugs and alcohol in order to cope with the disorder. Lack of a strong support network can put vets with PTSD at a higher risk of homelessness, where they can be vulnerable targets of crimes or hostile police interactions. If you've been arrested or convicted of a crime, you may be able to use your PTSD diagnosis to negotiate a plea agreement, mount a defense at trial, or appeal a conviction.

Veterans Who Are Accused of a Felony or Misdemeanor

If you've been accused of a crime, whether a misdemeanor or felony, it's critical that you obtain the services of a local attorney who has experience with criminal defense. Don't assume that the attorney you may have used to help obtain disability compensation for your PTSD will also know how to navigate the criminal justice system—these areas of the law are two very different beasts.

Qualifying for Veterans Treatment Court

One option for veterans accused of non-violent crimes (such as drug possession) who have mental health or substance abuse disorders is a Veterans Treatment Court. Veterans Treatment Courts are meant to provide an alternative method from the traditional criminal justice system so that vets with PTSD can get the help they need without resorting to jail time.

If you're eligible, you can choose to have an assessment by a mental health provider who recommends a course of treatment to the veterans court. A judge will check up on your progress while you get treatment for your substance abuse or PTSD. Veterans who opt for treatment court are provided mentors who can help them find jobs, housing, and transportation.

Getting a Plea Agreement

Veterans who choose the standard criminal justice proceedings will likely have their case resolved by plea agreements. A plea agreement means that you don't have a trial—instead, the prosecutor and your defense attorney work out a deal. You agree to plead guilty and, in return, the prosecutor will do something favorable for you. This could include agreeing to charge you with a lesser crime or receiving a shorter jail term, among other options.

When your lawyer is negotiating a plea agreement for you, the fact that you have PTSD can work in your favor, especially if you have been charged with a non-violent crime. In some cases, you could be ordered to go on parole and receive in-patient treatment rather than go to prison. In that case, you might even have the option to have the offense "expunged" (erased from your record).

More rarely, a prosecutor may agree to drop the charges altogether. This might occur if you don't have a criminal record, your criminal conduct was out of character, the crime you committed was non-violent, and you have admitted your fault and are receiving treatment.

Using a PTSD Defense at Trial

If your lawyer and the prosecutor aren't able to reach a plea agreement or the plea agreement is not acceptable to you, then your case will go to trial. In this case, the fact that you have post-traumatic stress disorder might be used as a defense at trial. For example, if you have PTSD and you fired a gun at someone under the mistaken belief that you were in a war zone, then your diagnosis can be used to help show that you didn't have the right state of mind to meet certain necessary factors for the crime you were charged with.

Your lawyer must be able to prove that you legitimately suffer from the disorder. (Psychiatric medical records, such as a C&P exam, will be useful here.) Additionally, the crime you committed must somehow be linked to your PTSD—otherwise your lawyer won't be able to use your diagnosis as a defense.

One strategy your attorney can use in most states is the insanity defense. This defense primarily applies to violent crimes. Using it requires your lawyer to prove that you didn't understand that your actions were wrong. If you're found not guilty due to insanity, you won't be free to go home—rather, you'll be sent to a mental health facility for the duration of your sentence.

Another strategy available to you and your lawyer is self-defense. If your PTSD symptoms caused you to truly believe you were in danger and needed to act to protect your life, you might be acquitted on the basis of self-defense. But this will work only if your lawyer can prove that you legitimately believed you were being attacked when you acted violently.

Veterans With PTSD Who've Been Convicted of a Crime

If you're convicted of a felony or misdemeanor, your PTSD diagnosis may be helpful in appealing the conviction, reducing your sentence, or determining your eligibility for early parole. Keep in mind that criminal law varies significantly between states, so make sure that you're researching the rules and procedures for your proper jurisdiction (or have a local lawyer).

Using a PTSD Diagnosis to Help Appeal a Conviction

If you agree to plead guilty as part of your plea bargain, your opportunities to appeal your conviction are limited. But if you pleaded not guilty, you have several options. For example, if the court that convicted you didn't recognize PTSD as an illness, this can be a ground for appeal. Or if you were convicted in a state that recognizes PTSD as a legitimate basis for self-defense or an insanity defense but the judge failed to recognize these arguments as even legally possible, this may be a ground for appeal as well.

Even if you don't have the grounds to appeal your conviction, you may still be able to appeal your sentencing. You'll need the advice of an attorney to know if this is possible.

