Veterans Treatment Courts in Kentucky: Their Success, Their Shortcomings, and What Kentucky Can Do to Further Rehabilitate Veterans

Veterans Treatment Courts in Kentucky: Their Success, Their Shortcomings, and What Kentucky Can Do to Further Rehabilitate Veterans

Article | 105 KY. L. J. ONLINE | November 22, 2017

Adam Meyer[1]


            “The victims of [post-traumatic stress disorder] often feel morally tainted by their experiences, unable to recover confidence in their own goodness, trapped in a sort of spiritual solitary confinement, looking back at the rest of the world from beyond the barrier of what happened.”[2] Between 11‑20% of veterans who served in Operation Iraqi Freedom (OIF) or Operation Enduring Freedom (OEF) suffer from PTSD.[3]  Research shows a direct correlation between these mental disorders, substance abuse issues, and criminal behavior.[4] Instead of looking to the retributive forms of punishment, many states, including Kentucky, have created Veteran Treatment Courts (“VTC”) in order to rehabilitate these veterans.[5] Further, the federal government and several states have enacted sentencing guidelines and statutes that allow for sentence mitigation for veterans suffering from mental disorders caused by military service.[6] The creation of the VTC, sentencing guidelines, and statutes demonstrate the public’s recognition and concern for our nation’s young men and women who have served their country.

The purpose of the VTC is to treat veterans suffering from substance abuse and mental disorders while ensuring public safety.[7] Taking a rehabilitative approach, VTC’s utilize rigorous treatment and personal accountability to fully treat the veteran.[8] To accomplish this goal, the VTC, in a manner similar to drug courts, uses a coordinated response with mental health and substance abuse recovery providers, the Department of Veterans affairs, Veterans Benefits Administration, and numerous other resources to promote the recovery and sobriety of the veteran.[9] The VTC has a great number of benefits, including saving millions in penitentiary costs, overall reduction in crime, and healthier communities.[10]

In 2012, Kentucky created its first VTC in Jefferson County.[11] Since its creation, the program has moved into four more Kentucky counties.[12] The purpose of this note is to give an overview of the VTC, explain and reveal the importance of this program, recommend that the Kentucky Legislature statutorily expand the number of VTC’s, and revise sentencing guidelines to make military service a possible mitigating factor.

Part I of this note discusses the link between military service and criminal behavior. Part II of this note explains the purpose of VTC, its origins, its formation in Kentucky, and veteran qualifications needed for participation. Part III of this note explores the criticisms of the VTC and discusses arguments against the criticism. Part IV of this note describes how state legislatures outside of Kentucky have passed legislation for the formation of VTC’s and explores the benefits of having a statue. Part V of this note discusses alternative judicial protections for veterans such as sentencing mitigation for combat veterans. Finally, part VI of this note advocates for expanded utilization and funding of the Kentucky VTC and for the state legislature to pass statutes that will change criminal sentencing guidelines to further protect veterans suffering from mental service-related injuries.

I. The Connections Between Military Service and Criminal Behavior

            To truly understand the need for special veteran treatment, the root of the problem must be explored. Part A will describe the causes of mental disorders in our military troops. Part B will explain the link between military related mental disorders and criminal behavior.

A. PTSD and its Connection to Combat Stress, Traumatic Brain Injuries, Military Sexual Trauma

            The development of PTSD occurs after a terrifying or traumatic event involving either a threat of physical harm or actual physical harm.[13] PTSD is “an anxiety disorder that occurs after a traumatic event in which a threat of serious injury or death was experienced or witnessed and the individual’s response involved intense fear, helplessness, or horror.”[14]  While stressful mental reactions to a traumatic event normally subside relatively quickly, these symptoms may exist for longer in individuals suffering from PTSD.[15]

The symptoms of PTSD are usually divided in to four different types.[16]  First, a person with PTSD may suffer from nightmares or flashbacks of the traumatic event.[17]  Second, a person may try to avoid talking about, thinking about, or being involved in situations that may trigger memories of the traumatic event.[18]  Third, a person with PTSD may begin to feel differently about themselves and others due to the trauma and may avoid relationships.[19] Finally, a person may be overly fearful of dangerous situations, causing the person to become abruptly angry or irritable.[20] These mental health issues will often be left untreated because many veterans fear that they will be stigmatized by society if they seek treatment.[21]

There are many stressors that contribute to PTSD for deployed combat troops and non-deployed active duty service members.[22] Combat stressors include seeing dead bodies, being shot at, being attacked or ambushed, knowing someone who was killed or seriously injured, and combat traumatic brain injuries (“TBI”).[23] Today’s combat veterans returning from service in either Operation Enduring Freedom (“OEF”) or Operation Iraqi Freedom (“OIF”) face an unprecedented amount of strain.[24] Unlike past American conflicts, our military today is entirely based on a volunteer core and is not a drafted service.[25] Military troops have faced several consecutive combat tours of duty, some deploying as many as nine times.[26] Recent Army studies show that there is an increase in PTSD in troops who have had several combat deployments.[27] TBI’s have increased because the use of improvised explosive devices (“IED”) in Iraq and Afghanistan increased. TBI is now considered to be the “signature wound” of these wars.[28]  Most research suggests that many people who suffer a TBI also develop PTSD.[29]

The stressful events prevalent in the military are not limited to combat situations. Military Sexual Trauma (MST[30]) is a largely recognized service related stressor.[31] More than half of veterans who have endured MST suffer from PTSD.[32]While sexual assault and trauma disproportionately affects women, it is undeniable that men are also affected. .[33] Although underreported,[34] statistics show, of the reported cases, one in four females has been subject to unwanted sexual contact while in the military.[35]  MST symptoms include feelings of depression and anger, sudden emotional outburst, feelings of numbness, trouble sleeping, trouble focusing, addiction and dependence on alcohol or drugs, difficulties with relationships, and physical health problems.[36]

