defense, mitigation, community servicesor.fd.org/sites/or.fd.org/files/pdfs/2017-05-10 ptsd...

CLE SEMINAR

PTSD & Veterans’ Issues Defense, Mitigation, Community Services

Wednesday, May 10, 2017 12:00 p.m. to 1:30 p.m.

Hosted by Federal Public Defender – District of Oregon 101 SW Main Street – Room 16A in Portland Via video conference in Medford and Eugene

Presented by:

Lisa Hay Christopher J. Schatz

Janan Stoll Amy Bruning

Table of Contents Speaker and Panelist Biographies ............................................................................... 2 AFPD Christopher J. Schatz

PTSD: Wounded In Their Minds, Combat Veterans and Others with Traumatic Memory Injury ....................................................................................................... 5

Speaker Suzanne R. Best, Ph.D. Overview of PTSD as a Psychological Disorder ................................................. 25 Speaker John Haub

Veteran’s Justice Project, Veterans Courts, and Community Services that Address Homelessness, Substance and Alcohol Abuse, and Other Issues ....... 45

Panelists Marie Ramage, Peggy Kuhn, LCSW, and Martin Ornelas Panel Discussion on Community Services & Resources for Veterans ............... 95

Resources for Veterans ............................................................................................ 105 PTSD Case Summaries ............................................................................................. 123

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Speakers and Panelists

Suzanne Best, Ph.D. – Speaker: overview of PTSD as a psychological disorder Suzanne Best is a clinical psychologist specializing in the evaluation and treatment of PTSD and trauma-related conditions. In 1996, she joined the PTSD Research Program at UCSF and the San Francisco VA Medical Center where she spent the next decade directing various studies of combat veterans, police personnel, and civilian trauma. Dr. Best has written numerous research articles on the topic of PTSD in veterans, and in 2006, co-authorized the self-help book Courage After Fire: Coping Strategies for Returning Iraq and Afghanistan Veterans and Their Families.

In her forensic practice, Dr. Best specializes in evaluating and providing expert witness testimony in civil and criminal cases involving trauma and its aftereffects. In addition, she maintains a clinical practice in which she treats veterans and first responders and she regularly conducts courses for mental health, military, and law enforcement communities on issues affecting veterans, first responders, and civilian victims of trauma.

1818 NE Irving Street Portland, OR 97232

503-430-4071 [email protected]

suzannebestphd.com

John Haub – Speaker: Veteran’s Justice Project, veterans courts, and community

services that address homelessness, substance and alcohol abuse, and other issues

John Haub was commissioned as a Military Police Officer at the University of Iowa ROTC program in 1970. He served over 32 years in the Army Reserve. He commanded the 20th Psychological Operations Company and 364th Civil Affairs Brigade, Portland, Oregon. He served active duty tours in Vietnam, Haiti, and Bosnia & Hercegovina.

Mr. Haub served as a Clackamas County Deputy Sheriff, DA’s Investigator, and Deputy District Attorney from 1971-1989. He served as chair of the Oregon State Bar, Criminal Law section in 1984-1985.

333 SW Taylor, Suite 300 Portland, OR 97204


johnhaublaw.com

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Mr. Haub served as an Assistant United States Attorney in Portland, Oregon from 1989 to February 2017. Most recently, Mr. Haub was assigned prosecutorial responsibility for Portland’s federal Reentry Court, the longest functioning federal reentry court in the nation. He also served as Crime Prevention coordinator at the U.S. Attorney’s office in Portland. He has a goal of implementing Veteran’s Courts in Oregon to address the special challenges of veterans returning from military service to our communities. Marie Ramage – Panelist: Multnomah County Veterans’ Services Office The Multnomah County Veterans’ Service Office assists veterans and their family members in accessing federal benefits through the U.S. Department of Veterans’ Affairs, as well as other state and local benefits, free of charge. Veterans’ Service Officers are accredited and trained in applicable federal and state law through the Oregon Department of Veterans’ Affairs, and provide representation, counsel, and advocacy throughout the claims’ process. Examples of VA claims that VSOs assist with are service-connected disability compensation, non-service-connected pension, health care, and death pension. VSOs can represent claimants before the Board of Veterans’ Appeals. Marie Ramage is the Justice Involved VSO with Multnomah County Veterans’ Services. Through collaboration with the Portland VA Veteran Justice Outreach Program, Multnomah County Sheriff’s Office, and Multnomah County Department of Community Justice, the goal of her position is to increase access to resources and benefits for veterans in Multnomah County.

412 SW Oak Street, Suite 510 Portland, OR 97204


multco.us/veterans-services

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Peggy Kuhn, LCSW – Panelist: Veterans Justice Outreach, Department of Veterans Affairs Peggy Kuhn is a Licensed Clinical Social Worker. She completed her Master’s Degree in 2008. Ms. Kuhn joined the Portland VA Medical Center in 2009 as the Homeless Outreach Coordinator. In July of 2014, she transitioned to the Veterans Justice Outreach program where she functions as a member of multiple Veterans Court programs, provides education to law enforcement, and performs assessments and treatment recommendations with veterans who are incarcerated. Prior to joining the VA, Ms. Kuhn worked for over ten years in community mental health with such programs as crisis intervention, intensive mental health case management, and homeless youth services. Much of this work was in conjunction with the criminal justice system, performing jail assessments and referring individuals to appropriate mental health and substance abuse treatment.

3710 SW U.S. Veterans Hospital Road, V3SATP

Portland, OR 97239 503-220-8262 ext. 33839

[email protected]

Martin Ornelas – Panelist: Portland Claims Office, Oregon Department of Veterans’ Affairs Martin Ornelas served 20 years in the United States Coast Guard. His time in service was split between conducting search and rescue on the Washington/Oregon Coast and participating in law enforcement activities off Key West and Puerto Rico. Mr. Orneleas is currently the manager of the Oregon Department of Veterans’ Affairs Portland Office. He is an accredited veterans service officer and has been with the agency for six years.

101 SW Main Street, 2nd Floor Portland, OR 97204


oregon.gov/odva

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PTSD: Wounded In Their Minds, Combat Veterans And Others With Traumatic Memory Injury

Christopher J. Schatz

“For as long as there has been war, there have been combat veterans who have borne the psychological scars of battle.”1 Hence, it should not be surprising that a significant percentage of Iraq and Afghanistan war veterans have been diagnosed with PTSD. In 2008, a RAND Corp. study found that one in five returning veterans had PTSD or major depression.2 A 2012 study of combat veterans found that 23% of the veterans studied who had PTSD and high irritability had been arrested for a criminal offense since their deployment.3 Other reports estimate that “at least 300,000 (out of 1.6 million) service members who served in Iraq or Afghanistan have shown signs of PTSD.4 It has long been recognized that the reverberations of war flow back into the social order from the theater of combat in the form of increased crime and violence. “As researchers at the

1 Anthony E. Giardino, Combat Veterans, Mental Health Issues, and the Death Penalty: Addressing the Impact of Post-Traumatic Stress Disorder and Traumatic Brain Injury, 77 FORDHAM L. REV. 2955, 2972 (2009).

2 Matthew Wolfe, From PTSD to Prison: Why Veterans Become Criminals, DAILY BEAST (July 28, 2013), http://www.thedailybeast.com/articles/2013/07/28/from-ptsd-to-prison-why-veterans-become-criminals.html.