Getting Your Sentence Reduced

Certain states offer limited opportunities to obtain a reduced sentence based on post-traumatic stress disorder. Having PTSD from military service can be a mitigating factor. For example, in some state courts, if your PTSD wasn't diagnosed until after sentencing, your lawyer may be able to argue that you would have received a lesser sentence had your diagnosis been known at the time. Or your lawyer could argue that you wouldn't have been convicted if evidence of your disorder had been known about and introduced during trial.

If you suffered from PTSD before your trial but your lawyer didn't discuss your PTSD in court, then you might be able to get a new lawyer who could argue that your original lawyer was not competent. In states where these arguments are possible, there are strict deadlines for when these arguments can be made, so don't leave them to the last minute.

Asking for a New Trial

There are also limited time frames during which a new trial can be requested if your PTSD was not raised as a defense at your first trial. It's important to know that it's very rare for any defendant (not just veterans) to be granted a new trial, and new trials can sometimes result in a more severe sentence that you initially received.

Lawyers can sometimes request a new trial based on new evidence that wasn't known during trial or ask to withdraw a guilty plea (if you made one). So if your lawyer can honestly state that they weren't aware of your PTSD—and through diligent effort could not have become aware of your PTSD—then you may have a good argument for a new trial.

PTSD and Habeas Corpus

If you have no grounds for appeal or you have lost all of your appeals, you may be able to challenge your conviction using a procedure called "habeas corpus." There are strict time limits for requesting this procedure, typically one year from the date of the final appellate (appeal court) decision. Any issues already raised in your appeal can't be raised a second time under habeas corpus.

The habeas corpus procedure basically lets you claim violations of your rights under the Constitution. For example, if your lawyer was aware of your PTSD and didn't raise your PTSD as an issue during the trial or sentencing, you may be able to file a habeas corpus petition arguing that you had ineffective assistance of counsel, a violation of the Sixth Amendment.

Incarcerated Veterans With PTSD

If your sentence has been handed down and it includes jail time, your PTSD diagnosis may aid in placing you in a jail that has trauma treatment counseling, or you may be able to request a transfer to an institution that does. Your VA disability compensation benefits (if you're already receiving them) may be reduced or terminated entirely for the remainder of your incarceration if you're in prison for longer than 60 days.

Veterans who are receiving treatment for their PTSD while incarcerated may be eligible for early release through parole, depending on the state. If you can provide evidence of progress in treating your PTSD symptoms (such as testimony from your regular psychologist) at your parole hearing—as well as a commitment to continued treatment following release—your lawyer may be able to successfully argue that you're less likely to commit future crimes.

When you're ready to be released from prison, the VA and Department of Labor offer several transitional programs to help veterans reintegrate into their communities following incarceration.

Health Care for Reentry Veterans

The VA operates a Health Care for Reentry Veterans (HCRV) that offers medical care, mental health services, and housing support for incarcerated veterans leaving prison. Each state has reentry specialists who run outreach and assessment services. Reentry specialists can help you find a home, a job, and help you figure out what to do immediately after you're released from jail. You can find the specialist for the state where you're incarcerated by using the HCRV Directory.

Incarcerated Veterans Transition Program

The Incarcerated Veterans Transition Program (IV-TP) is coordinated by the Veterans' Employment and Training Service (VETS) of the U.S. Department of Labor. You're eligible to receive services from the IV-TP if you're scheduled for release from prison within 18 months, have served on active military duty, and have received a discharge under conditions other than dishonorable.

Unlike HCRV, IV-TP doesn't offer direct services to vets. Instead, the program provides grants to local organizations that provide support services to incarcerated veterans. The purpose of these grant-funded programs is to help you find a home and a job as you are preparing to be released from prison and to counsel you and connect you with services as you make the transition back into your community.

Finding a Local Program

For a list of programs by state, see Planning for Your Release: A Guide for Incarcerated Veterans, produced for VETS by the National Coalition of Homeless Veterans. The guide contains a comprehensive selection of resources for veterans leaving prison, including a helpful pre-release checklist and information about affordable legal aid for vets. You can also request information about local transitional programs at the VETS website.

Criminal Defense Attorneys For Veterans

If you've been accused of a crime, you're entitled to legal representation in the form of a public defender. But you may wish to retain the services of a private criminal defense attorney who has experience working specifically with veterans suffering from PTSD or is familiar with the unique issues involved in their defense.

You can learn more about the process of hiring a representative in our articles on why you need a criminal defense lawyer, what your attorney will do for you, and how much a criminal lawyer costs. When you're ready to start your search, read our guide on how to find a good attorney among firms or solo practitioners in your area.