Even if a service member does not suffer from PTSD or MTS, adjustment to civilian life can still be a monumental task. Epidemiological studies have linked veterans with violent tendencies and post-deployment criminal behavior to repeat deployments in combat zones.[37] While in these combat zones veterans are subject to “[h]eightened levels of awareness” and stress.[38]  When returning home these heighted levels “increase irritability, outburst[s] of anger, and [cause] poor sleep patterns, making normal social interaction with family and friends very difficult.  These adjustment problems can be compounded when returning veterans are also suffering from PTSD or other war-related psychological injuries.”[39]

In sum, there are a wide range of military experiences–both combat and non-combat related–that can leave a veteran’s mind damaged from their service. “Left untreated, mental health disorders common among veterans can directly lead to involvement in the criminal justice system.”[40]

B. The Rising Number of Veterans Suffering from PTSD and the Link to Criminal Behavior

          Historically, an increased number of veterans surface in the criminal justice system following each major American conflict.[41] In past generations these combat veterans were essentially cast aside by our society, and instead of receiving treatment, they were incarcerated for their criminal behavior.[42] Many of these veterans are still “incarcerated, homeless, or chemically addicted.”[43] Thanks to modern psychology, there is a known link between military mental disorders, substance abuse,[44] criminal behavior, and homelessness.[45]One in five veterans exhibit symptoms of mental health disorder and one in six veterans who served in OEF and OIF suffer from issues related to substance abuse.[46] Veterans suffering from symptoms of PTSD or related mental illnesses often look to alcohol or other drugs to self-medicate[47]and help with their inability to sleep, feelings of numbness, anger, or depression[48]. For one reason or another, many of these self-medicating veterans will start to abuse drugs.[49] The most heavily cited reason for self-medicating is to avoid reliving a traumatic event.[50] Of the substances abused by veterans, a disproportionate number struggle with prescription addiction.[51] Many veterans have opioid prescriptions and over half chronically abuse the prescription.[52] This rate of abuse is alarming when compared to the civilian rate of prescription abuse.[53]

Substance addiction problems often lead to several different types of criminal behavior which include: use-related crimes that happen under the influence of drugs, economic-related crime like prostitution and theft that occur to fund a drug habit, and system-related crimes that result from “production, manufacture, transportation, and sale of drugs.”[54]  This criminal activity can range from petty crimes to more serious violent behavior.[55]  A 2014 study found that 40% of veterans suffering from PTSD (which at the time was 300,000 veterans of OIF and OEF) had committed a violent crime after their military service.[56] Research shows that various situations can trigger aggressive tendencies in veterans with PTSD.[57] Anger is a normal response after trauma; this is related to natural survival instincts.[58] People with PTSD may react to stressful situations “as if [their] life or self were threatened.”[59] These triggers include remembering the distressing event, reliving the event (flashbacks), and having nightmares of the event.[60]  If an aggressive outburst is triggered, veterans find themselves at odds with the criminal justice system and often charged with a serious crime.[61]

Veterans’ untreated psychological damage is directly linked to aggressive and addictive tendencies causing many veterans to end up in the criminal justice system. This warrants the development of special needs-based treatment courts for veterans suffering from PTSD and similar psychological injuries.[62]

II. Formation and Success of VTC’s Around the Country and in Kentucky

A. The Formation of the Country’s First VTC, its Proliferation, and Responses

          In 2008, Judge Robert Russell founded the first VTC in Buffalo, New York, [63] after noticing an increase in veterans appearing in the Buffalo drug and mental health courts.[64] Because of its great success, there are now over 220 VTC’s around the country.[65] Veterans of all service eras can be accepted into the program.[66]

The VTC is a unique tool that effectively breaks the cycle of veteran criminal activities by directing them to community or Veteran Affairs treatment, which addresses the underlying mental instability and trauma, instead of merely sending the veteran to jail.[67] VTC’s are set up to address both substance and mental disorders, acting as a mix of a drug treatment court and mental treatment court.[68] The drug and mental treatment courts have had a “remarkable track record” reducing recidivism in a cost effective way that has spanned over twenty years. [69]

The organization Justice for Vets has recognized ten key components of VTC’s, which have been implemented by the Kentucky VTC.[70] First, as noted above, the VTC integrates drug treatment and mental health services.[71] Second, the prosecutor and defense work together as a team in a non-adversarial fashion, to focus on the veteran’s recovery.[72] Third, the VTC identifies participants early on for prompt placement in the program.[73] Fourth, the program provides services other than drug and mental health services, including help with medical problems, homelessness, education, unemployment, and family trouble.[74] Fifth, frequent drug testing monitors the veteran’s sobriety.[75] Sixth, compliance with the program determines the veteran’s progress and is measured by the veteran’s overall cooperation or noncompliance.[76] Seventh, the veteran participating in the program has an ongoing interaction with the judge overseeing the VTC.[77] Eighth, the veteran’s success is gauged by a monitoring system that sets goals and objectives for the veteran to complete.[78] Ninth, volunteers and treatment staff participate in interdisciplinary educational training to promote effective planning, implementation, and operations.[79] And tenth, VTC’s, the Veteran Administration, private community organizations, and public agencies develop a partnership committed to the effectiveness of the program.[80]

The VTC provides continuing access to alcohol, drug, and mental health treatment.[81] A crucial aspect of the treatment is the access to veteran peer mentors. The peer mentors provide structure and accountability, helping the veteran’s chances of drug use cessation and overall recovery.[82] This benefits many veterans, who end up in the court system afraid to seek treatment because they do not want to be stigmatizing diagnosis, such as PTSD.[83] The feared repercussions include stereotypes that all people with PTSD are dangerous or unstable, discrimination at work, and “being denied chances to succeed because of a PTSD diagnosis.”[84] Because new VTC’s are still emerging, concrete results data are still being formulated. For example, the VTC in Anchorage, Alaska, one of the first in the country, found lower rates of recidivism among graduates, compared to both the general population and veterans who did not participate in the program.[85] A survey of eleven treatment courts found that recidivism of VTC graduates was less than 2%.[86]  Approximately 67.8% of state prisoners are arrested within three years of release, and 76.6% are arrested within five years of release.[87] Due to these positive reports, the Department of Justice and President Obama granted funding for the creation of new VTC’s and for specialized training on how to develop a VTC.[88]

