Cruel and Unusual: Why Are We Doling Out Harsh Justice to Returning War Vets?

Last March, a member of one of the U.S. military's special operations forces (SOF), home from Iraq for a family emergency, shot and killed a dog that attacked him on his front lawn. He is now facing multiple felony charges and maybe a prison sentence.

His story is as old as war, and like war, everything depends on who tells it.

At this soldier's request, I will call him Brian, although that is not his real name, and I will refer to his service unit simply as a special operations force (e.g., the Army's Green Berets, Delta Force, Rangers, or the Navy's SEALs), to protect the identity of the elite team he works with.

SOF members go to great lengths to guard their anonymity. Their missions are often clandestine and dangerous, not to mention controversial. And so, even the publicity of a trial, much less a felony conviction, would very likely deprive Brian of his career. He is still hoping a judge can be persuaded to dismiss the charges altogether -- hence his insistence on camouflaging his identity.

Brian joined the service in 1995, right after graduating from high school. By the time he was 25, he had completed the rigorous training required of a member of the SOF and has been deployed many times to various countries on classified assignments. He has a stellar military record, including a Bronze Star, and his civilian record is completely clean.

Family and friends I have reason to trust described him to me as "a straight arrow," "an outstanding soldier," "a good father" and "a good person."

Brian was granted an emergency leave to support his wife and family after she miscarried with their third child. He arrived on a Monday. On Tuesday, after dropping off his two sons at school, he returned home, and as he was walking from his car the dog attacked. He shot it three times with the handgun he legally carries. He then called 911.

The police arrived, heard Brian's account of what had happened, heard a number of neighbors tell stories about how dangerous the dog was and left without issuing Brian so much as a summons.

But several days later, two felony warrants issued and a misdemeanor charge by local animal control officers was made. And on Saturday morning, the county police arrived at his home, arrested and handcuffed him in front of his wife and children, and took him off to jail where he was held for three days.

Brian retained a local lawyer and, in the subsequent weeks, one of the felony charges and the misdemeanor charge were dropped. The felony animal-cruelty charge remained. But at his arraignment, he was charged with an additional felony (destruction of property) and three more misdemeanors (disorderly conduct, firing a weapon in a prohibited area and another animal-cruelty charge).

A trial date was set for September.

Blind Justice?

Iconographic representations of Lady Justice adorn many of the world's courthouses. With the scale she holds in one hand, she promises to weigh the evidence fairly, and with the sword she holds in the other, to enforce her decisions. She also wears a blindfold to indicate her impartiality to the social status or privilege of those who stand before her.

She is Blind Justice, but as William Ian Miller pointedly asks in his examination of the Talionic code (an eye for an eye), "Do you want to blindfold someone with a sword? It may not be wise to have her unable to see what she is striking. … And how is she supposed to read the scales, if she is blind?"

Objectivity is one of those ideals -- or ideas -- that simply don't exist in the real world.

Take incarcerated veterans. One might imagine that veterans would get equal, if not preferential, treatment when they come in contact with the criminal justice system. Not so.

Over three decades, surveys done by the Bureau of Justice Statistics (BJS) have consistently found that veterans get longer sentences than non-veterans -- on average two years longer -- for the same crime.

And that is in spite of the fact that they tend to be better educated, are more likely to have been employed at the time of their arrest and are more likely to be in jail for a first offense -- all of which should be factors in their favor at sentencing.

Instead, they are held either to a higher standard, as in, "They should know better." Or a lower one that demonizes them, as in, "He's a trained killer. Think of our women and children. Get him off our streets." But either way, the scales of justice tend not to tip in favor of those who have served in the military.

Is that what is going on in Brian's case?

Arguably, Brian should never have been arrested, let alone charged. This dog had a reputation for aggressive behavior and had repeatedly tried to attack his wife and kids. On one occasion, it chased them into their house and continued to bark and snarl and leap at the glass storm door behind which they had retreated. His terrified wife filed a complaint with the local animal-control agency.

The dog's owner was ordered to keep the animal on her own property. That report is documented. It seems the owner had chosen to ignore -- and the dog had clearly not understood -- those instructions.

By contrast, Brian's behavior appears to have been disciplined. In keeping with his training, he put three well-aimed shots into the dog: two to stop forward movement, and a third to prevent the possibility of further damage from a wounded attacker.

Given the dog's history, the neighbors' corroboration, the limited damage and the subsequent escalation of charges, it is hard not to think that this is a case of demonization.

And Brian is not an ordinary military member. SOF members are super soldiers/sailors/Marines. They are trained to do a highly skilled job requiring multilayered learning that requires not only physical, mental and technical skills, but also facility with cultures, customs and languages. They're the guys who work with the locals, doing the humanitarian stuff by day and the extreme-prejudice stuff at night.

The latest Defense Department budget, which Michael T. Klare described in The Nation as "the most dramatic shift in U.S. military thinking since the end of the Vietnam War," makes it clear that "from now on, counterinsurgency and low-intensity conflict will be the military's principal combat missions, while other tasks, such as preparing for an all-out war with a well-equipped adversary, will take a decidedly secondary role."

Like it or not, under the Obama administration, the face of the American military will increasingly be special operations forces.

But in June, the U.S. Special Operations Commander, Adm. Eric T. Olson, warned the House Armed Services terrorism subcommittee that the need for special operations forces to deploy in hot spots around the globe is outpacing the ability of those forces to recruit and train new members.

This new military is looking for people like Brian. There is a scarcity, and the time and expense it would take to replace him makes him all the more valuable. As the investment in SOF increases, it is inevitable that more of them will come into contact with the criminal justice system, and that raises issues that warrant some pre-emptive consideration.

In this case, the "victim" was a vicious dog that, in spite of a court order, crossed over onto private property and attacked the homeowner. The owner was carrying -- legally -- the means with which to defend himself and did so efficiently.

In this case, even though Brian had recently come from a combat zone, and even though he had recently lost a child, there is no indication that he is suffering any form of traumatic stress. His family is adamant that they "have neither seen or heard of any behaviors that indicate that he has PTSD."

In this case, justice might best be served if a judge can be persuaded to dismiss the charges. Brian's military career could then continue uninterrupted, saving him and his family the stress of a trial, the horror of a jail sentence and the daunting prospect of having to reinvent himself in the aftermath.

In a future case, the facts might be more complicated. For example, the victim might be a child, and the shooter, a soldier/sailor/Marine with a diagnosable combat-related stress injury who is unable to distinguish a real threat requiring a legitimate act of self-defense from something else.

To date, there is no template for handling veterans who come into contact with the criminal justice system. Continuing to punish vets more harshly than other citizens for the same crime is simply unfair. Yet despite multiple BJS surveys pointing out the inequity, the uneven punishment has continued for decades.

That is not going to change unless we address some difficult questions about how we feel and think about our veterans.

There are some who make the argument that vets who come in contact with the criminal justice system deserve special consideration in light of their service. In the extreme, that could mean holding them above or outside the law. Or it could mean that in recognition of a shared responsibility for crimes that can be traced to military training or experience, treatment should be offered along with an equitable punishment.

But if we really believe that military training and combat experience make veterans more of a threat to women, children and even our pets, then an even more important question we should be asking is why and how we are creating such a class of citizens.

We imagine that the lady with the scales and the sword wears her blindfold in honor of justice, but it might just as well serve to keep her unaware and unconcerned. We can afford neither.


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