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]

Introduction

            “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.

Conclusion

            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. 

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

[2] David Brooks, The Moral Injury, N.Y. Times (Feb 17, 2015), http://www.nytimes.com/2015/02/17/opinion/david-brooks-the-moral-injury.html?_r=0.

[3] U.S. Dep’t of Veterans Affairs, How Common is PTSD?, PTSD: National Center for PTSD (Oct. 3, 2016), https://www.ptsd.va.gov/public/ptsd-overview/basics/how-common-is-ptsd.asp.

[4] See PTSD and Substance Abuse in Veterans, U.S. Dep’t of Veteran Aff.  http://www.ptsd.va.gov/public/problems/ptsd_substance_abuse_veterans.asp (“Almost 1 out of every 3 Veterans seeking treatment for [Substance Use Disorder] also has PTSD.”).

[5] The History, Justice for Vets, http://justiceforvets.org/vtc-history; Veterans Treatment Court, Ky Court of Justice, https://courts.ky.gov/courtprograms/vtc/Pages/default.aspx (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), http://www.kybar.org/?page=2015Convention (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, http://www.justiceforvets.org/what-is-a-veterans-treatment-court.

[8]  Id.; See also TakePart, Veterans Treatment Courts Explained, Youtube (Feb 10, 2015) https://www.youtube.com/watch?v=PrpytvX3YSE&feature=youtu.be.

[9] Id.

[10] Id.

[11] Leigh Anne Hiatt, Jefferson County Veterans Treatment Court is First of its Kind in Kentucky, Kentucky.gov (Nov. 26, 2012), https://courts.ky.gov/pages/newsroom.aspx?viewMode=PressRelease&pressReleaseGUID=%7BDB240396-FCC4-4300-81A9-8F7AC4684DA6%7D.

[12] Veterans Treatment Court Programs, Ky. Court. of Justice, http://courts.ky.gov/courtprograms/vtc/Pages/vtcprograms.aspx.

[13] Post-Traumatic Stress Disorder, Nat’l Inst. of Mental Health, https://www.nimh.nih.gov/health/topics/post-traumatic-stress-disorder-ptsd/index.shtml.

[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) http://www.rand.org/content/dam/rand/pubs/monographs/2008/RAND_MG720.pdf.

[15] Symptoms of PTSD, U.S. Dep’t of Veteran Aff., (Aug. 13, 2015), https://www.ptsd.va.gov/public/ptsd-overview/basics/symptoms_of_ptsd.asp.

[16]Id.

[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) http://www.pbs.org/newshour/bb/stigma-stops-veterans-getting-help-ptsd/.

[22] See Mental Health Effects of Serving in Afghanistan and Iraq, U.S. Dep’t of Veteran Aff., https://www.ptsd.va.gov/public/ptsd-overview/reintegration/overview-mental-health-effects.asp.

[23] Id.

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

[25] See Alex Dixon, July Marks 40th Anniversary of All-Volunteer Army, (July 2, 2013), https://www.army.mil/article/106813/July_marks_40th_anniversary_of_all_volunteer_Army.

[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:// www.ptsd.va.gov /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., http://www.ptsd.va.gov/public/types/violence/military-sexual-trauma-general.asp (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, http://www.justiceforvets.org/what-is-a-veterans-treatment-court (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., http://www.ptsd.va.gov/public/problems/ptsd_substance_abuse_veterans.asp (last visited April 14, 2017).

[45] See Nat’l Coalition for Homeless Veterans, Background & Statistics, Nat’l Coalition for Homeless Veterans, http://nchv.org/index.php/news/media/background_and_statistics/ (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 http://justiceforvets.org/sites/default/files/files/Dept%20of%20Defense%2C%20mental%20health%20report.pdf).

[48] PTSD: National Center for PTSD, PTSD and Substance Abuse in Veterans, U.S. Dep’t of Veteran Aff., http://www.ptsd.va.gov/public/problems/ptsd_substance_abuse_veterans.asp (last visited April 14, 2017).

[49] Id.

[50] Id.

[51] Jen Christensen, Pill-addicted Veterans get Second Chance with Treatment Court, Cnn.com (Aug. 27, 2014, 3:25 PM) http://www.cnn.com/2014/08/26/health/veterans-treatment-court/.

[52] Id.; see also Half of Veterans Prescribed Medical Opioids Continue to Use Them Chronically, ScienceDaily (Mar. 8, 2014) https://www.sciencedaily.com/releases/2014/03/140308094821.htm.

[53] Id.

[54] Alcohol, Drugs and Crime, Nat’l Couns. on Alcoholism and Drug Dependence Inc., https://ncadd.org/about-addiction/alcohol-drugs-and-crime (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) http://www.apadivisions.org/division-19/publications/newsletters/military/2014/04/ptsd.aspx (last visited April 14, 2017).

[57] Id.

[58] PTSD: National Center for PTSD, Anger and Trauma, U.S. Dep’t of Veterans Aff., http://www.ptsd.va.gov/public/problems/anger-and-trauma.asp (last visited April 14, 2017).

[59] Id.

[60] See Post-Traumatic Stress Disorder, Nat’l Inst. of Mental Health, (Feb. 2016), https://www.nimh.nih.gov/health/topics/post-traumatic-stress-disorder-ptsd/index.shtml.

[61] See Smith, supra note 56.

[62] Id.

[63] History, Justice for Vets http://www.justiceforvets.org/vtc-history (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), https://obamawhitehouse.archives.gov/sites/default/files/ondcp/Fact_Sheets/veterans_treatment_courts_fact_sheet_12-13-10.pdf.

[70] Veterans Treatment Court, Kentuky.gov, http://courts.ky.gov/courtprograms/vtc/Pages/default.aspx.

[71] Id.

[72]Ten Key Components of Veterans Treatment Court, Justice For Vets, http://justiceforvets.org/sites/default/files/files/Ten%20Key%20Components%20of%20Veterans%20Treatment%20Courts%20.pdf.

[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, http://www.ptsd.va.gov/public/treatment/therapy-med/Stigma_Barriers_to_Care.asp.

[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 http://ssrn.com/abstract=1912655.

[87] Matthew R. Durose et al., Recidivism of Prisoners Released in 30 States in 2005: Patterns from 2005 to 2010 (Apr. 2014), https://www.bjs.gov/content/pub/pdf/rprts05p0510.pdf.

[88] Strengthening Our Military Families, U.S. Department of Justice, http://www.justice.gov/joiningforces.