3 Eric B. Elbogen et al., Criminal Justice Involvement, Trauma, and Negative Affect In Iraq and Afghanistan War Era Veterans, 80 J. CONSULTING & CLINICAL PSYCHOL. 1097-1102 (Dec. 2012). “[O]ne study suggests that current figures underestimate the level of PTSD in Iraq War veterans because a lag, ranging from days to many years, occurs between the time someone experiences trauma and the time when symptoms of PTSD are reported, with projections made that ultimately 35% (or about 300,000) of the soldiers deployed to Iraq will suffer from PTSD. Similar concerns have been voiced about Afghanistan War veterans.” See also Thomas L. Hafemeister & Nicole A. Stockey, Last Stand? The Criminal Responsibility of War Veterans Returning from Iraq and Afghanistan with Posttraumatic Stress Disorder, 89 INDIANA L. J. 87, 89-90 (2010).

4 Karen H. Seal et al., Trends and Risk Factors for Mental Health Diagnoses Among Iraq and Afghanistan Veterans Using Department of Veterans Affairs Health Care, 2002-2008, 99 AM. J. PUB. HEALTH 1651, 1651 (2009) (study finding that 21.8% of separated Iraq and Afghanistan veterans who enrolled in the health care program offered by the Department of Veterans Affairs were diagnosed with PTSD). It is also important to note that there is a high-level of comorbidity in PTSD sufferers. The current version of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders reports that “[i]ndividuals with PTSD are 80% more likely than those without PTSD to have symptoms that meet diagnostic criteria for at least one other mental disorder (e.g. depressive, bi-polar, anxiety, or substance use disorders.)” Am. Psychiatric Ass’n, THE DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 280 (5th ed. 2013) (hereinafter “DSM-5”).

_________________________________________________________________________________ Christopher J. Schatz

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University of California, Santa Cruz, noted the year after the fall of Saigon, ‘During the Vietnam War, the murder and nonnegligent manslaughter rate in the United States more than doubled.”5 Examining the post-deployment histories of Iraq War veterans, in 2010 the U.S. Navy’s Health Research Center found a “significant association between combat exposure and subsequent arrests and convictions that persisted when preservice background factors were controlled.”6 Changes in the nature of warfare have accelerated the incidence and accentuated the depth of PTSD disturbance. As was the case in Vietnam, in the Iraq and Afghanistan war zones there have been no front or rear lines; “the combat zone came to surround the soldiers virtually anywhere they were in that country at all times.”7 Furthermore, “because combatants are not clearly identified in this type of situation, soldiers [find] it difficult to know who [is] friend or foe.”8 In addition, the nature of weaponry has changed with munitions and explosives being designed to inflict maximum damage on the human body; consequently, the wounds caused by armor piercing projectiles and IEDs have become proportionately more grotesque. Lastly, the traditional distinction (embodied in the provisions of the Geneva Conventions) between proper military targets and non-combatant civilians has been eradicated. As a result, the likelihood that U.S. soldiers will encounter savagely killed women, seniors, and children on foreign battlefields has significantly increased.9 Although the roles played by women in combat down through history have been largely ignored prior to the modern era, the introduction of female soldiers into combat and close-support roles has opened up new areas of PTSD vulnerability and compounded the complexity of the PTSD treatment process. Current statistics indicate that the “[l]ifetime prevalence [of PTSD] in U.S. adults is higher in women (9.7%) than in men (3.6%) and is especially high among women who have served in the military.”10 Moreover, the cause of PTSD in female soldiers is not confined to

5 David J. Morris, THE EVIL HOURS: A BIOGRAPHY OF POST-TRAUMATIC STRESS DISORDER 88 (2015).

6 Id. at 89.

7 See Hafemeister & Stockey, supra note 3, at 99.

8 Id. at 99-100.

9 Former Army Captain Johnathan White-Cloud Courtney, whose PTSD precipitated “a suicide by cop” encounter in 2015 with Warm Springs Police Department Officers, recalled riding in a convoy in Iraq in 2005 and passing by a small boy who waved at the soldiers. Later that day, retracing their route, Mr. Courtney and his soldiers came upon the same boy, dead and nailed to a post. Although a decorated combat veteran with two bronze stars, Mr. Courtney was prosecuted in federal court for two counts of assault on a federal officer (18 U.S.C. § 111) and two counts of use of a firearm in the commission of a crime of violence (18 U.S.C. § 924 (c)). In exchange for his agreement to plead to the § 111 counts, the § 924(c) counts were dropped. After he pled guilty, Mr. Courtney was sentenced to five years’ probation by District Judge Robert E. Jones. See United States v. Johnathan White-Cloud Courtney, No. 3:15-cr-00360-JO (D. Or. 2017).

10 Paula P. Schnurr et al., Cognitive Behavioral Therapy for Posttraumatic Stress Disorder in Women: A Randomized Controlled Trial, 279 JAMA 820 (2007). The effects of PTSD are not


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battlefield trauma due to enemy action, but is also found in sexual assault at the hands of fellow soldiers. As noted by U.S. Army (Ret.) Colonel Charles W. Hoge, M.D.: “Harassment, assault, or rape by a fellow service member – the ultimate form of betrayal in an environment where one totally depends on team members for protection and support – is particularly devastating.”11 Another factor contributing to the breakdown in personal fortitude and the ties of social convention that leads to PTSD vulnerability is the training received by combat troops. Following WWII, studies revealed that as few as 15% of soldiers involved in combat would consciously fire their weapons at the enemy.12 Military historian S.L.A. Marshall recommended to the Army that its training programs “needed to seek any and all means by which to increase the ratio of effective fire when we have to go to war,” and to break down the typical “inner and usually unrealized resistance toward killing a fellow man.”13 Marshall’s recommendations were implemented and the percentage of soldiers who actually fired their weapons at the enemy increased in Vietnam and in America’s subsequent wars. However, while military training has increased the killing efficiency of U.S. soldiers, little to nothing has been done until very recently to help soldiers integrate their battlefield behavior and experiences with their conventional homeland mores. The circumstances noted above, operating in various combinations, prompt soldiers to assume a hypervigilant or “survivor mode” state of mind in which they strive “to be constantly aware of their surrounding environment in order to anticipate and react to potential attacks and life

confined to the traumatized individual. “The wives of men who suffer from PTSD tend to become depressed, and the children of depressed mothers are at risk of growing up insecure and anxious.” Bessel van der Kolk, THE BODY KEEPS THE SCORE: BRAIN, MIND, AND BODY IN THE HEALING OF

TRAUMA 1 (2015); see also Hon. Eileen C. Moore, Domestic Violence Laws Unfairly Harm Injured Veterans and Their Families, THE FEDERAL LAWYER, Mar. 2017, at 49 (“Home is usually the place where the stress, frustration, and turmoil of adjusting to civilian life negatively plays out.”).

11 Charles W. Hoge, The Paradox of PTSD, The VVA Veteran, Sept./Oct. 2011, at http://digitaledition.qwinc.com/display_article.php?id=835300. Concerning this paradox, Dr. Hoge has also written:

The paradox of war-related PTSD is that reactions labeled “symptoms” upon return home can be highly adaptive in combat, fostered through rigorous training and experience. For example, hyperarousal; hypervigilance; and the ability to channel anger, shut down (numb) other emotions even in the face of casualties, replay or rehearse responses to dangerous scenarios, and function on limited sleep are adaptive in war.

Charles W. Hoge, Interventions for War-Related Posttraumatic Stress Disorder: Meeting Veterans Where They Are, 306 JAMA 549, 549 (2011).