B. The Creation and Scope of the Kentucky VTC

          About 340,000 veterans live in Kentucky with as many as 10% struggling with issues caused by their military service.[89] The Kentucky Supreme Court formed Kentucky’s first VTC in Jefferson County in 2012[90] through the work of the Veteran’s Task Force, which was headed by Justice Will T. Scott and Chief Justice John D. Minton, Jr. [91] The purpose of the Veterans Task Force was to improve the ability of Kentucky courts to identify veterans in need and connect them with the appropriate treatment services.[92] The task force worked with all branches of state government and the Department of Veterans Affairs to get the VTC off the ground.[93] The VTC operates within the Department of Specialty Courts at the Administrative Office of the Courts, but is based on the Kentucky Drug Court program that began in 1996 and serves 113 counties.[94] The original funding of the 2012 Jefferson County VTC came from a $350,000 grant from the Bureau of Justice Assistance of the U.S. Department of Justice.[95] The funding is used to provide support services to the veterans and enable case managers who work closely with all of the agencies that assist the veteran.[96]  The goal of the cooperative funding is to ensure the veteran is given the best treatment.[97]

The Kentucky VTC is overseen by the Administrative Office of the Courts and is implemented by “teams comprised of judges, Drug Court staff, veterans’ agencies, mental health and substance abuse treatment providers, law enforcement, the legal community, and community members.”[98] Program length is individualized based on the level of services needed by the veteran, usually lasting from eighteen months to two years.[99] Similar to the other VTC’s around the country, volunteer mentors meet with the veterans to encourage progress.[100] Upon successful completion of the program, the veteran’s criminal charges may be dismissed or a conditional discharge may be granted through probation.[101]

In the years since the creation of the Jefferson County VTC, four other VTC’s have opened in Fayette, Hardin, Christian, and Kenton Counties, which is in northern Kentucky.[102] Most VTC teams have completed training through the National Drug Court Institute’s Veterans Treatment Court Planning Initiative.[103] While there is little concrete data about success rates, overall public reception of the program has been positive and at least one Kentucky county is hoping to integrate a VTC into its pre-existing drug treatment court programs.[104] In fact, the Kentucky House of Representatives acknowledged the efforts of the Kentucky Administrative Office of the Courts through a House Resolution that commended the establishment of the veterans’ court.[105]

C. The Kentucky Qualifications

          To qualify for the VTC, the Kentucky Supreme court has provided that the veteran must:

  • Be an active-duty service member, a veteran, or in the reserves or National Guard.
  • Each court will determine what it deems an acceptable military discharge.
  • Have a pending eligible misdemeanor or felony offense or be on probation or shock probated for an eligible misdemeanor or felony offense. The exclusions are felony convictions for crimes that included violence and felony sexual offenses. Crime victims may give input concerning the veteran’s admission to VTC. The VTC team makes the final determination of eligibility and acceptance.
  • Be a legal resident or citizen of the United States and a resident of the county in which the VTC is located or a contiguous county.
  • Be assessed as having a substance abuse disorder and/or a psychiatric disorder such as post-traumatic stress disorder, traumatic brain injury, depression, anxiety, or other psychological or psychiatric illness.
  • Express a willingness to participate and demonstrate a thorough understanding of the strict requirements of the program and the sanctions for violating those requirements.[106]

This program is set up on a referral basis. Referrals can be made by the prosecutor, judge, defense attorney, probation officer, or any other member of the VTC team.[107] A Circuit Court, Family Court, or District Court judge must complete a referral order before the VTC may assess the veteran.[108] The VTC completes an assessment on each veteran and determines if there are any risks and needs by looking at the veteran’s individual status and criminal history.[109]

The qualification standard is mostly inclusive but is lacking in certain areas. The program does not differentiate between combat and non-combat veterans, only requiring there be “acceptable military discharge.” Moreover, it provides treatment services for a plethora of substance abuse issues and psychiatric issues beyond PTSD.  If Kentucky VTC’s view these requirements broadly, Kentucky would be one of the first states to accept veterans who have suffered MST into a VTC program.[110]  Although the program is highly inclusive, there are two exclusions that could cause substantial hardships to suffering veterans and should be reconsidered by Kentucky. First, the program excludes violent criminals. Second, it requires that veterans must reside in the county or contiguous county where the VTC is located.  Both issues will be explained and discussed in further detail below.

Overall, Kentucky has laid a solid foundation upon which VTC’s can be created across the state.  However, certain amendments to the Kentucky VTC and criminal justice system should be made to rebuff potential criticisms of the VTC and to enable all veterans an opportunity for rehabilitation.

III. Criticism of the VTC

         While most reactions to the VTC have been positive, there are a few reoccurring concerns. Critics claim that VTC’s create a special class of criminal defendants, the program is unnecessary, and that many veterans are not eligible.[111]

First, critics of the program claim that VTC’s create a special class of criminal defendants who receive an automatic pass based on military status, a protection not afforded to similar criminal offenders.[112]  The American Civil Liberties Union (ACLU) has criticized the court as giving veterans a “get out of jail free” card by creating a special class of criminal defendants.[113] Specifically, the ACLU believes that the term veteran is over-inclusive because a great number of veterans are not exposed to combat and do not experience the same kinds of trauma as combat veterans.[114] In addition, critics have pointed out that many civilians also suffer from PTSD and yet are not given this special treatment.[115]  In response to this criticism, many states require a nexus between the criminal behavior and the triggered combat.[116]  Many veteran advocates argue that this nexus is unnecessary because veterans are already recognized as a special class.[117] “Veterans already receive many status-based benefits: medical care, loan guarantees, employment preferences and educational support.”[118]  It is fair to say that veterans have made a sacrifice for our country, making them a special class of citizen and deserving of VTC special treatment.

A second critique is that VTC’s are unnecessary and that instead of creating a new specialty court, veterans should merely be placed in a state’s existing drug or mental health court.[119] This criticism has been shown to be unwarranted.[120]  The VTC provides a unique service for veterans that cannot be provided by the existing special treatment courts.[121]  The existing courts do not address trauma in the same way that a VTC address military trauma.[122] Because VTC teams (which include peer mentors) are developed and trained in particularized techniques to exclusively handle veteran cases, VTC’s are more efficient than existing special needs courts.[123] While other special needs courts are normally divided into drug courts and mental treatment courts, the VTC wears both hats for its treatment program.

