Post Traumatic Stress Disorder as a Defense in Criminal Cases

One in eight American soldiers returning from the conflicts in Iraq and Afghanistan suffers from posttraumatic stress syndrome, a debilitating mental disorder that can make everyday functioning impossible. As the syndrome has become more recognized, it is more commonly being used as a defense in criminal cases. The strategy is controversial, and the debate about it has become more heated after this defense was used in two particularly notorious murder cases.

Posttraumatic stress syndrome (PTSS) was only recently added to the official reference physicians use to diagnose and treat mental illnesses, The Diagnostic And Statistical Manual Of Mental Disorders. However, other generations have long recognized that some soldiers come home from war with what they called “battle fatigue” or “combat sickness.”

It is now known that people who have suffered during a one-time traumatic event, such as a serious auto accident, or through ongoing trauma such as combat duty, can develop what is now called posttraumatic stress syndrome. The condition is characterized by nightmares, sleep disturbance, insomnia, “flashbacks” to traumatic events, severe anxiety, and even panic attacks. People with the condition can develop problems in relationships, substance abuse, and anger management, and can become unable to function at home, work or school. It takes an average of three years of medication and counseling to fully recover.

Veterans’ groups, the National Association Of Drug Court Professionals, certain state and federal legislators, and others are pushing for special treatment for veterans with PTSS accused of crimes. They argue that veterans often need treatment, not jail time. Besides the one in eight suffering from PTSS, an additional 8% have other kinds of mental disorders, and almost 17% suffer from substance abuse. Homeless veterans, which now number over 130,000, often have a combination of substance abuse and mental disorders such as PTSS.

Veterans Treatment Courts are supervised court dockets modeled after Drug Courts and DUI Courts begun about 20 years ago. Eligible defendants with substance abuse disorders go before these courts instead of the traditional justice system, and agree to treatment programs and random drug tests in lieu of jail time. Veterans Treatment Courts are similar, and so far, about 80 have been established. Many defendants in Veterans Treatment Courts suffer not only from substance abuse, but also PTSS.

A 2009 U.S. Supreme Court decision paved the way for PTSS and other mental disorders to be used as a criminal defense in both civil and Veterans Treatment Courts. The Supreme Court ruled that a Korean War veteran should not receive the death sentence because his military service and record of PTSD were not presented at his sentencing hearing. The opinion read that “the United States has a long tradition of courting leniency to veterans in recognition of their service. Juries might find mitigating the intense stress and mental and emotional toll” of combat.

PTSS has now been used many times as a defense for minor crimes, but more recently, it appeared in two high profile murder cases.

Joshua Stepp, a veteran of the Iraqi conflict, was accused of murdering his 10-month-old step daughter in a particularly cruel way that involved stuffing wet toilet paper down her throat and inflicting multiple blows to her head. The child also had severe injuries in the anal area, which the prosecution claimed were the result of Stepp’s raping her, but the defense claimed they were from vigorous wiping when Stepp cleaned her after she soiled her diaper.

Stepp’s lawyer argued that PTSD along with drug and alcohol abuse left him incapable of forming an intent to murder.

“People with untreated PTSD do not have the same checks and balances or brakes that the rest of us hopefully do,” he told a California jury. He said he was not asking for pity for Stepp, but rather understanding. Nevertheless, in September 2011 the jury found Stepp guilty of first degree murder and sexual assault, which could lead to a death sentence.

The second case involved Army Sgt. John Russell, who is accused of opening fire at the combat stress center at Camp Liberty near Baghdad on May 11, 2009. When Sgt. Russell faced charges of five counts of premeditated murder, his lawyer argued that he had a mental disorder that made the death penalty inappropriate. His mental problems were the result of repeated tours of duty in Iraq and Afghanistan, and inadequate treatment from Army health services. Col. James Pohl, who presided over the preliminary hearings in August, recommended that Sgt. Russell be held accountable, but that he should not face the death penalty.

Some people are arguing that the use of PTSD as a defense for veterans and others who commit crime is going too far because of the above two cases and other incidents. The Los Angeles Times recently published an editorial arguing that PTSD must not be used unfairly as a defense in criminal cases, partly because over 170,000 veterans have been diagnosed with it and because such a defense “might substitute for a nuanced explanation of the case for leniency.”

The editorial concluded, “Veterans deserve to have mitigating factors taken into account by the criminal justice system. But there is a danger that posttraumatic stress disorder will become a talisman for leniency where none is justified – and a synonym for criminal tendencies. That would be unfair to other defendants and demeaning to the military.”