12 Hafemeister & Stockey, supra note 3, at 103.

13 S.L.A. Marshall, MEN AGAINST FIRE: THE PROBLEM OF BATTLE COMMAND 23, 79 (U. Okla. Press 2000) (1947).


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threats.”14 What is important to note in this regard is that the behaviors described above are in many instances the product of training and necessary to combat effectiveness, let alone survival:

All of the skills and reactions that serve important functions in survival of the team and success of the mission involve physiological processes. The extreme physical stress of deployment, sleep deprivation, and intensity of life-threatening experiences that can occur during deployment are associated with changes in how the body functions, including increased autonomic nervous system activation (higher adrenaline, faster reflexes), changes in levels of hormones that control different body functions (cortisol and others), and changes in how memory is processed. More attention goes to survival-related memories in deeper areas of the brain and less attention to thinking processes such as university studies or the list of things that has to be picked up from the grocery store. PTSD is associated with these physiological changes remaining in combat-ready mode upon return home, and PTSD should be considered a physical condition as much as (or more than) a psychological or emotional condition.15

Unfortunately, for many soldiers, once these behaviors are imprinted in or adopted by the brain they do not turn off when the soldier returns home.16 The Iraq War Clinician Guide, as found on the Department of Veterans Affairs (VA) National Center for PTSD website, underscores the relationship between the increased tempo and brutality of modern warfare and the incidence of psychological and neurological impairment experienced by soldiers:

With the recent decreasing size of the US Armed Forces and increased numbers of assigned missions (both war and operations other than war), the tempo of operations (OPTEMPO) for active and reserve members has increased in frequency and intensity.17

. . . . The stress of traditional, high-intensity warfare leads to fear and uncertainty. Operational plans change constantly; knowledge of enemy capabilities is unclear; equipment breaks down; and logistical supply lines are uncertain. Combatants face

14 Hafemeister & Stockey, supra note 3, at 100.

15 Hoge, The Paradox of PTSD, supra note 11, at 3.

16 As Hoge observes: “The bottom line is that going to war changes how the body functions, and the expectation that this will reset quickly upon return home is unrealistic.” Id.

17 Department of Veterans Affairs & National Center for PTSD, Iraq Clinician Guide 7 (2d ed., June 2004), available at http://www.ptsd.va.gov/professional/materials/manuals/iraq-war-clinician-guide.asp.


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the threat of their own death or injury and also witness the death, wounding, and disfigurement of their companions, enemy forces, and civilians. During this heightened physiologic state, the high level of emotion, and the intensity of sensory exposure may lead to heightened levels of arousal, attempts to avoid emotion, and intrusive recollections of events. The novelty of the situation may also contribute to symptoms of dissociation. The severity and duration of symptoms will vary among individuals. This phase of combat is highly conducive to acute stress disorder and posttraumatic stress disorder in military members.18

. . . .

Terrorist activities and guerilla warfare tactics, such as car bombings, remotely detonated explosives, and mortar attacks lead to chronic strain and anxiety. Psychologically this can contribute to service members questioning their purpose, as well as negative attributions about the importance and need for the sacrifices encountered. Coupled with other exposures, exposure during this phase may exacerbate illness or delay recovery. Many of the veterans from prior wars have focused on their discontent associated with sacrifice and loss in a mission viewed as unpopular and unsuccessful.19

. . . .

In a highly armed nation such as Iraq, US troops cannot be certain whether an innocent appearing civilian may be carrying a firearm, an explosive, or a remote detonation device. Rules of engagement are altered regularly by command in response to political and tactical requirements. When an individual or a vehicle challenges a roadblock or security checkpoint, a delay in the use of force may result in friendly forces injuries. A premature response may result in the unnecessary death of civilians. Such conditions create chronic strain, particularly when split second decisions may undergo retrospective analyses to determine their appropriateness (Jones, 1995b).20

Governments and military services have long resisted recognition of the psychological wounds caused by war. In 1914, at the start of the first world war, British Admiral Charles Fitzgerald founded the Order of the White Feather (a symbol of cowardice) in an effort to shame men into joining the army by having women present them with a white feather if they were not in uniform. Similar forms of resistance to appreciation of the damage that war experience can cause persists to this day.

18 Id. at 8.

19 Id. at 8 (emphasis added).



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Despite this long entrenched view that individuals suffering from “shell shock” or “war neurosis” are simply slackers, as a result of intense lobbying by Vietnam veterans groups, PTSD was officially recognized as a distinct anxiety disorder by the American Psychiatric Association in 1980 (DSM-III). In June 2013, the then newly released DSM-5 placed PTSD in a new category of mental disorders entitled “Trauma and Stress Related Disorders,” and emphasized that PTSD is a complex disorder that exerts influences far in excess of anxiety symptoms insofar as it effects mood, cognition, awareness, affect, and physiological responses. 21 Although PTSD was initially traced to the fright and shock an individual experienced as a result of being subjected to a traumatic event or series of events, in subsequent iterations the DSM recognizes that the disorder may also be traced to either witnessing or learning of traumatic events suffered by others.22 Furthermore,

21 “It is clear . . . that many individuals who have been exposed to a traumatic or stressful event exhibit a phenotype in which, rather than anxiety or fear-based symptoms, the most prominent clinical characteristics are anhedonic and dysphoric symptoms, externalizing angry or aggressive symptoms, or dissociative symptoms.” DSM-5, supra note 4.

22 “Learning that someone else was threatened with serious harm qualifies in the DSM-IV as a traumatic event.” Naomi Breslau, The Epidemiology of Trauma, PTSD, and Other Posttrauma Disorders, 10 TRAUMA VIOLENCE & ABUSE, 198, 199 (2009). While the current DSM-5 continues the APA’s refinement of the criteria requisite to a PTSD diagnosis, the DSM-5 is not without its critics. As noted by PTSD expert, Charles W. Hoge, M.D.:

The most problematic changes were: (1) Replacing the fundamental re-experiencing term with intrusion and requiring intrusive memories to be “involuntary,” discounting repetitive thought/memory processes common in PTSD with intentional or habitual qualities. (2) Rewording “restricted range of affect” (emotional numbing), likely the most predictive DSM-IV symptom of chronicity and impairment, to “persistent inability to experience positive emotions.” This discounts the breadth of numbing encompassing non-”positive” emotions (eg, grief) and departs from decades of evidence that many survivors of severe trauma experience alexithymia or dissociation through corticolimbic overmodulation. (3) Replacing another highly predictive numbing-related symptom, “foreshortened sense of future”—well-suited, for example, for evaluating a veteran feeling cut off from humanity because of involvement in events challenging moral or spiritual integrity—with “persistent and exaggerated negative beliefs or expectations about oneself, others, or the world (eg, ‘I am bad,’…’My whole nervous system is completely ruined’).” (4) Adding “persistent distorted cognitions about the cause or consequences of the traumatic event(s) that lead the individual to blame himself/herself or others,” conflating self-blame with attributional judgments of appropriateness of blame toward others (eg, a supervisor or alleged perpetrator). (5) Adding a catch-all symptom criterion, “persistent negative emotional state (eg, fear, horror, anger, guilt, or shame),” overlapping other symptoms. (6) Adding “reckless or self-destructive behavior,” a nonspecific sign of impairment, as PTSD-specific symptom.