A third critique is that VTC eligibility requirements bar many veterans.  Similar to the original VTC in Buffalo, the Kentucky VTC does not accept defendants who have committed violent or sexual offenses.[124] These categorical restrictions limit the VTC to providing treatment only to veterans who have committed non-violent felonies and misdemeanors.[125] But it is precisely the defendants barred by this eligibility requirement that are often in desperate need of rehabilitation.[126] The offenders of more serious crimes face serious penalties, and first time offenders would be better served by a system of treatment and mentoring.[127] Although there is a compelling interest in rehabilitating the veterans, if a veteran offender commits a seriously heinous crime like premeditated murder or is a multiple offender, non-rehabilitative forms of punishment may be more appropriate.[128] By changing the eligibility guidelines to allow violent criminals to participate, a VTC judge (or team) would have the option to grant rehabilitation and not have a bright line rule that excludes all violent offenders. Further, even if violent offenders were not given eligibility, many states and the federal government have incorporated sentencing mitigation for all convicted veterans.[129]

A fourth critique of the VTC is cost.  Specialty courts have tendency to be more expensive than traditional courts.[130] However, the cost of the VTC is not nearly as expensive as incarceration or recidivism.  In Cook County Illinois, for example, the VTC rehabilitative programs saved the county $595,206 in incarceration costs.[131] And the project manager of the VTC in Buffalo, New York, noted that “[w]hile it may seem more costly for veterans to go through treatment programs under the direction of the Buffalo Court, it actually costs less than ten percent of the total amount spent on incarcerating an individual.”[132]

IV. State Statutory Creation of the VTC compared to Judicial Creation

          The VTC in Buffalo, New York became the model for other states. There are now 220 different court programs in over twenty-five different states.[133] States have taken two different approaches in the creation of the VTC. States like California, Texas, Colorado, Illinois, Oregon, Virginia, Maine, Michigan, Mississippi, Florida, Louisiana, Missouri, Tennessee, South Carolina, Rhode Island, and Utah have passed legislation and statutes to specifically permit the establishment of local VTC’s.[134]  The remaining States that have VTC programs, like Kentucky, have done so directly through their local court systems.

Each state may follow a different administrative model, but all VTC’s grant a defense attorney the opportunity to lessen their client’s incarceration and possibly conviction using rehabilitative programs.[135]  The Supreme Court of Kentucky has done an excellent job creating the five VTC’s and their guidelines. However, to ensure absolute clarity and awareness of the VTC program, the Kentucky legislature should take the next step and pass comprehensive legislation.

Two strong models for Kentucky to look to for such legislation would be Louisiana and Michigan.[136] Both statutes grant the power to designate VTC programs and grant the administrative power to the judge presiding over that judicial district.[137] The statutes also fully explain the scope of the veteran’s participation in the VTC[138] and the authority of the judge, with Louisiana granting its judges the powers to impose probation, to confine a participant to a treatment facility, or reject someone from the program completely.[139] The statutes further specify the types of evidence needed to prove the veteran is eligible for the program,[140] and that funding for the programs will come from the federal government, the state and in some instances out of the participating veteran’s pocket.[141] The Michigan statute specifically adopts the ten key components of a VTC that were identified by Justice for Vets.[142] Further, the Michigan statue allows VTC’s to accept participants from other jurisdictions in the state if a VTC is unavailable where the participant is charged.[143] By providing this vast amount of information about general qualifications, formation processes, funding, and jurisdiction these states have created a clear inclusive VTC model statute.

By enacting a similar statute, Kentucky would give clarity to practicing attorneys, judges, and veterans who find themselves in the criminal justice system. It would allow more veterans to participate in the VTC, even if they did not live the same jurisdiction as a VTC. And further, enacting a similar statute would provide additional funding for the creation of new VTC’s throughout the state.

V. Examination of Federal and State Sentencing Mitigation

            Although VTC programs help many, a great number of veterans in the criminal justice system are either ineligible for the VTC program or do not live in a jurisdiction that has a VTC. The Supreme Court of the United States and many states have recognized this issue and now require evidence of a veteran’s service history be shown as a possible mitigating factor in a sentencing determination.[144]

A. Porter v. McCollum and Federal Sentencing Mitigation

            In Porter v. McCollum, the Supreme Court of the United States recognized that when deciding the competency of a defendant, his or her military service should be considered during sentencing.[145] The defendant in Porter was a Korean War veteran who had been convicted of murdering his girlfriend.[146] During the sentencing phase, the defendant’s attorney did not present any mitigating evidence regarding the defendant’s military service or mental health.[147] Because of the lack of mitigating evidence, the trial court imposed the death penalty.[148]  The Court reversed the trial court’s sentence and held:

Our Nation has a long tradition of according leniency to veterans in recognition of their service, especially for those who fought on the front lines as [defendant] did.  Moreover, the relevance of [defendant’s] extensive combat experience is not only that he served honorably under extreme hardship and gruesome conditions, but also that the jury might find mitigating the intense stress and mental and emotional toll that combat took on [defendant].[149]

The Court acknowledged the connection between PTSD and criminal behavior, creating a legal duty for defense attorneys to present evidence of military service, service-related mental health or available treatment options.[150]

Fortunately, in 2010, the United States Sentencing Commission amended the federal guidelines to allow federal district judges to take into account a defendant’s military status during the sentencing phase in both capital and non-capital cases.[151] §5H1.11 of the Sentencing Guidelines Manual provides “[m]ilitary service may be relevant in determining whether a departure is warranted, if the military service, individually or in combination with other offender characteristics, is present to an unusual degree and distinguishes the case from the typical cases covered by the  guidelines.”[152] This guideline provides a tool for federal judges to depart from a normal sentence and look for more rehabilitative forms of punishment.

The result of the Porter case and the amendment of the sentencing guidelines prove that the federal government recognizes the unique situation that veterans face in criminal court.