[89] Jim Warren, Fayette Court Program Allows Veterans to Get Physical, Psychological Help Instead of Jail Time, Kentucky.com (Jan. 1, 2014, 10:40 PM), http://www.kentucky.com/news/local/crime/article44464776.html.

[90] Leigh Anne Hiatt, Jefferson County Veterans Treatment Court is First of its Kind in Kentucky, Kentucky.gov (Nov. 20, 2012), http://migration.kentucky.gov/Newsroom/kycourts/112612LAH1.htm.

[91] Leigh Anne Hiatt, Justice Will T. Scott Testifies About Plans to Help Kentucky Veterans Gain Better Access to Legal and Other Services, Kentucky.gov (July 25, 2012), http://migration.kentucky.gov/Newsroom/kycourts/072412LAH1.htm.

[92] Id.

[93]Id.

[94] Kentucky Court of Justice, Veterans Treatment Court, Kentucky.Gov, http://courts.ky.gov/courtprograms/vtc/Pages/default.aspx (last visited April 2, 2017); Kentucky Court of Justice, Kentucky Drug Court: Saving Costs, Saving Lives, Kentucky.Gov (March, 2017), http://courts.ky.gov/courtprograms/drugcourt/Documents/KYDrugCourtSitesMap.pdf.

[95]  Leigh Anne Hiatt, Jefferson County Veterans Treatment Court is First of its Kind in Kentucky, Kentucky Court of Justice, Kentucky.gov (Nov. 20, 2012) http://migration.kentucky.gov/Newsroom/kycourts/112612LAH1.htm.

[96] Kentucky Court of Justice, Veterans Treatment Court, Kentucky.Gov, http://courts.ky.gov/courtprograms/vtc/Pages/default.aspx (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, http://courts.ky.gov/courtprograms/vtc/Pages/default.aspx (last visited April 2, 2017).

[102] Id.

[103] Veterans Treatment Court Programs, Kentucky.gov, http://courts.ky.gov/courtprograms/vtc/Pages/vtcprograms.aspx (last visited April 2, 2017).[105] H.R. 118, 13 Reg. Sess. (Ky. 2013).

[106] Kentucky Court of Justice, Eligibility & Process, Kentucky.gov. http://courts.ky.gov/courtprograms/vtc/Pages/Eligibility.aspx (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, Kentucky.gov, http://courts.ky.gov/courtprograms/vtc/Pages/Eligibility.aspx (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), http://commons.pacificu.edu/cgi/viewcontent.cgi?article=1019&context=cassoc.

[131] Gavriel Jacobs, Katharine McFarland, & Gabe Ledeen, Serving Those Who Served: Veterans Treatment Courts in Theory and Practice, law.stanford.edu, http://law.stanford.edu/wp-content/uploads/sites/default/files/child-page/266901/doc/slspublic/Jacobs_McFarland_Ledeen.pdf.

[132] Brummet, supra note 130.

[133] See The History, Justice for Vets, http://www.justiceforvets.org/vtc-history (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, http://justiceforvets.org/sites/default/files/2013/Handouts/CG-8/CG-8.pdf (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 , Kentucky.gov, http://veterans.ky.gov/Pages/default.aspx.

[162] Veterans Treatment Court, Kentucky Court of Justice, http://courts.ky.gov/courtprograms/vtc/Pages/default.aspx.

[163] Leigh Anne Hiatt, Jefferson County Veterans Treatment Court to hold first graduation, Kentucky Court of Justice Newsroom  (Oct. 21, 2014), http://courts.ky.gov/pages/newsroom.aspx?viewMode=PressRelease&pressReleaseGUID=%7B4AFDCA8F-F303-4DEC-8B6F-4F2040683EB9%7D.

[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), http://www.npr.org/2017/01/03/507983947/special-courts-for-military-veterans-gain-traction.

[166] See Veterans Treatment Court Programs, Kentucky Court of Justice http://courts.ky.gov/courtprograms/vtc/Pages/vtcprograms.aspx.

[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.

Consumer Class Conflict: The Battle against Heightened Ascertainability in the Sixth Circuit

Article | 105 KY. L. J. ONLINE | March 13, 2017

Houston Alexander Bragg[1]

The theoretical purpose of class action certification and litigation is to assist groups of plaintiffs, who are “isolated, scattered, and utter strangers to each other,” in procuring legal redress that may be unavailable to them individually.[2] The practical purpose of class action litigation is to create a check on manufacturers and other defendants who cause minimal damage to a multitude of people. Without Federal Rule of Civil Procedure 23 (F.R.C.P. 23) and class action litigation, low-figure consumer harm would lack a remedy. The Third Circuit is waging war on the practical purpose of class action litigation by creating an overwhelming requirement that plaintiffs, at the pretrial stage, be able to produce a “reliable and administratively feasible” apparatus for determining whether a supposed class member falls within the class definition.[3] This prerequisite to class certification acts as a shield to consumer recovery, completely altering the established definition of class ascertainability.

