Aggressively Defending My Clients Since 1990


On Behalf of | Apr 25, 2024 | Drug Offenses

U.S. Marines pray over a fallen comrade after he died from wounds suffered in fighting in Fallujah, Iraq, April 8, 2004.AP Photo/Murad Sezer, File

U.S. Marines pray over a fallen comrade after he died from wounds suffered in fighting in Fallujah, Iraq, April 8, 2004. AP Photo/Murad Sezer, File

On March 20, 2003, a U.S.-led military coalition invaded Iraq, toppling the government of Saddam Hussein before a fierce insurgency rose up to oppose Western forces. As the fighting unfolded over eight years, more than a million U.S. service members deployed to the region, and many returned with complex physical and mental wounds no single treatment can erase. While I questioned the war, I never questioned supporting our troops who put their lives on the line.

I vividly remember representing a vet from Operation Enduring Freedom. Simply put, he did not want to live. He was homeless. He was addicted to alcohol, marijuana and cocaine. In fact, when he was arrested, he had a needle hanging out of his arm.

Traumatic events such as combat exposure and multiple deployments can also trigger drug or alcohol use. Many veterans turn to substance use to self-medicate and numb their pain and thoughts of the trauma. This is a dangerous practice, as people with PTSD often have a more difficult time overcoming addiction. Furthermore, the symptoms of withdrawal from substances combined with the symptoms of PTSD may amplify negative feelings and emotions, leading to relapse. See generally, Wounds of War: Drug Problems Among Iraq, Afghan Vets Could Dwarf Vietnam

Connect with the Veterans Crisis Line to reach caring, qualified responders with the U.S. Department of Veterans Affairs. Many of them are Veterans themselves. Free support is confidential and available 24/7. Dial 988 then Press 1, chat here or text 838255.

How Common Is Co-occurring PTSD and substance use disorder (SUD) in veterans?  According to The National Center for PTSD

  • More than 2 of 10 Veterans with PTSD also have SUD.
  • Almost 1 out of every 3 Veterans seeking treatment for SUD also has PTSD.
  • The number of Veterans who smoke (nicotine) is almost double for those with PTSD (about 6 of 10) versus those without a PTSD diagnosis (3 of 10).
  • In the wars in Iraq and Afghanistan, about 1 in 10 returning Veterans seen in VA have a problem with alcohol or other drugs.
  • War Veterans with PTSD and alcohol problems tend to binge drink. Binge drinking is when a person drinks a lot of alcohol (4-5 drinks or more) in a short period of time (1-2 hours).

Some courts have begun to recognize that being a veteran is a mitigating circumstance at sentencing.  For instance, in Porter v. McCollum, 558 U.S. 30 (2009), the trial record showed defendant Porter’s heroic military service. Porter’s military records indicate that he enlisted in the Army at 16 years of age, on August 30, 1949. Porter was a member of Company B of the First Battalion of the 23rd Regiment of the 2nd Division of the United States Army. At seventeen, Porter fought in two of the most devastating and important battles of the Korean Conflict: Kuni-Ri and Kapyong-Ni.

Lieutenant Colonel Sherman Pratt, who commanded Company B explained that

[T]he battle at Kunu-Ri that we participated in and held off the rest of the Chinese those precious few hours until the rest of the Eighth Army could withdraw, that was a very decisive thing because if we had not held off for just those few hours, the Chinese very likely would have gotten behind the whole Eighth Army.

Colonel Pratt also testified more specifically about the conditions Porter and the 2nd Division encountered during this stand with the Chinese:

We went into position there in the bitter cold night, terribly worn out, terribly weary, almost like zombies because we had been in constant — for five days we had been in constant contact with the enemy fighting our way to the rear, little or no sleep, little or no food, literally as I say zombies.

Colonel Pratt testified that these events “were very trying, horrifying experiences”, and that Porter’s experiences would have been even worse since his company “sustained the heaviest casualties of any troops at the Chipyong-ni (sic) Battle.”