B. State Sentencing Statutes

            Sentencing mitigation for veterans has not only emerged in federal courts—some states have adopted this type of mitigation. The five states that currently have sentencing statutes are Minnesota, California, Nevada, New Hampshire, and Rhode Island.[153] Like the federal sentencing guidelines, these statutes make the veteran’s service a relevant consideration during sentencing.[154]

The Minnesota statute, for example, provides that: “[w]hen a defendant . . . is convicted of a crime, the court shall inquire whether the defendant is currently serving in or is a veteran of the armed forces of the United States.”[155]  If the veteran has been diagnosed with a mental illness, the court is then allowed to consult with the Department of Veteran Affairs or any other agency that could provide relevant information about the treatment options for the defendant.[156] Finally, the sentencing judge is to “consider the treatment recommendations of any diagnosing or treating mental health professional together with the treatment options available to the defendant in imposing sentence.”[157]

The law is designed to ensure that mental health diagnoses and treatment are taken into account when sentencing a veteran.[158] It gives judges tools to make the most informed decision when determining a sentence of incarceration or rehabilitation.[159]  This approach gets to the root of the problem by recognizing that probationary, rehabilitative treatment of veterans is a better option than incarceration.[160]  Additionally, these statutes allow rehabilitation for veterans who have committed a violent crime which bars them from most VTC’s. Thus, these mitigation statutes act as a safety net for veterans who do not qualify for the VTC.

VI. The need for the Kentucky state legislature to take action. 

            There are approximately 331,000 veterans in Kentucky,[161] a number that will surely rise over the next few years as the wars in the Middle East wind down. A great number of these veterans will return to civilian life suffering from the mental trauma caused by living for long periods in extremely dangerous combat zones, being injured by IEDs, or being sexually assaulted. Of these veterans, many will face troubling problems while readjusting to civilian life and run afoul of the Kentucky criminal justice system.  Helping the greatest number of veterans should be Kentucky’s goal by either extended utilization of the VTC or by passing sentencing guidelines that consider a convicted criminal’s military background.  First, the Kentucky legislature should take action to attain this goal by passing VTC legislation similar to Michigan; such legislation would ideally set out eligibility qualifications, provide state funding for the creation of new VTC’s, and allow violent veteran offenders an opportunity to participate in the program. Second, the Kentucky legislature should pass a sentencing mitigation guideline that is similar to Minnesota’s.

Addressing the funding issue would be an important step for the creation of new VTC’s around the state. Funding for the Kentucky VTC programs are currently based on grants given by the federal government.[162]  The original Jefferson County program was created by funding through a grant from the federal government and was to only last for the first three years of the program.[163] But what will happen if federal funding is revoked? A legislative answer is needed to give the VTC a full opportunity in Kentucky. It would be wise to provide state funds and, in certain instances, demand the participating veteran to bear some of the treatment costs. Providing state funds and requiring some veterans to pay for treatment may encourage courts in rural areas of Kentucky to create VTC’s.

Further, if Kentucky followed Michigan’s lead[164] and allowed for veterans to transfer between jurisdictions, it would solve the restrictions placed on the current program. There are obvious geographical issues that bar many veterans living in rural areas from access to the Kentucky VTC’s. Researchers have noted that many of the veteran’s courts tend to be only created in larger metropolitan areas.[165] This is true in Kentucky where three of the five VTC’s are located in Louisville, Lexington, and Northern Kentucky (which is part of the greater Cincinnati area).[166] Additionally, these courts are all located in the central and western-central parts of the state. Many of the veterans returning from OIF/OEF are members of the reserve force and National Guard units and are more likely to be from rural or suburban areas.[167]  The veterans in the far eastern and western parts of Kentucky are geographically prevented from benefitting from VTC’s even if they are eligible for the program.  The Kentucky legislature should follow the example set by Michigan and allow veterans to transfer to VTC’s in a different jurisdiction.[168]

As discussed above, many of the current VTC’s, including those in Kentucky, do not allow veterans that have committed violent crimes to participate and do not recognize MST as a cognizable injury.[169]  Kentucky should consider expanding the VTC to these veterans who have committed violent offenses. This does not mean that VTC should be forced to accept every violent offender, as the deciding judge should be given wide deference to determine if the VTC is appropriate. Deference would allow for first time offenders to be afforded treatment while denying treatment to multiple offenders and offenders who have committed premeditated crimes. In addition to allowing violent offenders, Kentucky should extend the VTC to veterans suffering from MST. If the legislature does not want to include these violent offenders, they should strongly consider adding sentencing guidelines that consider military service.

There is currently no sentencing guideline that considers a convicted defendant’s military history in Kentucky.[170] Kentucky should look to states like Minnesota to model such sentencing guidelines. Giving trial judges the option between incarceration and rehabilitation would be highly useful to help veterans who do not qualify for the VTC or do not live in a jurisdiction with a VTC. The Minnesota statute gives the judge a large grant of discretion to choose an appropriate rehabilitation plan or incarceration for the veteran.[171] This could be a VTC program, if available in that jurisdiction, but also could be an appropriate treatment plan from the Veterans Affairs office or a private outpatient treatment plan.

Additionally, this kind of statute would provide rehabilitation to violent veterans.  Under the Kentucky VTC guidelines, violent offenses are not eligible for the program.[172] Many of the veterans who are arrested for violent behavior are suffering from issues that stem from their military service.[173] By using rehabilitation instead of incarceration for violent veteran criminals, the Kentucky judicial system would be getting to the root of the problem, save money spent on incarceration, and likely prevent future violent crimes.


            Kentucky needs to continue the work that it has started by promoting the creation of more VTC’s in the state by enacting state statutes that comprehensively define VTC’s and enacting statutes that allow for a trial judge to consider a criminal’s military service when determining an appropriate sentence.  This kind of approach would ensure that veterans residing in Kentucky who suffer from PTSD, TBI, MST, and other injuries of war are given the rehabilitation that they need.  Kentucky has a duty to show compassion for these men and women who have prepared for and fought in wars by honoring their sacrifices.


[1] J.D. expected 2017, University of Kentucky College of Law.