Introduction

It may not be long before consumer class action lawsuits that arise under F.R.C.P. 23(b) are obsolete in the Sixth Circuit. Due to a recent Third Circuit Court of Appeals opinion heightening the ascertainability (also known as identifiability) requirement implicit in class certification, federal circuits may see a major shift in the landscape of class action litigation. Pretrial class certification is the focal point of modern class action practice for both plaintiff and defense attorneys.[4] The certification of a class will almost certainly induce a settlement, whereas the preclusion of a class almost always results in the inevitable abandonment of a group suit.[5] As most highbrows of the Federal Rules of Civil Procedure are already aware[6] and as many scholars have previously explained,[7] the majority of federal circuits have acknowledged[8] and none have expressly rejected[9] that there is an ascertainability requirement implicit in the reading of F.R.C.P. 23.[10] “It is axiomatic that in order for a class action to be certified, a class must exist.”[11] Similarly, it is unsurprising that the implicit ascertainability requirement has been said to require that the class be clearly defined by referencing objective criteria (as opposed to the subjective state of mind of a class member)[12] or, stated another way, the class must be identifiable and susceptible to precise definition.[13] It was a dramatic shift, however, when the Third Circuit and several federal district courts adopted the notion that F.R.C.P. 23(b)(3) imposes an ascertainability requirement on class action plaintiffs that requires the production of a “reliable and administratively feasible” apparatus for determining whether a purported class member falls within the class definition in addition to a clearly defined class referencing objective criteria. [14] Practitioners and scholars call this “heightened ascertainability.”[15]The Third Circuit’s departure from “traditional ascertainability” (if such a new concept can be called “traditional”) met significant resistance from the Seventh Circuit Court of Appeals when, in a recent opinion, it directly opposed the heightened ascertainability requirement.[16] In Mullins v. Direct Digital, the Court of Appeals for the Seventh Circuit held that heightened ascertainability disrupts the plain language balance of factors in F.R.C.P. 23 by placing “absolute priority” on administrability.[17] The Plaintiff in Mullins, representing a class of similar consumers, sued a corporation for fraudulent representation.[18] The Court held that the class definition was clear and based on objective criteria, effectively combating ambiguous, subjective, and fail-safe classes.[19] The Seventh Circuit Court of Appeals refused to require the plaintiff to provide an “administratively feasible” apparatus for determining the members of the class.[20]The Sixth Circuit Court of Appeals has yet to decide whether to adopt, reject, or ignore heightened ascertainability. However, the Sixth Circuit Court of Appeals in Young v. Nationwide Mutual Insurance Company did suggest that “a class must not only exist, the class must be susceptible of precise definition.”[21] In referencing “precision” in its holding, the Sixth Circuit Court of Appeals may have been forewarning of its preference for administrative feasibility similar to that of the Third Circuit; claiming such, however, would be prematurely speculative.The various district courts within the Sixth Circuit that have weighed in on the ascertainability conundrum have demonstrated that there is ample inconsistency and concern as to how the circuit should manage the implicit ascertainability requirement of F.R.C.P. 23. It is critical that the Sixth Circuit refrain from adopting the Third Circuit’s heightened ascertainability. The adoption of heightened ascertainability in the Sixth Circuit would mean a drastic reduction in consumer confidence as well as the practical end to judicial regulation of product safety.This Note will explore the intricacies of the class action ascertainability circuit split between the Third and Seventh Circuits. It will attempt to illuminate the shortcomings of heightened ascertainability and discourage adoption of heightened ascertainability in the Sixth Circuit. Part I of this Note briefly describes the modern requirements for certification of consumer class actions. Part II identifies the ascertainability circuit split, explaining the positions of the Third and Seventh Circuits in detail. Part III argues that traditional ascertainability adequately curtails the three common difficulties concerning class certification leaving no legitimate motive for heightening the ascertainability requirement. Finally, Part IV encourages the Sixth Circuit to refrain from adopting the unnecessary precaution that is Third Circuit heightened ascertainability.

I. The Uphill Battle for Consumers: An Overview of Federal Rule of Civil Procedure 23

Because “[m]odern society seems increasingly to expose men to . . . group injuries for which individually they are in a poor position to seek legal redress,”[22] F.R.C.P. 23 was amended in 1966 to provide legal recourse to groups of consumers who were harmed as a result of another’s misfeasance regardless of their relationship to each other or the magnitude of their injury.[23] Since its establishment, F.R.C.P. 23 has been met with considerable opposition, specifically from consumer defendants and lobbyists. Immense corporations and their subsidiaries often are defendants in consumer class action lawsuits; over time these corporations, and their like-minded representatives, have become the face of class action reform.[24]The current language of F.R.C.P. 23 encompasses four explicit requirements for all class actions:

(1) the proposed class is so numerous that joinder of each individual plaintiff is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.[25]

The current rule also requires that the class fit into one of three functional categories.[26] The most common of these categories, F.R.C.P. 23(b)(3),[27] requires that “the questions of law or fact common to class members predominate over any questions affecting only individual members,” and that the class action be “superior to other available methods for fairly and effectively adjudicating the controversy.”[28]In addition to the statutory requirements of F.R.C.P. 23, the common law also requires that class action plaintiffs be prepared to prove at the pre-trial stage that at least some, if not all, of the above-mentioned prerequisites exist.[29] The court, when determining whether to certify the class, is required to “rigorously analy[ze]” not only the statutory requirements before certifying the class, but also the common law requirements.[30] If any of the requirements, statutory or common-law-based, are absent the class will be precluded and certification will be denied.Finally, recent rhetoric has suggested that F.R.C.P. 23 also includes an implied requirement that the proposed class be ascertainable.[31] The idea is that the class must be clearly defined with reference to objective criteria before certification is proper thereby limiting the indefiniteness inherent in large consumer classes.[32]

The ascertainability requirement serves several important objectives. First, it eliminates serious administrative burdens that are incongruous with the efficiencies expected in a class action by insisting on the easy identification of class members [i.e. the administrability objective]. Second, it protects absent class members by facilitating the best notice practicable under Rule 23(c)(2) in a Rule 23(b)(3) action [i.e. the practicability objective]. Third, it protects defendants by ensuring that those persons who will be bound by the final judgment are clearly identifiable [i.e. the identifiability objective].[33]

While the super-majority of circuits have recognized that this implicit requirement does indeed exist,[34] considerable controversy still remains as to how ascertainability should be applied to consumer class actions.In summation, even without the heightened ascertainability requirement proposed by the Third Circuit, consumers, at present, face more than seven prerequisites to Rule 23(b)(3) class certification. Consumer plaintiffs must prove the four explicit class action requirements set forth in F.R.C.P. 23(a) (numerosity, commonality, typicality, and adequacy), the two additional consumer class requirements in F.R.C.P. 23(b)(3) (predominance and superiority), rigorous pretrial common-law factual requirements, and the traditional ascertainability requirement implicit in F.R.C.P. 23. The up-hill battle consumer-plaintiffs currently face sufficiently curtails frivolous class action claims without the need for heightened ascertainability.