Porter was awarded the National Defense Service Medal for enlisting in time of conflict, the United Nations Service Medal for serving with United Nations forces in the Korean conflict, the Korean Service Medal with three Bronze Service Stars, the Combat Infantryman’s Badge, and two Purple Hearts (with first cluster) for being wounded in combat; he was also favorably considered for the Good Conduct Medal, he is entitled to receive the Korean Presidential Unit Citation, and the Army gave him an honorable discharge.

When Porter returned to the United States, he went AWOL for an extended period of time. He was sentenced to six months’ imprisonment for that infraction, but he received an honorable discharge. After his discharge, he suffered dreadful nightmares and would attempt to climb his bedroom walls with knives at night. Porter’s family eventually removed all of the knives from the house. According to Porter’s brother, Porter developed a serious drinking problem and began drinking so heavily that he would get into fights and not remember them at all.

Sadly, Porter was charged and was convicted of two counts of first-degree murder for the shooting of his former girlfriend, Evelyn Williams, and her boyfriend Walter Burrows. He was sentenced to death on the first count but not the second.  Florida sentenced him to death.

At the trial level, Porter’s attorney failed to investigate and present any of the mitigating evidence from his military history.  Incredibly, lower courts disagreed about whether the lawyer’s failure to present the information was prejudicial, but a unanimous U.S. Supreme Court concluded it was wrong to not see Porter’s military record as a mitigating factor at sentencing:

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 Porter did. Moreover, the relevance of Porter’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 Porter. Id. at 43-44.

To support this position the Supreme Court cited Rosenbaum, The Relationship Between War and Crime in the United States, 30 J.Crim. L. & C. 722, 733–734 (1940) (describing a 1922 study by the Wisconsin Board of Control that discussed the number of veterans imprisoned in the State and considered “the greater leniency that may be shown to ex-service men in court”)

Given the Porter decision, it could be assumed that greater leniency would be shown to ex-service men in court. That assumption would be wrong.

Veterans are now twice as likely as nonveterans to face incarceration. Consequences of War’–Veterans Incarcerated at Higher Rates and Face Longer Sentences. VA estimates that nearly 30% of veterans of the wars in Iraq and Afghanistan have experienced post-traumatic stress at some point in their lives; veterans with PTSD have about a 60% higher likelihood of being arrested for a violent offense than veterans without it. Veterans with traumatic brain injuries—a hallmark injury of the post-9/11 wars—are similarly more likely to become involved in the criminal justice system.Id. In 2017, a government report concluded that:

data show[s] that 62 percent, or 57,141 of the 91,764 servicemembers separated for misconduct from fiscal years 2011 through 2015 had been diagnosed within the 2 years prior to separation with post-traumatic stress disorder (PTSD), traumatic brain injury (TBI), or certain other conditions that could be associated with misconduct. Specifically, 16 percent had been diagnosed with PTSD or TBI, while the other conditions, such as adjustment and alcohol-related disorders, were more common. Of the 57,141 servicemembers, 23 percent, or 13,283, received an “other than honorable” characterization of service, making them potentially ineligible for health benefits from the Department of Veterans Affairs (VA). Actions Needed to Ensure Post-Traumatic Stress Disorder and Traumatic Brain Injury Are Considered in Misconduct Separations

“Research suggests that recent veterans are twice as likely as non-veterans to face incarceration, while veterans from previous eras, such as World War II and the Vietnam War, were half as likely as non-veterans to become incarcerated. Military service members are more likely than their civilian counterparts to have socioeconomic and family characteristics, ACEs, and personality traits that, without targeted intervention and support systems, may increase their risk of criminal justice involvement. Combat exposure and its associated physical and mental health problems (e.g., PTSD, TBI, mood disorders, and substance use disorders) are significantly associated with a greater likelihood of criminal justice system involvement among veterans. For example, TBI is associated with a 59% increase in the odds of justice involvement among veterans.” From Service to Sentencing: Unraveling Risk Factors for Criminal Justice Involvement Among U.S. Veterans.

Thankfully, 16 jurisdictions in Wisconsin have recognized the need to recognize the needs of veterans in criminal court.  These courts are “designed to provide better, more effective solutions for veterans in the criminal justice system.” Id.