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the DSM-5 recognizes that the etiology of a PTSD disorder can also be traced to an individual’s exaggerated, if not irrational, feelings of guilt and despair (“survivor guilt”) for being responsible for decisions that placed others in harm’s way.23 In addition to exposure to a traumatic event (i.e., exposure to actual or threatened death, serious injury, or sexual violence), to support a PTSD diagnosis the DSM-5 (309.81) requires the presence of at least one intrusive symptom (e.g. “Recurrent, involuntary, and intrusive distressing memories of the traumatic event(s).”) and evidence of efforts of avoidance of distressing memories or of the “external reminders . . . that arouse distressing memories.”24 The diagnosis additionally requires at least two persistent symptoms of increased arousal and disturbance – such as hypervigilance, difficulty in sleeping, irritability and outbursts of anger – that were not present before the traumatic event and which have lasted “more than 1 month.”25 While it is difficult to ascertain ex ante how any given individual will react to a traumatic event, there are three variables that appear to influence the occurrence of PTSD:

(1) “the traumatic nature of the incident” itself; (2) the character and personality of the person exposed to the trauma and

concurring events in that individual’s life; and (3) the support the individual receives from others before, during, and after the

event.”26

Charles W. Hoge M.D. et al., Unintended Consequences of Changing the Definition of Posttraumatic Stress Disorder in DSM-5: Critique and Call to Action, 73 JAMA PSYCHIATRY 750 (2016).

23 “Individuals with PTSD may have persistent erroneous cognitions about the causes of the traumatic event that lead them to blame themselves or others (e.g. “It’s my fault that my uncle abused me.”) (Criterion D3). . . . They may also engage in reckless or self-destructive behavior such as dangerous driving, excessive alcohol or drug use, or self-injurious or suicidal behavior (Criterion E2). DSM-5, supra note 4, at 275.

24 DSM-5, supra note 4, at 271; see also Bessel A. van der Kolk, POST-TRAUMATIC STRESS

DISORDER: PSYCHOLOGICAL AND BIOLOGICAL SEQUELAE (CLINICAL INSIGHTS), at xi (1984) (“[T]he psychological effects of trauma consist of an alteration between hyperactivity (startle reactions, explosive outbursts of anger) and recurrent intrusive recollections of the trauma (flashbacks, nightmares, hypermnesia) on the one hand, and on the other hand, a warding off of these phenomena, with psychic numbing, constriction of affect and social functioning, as well as a profound loss of a sense of control over one’s destiny.”).

25 DSM-5, supra note 4, at 272.

26 Hafemeister & Stockey, supra note 3, at 95 (emphasis added).


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The second of these three variables indicates the degree to which a traumatic event or series of events, that negatively affect an individual’s psychological functioning, can by accentuated by the individual’s own character traits.27

When a person encounters psychological trauma, “the brain alternates between recalling

the painful event to better understand what has happened (intrusions) and going to great lengths to forget it and the pain associated with it (avoidance).”28 The intrusive symptoms (thoughts, memories, dreams, nightmares, and flashbacks) deal with unwanted recollections of the traumatic event or events. Grief and “survivor guilt” are also recognized as intrusive symptoms that can overwhelm the PTSD afflicted individual.29 PTSD uproots and diminishes certain aspects of human existence that are essential to viability and survival – the sense of self-mastery of one’s environment and person, attachments to others, and meaningfulness.30 As noted by psychologist Raymond Flannery:

The third assumption to be torn apart is the victim’s belief that the world is a just, meaningful, and orderly place to be. Trauma brings us face to face with injustice, human meanness, and often chaos as we attempt to respond to natural disasters or interpersonal violence. Victims learn in a very direct way that life is neither fair nor understanding. . . . . The loss of meaning in traumatic events can lead to further complications in the way victims respond to such matters. In the absence of a meaningful way to make sense of what has happened, victims may learn to make incorrect negative self-

27 Predictors of the occurrence of PTSD include pretrauma vulnerability inclusive of life-events such as childhood sexual and physical abuse, the magnitude of the stressor, the individual’s preparedness for the event, the quality of the immediate and short term responses of others, and post-event ‘recovery’ factors. See Arieh Y. Shalev, Stress verses Traumatic Stress: From Acute Homeostatic Reactions to Chronic Psychopathology, in TRAUMATIC STRESS: THE EFFECTS OF

OVERWHELMING EXPERIENCE ON MIND, BODY, AND SOCIETY 77, 79-86 (Bessel A. van der Kolk, et al. eds. 1996). Personality traits, “such as neuroticism, introversion, and prior mental disorders, also increase the risk for developing PTSD.” Id. at 86.

28 Raymond B. Flannery, Jr., POST-TRAUMATIC STRESS DISORDER: THE VICTIM’S GUIDE TO

HEALING AND RECOVERY 11 (1992).

29 Id. at 12.

30 “The sense that the life-threatening experience is ‘unmastered’ or somehow beyond the survivor’s control is one of the central problems of post-traumatic stress.” Morris, supra note 5, at 32.


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statements or have specific psychological conflicts having to do with the meaning of such events.31

A. The Neurophysiological Basis of PTSD. PTSD is not just something that affects the mind, and attributes of the mind such as intention, understanding, and feeling. PTSD is a disorder of the brain and the various neurophysiological properties and agencies that underlie brain processes and the emergent phenomenon of consciousness. At the time of a traumatic event, intense biochemical changes occur in the brain of the traumatized individual that “may lead to permanent alterations” in the individual’s nervous system.32 All messages coming in from the body’s sense receptors pass through the brain’s limbic system (primarily through the amygdala) on their way to the cerebral cortex for processing and response.33 It is the limbic system that coordinates incoming sensations with the brain’s emotional assessment and valuation of those sensations. In the instance of a traumatic experience, the

31 Flannery, supra note 28, at 35. Shame and psychological guilt – which arises when a person is attempting to meet some superhuman set of standards – are also commonly encountered in PTSD stricken individuals. Id. at 40-42. Early in the 20th Century, Sigmund Freud recognized that the traumatic loss of a loved person, or even the “loss of some abstraction which has taken the place of one, such as fatherland, liberty, an ideal . . .,” could lead to similar self-condemnation:

The distinguishing mental features of melancholia are a profoundly painful dejection, abrogation of interest in the outside world, loss of the capacity to love, inhibition of all activity, and a lowering of the self-regarding feelings to a degree that finds utterance in self-reproaches and self-revilings, and culminates in a delusional expectation of punishment.

SIGMUND FREUD, MOURNING AND MELANCHOLIA (1917), reprinted in COLLECTED PAPERS VOL. IV 152, 153 (Ernest Jones ed., Joan Riviere trans., Hogarth Press 1949).

32 Flannery, supra note 28, at 45.

33 Id. at 49. The amygdala is constituted by two almond shaped groups of nuclei located deep and medially within the temporal lobe. The amygdala has been shown to play a crucial role in the processing of memory, decision-making, and emotional reactions. It is also thought to be the seat of the ‘flight or fight’ response and the expression of fear and the processing of fear-inducing stimuli. See Betsy J. Grey, Neuroscience, PTSD, and Sentencing Mitigation, 34 CARDOZO L. REV. 53, 88 (2012) (“The amygdala is integral to the generation and maintenance of emotional responses, including the assessment of emotional and threat-related stimuli. . . . The amygdala also plays a crucial role in consolidating the emotional significance of events and therefore plays a crucial role in our understanding of conditioned fear processing.”).