II. Third Circuit Heightened Ascertainability vs. Seventh Circuit Traditional Ascertainability: A Comparison

To require that a class of individuals be ascertainable before proceeding to trial is logical. Without such a prerequisite, plaintiffs’ counsel would not have to define or identify the parameters concerning his or her clients and their lawsuit until after class certification.[35] While the legitimacy of ascertainability is widely accepted, the precision with which a class must be ascertained is the subject of heated debate.[36] The two competing views concerning ascertainability (heightened ascertainability and traditional ascertainability) have created a rift in the federal common law. On one hand, a high bar for ascertainability would work to combat frivolous claims and protect industry innovation, but on the other hand, a low bar for ascertainability allows for consumer regulation of dangerous products and judicial latitude in determining whether to certify a class.The heightened ascertainability approach to identifiability was proffered by the Third Circuit Court of Appeals in Carrera v. Bayer Corporation.[37] The United States District Court of New Jersey certified a class of individuals who purchased a weight management product called “One-a-Day WeightSmart” produced by the Bayer Corporation.[38] The Plaintiffs argued that Bayer made false claims about WeightSmart’s metabolism-enhancing properties even though they knew those statements were false.[39] After rejecting a nationwide class of consumers who purchased WeightSmart, the lower court certified a class of consumers who purchased WeightSmart in Florida.[40] Bayer claimed that ascertaining the class of WeightSmart purchasers would be nearly impossible because the entirety of the class action hinged on each individual plaintiff retaining a three-year-old proof of purchase receipt.[41]In certifying the class, the lower court cited the Eleventh Circuit saying “the manageability inquiry ‘will rarely, if ever, be in itself sufficient to prevent certification of a class. “Courts are generally reluctant to deny class certification based on speculative problems with case management.”’”[42] The court held that the obstacles facing the plaintiffs’ identification of its class members were not insurmountable, at least in part, because the claims involved were relatively small and counsel identified methods of verifying their claims.[43] Because plaintiffs’ counsel clearly defined the class by referencing receipts, loyalty club membership, old packaging, affidavits by consumers, and online purchase records (i.e. objective criteria), the lower court held that the problems with the manageability of the class were insufficient to prevent certification.[44]The Third Circuit Court of Appeals, under an abuse of discretion standard,[45] reversed the lower court’s decision when it extended its hardline approach to ascertainability fashioned in Marcus v. BMW of North America.[46] The Third Circuit expressly rejected the lower courts’ findings by holding that “[a]scertainability mandates a rigorous approach at the outset because of the key roles it plays as part of a Rule 23(b)(3) class action lawsuit,”[47] and that “[i]f class members are impossible to identify without extensive and individualized fact-finding or ‘mini-trials,’ then a class action is inappropriate.”[48] The court set forth three primary reasons for heightening the widely accepted standard for ascertainability. The court determined that “[f]irst, at the commencement of a class action, ascertainability and a clear class definition allow potential class members to identify themselves for purposes of opting out of a class.”[49] Second, it ensures that a defendant's rights are protected by the class action mechanism and that vague, subjectively defined, and fail-safe classes are not certified.[50] Third, it ensures that the parties can identify class members in a manner consistent with the efficiencies of a class action.[51] The method of determining whether someone is in the class must be "administratively feasible."[52]Under the Third Circuit’s definition of ascertainability, a plaintiff does not satisfy the ascertainability requirement if additional individualized fact-finding will be required to prove class membership.[53] The primary focus of heightened ascertainability is simply administrative feasibility. According to commentators, “[a]dministrative feasibility means . . . identifying class members [through] a manageable process that does not require much, if any, individual factual inquiry."[54]In direct response to the Third Circuit’s heightened ascertainability holdings in Carrera and Marcus, the Seventh Circuit reaffirmed its commitment to the established traditional definition of ascertainability, expressly rejecting heightened ascertainability in Mullins v. Direct Digital, L.L.C.[55] In Mullins, the lower court certified a class of consumers who purchased a joint support supplement drug called “Instaflex.”[56] The plaintiffs claimed that Direct Digital made misrepresentations about its product by asserting that Instaflex would “relieve discomfort,” “increase mobility,” and that it was “scientifically formulated . . . and clinically tested” when, in reality, it was nothing more than a sugar pill.[57] The Eastern Division of the United States District Court of Illinois held that the consumer class of Instaflex purchasers was ascertainable because it was “objectively contained to all individuals who purchased Instaflex for personal use during the class period and the class period is finite.”[58] The court held that in order to establish pretrial ascertainability, the class should be restricted to individuals who purchased the supplement within the applicable statute of limitations (the class period), in certain states (the class states), for personal use, and only until the manufacturer notice was disseminated.[59]The Seventh Circuit Court of Appeals upheld the lower court’s class certification, refusing to adopt the Third Circuit’s heightened ascertainability approach proposed by the defendants, Direct Digital.[60] In its decision, the Seventh Circuit deconstructed the Third Circuit’s heightened ascertainability approach. It observed:

As it stands now, the Third Circuit’s test for ascertainability has two prongs: (1) the class must be “defined with reference to objective criteria” (consistent with long-established law discussed above), and (2) there must be “a reliable and administratively feasible mechanism for determining whether putative class members fall within the class definition.”[61]

The Seventh Circuit determined that heightened ascertainability moves well beyond the examination of class adequacy itself. It transforms the requirement into an examination of the potential difficulties in both identifying particular members of a proposed class and evaluating the validity of class members’ potential claims.[62] The Seventh Circuit concluded in part that heightened ascertainability’s focus on administrability exists as a detriment to other equally important considerations.[63]The Seventh Circuit Court of Appeals held that Direct Digital’s apprehensions were sufficiently extinguished by the numerous explicit requirements of F.R.C.P. 23 and traditional ascertainability; the policy, equity, and due process arguments proposed by defendant, Direct Digital were curtailed by existing jurisprudence.[64] Further, it held that the second prong of the Third Circuit’s heightened ascertainability test skews the balance of class action considerations by focusing too much on the administrability of the class action litigation.[65] The Seventh Circuit suggested that, in practice, the heightened ascertainability requirement could “erect a nearly insurmountable hurdle at the class certification stage in situations where a class action is the only viable way to pursue valid, but small, individual claims.”[66]The Seventh and Third Circuits have bifurcated the doctrine of class action ascertainability. Both Carrera and Mullins were misrepresentation cases involving a class of consumers who purchased an over-the-counter drug that failed to live up to the company’s promises. In the Third Circuit, the Mullins class would have most likely been precluded, whereas in the Seventh Circuit, the Carrera class would almost certainly have been certified. Most jurisdictions will, at some point, be faced with the question of whether they are willing to deny class certification based on speculative problems with case management. At that point, the jurisdiction will have to choose whether to follow the established norms of traditional ascertainability, adopt heightened ascertainability, or create a separate approach to ascertainability, further complicating class action jurisprudence.

