The Official Voice of Vietnam Veterans of America, Inc. ®
An organization chartered by the U.S. Congress

December 2003
FEATURE
   
 

Proving PTSD Post-Prison Sentencing

BY BILL TRIPLETT


William DiMascio, a Vietnam veteran and an attorney, is a man on a mission. He has a thing about fairness, which he thinks some of his fellow veterans have been denied. Big time.

Take, for instance, Commer Glass, an ex-infantryman with the 1st Cav who saw some of the bloodiest early battles in the Ia Drang Valley. One night in 1975, Glass took his stabbed and bleeding girlfriend to the emergency room of a hospital near where he lived in Pennsylvania. Try as they did, doctors couldn't save her. Glass said he wasn't sure, but he may have been the one who killed her. He couldn't remember what had happened other than blacking out - when she was still very much alive and well. When he came to, he said, she lay there, mortally wounded.

At his trial the following year, the jury concluded that Glass indeed was the one who killed her and convicted him of first degree murder.

Almost 30 years later, Glass still maintains he has no recollection of that fateful evening. Not that it really matters: Even DiMascio believes Glass "probably" did it. Still, DiMascio thinks Glass did not receive completely fair consideration at his trial. Glass, he argues, came back from Vietnam with "a certifiable case of Post-traumatic Stress Disorder,"which, he acknowledges, in no way excuses or exonerates Glass from his act. But DiMascio claims it does call into question whether the given sentence - life - accurately and justly reflects the degree of conscious responsibility Glass bears.

In the American Psychiatric Association's Diagnostic and Statistical Manual, which the U.S. judicial system relies on when defendants claim some form of diminished psychological capacity as a mitigating factor, PTSD is recognized as a seriously debilitating mental condition and therefore merits consideration of lesser culpability. However, the APA did not recognize PTSD before 1980, the year the disorder first appeared in the manual. In other words, if a veteran suffered from PTSD and was tried for a violent act before 1980, a plea based on PTSD carried no significance or authority within the American judicial system.

The attorney who represented Glass during his 1976 trial never raised PTSD or any form of diminished capacity in the veteran's defense. In all likelihood, the attorney knew little or nothing about PTSD, at the time, almost no one knew anything about it. But since 1980, Vietnam veterans who suffer from the disorder and have committed capital crimes have had the opportunity to present PTSD - supported by a growing body of scientific knowledge - as a mitigating factor. As a result, many veterans have received reduced sentences combined with court-ordered treatment or counseling.

DiMascio would like Commer Glass and some ninety other veteran-inmates in Pennsylvania serving life sentences meted out before 1980 to receive the same opportunity. In short, reopen their cases so that a court can hear and weigh whether PTSD was a contributing factor in the crime. If the court still decides to convict and apply the same sentence, then at least the veteran will have received the same consideration that veterans tried after 1980 have received. No one, he says, would be getting a "free ride" out of jail.

With ten or so others, DiMascio co-founded the Pennsylvania Equity Project, which is dedicated to helping the state's veterans serving life sentences imposed before 1980. "We chose that name because this is all about an issue of fairness and equity in the eyes of the law," he said.

DiMascio feels his cause has even greater urgency because Pennsylvania state laws dictate a life sentence is for natural life, with no chance of parole. Only a handful of states proscribe parole, a fact that, he says, creates further inequity. "You go from state to state and the laws vary. Look at Texas, which executes people at the drop of a hat." But Texas, which offers parole eligibility on life sentences, "also has an average length of confinement on a life sentence of only between five and six years."

DiMascio cites U.S. Bureau of Justice statistics showing that the national average for time served on a life sentence for homicide is 16 years. Anyone convicted for homicide in Pennsylvania in 1972 or earlier already has served at least twice the national average. "It's fair to conclude that in most other states an individual convicted in, say, 1975 who had some kind of psychological impairment would have been eligible for parole at some point," he said. "It is apparent to anyone who looks into it that the punishment being administered is not being applied evenhandedly."

In general, convicted killers are not the public menaces most people think they are, DiMascio says. "I've gotten to know quite a few inmates, and despite the popular perception of Charles Manson out butchering people, most homicides are crimes of passion occurring between family members or acquaintances, or fights that get out of hand. For many of the people convicted, this is the one seriously bad thing they've done in their lives. My point is that the people convicted of this crime are your best bet for rehabilitating. They don't recidivate. You have more chance of recidivism with burglars and petty thieves. There's a lot of misperception about who these folks are."