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“waking brain responds with increases of the neurotransmitters norepinephrine and endorphins in the cortex and limbic system.”34 Repeated exposure “to stressful traumatic events leads to continuous exposure to norepinephrine for vigilant alertness.”35 Threatening stimuli “also cause the pituitary gland to release adrenocorticotropic hormone (ACTH) that results in the release of a steroid hormone from the adrenal gland.”36 Initially, “these hormones help the body deal with the stress, but if the stress is prolonged the hormones can begin to have pathological consequences, interfering with cognitive functions and even causing brain damage.”37

One of the hallmarks of PTSD is that the sufferer continues to re-experience the traumatic

event long after it is over: Because the PTSD sufferer is continually reminded of the initial stressor, the entire hormonal process is repeated within his body every time the person re-experiences the trauma. Over time, while the adrenaline produced as a result of stress responses dissipates, the glucocorticoids begin to build up in the blood stream, causing “feedback inhibition.” Essentially, the brain becomes more and more predisposed to the release of these chemicals during stressful events, leading to a feedback loop. Both glucocorticoids and adrenaline have harmful, deleterious effects upon the brain with repeated exposure. Hence, individuals who suffer from PTSD experience a constant physiological reaction to stress that alters the chemical composition of the brain.38

34 Id. at 51. The “increased presence of norepinephrine which alerts the brain also appears to be involved in the onset of the physical symptoms. Hypervigilance, an exaggerated startle response, fright, panic, anxiety, insomnia, and mood irritability all appear in part to be a function of increased amounts of norepinephrine.” Id. at 52.

35 Id.

36 Joseph E. LeDoux, THE EMOTIONAL BRAIN: THE MYSTERIOUS UNDERPINNINGS OF EMOTIONAL

LIFE 132-33 (1996).

37 Id. at 133. Similarly, prolonged release of cortisol, a steroid hormone in the glucocorticoid class that is released by the adrenal gland in response to stress, has been found to cause long-lasting neurological changes in the hippocampus which are associated with the intrusive memories of PTSD. Benno Roozendaal et al., Glucocorticoid Enhancement of Memory Requires Arousal-Induced Noradrenergic Activation in the Basolateral Amygdala, 103 PROC. NAT’L ACAD. SCI. 6741, 6744 (2006).

38 Daniel Burgess et al., Reviving the “Vietnam Defense”: Post-Traumatic Stress Disorder and Criminal Responsibility in a Post-Iraq/Afghanistan World, 29 DEV. IN MENTAL HEALTH L. 59, 64 (2010). Advances in neuroscience have led scientists to theorize “that the brains of individuals with PTSD function abnormally, showing ‘exaggerated responsivity in the amygdala, diminished responsivity in the medial frontal cortex, and an inverse relationship between these two brain regions,’ as well as ‘diminished volumes, neuronal integrity, and functional integrity of the


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From a brain chemistry and brain function standpoint, the neurotransmitters and hormones

initially released by the brain and nervous system in the face of a traumatic event, aid the individual to survive that event through hypervigilance and aggressive response. But, over time, and with repeated traumatic experiences, these same chemical substances can impair the ability of the medial prefrontal cortex to dampen down the emotional component of recurring memories, causing the individual to re-experience the traumatic event or events at the same level of emotional overload that accompanied the original experience(s).

The medial prefrontal cortex (mPFC) is largely responsible for judgment, cognition, behavior, personality expression, and decision-making. “[A] common finding in studies measuring neural activity in PTSD is hypoactivation of the mPFC,” which means there appears to be a failure of higher brain regions to dampen amygdala arousal in PTSD. The hypoactivity of the medial prefrontal cortex may contribute to an inability to curb reactivity to trauma-related cues and other intense stimuli.39 The medial prefrontal cortex has been implicated in a brain process referred to as

“extinction” whereby the ability of fear stimuli to elicit fear responses by the amygdala is weakened.40 When, as a result of traumatic stress, the functioning of the medial prefrontal cortex is chemically impaired, extinction may not occur and memories, whether intentionally recalled or intrusive, elicit the same fear responses the individual experienced at the time of the remembered event:

Conditioned stimuli activate the amygdala unconsciously, but at the same time reach the temporal lobe memory system and can lead to the recall of the initial

hippocampus.’ In other words, the amygdala is hyperactive while the controlling mechanisms in the pre-frontal cortex are inadequately recruited.” Grey, supra note 33, at 87 (emphasis added).

39 Grey, supra note 33, at 88; see also Richard R. Redding, The Brain-Disordered Defendant: Neuroscience and Legal Insanity in the Twenty-First Century, 56 AM. U. L. REV. 51, 70 (2006) (“Normally, the frontal lobes act as a circuit breaker for the reactive emotional responses generated by the amygdala. But the circuit breaker may fail when the frontal lobes are damaged.”).

40 LeDoux, supra note 36, at 170. The amygdala receives input directly from thalamic neurons which lie on the nervous system’s main sensory pathways. Consequently, the amygdala is swiftly informed of the presence of dangerous stimuli. The relationship between the amygdala and the Medial Prefrontal Cortex (mPFC) is mainly one of top-down inhibition; the mPFC serves to dampen and turn off the fear response (flight or fight) triggered by traumatic stimuli. When the mPFC losses this inhibitory capacity its ability to regulate the amygdala is critically diminished. The mFPC is responsible for the contextualization of incoming stimuli. Contextualization involves the appraisal and representation of the situational context of perceptual input in order to select appropriate action. When contextualization fails, otherwise benign data may be misread as signaling a danger situation in which the perceiving person is the target of aggression.


15

trauma or to the recall of recent episodes in which the initial trauma is relived. These conscious memories, together with the awareness of now being in a state of strong emotional arousal (due to the unconscious activation of fear responses through the amygdala), then gives rise to conscious anxiety and worry. These cognitions about the emotional arousal, in turn, flow from the neocortex and hippocampus to further arouse the amygdala. And the bodily expression of the amygdala’s responses keeps the cortex aware that emotional arousal is ongoing, and further facilitates the anxious thoughts and memories. The brain enters into a vicious cycle of emotional and cognitive excitement and, like a runaway train, just keeps picking up speed.41 One aspect of PTSD that may be encountered in the context of the veteran defendant is that

of dissociation.42 In a PTSD-related dissociative episode, the individual experiences a detachment of thoughts and emotions from the present situation, often brought on by a sense of threat or overwhelming emotions, or when exposed to significant reminders of past trauma.”43 The DSM-5 recognizes two distinct forms of dissociative symptom – depersonalization and derealization.44 Depersonalization involves “[p]ersistent or recurrent experiences of feeling detached from, and as if one were an outside observer of, one’s mental processes or body.” Derealization involves similarly “persistent or recurrent experiences of unreality of surroundings.”

With respect to PTSD, it is important that the sentencing court take into consideration three

aspects of the disorder that are important to a complete understanding of how this disorder can affect a veteran’s or PTSD sufferer’s life. First, a significant number of PTSD-afflicted veterans do not immediately manifest symptoms of PTSD, “instead demonstrating a ‘progressive escalation of distress or a later emergence of [the] symptoms.’”45


42 As noted by Morris, supra note 5, at 33: “One of the perceptual mechanisms that can cause people to become unstuck in time, preventing the incorporation of experiences into the normal web of memory, is what psychologists call dissociation, essentially a splitting of the mind in two.”

43 Id. at 12; see Grey, supra note 33, at 62: “Individuals experiencing dissociation can believe they are in another setting, misconstrue what is occurring around them, or lose consciousness of their behavior or actions.”