III. Traditional Ascertainability Accounts for the Totality of Class Action Concerns: A Balanced Approach to Ascertainability

“The policy concerns motivating the heightened ascertainability requirement are better addressed by applying carefully the explicit requirements of Rule 23(a) and especially (b)(3).”[67] The existing requirements of F.R.C.P. 23 adequately, and without excess, address the balance of interests that class action litigation was created to protect.[68] As stated in Mullins, the Third Circuit’s approach to ascertainability is flawed; it gives unbalanced priority to a single objective, administrability, which results in an upset of the established F.R.C.P. 23 balance.[69]The Third Circuit Court of Appeals, in its landmark heightened ascertainability case, Carrera, set forth three separate, yet equally important, functions that the ascertainability requirement serves to protect: administrability, practicability, and identifiability.[70] Nowhere in the Carrera holding, or anywhere else in the law of ascertainability, is it written that any one of these functions is more determinative than the others or should be given more consideration than its counterparts.Indeed, the three objectives within the implied requirement of ascertainability must also be balanced against other outside influences and interests of the parties involved.[71] The Seventh Circuit Court of Appeals, in Mullins, held that a court must consider “’the likely difficulties in managing a class action,’ but in doing so it must balance countervailing interests to decide whether a class action ‘is superior to other available methods for fairly and efficiently adjudicating the controversy.’”[72] The court further held that the administrability of the class (an aspect of ascertainability) must be balanced with other pertinent interests, including the effectiveness of the recourse and the sufficiency of class action over other legal avenues.[73] Thus, administrability, the element of ascertainability that the Third Circuit’s approach exclusively expands, is more appropriately one of many factors in the totality of the class action balance. As such, one factor cannot supersede, without legislative indication, all of the other moving parts involved in a multi-faceted class action lawsuit.As the Seventh Circuit Court of Appeals so eloquently stated, “[w]hen courts wrote of th[e] implicit requirement of ‘ascertainability,’ they trained their attention on the adequacy of the class definition itself.”[74] The court explained that “[t]hey were not focused on whether, given an adequate class definition, it would be difficult to identify particular members of the class” as heightened ascertainability so speculatively requires.[75]

A. Traditional Ascertainability Sufficiently Protects Defendants Against Vague Classes

The Seventh Circuit, in Mullins, set forth three common ascertainability complications that heightened ascertainability was designed to remedy.[76] The first of these can be described as vague classes.[77] Vague classes result when the boundaries concerning who can become a class member are not properly drawn. As James W. Moore, of Moore’s Federal Practice, wrote, “[t]here can be no class action if the proposed class is ‘amorphous’ or ‘imprecise.’”[78] To avoid vagueness, class definitions generally need to identify (1) a particular group (2) harmed during a particular time frame (3) in a particular location and (4) in a particular way.[79] Precision is necessary to identify who will receive notice of the class, who will enjoy recovery if the class is successful, and who will be bound by the judgment.[80] Without some sort of protection against vague classes, defendant corporations and manufacturers could be liable to an indefinite number of plaintiffs without being able to sufficiently allocate the cost of their actions. This proposition has been firmly rejected by legislatures and judiciaries.

The traditional approach to ascertainability, namely a clearly defined class referencing objective criteria, accounts for the four particularities required to avoid vague classes without over-protecting class action defendants from group recovery. By “clearly defining a class,” under the traditional approach to ascertainability, one must establish certain bounds in which a consumer must fall. In Mullins, the plaintiffs must have (1) purchased Instaflex; (2) during the prescribed statute of limitations; (3) in Illinois and other certain states; (4) for personal use.[81] If individuals satisfied those parameters they could become a member of the class.[82] If even one of those elements was not present, the individual would not be accepted as a member.[83] Similarly, in Carrera, the district court explained that the plaintiffs (1) must have purchased WeightSmart (2) in the state of Florida and (3) must be able to verify their purchase through receipts or other records from loyalty cards or online purchases.[84] The traditional approach to ascertainability effectively curtailed the possibility of certifying a vague class in both Mullins and in the district court interpretation of Carrera. On the other hand, while a court would most likely avoid any unintentional certification of a vague class by demanding that plaintiffs provide a reliable and administratively feasible apparatus for determining class membership at the pretrial stage, as the Third Circuit’s heightened ascertainability requires, it would do so the cost of rejecting legitimate class suits like the one in Carrera.

B. Traditional Ascertainability Sufficiently Protects Against Classes Based on Subjective Criteria

The second complication that heightened ascertainability purports to avoid is classes based on subjective criteria.[85] The objectivity requirement of traditional ascertainability (i.e. classes referencing objective criteria) disallows the certification of classes that are based on the state of mind of the plaintiff.[86] Plaintiffs can usually avoid this by defining a class in terms of conduct as opposed to a subjective state of mind.[87] The subjective class issue occurs when a group of plaintiffs attempt to find unity in the expectations they had or their personal feelings. A class based on what someone thinks or subjectively expects would be extremely problematic. Not only would the class require the court to address each member’s claim individually to determine legitimacy, but it would be impossible to substantiate whether the claims were meritorious.The traditional ascertainability approach, by definition, accounts for the objectivity necessary to determine a legitimate class, whereas the additions made by heightened ascertainability add little, if anything, to the fold. The traditional approach requires a prima facie “reference of objective criteria” before ascertainability can be established.[88] In Simer v. Rios, the Seventh Circuit, the circuit most fervently combating heightened ascertainability, applied the traditional ascertainability approach and rejected a class certification for a group of people who sought accreditation based on their individual discouraged feelings.[89] The plaintiffs in Simer were a group of individuals who were “discouraged” from applying for an energy conservation grant because of a caveat for that program that first required delinquency.[90] The class definition did not reference objective criteria based on conduct but instead based membership on a subjective state of being that proved far too difficult to ascertain.[91] In Mullins and Carrera, the courts recognized that the plaintiffs were not basing their claims on the individual disappointment of each member in the product that they purchased, but rather on the act of purchasing a product that misrepresented itself—an objectively provable contention.”[92] The heightened ascertainability requirement for a reliable and administratively feasible apparatus for determining class membership, by itself, fails to add any substance to the struggle against subjective class certification.