In particular, he feels Vietnam veterans serving pre-1980 life sentences in Pennsylvania are even less likely to fit either the perceived or actual profile of convicted killers. "These guys did go serve their country. They were good people who were basically law abiding and who felt a sense of duty when they were called," DiMascio said. "They honored their commitment. They may have [later] gotten their wires twisted and gotten involved in something they shouldn't have that had God-awful consequences, but the point is that at some point we as a society should be giving them a break after 25-30 years. They've been punished, and they're not getting a free ride by any means."

Research suggests that something other than usual factors has driven as many as an estimated 25 percent of Vietnam combat veterans to commit violent crimes. A 1981 report showed that heavy combat veterans were three times more likely to be arrested than veterans who experienced little or no combat. An article in a 1987 issue of the Bulletin of the American Academy of Psychiatry Law reported that:

"Generally, Vietnam veterans in prison have experienced less prior socioeconomic deprivation, a commonly mentioned element in the development of criminal conduct, than have non-veterans. Based on a 1979 study of California inmates, veterans were more likely to be married and less likely to be in a minority group or use drugs than non-veterans. A Bureau of Justice survey of all state prisoners disclosed that imprisoned veterans were better educated than were their non-veteran counterparts. Veterans are also less likely to have a prior history of juvenile or adult incarceration than were non-veterans, and approximately 70 percent had honorable discharges from the military. Estimates of all incarcerated veterans have ranged from 45,000 to 125,000 at a given time. Varied estimates of their numbers have only fueled debate as to whether veterans' experiences in the Vietnam War are responsible for subsequent criminal behavior.''

In some cases, the war was clearly responsible, according to Steve Mason, former chair of VVA's PTSD Committee. Mason was involved with one such case in 1980 in San Diego. A former infantryman in Vietnam - "a tough and crazy guy wanted by police for a misdemeanor charge,'' as Mason recalls - came home late one night. As he shut off the engine and headlight on his motorcycle, the ensuing pitch darkness was suddenly flooded with two flashlight beams that hit him directly. In the near-blinding light the ex-soldier could see a gun reflected in a hand as a voice told him not to move.

Two policemen had come to arrest him on an outstanding warrant. But because of the flashlight beams, he couldn't see anything but the gun's reflection. "The infantryman carried a buck knife," Mason says, "and he immediately, without hesitation, cut the arm that was holding the gun, and then got shot in the leg. Now the warrant was for assault on a police officer."

Mason says the veteran had simply responded to a threatening situation precisely as he'd been trained to respond.

"When caught in ambush, all infantrymen in the kill zone know they have a four-second drill in which they must aggressively attack that which is putting them in ambush," he says. "If they do not, they will die in the kill zone. This four-second zone is taught and taught and taught, and so this was not a rational or volitional act on the soldier's part, but rather the result of his conditioned response. And just because he was out of the Army, [that response] did not attenuate as rapidly as society would like it. Had the police officers approached him during daylight, this would not have happened."

Mason was part of a group of veterans who, on behalf of the former infantryman, found a psychiatrist who would testify to this effect, which essentially constituted a PTSD-based defense.  The Diagnostic and Statistical Manual had begun listing PTSD as a recognized disorder that year, noting in particular that PTSD sufferers could experience symptoms when environmental or emotional situations approximated the original traumatic event or events, regardless of how long ago those events occurred. Moreover, according to the March 1984 edition of the Boston College Law Review, "the DSM specifically mentions unpredictable explosions of aggressive behavior' as characteristic of war veterans with PTSD."

Yet as the Bulletin of the American Academy of Psychiatry Law also noted, not every combat veteran who has committed a crime suffers from PTSD, and not every combat veteran suffering from PTSD has committed a crime. The mere presence of PTSD as a factor in a capital crime, therefore, does not automatically justify dismissing or even reducing the charges against a defendant. In court, it is often more effective and substantial to demonstrate direct links or parallels between an accused veteran's provable combat experiences and the specifics of the crimes for which he's being tried.

But it's not easy.

"Establishing a valid link between PTSD and criminal behavior is an imposing task," the Bulletin reported. "At least two levels of causation have to be investigated: (1) causal connection between the traumatic stressor and psychiatric symptoms; and (2) causal connection between psychiatric symptoms and the criminal act."