44 DSM-5, supra note 4, at 272..

45 Grey, supra note 33, at 61; see also DSM-5, supra note 4, at 276 (“Symptoms usually begin within the first 3 months after the trauma, although there may be a delay of months, or even years, before criteria for the diagnosis are met.”). As time passes, the causal effect of the initiating traumatic event begins to diminish, but the PTSD disorder itself soon becomes self-perpetuating:

The longer PTSD lasts, the less important the role of the traumatic exposure becomes in explaining the underlying symptoms. Subsequent adversity, the demoralization of chronic hyperarousal, and the progressive disruption of the


16

Second, until fairly recently the U.S. military had few programs in place to address the

mental health needs of returning servicemen and women.46 In fact, in 2009, following a highly-publicized wave of homicides by recently returning combat soldiers on and around Fort Carson, an Army-commissioned study found that “the overall mental health staffing at the hospital on Fort Carson from 2006 to 2008 was at 65% of authorized positions,” and that soldiers and unit leaders who “participated in focus groups reported difficulty accessing mental health services at Fort Carson and perceived an over-reliance on pharmacotherapy, particularly from military providers.”47

Third, PTSD issues arise in the criminal justice system in a number of forms, including (1)

dissociative reaction; (2) sensation-seeking syndrome; and (3) depression-suicide syndrome.48 Individuals who exhibit PTSD-related depression-suicide syndrome “are typically wracked

with survivor guilt, hopelessness, despondency, and a deep depression.”49 In addition, PTSD sufferers with this typology often feel that they should have died in combat, and experience a deep sense of helplessness at the hands of fate or the government that deployed them. If the actor is subject to stresses in his day-to-day life that are

individual’s underlying neurobiology play an increasing role in understanding the nature and course of chronic symptoms.

Alexander C. McFarlane & Rachel Yehuda, Resilience, Vulnerability, and the Course of Posttraumatic Reactions, in TRAUMATIC STRESS 155, supra note 27, at 158.

46 See Task Force on Mental Health, Department of Defense, An Achievable Vision: Report of the Department of Defense Task Force on Mental Health (June 2007), available at http://oai.dtic.mil/ oai/oai?verb=getRecord&metadataPrefix=html&identifier=ADA469411 (“[T]he system of care for psychological health that has evolved over recent decades is insufficient to meet the needs of today’s forces and their beneficiaries, and will not be sufficient to meet their needs in the future.”); see also Hafemeister & Stockey, supra note 3, at 155 (“A series of studies have highlighted the failure to identify the prevalence of mental health problems in general and PTSD in particular among both soldiers serving in Iraq and Afghanistan and veterans returning to the United States.”).

47 See Amy M. Milikan et al., An Epidemiologic Investigation of Homicides at Fort Carson, Colorado: Summary of Findings, 177 MIL. MED. 404, 409 (2012). Earlier, in 2007, a series of media reports found systematic failures in mental health treatment at Fort Carson, failures that were aggravated by a pattern by leadership of denying their troops’ requests for treatment, stigmatizing those who were getting help, and even kicking some soldiers out of the military. See Daniel Zwerdling, Gaps in Mental Care Persist for Fort Carson Soldiers, NAT’L PUB. RADIO (May 24, 2007), http://www.npr.org/templates/story/story.php?storyId=10374760.

48 Grey, supra note 33, at 61-62.

49 Burgess et al., supra note 38, at 68.


17

beyond his control, he will typically experience suicidal urges. These urges may be translated into criminal behavior when the actor begins to subconsciously act out his anger through criminal acts. These acts may be undertaken with the subconscious aim of being shot by law enforcement officers (commonly referred to as “suicide by cop”).50

B. Current PTSD Treatment Formats.

The longitudinal effects of trauma, and particularly PTSD, are complex, and so are the various treatment regimens that have been adopted to address both the symptoms and the causes of traumatic psychic injury. Selection of an appropriate treatment format requires appreciation for the specific way(s) in which an individual has been traumatized and for that individual’s trauma-induced behaviors. Trauma can result in a “differentiation of affect” – i.e., loss of the ability to identify specific emotions that would otherwise guide conduct in the selection of appropriate actions to take given a specific environment.51 Individuals stricken with such alexithymia may be hampered in their ability to verbally describe the circumstances that initiated their traumatization or the ongoing effects of that traumatization. Treatment in the military context is further complicated by long-standing and deeply entrenched beliefs that characterize psychically compromised veterans as cowards. In addition, treatment is often rendered even more difficult due to the incidence of comorbid disorders such as depression and substance abuse, and on occasion by accompanying Traumatic Brain Injury (TBI).52 In addition to reduction in the occurrence of trauma-related symptoms, the goal of therapy is to address the twin-evils that afflict the traumatized individual – the feeling of loss of control and the feeling of meaninglessness – so as to enable that individual to once again take up a consistent life narrative or story. As psychiatrist Bessel A. van der Kolk writes:

The aim of therapy with traumatized patients is to help them move from being haunted by the past and interpreting subsequent emotionally arousing stimuli as a

50 Id.

51 Bessel A. van der Kolk, The Complexity of Adaption to Trauma: Self-regulation, Stimulus Discrimination, and Characterological Development, in TRAUMATIC STRESS 182, supra note 27, at 193.

52 Medical studies of returning vets have disclosed that TBI caused by concussive injury is significantly associated with the development of PTSD and other psychiatric symptoms. See Charles W. Hoge et al, Mild Traumatic Brain Injury in U.S. Soldiers Returning From Iraq, 358 NEW ENG. J. MED. 453, 461 (“More than 40% of soldiers with injuries associated with loss of consciousness met the criteria for PTSD. The data indicate that a history of mild traumatic brain injury in the combat environment, particularly when associated with loss of consciousness, reflects exposure to a very intense traumatic event that threatens loss of life and significantly increases the risk of PTSD.”).


18

return of the trauma, to being fully engaged in the present and becoming capable of responding to current exigencies. In order to do that, the patients need to regain control over their emotional responses and place the trauma in the larger perspective of their lives – as a historical event (or series of events) that occurred at a particular time, in a particular place, and that can be expected not to recur if the individuals take charge of their lives. The key element of the psychotherapy of people with PTSD is the integration of the alien, the unacceptable, the terrifying, and the incomprehensible into their self-concepts. Life events initially experienced as alien, imposed from outside upon passive victims, must come to be “personalized” as integrated aspects of the individuals’ history and life experiences.53 From the standpoint of diagnosis, the Clinician-Administered PTSD Scale (CAPS) is the

most widely used diagnostic tool for PTSD. CAPS “is a structured interview format created by the National Center for PTSD that consists of a thirty-item survey that takes about two hours to complete.”54 It has also been used “as the primary diagnostic or outcome measure in more than 200 studies on PTSD and has been translated into at least ten languages.”55

As regards therapy formats, currently the most common therapies employed in PTSD treatment are Cognitive Behavioral Therapy (CBT), Prolonged Exposure Therapy (PET) and Stress Inoculation Therapy (SIT).56 The latter two therapies – Prolonged Exposure and Stress Inoculation – are specific types of CBT. CBT and PET both focus on the individual’s traumatic thoughts in an effort to aid the individual to find more helpful ways of thinking about the trauma. PET goes further by involving the individual in “imaginal exposure” during which the individual and the therapist talk through the details of the traumatic events, and then repeat this process until the individual’s arousal at his/her traumatic memories begins to subside. SIT, on the other hand, teaches relaxation and other coping skills in order to assist the individual to deal with his or her PTSD symptoms.57

53 Bessel A. van der Kolk et al., A General Approach to Treatment of Posttraumatic Stress Disorder, in TRAUMATIC STRESS 419, supra note 27, at 419.

54 Morris, supra note 5, at 170.

55 Frank W. Weathers et al., Clinician-Administered PTSD Scale: A Review Of The First Ten Years Of Research, 13 DEPRESSION AND ANXIETY 132, 132 (2001).

56 “The VA has mandated that all veterans treated for PTSD have access to either prolonged exposure therapy or cognitive processing therapy (CPT).” Hoge, Interventions for War-Related Posttraumatic Stress Disorder, supra note 11, at 549.