C. Traditional Ascertainability Sufficiently Protects Against Fail-Safe Classes

Finally, the Seventh Circuit Court of Appeals in Mullins identified fail-safe classes as the third complication commonly arising out of the ascertainability requirement.[93] Fail-safe classes are classes that cannot be defined until the case has been resolved on its merits.[94] Under F.R.C.P. 23, classes are disallowed if they are defined in terms of success on the merits.[95] This is a particular problem because the class member will either win the class action, or, by virtue of losing, become a non-class member, creating a double-edged sword for class action defendants.[96] If the class is certified then the defendant is pressured to settle; but if the class is rejected, then the individual may still have a separable action not barred by claim or issue preclusion.[97]In order to avoid creating a fail-safe class, membership should not depend on the liability of the defendant.[98] Similar to its defense against vague classes, the traditional approach to ascertainability contemplates the problem of fail-safe classes by requiring the class to be clearly defined.[99] When a plaintiff defines a class clearly, it becomes apparent whether the class is bound together by the defendant’s liability. In the case of Sauter v. CVS, the plaintiff tried to certify a class of individuals who had received non-emergency telemarketing calls from CVS even though they did not give consent to the calls.[100] By defining the class in such a manner, the plaintiffs would win the case if they had indeed been called and did not give consent (the two things necessary to win in this case), but would be released from trial if they did not survive the class definition, thus evading claim preclusion by not being bound by an adverse judgement.[101] In Mullins, the class was predicated on the sufficiency of the product’s representations and not on the liability of the defendant.[102] If Direct Digital prevails in Mullins, res judicata will bar class members from re-litigating their claims in a different forum.[103] Traditional ascertainability allowed the court in Sauter to identify a fail-safe class[104] and the court in Mullins to distinguish a properly ascertainable class.[105] Third Circuit heightened ascertainability is unnecessary to protect against fail-safe classes.While the Third Circuit claimed that its heightened approach to ascertainability would promote administrability, practicability, and identifiability of class claims, the additions seem to have little to no effect on the complications facing class ascertainability.[106] The traditional approach to ascertainability along with the explicit requirements of F.R.C.P. 23 sufficiently curtail the common complications facing class ascertainability.

IV. The Sixth Circuit Approach to the Ascertainability Condundrum

Ascertainability in the Sixth Circuit is muddled; no concrete holding has been established concerning the ascertainability requirement implicit in F.R.C.P. 23. The Sixth Circuit Court of Appeals has not explicitly adopted heightened ascertainability, but in Young v. Nationwide Mutual Insurance Company, it adopted the definition from Moore’s Federal Practice that “a class must not only exist, [it] must be susceptible to precise definition.”[107] While the Young decision has been heavily scrutinized,[108] it does suggest that the Sixth Circuit may be open to adopting a heightened approach to ascertainability.[109] In Young, the plaintiffs created a class of insured individuals who were allegedly overcharged for the services they received (i.e. they paid taxes on non-taxable charges).[110] The court explained that

[f]or a class to be sufficiently defined, the court must be able to resolve the question of whether class members are included or excluded from the class by reference to objective criteria. In some circumstances, a reference to damages or injuries caused by particular wrongful actions taken by the defendants will be sufficiently objective criterion for proper inclusion in a class definition. Similarly, a reference to fixed, geographic boundaries will generally be sufficiently objective for proper inclusion in a class definition.[111]

In its discussion of the class definition, the court in Young withdrew back to traditional ascertainability language and continued later in its opinion to refer to administrability as if it were separate and apart from class definition and ascertainability.[112] While the opinion in Young seems to tender the court’s preference for administrability, it retreats on multiple occasions and explains that the difficulty in reviewing class membership is not dispositive.[113]If the Sixth Circuit Court of Appeals’ opinion in Young was unhelpful in foreshadowing what the circuit may do when faced with an ascertainability conundrum, then the opinions from the district courts within the Sixth Circuit concerning ascertainability have muddied the waters even more. There is little agreement among the Sixth Circuit district courts that have commented on the subject of ascertainability. The Eastern Division of the Northern District of Ohio opined in In re Polyurethane Foam Antitrust Litigation that the Sixth Circuit has not explicitly required ascertainability, but in the same breath recognized the Third Circuit’s two-pronged heightened ascertainability test as the proper test for determining ascertainability.[114] The Western Division of the Northern District of Ohio in Galoski v. Applica Consumer Products required only that the class be clearly defined referencing objective criteria, mirroring the traditional test for ascertainability.[115] Similarly, the Western District of Tennessee in Cole v. City of Memphis required only that a class be clearly defined referencing objective criteria, again, mirroring the traditional test for ascertainability.[116] The Eastern District of Michigan in Barry v. Corrigan blurs heightened ascertainability with the requirements implicit for defining a class set forth in F.R.C.P. 23(c)(1)(B).[117]With such discord in the realm of class ascertainability, it is understandable why the Third and Seventh Circuits have sketched out the boundaries of ascertainability with such vigor in their jurisdictions. Hard and fast rules are the easiest way to set expectations and expose weaknesses in a jurisdiction’s approach to a judicial rule. Certainly, there is no consensus in the Sixth Circuit as to the status of ascertainability. However, if the Sixth Circuit Court of Appeals’ decision in Young is any indication, then the Sixth Circuit, a historically objective circuit, is on its way to adopting a heightened ascertainability approach to class action certification that would undermine the justifications for F.R.C.P. 23(b)(3) consumer class actions.[118]As explained above, the ascertainability requirement serves to eliminate administrative burdens, facilitate the best notice practicable, and protect defendants from expansive judgements.[119] The first objective of the implicit ascertainability requirement—administrability —is unequivocally represented in the heightened ascertainability approach.[120] However, the Sixth Circuit already has the superiority and numerosity requirements of F.R.C.P. 23(a) and (b)(3), which also support the administrability objective without requiring the plaintiff to prove feasibility and provide an apparatus by which to measure the class.[121] The second and third objectives—practicality and identifiability—are also furthered by Third Circuit heightened ascertainability, albeit minimally, by requiring that the plaintiff prove feasibility of the class and provide an apparatus for determining the identity of class members. Regardless of the implicit practicality and identifiability aspects of heightened ascertainability, the Sixth Circuit requires class counsel to prove typicality, commonality, numerosity, traditional ascertainability, and the superiority requirements before certification.[122] Thus, it adds nothing to the practicality nor the identifiability discussions to adopt the Third Circuit’s new requirement. When read together, the current requirements of F.R.C.P. 23 requires that the class be practical in its notification of identified class members.Heightened ascertainability is, if anything, repetitive. While it purports to establish a novel rule by which to streamline the class certification process, it merely restates the objectives implicit in the current reading of F.R.C.P. 23 and the common law of class actions. It is imperative that the Sixth Circuit refrain from the adoption of heightened ascertainability. The adoption of such a rule does not advance protection against vague, subjective, or fail-safe classes, nor does it promote any novel objectives. Adopting heightened ascertainability gives unwarranted priority to judicial administrability of a class and could mean the practical end to consumer regulation of the market.