[2] David Brooks, The Moral Injury, N.Y. Times (Feb 17, 2015),

[3] U.S. Dep’t of Veterans Affairs, How Common is PTSD?, PTSD: National Center for PTSD (Oct. 3, 2016),

[4] See PTSD and Substance Abuse in Veterans, U.S. Dep’t of Veteran Aff. (“Almost 1 out of every 3 Veterans seeking treatment for [Substance Use Disorder] also has PTSD.”).

[5] The History, Justice for Vets,; Veterans Treatment Court, Ky Court of Justice, (last visited Sept. 8 2017).

[6] Brockton Hunter, Echoes of War: Combat Trauma, Criminal Behavior and How We Can Do a Better Job This Time Around, Securing Access in a Diverse Society, Ky. Bar Ass’n, at 18 (June 17, 2015), (follow “PDF” hyperlink beside “Echoes of War: Combat Trauma, Criminal Behavior & How We Can Do Better This Time Around”) (last visited Sept. 9, 2017).

[7] What is a Veterans Treatment Court?, Justice for Vets,

[8]  Id.; See also TakePart, Veterans Treatment Courts Explained, Youtube (Feb 10, 2015)

[9] Id.

[10] Id.

[11] Leigh Anne Hiatt, Jefferson County Veterans Treatment Court is First of its Kind in Kentucky, (Nov. 26, 2012),

[12] Veterans Treatment Court Programs, Ky. Court. of Justice,

[13] Post-Traumatic Stress Disorder, Nat’l Inst. of Mental Health,

[14] Terri Tanielian & Lisa H. Jaycox, Invisible Wounds of War: Psychological and Cognitive Injuries, Their Consequences, and Services to Assist Recovery,  RAND Ctr. for Military Health Policy Research, at 12 (2008)

[15] Symptoms of PTSD, U.S. Dep’t of Veteran Aff., (Aug. 13, 2015),


[17] Id.; see also Erinn Gansel, Military Service-Related PTSD and the Criminal Justice System: Treatment as an Alternative to Incarceration, 23 S. Cal. Interdisc. L. J. 147, 153 (2014).

[18] Id.

[19] Id.

[20] Id.

[21] See Sadie F. Dingfelder, The Military’s War on Stigma, American Psychological Ass’n, 40 Monitor on Psychology, no. 6, 2009 at 52; See also Soledad O’Brian, The Stigma that Stops Veterans From Getting Help for PTSD, Public Broadcast Service (March 29, 2017)

[22] See Mental Health Effects of Serving in Afghanistan and Iraq, U.S. Dep’t of Veteran Aff.,

[23] Id.

[24] Hunter, supra note 6, at 9.

[25] See Alex Dixon, July Marks 40th Anniversary of All-Volunteer Army, (July 2, 2013),

[26] Id. at 2.

[27] Id. at 10.

[28] Anthony E. Giardino, Combat Veterans, Mental Health Issues, and the Death Penalty: Addressing the Impact of Post-Traumatic Stress Disorder and Traumatic Brain Injury, 77 Fordham J. Rev. 2955, 2976 (2009); see e.g., Jeffery Lewis Wieand, Jr., Continuing Combat at Home: How Judges and Attorneys Can Improve Their Handling of Combat Veterans with PTSD in Criminal Courts, 19 Wash. & Lee J. Civil Rts. & Soc. Just. 227, 231 (2012).

[29] PTSD: National Center for PTSD, Traumatic Brain Injury and PTSD, U.S. Dep’t of Veterans Aff., http:// /public/problems/traumatic_brain_injury_and_ptsd.asp (last visited April 14, 2017) (“[a] TBI is a sudden blow to the head that that often occurs when there is an explosion or an accidental fall . . . When an IED explodes it emits a concussive blast that often leaves a person disoriented and unconscious . . . This head trauma essentially causes a concussion and the symptoms included headaches, trouble sleeping, memory problems, troubles staying focused, depression, anger, anxiety, and personality changes.”).

[30] See 38 U.S.C. § 1720D(a)(1) (West 2015) (defining MST as “psychological trauma, which in the judgment of a mental health professional employment by the Department [of Veteran Affairs], resulted from a physical assault of a sexual nature, battery of a sexual nature, or sexual harassment which occurred while the veteran was serving on active duty, active duty training, or inactive duty training.”).

[31] PTSD: National Center for PTSD, Military Sexual Trauma, U.S. Dep’t of Veterans Aff., (last visited April 14, 2017).

[32] Alexandra Besso, Veterans As Victims of Military Sexual Assault: Unequal Access to Ptsd Disability Benefits and Judicial Remedies, 23 Buff. J. Gender, L. & Soc. Pol’y 73, 75 (2015) (noting the substantial challenges for the victims of MTS to be recognized by Veterans Affairs as having a legitimate PTSD); see also Rachel Kimerling, PhD, Amy E. Street, PhD, Joanne Pavao, MPH, Mark W. Smith, PhD, Ruth C. Cronkite, PhD, Tyson h. Holmes, PhD, and Susan M. Frayne, MD, MPH, Military-Related Sexual Trauma Among Veterans Health Administration Patients Returning From Afghanistan and Iraq, 100 Am. J. Pub. Health 8, 1409, 1410 (August, 2010).

[33] See Besso, supra note 34, at 75.

[34] PTSD: National Center for PTSD, supra note 31.

[35] PTSD: National Center for PTSD, supra note 31.

[36] PTSD: National Center for PTSD, supra note 31.

[37] Hunter, supra note 6, at 14-15.

[38] F. Don Nidiffer & Spencer Leach, To Hell and Back: Evolution of Combat-Related Post Traumatic Stress Disorder, 29 Dev. Mental Health L. 1, 12 (2010).

[39] Id.

[40] What is a Veterans Treatment Court, Just. for Vets, (last visited on April 14, 2017).

[41] Hunter, supra note 6, at 1-2.

[42] Hunter supra note 6, at 1-2.

[43] Hunter, supra note 6, at 1-2.

[44] See PTSD: National Center for PTSD, PTSD and Substance Abuse in Veterans, U.S. Dep’t of Veterans Aff., (last visited April 14, 2017).

