Mentally Ill Veterans Should Not Be Executed.

Captain Art Cody, U.S. Navy (Retired) is the Director of Criminal Programs at the Veteran Advocacy Project. He also serves on the Board of Advisors of Death Penalty Action.
Captain Art Cody, U.S. Navy (Retired) is the Director of Criminal Programs at the Veteran Advocacy Project. He also serves on the Board of Advisors of Death Penalty Action.

By Captain Art Cody, U.S. Navy (Retired)

Executions in the United States have become rare; many Americans are unaware when they occur. As an example, there were three executions scheduled this summer, and none have received significant press coverage. Yet there’s something both different and saddening about each of these three executions. All three inmates are U.S. Marine Corps veterans whose crimes were committed following their military service.

John Hummel was executed in Texas June 30, and Zane Floyd’s July execution date in Nevada is postponed. Another Texan, John Ramirez, is scheduled to be executed on September 8. To be sure, their crimes are horrific and Society deserves to hold them accountable, however, we can accomplish those goals without executions. This is particularly true with respect to veterans.

I base my views on veterans in the criminal justice system on my experiences both in the military and in criminal defense.  I had the privilege of serving for over 30 years as a military officer, most recently to Afghanistan (2011-12).  I was a helicopter pilot in the military, not a military lawyer. As a civilian attorney I have represented hundreds of veterans accused of serious crimes.

My experiences compel me inexorably to the conclusion that all Americans should take pause and consider how military veterans are treated in the US judicial system, particularly with respect to capital punishment.

A relatively small portion of the US population takes on the burden of military service. These volunteers undergo an experience far removed from the vast majority of those who may later sit in judgment of them in the justice system. While we can watch the scenes from Kabul, experiencing them first hand is quite a different matter.

The military experience, particularly if it involves combat, indelibly shapes the veteran, and often has significant causal or mitigation implications relating to criminal offenses. The Department of Veteran Affairs (VA) estimates 30% of veterans have serious battle-borne mental health problems, including Post Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI) or Substance Abuse.

The U.S. Supreme Court recognized the existence of these issues in Porter v. McCollum in 2009.  In Mr. Porter’s case, his history of trauma from close combat in the Korean War was never presented to the Florida jury that sentenced him to death. The Court found that the failure to reasonably investigate and present a veteran client’s military history is ineffective assistance of counsel thus mandating this practice to defense lawyers.

Yet far too often that experience and its effects upon the veteran are neither properly treated by the VA nor adequately presented by the defense bar to juries and judges considering capital punishment, if they are treated or presented at all.

Former military personnel continue to represent a significant population in the criminal legal justice system. The VA recently estimated that about nine percent of Iraq and Afghanistan veterans have been arrested since returning home. Perhaps the starkest statistic is the number of those who have been willing to give their lives for the country but now occupy America’s death rows. According to the Death Penalty Information Center, military veterans make up roughly 10% of the condemned population.

It cannot be denied that the military experience makes up a great part of a veteran’s identity and, in many cases, military related mental illness lies at the root of their capital crimes. What we ask of our servicemen often gives rise to their mental illness which, when not properly treated, lands them on our death rows. It is no secret that mental health resources to veterans have been, and continue to be, lacking.

Lacking too are defense presentations to largely non-veteran juries and judges that render death judgements.  Sadly, many of these judgments have reached fruition with the execution of our veteran soldiers, Marines, and sailors in recent years.

We as a nation should see this anomaly – that all three executions scheduled this summer happen to be of veterans who volunteered in times of war – as an opportunity to reexamine our treatment of veterans and ensure that they are given the best both in mental health treatment and criminal representation. We may wish to consider whether mentally ill veterans should be eligible for the death penalty at all.


Captain Art Cody, U.S. Navy (Retired) is the Director of Criminal Programs at the Veteran Advocacy Project. He also serves on the Board of Advisors of Death Penalty Action.

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11 executions are now scheduled before the end of the year. Sign the petitions here.

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