Conclusion

The theoretical purpose of class action certification and litigation is to assist groups of plaintiffs who are “isolated, scattered, and utter strangers to each other” to procure legal redress, which may be unavailable to them individually.[123] The practical effect of class action litigation is a check on manufacturers and other defendants who cause minimal damage to a multitude of people. Without F.R.C.P. 23 and class action litigation, a large portion of consumer harm would lack a remedy.It is highly unlikely that Congress will abolish consumer class action practice anytime in the foreseeable future. By heightening the ascertainability requirement, however, courts may practically effectuate a similar result. There is a public policy in favor of holding defendants accountable no matter how small or large the harm they cause.[124] Plaintiffs currently face at least seven requirements they must prove before the certification of a class is granted; the additional administrability requirement proposed by the Third Circuit does nothing more than add to the thicket of hurdles for class counsel. The implications of creating another hurdle for class action plaintiffs could mean an immense decline in consumer class action suits and less judicial oversight of manufacturers and corporate defendants.Ascertainability is essential to judicial economy. I do not advocate that ascertainability is unnecessary, as some scholars have done.[125] Rather, I argue that the traditional approach to ascertainability is sufficient to curb the threats presented by unascertainable classes. The Third Circuit’s heightened approach to ascertainability skews the proper balance of interest by placing too much weight on administrability. The Sixth Circuit should repudiate the Third Circuit’s heightened approach to ascertainability and embrace the Seventh Circuit’s traditional approach in order to maintain the balance necessary for equitable class certification determinations.

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[1] J.D. Candidate, 2017, University of Kentucky College of Law; B.A., 2013, Morehead State University. In memory of Edna May Bragg to whom I owe my faith and fortitude.

[2] Geoffrey C. Shaw, Class Ascertainability, 124 Yale L. J. 2354, 2356 (2015) (quoting Harry Kalven, Jr. & Maurice Rosenfield, The Contemporary Function of the Class Suit, 8 U. Chi. L. Rev. 684, 688 (1941).

[3] Carrera v. Bayer Corp., 727 F.3d 300, 308 (3rd Cir. 2013).

[4] See Jason Steed, On “Ascertainability” as a Bar to Class Certification, 23 App. Advoc. 626, 626 (2011); see also Chamberlan v. Ford Motor Co., 402 F.3d 952, 957 (9th Cir. 2005) (explaining the “death knell” nature of class certification).

[5] Steed, supra note 4. See generally Samuel Issacharoff, Myriam Gilles, Andrew J. Pincus & D. Theodore Rave, The Current State of the Consumer Class Action, 11 N.Y.U. J. L. & Bus. 647 (2015) (providing background commentary on modern class action litigation).

[6] 5 James Wm. Moore et al., Moore’s Federal Practice, ¶ 23.21[1] (3d ed. 2016).

[7] Steed, supra note 4.

[8] Shaw, supra note 2, at 2357-58; Steed, supra note 4, at 628. See also, e.g., Mullins v. Direct Digital, L.L.C., 795 F.3d 654, 657 (7th Cir. 2015); Carrera, 727 F.3d at 304; Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571, 589 n.8 (9th Cir. 2010); Romberio v. Unumprovident Corp., 385 F.App’x. 423 (6th Cir. 2009); In re Initial Pub. Offerings Sec. Litig., 471 F.3d 24, 30 (2d Cir. 2006); In re PolyMedica Corp. Sec. Litig., 432 F.3d 1, 19 n.22 (1st Cir. 2005); Shook v. El Paso Cty., 386 F.3d 963, 972 (10th Cir. 2004); In re A.H. Robins Co., 880 F.2d 709, 728 (4th Cir. 1989); DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir. 1970).

[9] See Steed, supra note 4 at 628 (stating that most circuits have acknowledged an ascertainability requirement).But see Shaw, supra note 2, at 2354 (arguing a rejection of the ascertainability requirement).

[10] Steed, supra note 4 at 626.

[11] Moore, supra note 6.

[12] See Mullins, 795 F.3d at 659-60.

[13] Steed, supra note 4, at 627.

[14] Carrera v. Bayer Corp., 727 F.3d 300, 307 (3rd Cir. 2013).

[15] See, e.g., Mullins, 795 F.3d at 663; Shepard Goldfein & James A. Keyte, Heightened Ascertainability In Class Actions: Clash of Two Circuits, 254 N.Y.L.J. available at https://www.skadden.com/sites/default/files/publications/070081527Skadden.pdf.

[16] See Mullins, 795 F.3d at 658.

[17] Id.

[18] Id.

[19] Id. at 660-61.

[20] Id. at 662.

[21] Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 538 (6th Cir. 2012).

[22] Harry Kalven, Jr. & Maurice Rosenfield, The Contemporary Function of the Class Suit, 8 U. Chi. L. Rev. 684, 686 (1941).

[23] See Fed. R. Civ. P. 23.

[24] See Class Action Fairness Act of 2005, Pub. L. No. 109–2, 119 Stat 4; Public Citizen, Unfairness Incorporated: The Corporate Campaign Against Consumer Class Actions (2003).

[25] See Fed. R. Civ. P. 23(a) (known in short as (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy).

[26] See Fed. R. Civ. P.

[27] Steed, supra note 4.

[28] See Fed. R. Civ. P. 23(b)(3) (known, in short, as (5) predominance and (6) superiority).

[29] See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011).

[30] Id. at 351.

[31] Moore, supra note 6.

[32] Mullins v. Direct Digital, L.L.C., 795 F.3d 654, 659 (7th Cir. 2015).

[33] Carrera v. Bayer Corp., 727 F.3d 300, 305-06 (3rd Cir. 2013).

[34] Steed, supra note 4.

[35] See Simer v. Rios, 661 F.2d 655, 669-71 (7th Cir. 1981) (discussing the issues present in defining and identifying the members of a class).

[36] See, e.g. Mullins, 795 F.3d 654; Carrera, 727 F.3d 300; Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571 (9th Cir. 2010); Romberio v. Unumprovident Corp., 385 F.App’x. 423 (6th Cir. 2009); In re Initial Pub. Offerings Sec. Litig., 471 F.3d 24 (2nd Cir. 2006); In re PolyMedica Corp. Sec. Litig., 432 F.3d 1 (1st Cir. 2005); Shook v. El Paso Cnty., 386 F.3d 963 (10th Cir. 2004); In re A.H. Robinson Co., Inc., 880 F.2d 709 (4th Cir. 1989); DeBremaecker v. Short, 433 F.2d 733 (5th Cir. 1970).

[37] See Carrera, 727 F.3d at 305 (3rd Cir. 2013).