57 While there are many purveyors of PTSD treatment, it is pertinent to note that in United States v. Oldani, the District Court granted a substantial sentencing variance to a PTSD compromised defendant noting that, while the BOP could provide Oldani with basic PTSD treatment, this “treatment . . . would not be equivalent to that which Timothy Oldani could receive from the VA.” No. 3:09-cr-00010, 2009 WL 1770116, 2009 U.S. Dist. LEXIS 50538 (S.D. W.Va. June 2, 2009).


19

Most PTSD treatment regimens also employ medication to assist PTSD sufferers to address their symptoms of anxiety, depression, and sleeplessness. Among the wide range of medications used to medicate veterans with PTSD, however, only selective serotonin reuptake inhibitors (SSRIs) and serotonin-norepinephrine reuptake inhibitors (SNRIs) enjoy evidence based confirmation of effectiveness.58 With respect to these medications, it is important to note that they “do not address the underlying pathology of PTSD, but they do help patients manage their symptoms.”59 Moreover, “[a]fter conducting numerous studies of medications for PTSD,” Dr. van der Kolk concluded “that psychiatric medications have a serious downside, as they may deflect attention from dealing with the underlying issues.”60

C. PTSD Neurophysiology and Criminal Law Culpability. Intention “is commonly thought to be the very root of human agency.”61 From the modern standpoint, “every action begins with an intention, in the sense that intentions must be the immediate cause of those bodily movements through which persons act, for those movements to be actions at all.”62 As Justice Jackson wrote in Morissette v. United States,

The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. . .. Crime, as a compound concept, generally constituted only from concurrence of an evil-meaning mind with an evil-doing hand, was congenial to an intense individualism and took deep and early root in American soil. As the state codified the common law of crimes, even if their enactments were silent on the subject, their courts assumed that the omission did not signify disapproval of the principle but merely recognized that intent was so inherent in the idea of the offense that it required no statutory affirmation. Courts, with little hesitation or division, found an implication of the requirement as to offenses that were taken over from the common law. The unanimity with which they have adhered to the central thought that wrongdoing must be conscious to be criminal is emphasized by the variety, disparity and confusion of their definitions of the requisite but elusive mental

58 Id.

59 Morris, supra note 5, at 224.

60 van der Kolk, supra, THE BODY KEEPS THE SCORE, supra note 10, at 36-37.

61 Michael S. Moore, Intention as a Marker of Moral Culpability and Legal Punishability, in PHILOSOPHICAL FOUNDATIONS OF THE CRIMINAL LAW 179, 180 (R.A. Duff & Stuart P. Green eds., 2011).

62 Id.


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element. However, courts of various jurisdictions, and for the purposes of different offenses, have devised working formulae, if not scientific ones, for the instruction of juries around such terms as ‘felonious intent,’ ‘criminal intent,’ ‘malice aforethought,’ ‘guilty knowledge,’ ‘fraudulent intent,’ ‘wilfulness,’ ‘scienter,’ to denote guilty knowledge, or ‘mens rea,’ to signify an evil purpose or mental culpability. By use or combination of these various tokens, they have sought to protect those who were not blameworthy in mind from conviction of infamous common-law crimes.63

Justice Jackson’s examination of the importance of “mens rea” to the criminal law remains pertinent to the present day. While the law’s libertarian view of mind has been subjected to challenge, the justification for inflicting harm on a criminal defendant remains that of “he could have done otherwise,” and this assumption is in turn based on the proposition that human action is a function of an intentionality that, along with other coordinate mental activities such as awareness, memory, and decision-making, supervenes on neurophysiological processes. At bottom, what the criminal law proscribes is not ‘movements,’ but ‘actions.’ For some physical event involving the human body to be construed as an action, and not merely a movement, it must carry the token of intentionality, whether general or specific. When a person rolls over in their sleep that is a movement, not an action. The token that is missing in that movement is not just the brain/mind state we designate as “consciousness,” but all of the subroutines of mental operation that are inferred to be in place when an individual acts intentionally. Moreover, when an intention is said to be present, it is inferred if not assumed that the intending person has a mental representation of the action to be carried out, and that there is a correlation (if not of identity, then at least of compatibility) between that representation and the action that is carried out or the objective toward which the action is pursued. These assumptions – so critical to the attribution of blameworthiness – are undermined by PTSD’s impact on brain systems and behavior. Whether advancing neuroscience will eventually call for a new conceptual construction on which to premise attributions of culpability, only time will tell. But pending such a development, it is incumbent on criminal defense advocates to continue to challenge the law’s naïve, folk psychology views of brain/mind functions, and to educate fact finders and judges about the disruption caused to an individual’s neurological functioning by PTSD.

IN CONCLUSION The soldiers we send to war – if they survive – come home. But the expectation in our current culture has too often been that the return to civilian life is as easy as slipping out of combat boots and into a pair of tennis shoes. Such is rarely the case. Most human beings – the exception being the pathologically anti-social individual or sociopath – do not want to kill other human

63 342 U.S. 246, 251-252 (1952).


21

beings.64 Consequently, the conduct of war is fraught with moral ambiguity. In addition, the individual who goes to war, and the soldier who returns from war after experiencing traumatic situations, are rarely the same person:

The twice-replicated findings that people with chronic PTSD have decreased hippocampal volume may explain some of the behavioral abnormalities seen in people with chronic PTSD. . . . Their altered biology may cause them to react to newly arousing stimuli as a threat, and to react with aggression or withdrawal, depending on their premorbid personalities. Their decreased functioning in Broca’s area during this time may make it difficult for them to “understand” what is going on; they experience intense emotions without being able to name their feelings. Their bodies are aroused, and fragments of memories may be activated, but they are unable to form a clear mental construct of what they are experiencing. Needing to reestablish their internal homeostasis, they use their muscles. Discharge via the smooth muscles leads to psychosomatic reactions, whereas discharge through the siriated muscles leads to action. Both of these solutions are likely to have adverse consequences, and neither gives a person much chance to learn from experience.65

For combat soldiers the moral ambivalence component of PTSD is not simply a cognitive construct, but a deeply personal crisis of indecision arising out the sensate tension that exists between the joy of finding one’s self still alive and the sorrow of losing that special, faced other – one’s friend, one’s fellow-soldier – to the timeless void of death. This state of affairs is further exacerbated by trauma induced neurobiological changes that impair the brain’s capacity to extinguish traumatic memories, thereby diminishing the mind’s ability to integrate traumatic and troubling memories with the person’s life narrative of “who I am.” Lastly, but far from least, American culture has no myth paradigm or process to aid in the reintegration of its returning warriors into the social order.66 As a consequence of PTSD, the traumatized soldier becomes stuck in time and the process of mourning for lost comrades never concludes. This condition is depicted in Dr. van der Kolk’s recount of a Vietnam vet’s rationale for refusing medication: “I realized that if I take the pills and the nightmares go away, I will have abandoned my friends and their deaths will have been in vain. I need to be a living memorial to my friends who died in Vietnam.”67

64 Dave Grossman, ON KILLING: THE PSYCHOLOGICAL COST OF LEARNING TO KILL IN WAR AND

SOCIETY 4 (2009) (“[T]here is within most men an intense resistance to killing their fellow man.”).

65 Bessel A. van der Kolk, Trauma and Memory, in TRAUMATIC STRESS 296, supra note 27, at 296.

66 “In North America, we have no rituals governing the return of warriors from battle, nor do we have any traditions to guide survivors of trauma back into society. Instead, we leave them in a state of liminality, home from the horror but in body only, and sometimes not even that.” Morris, supra note 5, at 240.

67 van der Kolk, supra, THE BODY KEEPS THE SCORE, supra note 10, at 10.