[45] See Nat’l Coalition for Homeless Veterans, Background & Statistics, Nat’l Coalition for Homeless Veterans, (last visited April 14, 2017).

[46] What is a Veteran’s Treatment Court?, supra note 42.

[47] Defense Health Board Task Force on Mental Health, An Achievable Vision: Report of the Department of Defense Task Force on Mental Health 21-22. (June 2007) (located at

[48] PTSD: National Center for PTSD, PTSD and Substance Abuse in Veterans, U.S. Dep’t of Veteran Aff., (last visited April 14, 2017).

[49] Id.

[50] Id.

[51] Jen Christensen, Pill-addicted Veterans get Second Chance with Treatment Court, (Aug. 27, 2014, 3:25 PM)

[52] Id.; see also Half of Veterans Prescribed Medical Opioids Continue to Use Them Chronically, ScienceDaily (Mar. 8, 2014)

[53] Id.

[54] Alcohol, Drugs and Crime, Nat’l Couns. on Alcoholism and Drug Dependence Inc., (last visited April 14, 2017).

[55] See id.

[56] Brandt A. Smith, Posttraumatic Stress Disorder (PTSD) in the Criminal Justice System, The Military Psychologist (Apr. 2014) (last visited April 14, 2017).

[57] Id..

[58] PTSD: National Center for PTSD, Anger and Trauma, U.S. Dep’t of Veterans Aff., (last visited April 14, 2017).

[59] Id.

[60] See Post-Traumatic Stress Disorder, Nat’l Inst. of Mental Health, (Feb. 2016),

[61] See Smith, supra note 56.

[62] Id.

[63] History, Justice for Vets (last visited April 14, 2017).

[64] Id.

[65] Id.

[66] See What is a Veteran’s Treatment Court?, supra note 40.

[67] Paul Freese & Natalie Klasky, Best Emerging Holistic Advocacy Practices to Break the Cyclical Trauma, Depression, Alienation and Criminalization Afflicting Our Returning War Heroes, 5 U. Miami Nat’l Sec. & Armed Conflict L. Rev. 85, 103 (2015).

[68] Madeline McGrane, Post-Traumatic Stress Disorder in the Military: The Need for Legislative Improvement of Mental Health Care for Veterans of Operation Iraqi Freedom and Operation Enduring Freedom, 24 J.L. & Health 183, 208-14 (2010).

[69] Veterans Treatment Courts, Office of Nat’l Drug Control Policy, (Dec. 2010),

[70] Veterans Treatment Court,,

[71] Id.

[72]Ten Key Components of Veterans Treatment Court, Justice For Vets,

[73] Id.

[74] Id.                                                                                                                                         

[75] Id.

[76] Id.

[77] Ten Key Components of Veterans Treatment Court, supra note 72.

[78] Id.

[79] Id.

[80] Id.

[81] Id.

[82] Id. 

[83] What’s Stopping You? Overcome Barriers to Care, U.S. Dep’t of Veteran Affairs,

[84] Id.

[85] Jack W. Smith, The Anchorage, Alaska Veterans Court and Recidivism: July 6, 2004 – December 31, 2010, 29 Alaska L. Rev. 93, 107–08 (2012).

[86] Justin Holbrook & Sara Anderson, Veterans Courts: Early Outcomes and Key Indicators for Success 30, 40 (Widener Law Sch. Legal Studies Research Paper Series No. 11-25), available at

[87] Matthew R. Durose et al., Recidivism of Prisoners Released in 30 States in 2005: Patterns from 2005 to 2010 (Apr. 2014),

[88] Strengthening Our Military Families, U.S. Department of Justice,

[89] Jim Warren, Fayette Court Program Allows Veterans to Get Physical, Psychological Help Instead of Jail Time, (Jan. 1, 2014, 10:40 PM),

[90] Leigh Anne Hiatt, Jefferson County Veterans Treatment Court is First of its Kind in Kentucky, (Nov. 20, 2012),

[91] Leigh Anne Hiatt, Justice Will T. Scott Testifies About Plans to Help Kentucky Veterans Gain Better Access to Legal and Other Services, (July 25, 2012),

[92] Id.


[94] Kentucky Court of Justice, Veterans Treatment Court, Kentucky.Gov, (last visited April 2, 2017); Kentucky Court of Justice, Kentucky Drug Court: Saving Costs, Saving Lives, Kentucky.Gov (March, 2017),

[95]  Leigh Anne Hiatt, Jefferson County Veterans Treatment Court is First of its Kind in Kentucky, Kentucky Court of Justice, (Nov. 20, 2012)

[96] Kentucky Court of Justice, Veterans Treatment Court, Kentucky.Gov, (last visited April 2, 2017).

[97] See id.

[98] Id.

[99] Id

[100] Id; The Ten Key Components of Veterans Treatment Court, supra note 72.

[101] Kentucky Court of Justice, Veterans Treatment Court, Kentucky.Gov, (last visited April 2, 2017).

[102] Id.

[103] Veterans Treatment Court Programs,, (last visited April 2, 2017).

[105] H.R. 118, 13 Reg. Sess. (Ky. 2013).

[106] Kentucky Court of Justice, Eligibility & Process, (last visited Apr. 2, 2017) (emphasis added).

[107] Id.

[108] Id.

[109] Id.

[110] See generally Ben Kappelman, When Rape Isn’t Like Combat: The Disparity Between Benefits for Post-Traumatic Stress Disorder for Combat Veterans and Benefits for Victims of Military Sexual Assault, 44 Suffolk U. L. Rev. 545 (2011) (explaining that it is difficult for victims of military sexual assault to establish a service connection between PTSD and their assault, and thus it is hard for them to obtain benefits).

[111] Tiffany Cartwright, “To Care for Him Who Shall Have Borne the Battle”: The Recent Development of Veterans Treatment Courts in America, 22 Stan. L. & Pol’y Rev. 295, 307 (2011).

[112] Allison E. Jones, Veterans Treatment Courts: Do Status-Based Problem-Solving Courts Create an Improper Privileged Class of Criminal Defendants? 43 Wash. U. J.L. & Pol’y 307, 318 (2014).