[38] See Carrera v. Bayer Corp., No. 08-4716, 2011 WL 5878376, at *1 (D.N.J. Nov. 22, 2011).

[39] Id. at *1.

[40] Id. at *9.

[41] Id. at *3.

[42] Id. at *4 (quoting Klay v. Humana, Inc., 382 F.3d 1241, 1272-73 (11th Cir. 2004)).

[43] Id.

[44] Id.

[45] Carrera v. Bayer Corp., 727 F.3d 300, 305 (3rd Cir. 2013).

[46] Id. at 303-04.

[47] Id. at 307.

[48] Id. at 305.

[49] Id. at 307.

[50] Id.

[51] Id.

[52] Id.

[53] Id. at 304.

[54] William B. Rubenstein, Newberg on Class Actions § 3:3 (rev. 6th ed. Supp. 2016).

[55] See Mullins v. Direct Digital, L.L.C., 795 F.3d 654, 658 (7th Cir. 2015).

[56] Mullins v. Direct Digital, LLC, No. 13-CV-1829, 2014 WL 5461903, at *1, *4 (N.D. Ill. Sept. 30, 2014).

[57] Id. at *1.

[58] Id. at *2.

[59] Id.

[60] Mullins, 795 F.3d at 657.

[61] Id. at 662 (citing Byrd v. Aaron’s Inc., 784 F.3d 154, 163 (3d Cir. 2015); see also Shelton v. Bledsoe, 775 F.3d 554, 560 (3d Cir. 2015) (explaining that “defining the class” and “class ascertainability” are distinct concepts).

[62] Mullins, 795 F.3d at 657. See also Byrd, 784 F.3d at 168-69.

[63] See Mullins, 795 F.3d at 658, 672.

[64] Id. at 663-72.

[65] Id. at 662.

[66] Id. at 662.

[67] Id. at 658.

[68] Id.

[69] Mullins, 795 F.3d at 658.

[70] See Carrera v. Bayer Corp., 727 F.3d 300, 305-06 (3d Cir. 2013).

[71] See Mullins, 795 F.3d at 658.

[72] Id. (quoting : Fed. R. Civ. P. 23(b)(3)).

[73] See generally id. at 663-64 (explaining that the superiority requirement is comparative and that courts “must assess efficiency with an eye toward ‘other available methods’”).

[74] Id. at 659.

[75] Id.

[76] Id. at 657.

[77] Id.

[78] Moore, supra note 6 (quoted in Young v. Nationwide Ins. Co., 693 F.3d 532, 538 (6th Cir. 2012)).

[79] 1 McLaughlin on Class Actions § 4:2 (13th ed. 2016 update).

[80] Mullins, 795 F.3d at 660 (citing Kent v. SunAmerica Life Ins. Co., 190 F.R.D. 271, 278 (D. Mass. 2000)).

[81] Id. at 658.

[82] See id.

[83] See id.

[84] See Carrera v. Bayer Corp., No. 08-4716, 2011 WL 5878376, at *2-3 (D.N.J. Nov. 22, 2011).

[85] Mullins, 795 F.3d at 657.

[86] Id. at 660.

[87] William B. Rubenstein, Newberg on Class Actions § 3:5 (5th ed. 2016 update).

[88] Mullins, 795 F.3d at 662 (quoting Byrd v. Aaron’s Inc., 784 F.3d 154, 163 (3d. Cir. 2015).

[89] Simer v. Rios, 661 F.2d 655, 669-70 (7th Cir. 1981).

[90] Id. at 657-58.

[91] Id. at 668-69, 682.

[92] Mullins, 795 F.3d at 660-61; Carrera v. Bayer Corp., No. 08-4716, 2011 WL 5878376, at *7, (D.N.J. Nov. 22, 2011).

[93] Mullins, 795 F.3d at 657.

[94] See Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 825 (7th Cir. 2012).

[95] Id.

[96] Id.

[97] See id.

[98] Mullins, 795 F.3d at 660 (citing Erin L. Geller, Note, The Fail-Safe Class as an Independent Bar to Class Certification, 81 Fordham L. Rev. 2769, 2808 (2013)).

[99] Id. at 659 (explaining the traditional approach to ascertainability).

[100] Sauter v. CVS Pharmacy, Inc., No. 2:13-CV-846, 2014 WL 1814076, at *1 (S.D. Ohio May 7, 2014).

[101] Id. at *3-4.

[102] Mullins, 795 F.3d at 661.

[103] Id.

[104] Sauter, 2014 WL 1814076, at *9.

[105] Mullins, 795 F.3d at 660-61.

[106] See supra Part III and accompanying notes.

[107] Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 538 (6th Cir. 2012) (quoting : Moore, supra note 6).

[108] See, e.g., Cole v. City of Memphis, 839 F.3d 530, 541 (6th Cir. 2016) (comparing 6th Circuit’s decision in Young, 693 F.3d 532, to the decisions to other circuits).

[109] Young, 693 F.3d at 537-38.

[110] Id. at 535.

[111] Id. at 538-39 (quoting Moore, supra note 6).

[112] See id. at 540.

[113] Id.

[114] In re Polyurethane Foam Antitrust Litig., No. 1:10 MD 2196, 2015 WL 4459636 at *5-7 (N.D. Ohio July 21, 2015).

[115] Galoski v. Applica Consumer Prods., 309 F.R.D. 419, 422 (N.D. Ohio 2015).

[116] Cole v. City of Memphis, No. 2:13-cv-02117-JPM-dkv, 2015 WL 3442277, at *5 (W.D. Tenn. May 28, 2015).

[117] Barry v. Corrigan, 79 F. Supp. 3d 712, 728-33 (E.D. Mich. 2015).

[118] See generally Young, 693 F.3d 532 (describing class certification requirements).

[119] Carrera v. Bayer Corp., 727 F.3d 300, 305-06 (3rd Cir. 2013).

[120] See Mullins v. Direct Digital, L.L.C., 795 F.3d 654, 663-73 (7th Cir. 2015) (conceding that heightened ascertainability addresses administrability).

[121] Fed R. Civ. P. 23(a), (b)(3).

[122] See, e.g., Young, 693 F.3d 532.

[123] Shaw, supra note 2 (quoting Harry Kalven, Jr. & Maurice Rosenfield, The Contemporary Function of the Class Suit, 8 U. Chi. L. Rev. 684, 687-88 (1941)).

[124] See Fed. R. Civ. P. 23.

[125] Shaw, supra note 2, at 2363.