Put another way, PTSD by itself isn't a get-out-of-jail pass. But the judicial system has worried that abuse of PTSD as a defense could lead to precisely that. From the Boston College Law Review: "[T]he fear is often expressed that the use of PTSD in the courtroom will give Vietnam veterans a blank check' to commit crimes or other antisocial acts. Even health care professionals who are supportive of veterans' issues are concerned that PTSD may be misused by overzealous attorneys who attempt to stretch the diagnosis beyond scientifically justifiable limits. The task facing attorneys and mental health professionals is to develop an understanding of PTSD that allows its application to legal issues when appropriate, while avoiding potential abuses." The article cites as an example a 1983 case in New Mexico involving a veteran who allegedly had said he was going to kill someone and then blame it on his Vietnam War service.

DiMascio - who served with the 1st Cav from 1968-69, in Quang Tri and in Tay Ninh -insists he is not simply trying to free convicted killers because they are Vietnam veterans. What he wants, he says, is for the state to establish a commission to review cases of any of the 90-plus veterans serving pre-1980 life sentences who request a review. "The burden would be on the individual to prove he had some kind of PTSD affecting him," DiMascio says. "This commission would review the case with an eye toward determining whether, if this case were being tried today, it would result in something less than a life sentence. Then the commission would be able to recommend to the pardons board that it reconsider parole for these cases for these reasons."

As most everyone who has experienced significant trauma knows, PTSD is real. But in the 1970s very few people knew much of anything about it, and veterans afflicted by it received little or no understanding from courts. "[P]rior to 1980," the Boston College Law Review article stated, "mental health professionals and attorneys lacked an identifiable and accepted description of the symptoms now known as PTSD that could be employed in diagnosis, treatment, or legal proceedings. In cases involving veterans, the lack of a recognized definition of these symptoms diminished the validity of the theory that reactions to combat could influence behavior long after the war. Thus, the very real problems experienced by Vietnam veterans were often misdiagnosed, unrecognized, and untreated for almost a decade after the end of the Vietnam War. PTSD is far from being a fictional malady invented to get Vietnam veterans off the hook.' "

"Several years ago I was on a bus with a friend who's also a Vietnam veteran," said Tom Berger, who's on the faculty of the University of Missouri's College of Human Environmental Sciences and also chairs VVA's PTSD Committee. "It was a very humid, hot day, with light rain. I don't remember where we'd been, but there was a group of Asian folks that either got on the bus or the driver stopped and talked to them. Suddenly my friend just flew right back, as if he were [in Vietnam] again. That kind of thing, re-experiencing, can go on for years if there's no intervention."

Most veterans with PTSD received no intervention until the 1980s and '90s - and some still haven't. Meanwhile, the symptoms assume a variety of shapes and forms. Feelings of isolation, alienation, mistrust or betrayal; depression and suicidal thoughts or tendencies; avoidance behavior; chronic anger and irritability; a deep and powerful sense of guilt or self-blame; substance abuse. This is just a partial list of symptoms that form invisible tripwires, which, in a particular set of circumstances, can detonate violent acts. "Say a combat veteran suffering from PTSD has feelings of betrayal and mistrust along with anger, and he gets into an argument with a loved one," Berger said. "Someone ends up hurt.

"How long those kinds of disturbances last or even how long it is before they begin," he said, "there's as much variability there as there are many different veterans we have. That's still part of the unknown about it."

DiMascio doesn't know how many of the veteran-inmates serving pre-1980 life sentences in Pennsylvania prisons have demonstrable cases of PTSD. Overall estimates for total in-country veterans suffering PTSD are between 1 million and 1.5 million; between 1 million and 1.6 million either fought in combat, provided close support, or were at least fairly regularly exposed to enemy attack. Extrapolating those numbers to Pennsylvania prisons means that the majority, if not all, of the ninety have likely suffered - and might still be suffering - from PTSD.

Despite DiMascio's best efforts, success has been slow in coming. "The [Pennsylvania] legislature adopted a joint resolution last year to look into PTSD, and mental health problems and problems of ill and aging inmates in the system," he said. "The chairman of the House Judiciary Committee told me that this was a mental health issue, and he'd see that it's dealt with appropriately." As to when it will be dealt with, no one can say.

   

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