Vermont Law School professor Michele Martinez Campbell talks about the issue of post-traumatic stress disorder or PTSD as a criminal defense on The :30.
Kristin Carlson: So in the case of Stephen Lopinto - a sad case - there was no jail time. Instead there was probation and treatment - do you think that is the approach courts will take with veterans with PTSD who commit crimes?
Vermont Law School Professor Michelle Martinez Campbell: Well I think it is going to vary from case to case - here in Vermont PTSD would clearly fit the definition of an insanity defense and that is because Vermont's law is relatively loose it involves situations where the defendant didn't know that his conduct was criminal - that's the old don't know right from wrong test but it also includes situations where the defendant lacked the ability to conform his conduct to the law so that would be situations in which because of a mental illness he couldn't control himself. In addition - Vermont's law specifically allows traumatic mental illness to be considered - so there is no question that in Vermont PTSD could be a valid insanity defense and given that I think in these plea agreement situations in can result in a fairly reduced sentence in many cases.
Kristin Carlson: Is that fair to victims?
Michelle Martinez Campbell: You know every case involves many different concerns and values - and in some senses no it's not fair to the victim but the system does allow mental illness to be taken into consideration it can also be taken into consideration in sentencing because under Vermont law the judge has a huge amount of discretion as to what sentence to give the defendant so in example even in an aggravated assault case - although the sentence can be up to 15 years it can go as low as zero so if a judge is very convinced that PTSD was the root cause of the crime you can imagine that judges would end up sentencing very leniently.
Carlson: How big a problem could this be? Not just here, but across the country, as more soldiers come home?
Campbell: This is becoming a very significant problem when we are talking about nonviolent crime it is less of an issue - and very recently we've seen that some larger states are starting to set up special courts to deal with returning veterans and the issues that they have. For example in Los Angeles they set up a court for veterans who commit nonviolent crimes - they are specifically taking into consideration mental illness and substance abuse problems that a lot of returning veterans deal with - where it gets to be more of a problem is where we are talking about violent crime - that we are talking about in this case because there you have victims who are justifiably upset and there have been some cases of homicides committed by veterans around the U.S. there was an instance in Colorado last year in which there was a report that 10 soldiers from a particular returning brigade had separately been charged with murders or attempted murders and there was a big report on that because the allegation was they were coming back from a situation where there had been lax supervision and they had engaged in atrocities when they were in Afghanistan that very much echoes the case that's in the news right now with the soldiers in Iraq engaging in atrocities because of poor supervision - drug use and so forth so to the extent that this does become a bigger problem courts are going to need to decide how much the soldiers PTSD claims should be validate versus victims' rights.
Carlson: How equipped are courts to deal with this problem?
Campbell: Well courts certainly can deal with mental illness claims - I think what is different here is we all recognize that these returning veterans have done a great service for our country and where judges might be looking at mental illness claims in other contexts here there might be more of a desire to cut the soldiers a break -- if this continues and become a greater problem courts are going to have to make some decisions about how to value the victims interest versus the needs of the defendant who may really need treatment and may have serious issues.
KC: How big a factor will PTSD have in sentencing moving forward?
Campbell: Well in Vermont since judges have so much discretion in terms of what sentence to give-- that would depend on the judge but certainly veterans come home and they are making these claims as to why they are committing these crimes I think judges will take that seriously. In other places around the country where there are mandatory minimum sentences or guidelines that limit the judge's discretion it may not factor in as much -- but here in Vermont it is likely to be a significant factor.
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