[113] Cartwright, supra note 111, at 307.

[114] Id. at 307-08.

[115] Id.

[116] See id. (noting that Nevada and Texas require this tight nexus).

[117] See Mark A. McCormick-Goodhart, Leaving No Veteran Behind: Policies and Perspectives on Combat Trauma, Veterans Courts, and the Rehabilitative Approach to Criminal Behavior, 117 Penn St. L. Rev. 895, 921 (2013).

[118] Id.

[119] Id. at 922.

[120] See generally id. at  922-23 (explaining that veterans and their causes are unique and that problem-solving courts do not adequately address trauma in the same way as specialty courts).

[121] Id.

[122] Id.

[123] Id. at 923.

[124] See Eligibility & Processes,, (last visited Mar. 26, 2017); see also Gansel, supra note 17, at177-78 (2014).

[125] See Gansel supra note 17, at 178.

[126] Id. at 177-78.

[127] Id. at 178.

[128] Id. at 178-79.

[129] Infra section V of this note.

[130] Taylor Brummett, Veterans Treatment Court: An Experiment in Therapeutic Jurisprudence for Combat Veterans, Pacific U. CommonKnowledge (2013),

[131] Gavriel Jacobs, Katharine McFarland, & Gabe Ledeen, Serving Those Who Served: Veterans Treatment Courts in Theory and Practice,,

[132] Brummet, supra note 130.

[133] See The History, Justice for Vets, (last visited Jan. 19, 2016).

[134] Me. Rev. Stat. Ann. tit. 4, § 433 (2012); Mich. Comp. Laws Ann. § 600.1201 (West 2012); Miss. Code. Ann. § 9-25-1 (West 2014); Fl. Stat. Ann. § 3.31 (West 2016); 730 Ill. Comp. Stat. Ann. 167/15 (West 2012); Colo. Rev. Stat. Ann. § 13-5-144 (West 2010); Mo. Ann. Stat. § 478.008 (West 2013); TX GOVT Code Ann. § 124.002 (West 2015); S.C. Code Ann. § 14-29-30 (2014).

[135] See Brock Hunter, Echoes of War: The Combat Veteran in Criminal Court, (last visited April 7, 2017).

[136] See La. Rev. Stat. Ann. § 13:5366 (2016); see Mich. Comp. Laws Ann. § 600.1201 (West 2012).

[137] La. Stat. Ann. § 13:5366 (Westlaw); Mich. Comp. Laws Ann. § 600.1201 (Westlaw).

[138] La. Stat. Ann. § 13:5366(B) (Westlaw); Mich. Comp. Laws Ann. § 600.1208(1) (Westlaw).

[139] La. Stat. Ann. § 13:5366(B) (Westlaw). see also  Mich. Comp. Laws Ann. § 600.1206(2) (Westlaw).

[140] La. Stat. Ann. § 13:5366(6)–(9) (Westlaw); Mich. Comp. Laws Ann. §§ 600.1203–600.1204 (Westlaw).

[141] La. Stat. Ann. § 13:5388(C) (Westlaw); Mich. Comp. Laws Ann. §§ 600.1206(4), 1208(1), 600.1211(1) (Westlaw).

[142] Mich. Comp. Laws Ann. § 600.1201(1) (Westlaw); Veterans Treatment Court, supra note 70.

[143] Mich. Comp. Laws Ann. § 600.1201(4) (Westlaw).

[144] Betsy J. Grey, Neuroscience, PTSD, and Sentencing Mitigation, 34 Cardozo L. Rev. 53, 67 (2012); see also Porter v. McCollum, 558 U.S. 30, 40 (2009).

[145] Porter, 558 U.S. at 30-31.

[146] Id.

[147] Id. at 40.

[148] Id. at 32–33.

[149] Id. at 43-44.

[150] See id.; see also Brockton Hunter & Ryan Else, Echoes of War Part Two: Legal Strategies for Defending the Combat Veteran in Criminal Court, TheChampion, Nov. 2013, at 24.

[151] U.S. Sentencing Guidelines Manual §5H1.11 (U.S. Sentencing Comm’n 2010); see also Hunter, supra note 6, at 18.

[152] U.S. Sentencing Guidelines Manual §5H1.11.

[153] Brockton Hunter & Ryan Else, Echoes of War Part Two: Legal Strategies for Defending the Combat Veteran in Criminal Court, TheChampion, Nov. 2013, at 20.

[154] Id.

[155] Minn. Stat. Ann. § 609.115 sub 10(a) (West 2015).

[156] Id. at sub 10(b)(1).

[157]  Id. at sub. 10(c)(2).

[158] Hunter & Else, supra note 153, at 20.

[159] Id.

[160] Id.; see also Cal. Penal Code § 1170.91 (West 2015) (granting judges the authority to consider treatment over incarceration while not mandating that the Courts follow any particular type of sentence).

[161] Serving Veterans in the Commonwealth ,,

[162] Veterans Treatment Court, Kentucky Court of Justice,

[163]  Leigh Anne Hiatt, Jefferson County Veterans Treatment Court to hold first graduation, Kentucky Court of Justice Newsroom  (Oct. 21, 2014),

[164] Mich. Comp. Laws Ann. § 600.1201(4) (West 2012).

[165]  Morning Edition: Hundreds Of Veterans Courts See Success But More Are Needed, NPR.Org (Jan. 3, 2017),

[166] See Veterans Treatment Court Programs, Kentucky Court of Justice

[167] Cartwright, supra note 111, at 300 .

[168] See Mich. Comp. Laws Ann. § 600.1201(4) (West 2012).

[169] See Alexandra Besso, Veterans As Victims of Military Sexual Assault: Unequal Access to Ptsd Disability Benefits and Judicial Remedies, 23 Buff. J. Gender, L. & Soc. Pol’y 73, 75, 79 (2015).

[170] See generally Ky. Rev. Stat. Ann. §§532.005 to 532.400 (West 2016).

[171] Minn. Stat. Ann. § 609.115 sub 10(a) (West 2015).

[172] See Part II of this note

[173] See Part I of this note.