22

Human beings are not fashioned to be memorials – immobilized against the flow of time and the permutations of experience. The very nature of the Self is that of a continuity of recognition within the stream of change we call ‘time’. As human beings we experience, and experience is change, however great or small, right up to the penultimate point where and when experience concludes, and death is. What provides continuity to this flow of experience is the conscious ‘feel’ of the embodied and moving wholeness that is a human life – a ‘feel’ that is undermined, distorted, and suppressed by trauma. If there is a mental faculty that lies at the core of the feeling of self it is the imagination. Imagination allows us to fashion the contours of our lives, to envision new possibilities, and as yet unexperienced horizons. In individuals suffering from traumatization, this facility is often impaired by guilt and shame: “When people are compulsively and constantly pulled back into the past, to the last time they felt intense involvement and deep emotions, they suffer from a failure of hope, no chance to envision a better future, no place to go, no goal to reach.”68 The U.S. Department of Defense and Veterans Affairs has implemented a number of programs to help veterans returning from combat in Afghanistan and Iraq to address PTSD-related issues. However, as Dr. Hoge reports,

With only 50% of veterans seeking care and a 40% recovery rate, current strategies will effectively reach no more than 20% of all veterans needing PTSD treatment.69

In Porter v. McCollum,70 the Supreme Court addressed a habeas claim of ineffective assistance of counsel brought by a veteran “who was both wounded and decorated for his active participation in two major engagements during the Korean War;” but whose “combat service unfortunately left him a traumatized, changed man.”71 The Court observed that Porter’s expert testified that his mental health symptoms would “easily” warrant a diagnosis of posttraumatic stress disorder (PTSD), and that “PTSD is not uncommon among veterans returning from combat.”72 Granting relief, the Court declared:

68 Id. at 17.

69 Hoge, Interventions for War-Related Posttraumatic Stress Disorder, supra note 11, at 549. According to Hoge, negative perceptions among veterans as to the efficacy of medical care has been even more instrumental than stigma in leading veterans to underutilize available therapeutic services. Id.

70 558 U.S. 30, 30 (2009) (per curiam).

71 Id. at 30.

72 Id. at 35 n.4.


23

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.73

Clearly, as the United States continues to engage in military operations worldwide, the need to extend the availability, and increase the effectiveness of PTSD treatment, is great. Advocates in the criminal justice system can contribute to this ameliorative process by sensitizing all players in the system to the manner in which PTSD influences and prompts criminal misconduct and by bringing available therapies and other rehabilitative services to the attention of the client. That PTSD is a disease state from which recovery is possible must be repeatedly and forcefully emphasized. In this way, PTSD, whether arising out of the combat experience or from some other form of trauma, will not be allowed to define the person afflicted in a manner that occludes all other aspects of his or her life narrative.

73 Id. at 43.


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Overview of PTSD as a Psychological Disorder

Suzanne R. Best, Ph.D. Clinical and Forensic Psychologist

1818 NE Irving Street Portland, OR 97232

[email protected]

suzannebestphd.com

____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

_________________________________________________________________________________ Suzanne R. Best, Ph.D. - Notes

25

____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

_________________________________________________________________________________ Suzanne R. Best, Ph.D. - Notes

26

What

is

PTSD?

PTSD and Survival

“PTSD involves the neurobiological hardware and software that has evolved for coping, adaptation, and survival of the species”

Matt Friedman, MD

_________________________________________________________________________________ Suzanne R. Best, Ph.D. - Presentation Slides

27

PTSD and Processing

EVENT BASED


28

Criterion A- Event

Exposure to actual or threatened death, serious injury or sexual violence:

Experienced

Witnessed

Learned about

Cumulative exposure (work-related)

MEMORY POWERED


29

Criterion B: Reexperiencing

The traumatic event is persistently reexperienced

in one or more of the following ways:

Intrusive images

Nightmares

Dissociative reactions

Triggered memories

Triggered physical reactions

AVOIDANCEDRIVEN


30

Criterion C: AvoidancePersistent avoidance of stimuli

associated with the trauma and numbing of general responsiveness as indicated by three or more of the following:

Avoidance of trauma-related:Thoughts, feelings or conversationsActivities, places or people Images or memories

NEGATIVELYCHARGED


31

Criterion D: Negative Mood & Thoughts

Negative alterations in cognitions and mood as evidenced by 2 or more of the following: Inability to recall aspects of trauma

Negative beliefs about self, others or world

Distorted cognitions about event

Negative emotional state

Diminished interest (anhedonia)

Detachment or estrangement

Inability to experience positive emotions

DISORDER of

AROUSAL


32

Criterion E: Arousal

Marked alterations in arousal and reactivity:

Sleep disturbance

Anger and irritability (without little or no provocation)

Self-destructive or reckless behavior

Impaired focus and concentration

Hypervigilance

Exaggerated startle

Psychobiology

of PTSD


33

CortisolLow cortisol levels in acute phase

predict future PTSD

Hypothesized association betweenadult cortisol suppression and earlytrauma

May actually be a chronic adaptation toPTSD

Norepinephrine (NE)Interacts with CRF to initiate fight or flight

Higher NE response at time of trauma → over-consolidation of memory

PTSD sufferers have increased circulatory NE

PTSD sufferers are hypersensitive to NE

↑ NE causes hyperactive autonomic nervoussystem (elevated arousal and hypervigilance)

↑NE may block Serotonin (5HT) receptors →negative symptoms of PTSD


34

Epinephrine

PTSD is associated with release ofepinephrine into sympathetic nervoussystem during sleep

Activation of CNS →

Interference with REM sleep

Trauma-related nightmares

Disruption in sleep state processing

Course and

Associated Conditions


35

Course of PTSD Most people experience symptoms of

posttraumatic stress in the initial weeks

The majority (60-80%) recover within 3-6months

Those who do not recover within the first 9-12months are likely to experience a life-longcourse of PTSD that waxes and wanesdepending upon life stress and future traumaticincidents

PTSD and Substance Use Disorders

52% of men and 28% of women with PTSDhave co-occurring alcohol abuse ordependence

Veterans with PTSD and alcohol abuse tendto be binge drinkers

73% of Vietnam Veterans suffered alcoholabuse or dependence after developing PTSD


36

Dual Diagnosis and Treatment The prognosis for individuals in SUD

treatment who have co-occurring PTSD ispoorer compared with those without PTSD.

Addicted individuals with PTSD reportmore intense cravings for drugs/alcoholand tend to relapse more quickly thanindividuals without PTSD

PTSD and Depression

Trauma survivors with PTSD are significantlymore likely to attempt suicide

Combat veterans who have been woundedare significantly more likely to attempt suicide

Suicidality in PTSD is thought to be related tointrusive images, anger, and arousal ratherthan depression


37

AddressingTreatmentNeeds

Roadblocks to Treatment

Stigma/shame

Distrust

Reluctance to tell story

Overwhelm


38

PsychopharmacologyInsomnia: Sedative-hypnotics, anti-depressants

Trazodone

Nightmares/Night terrors: Alpha blockers

Prazosin

Panic: As needed (PRN) benzodiazepines

Ativan

Agitation/Jumpiness: Beta Blockers

Propanalol

Anxiety and Depression: SSRI/SNRI

Zoloft (Sertraline), Celexa (Citalopram)

SSRI’sZoloft (Sertraline) & Paxil found most effective Increases hippocampal volume Increases prefrontal cortex blood flowLong-term use may improve HPA functioningClinical BenefitsReduced symptoms in all clustersReduced depressionReduced relapseDecreased HR/ BP vs. placebo when exposed to

Trauma cues


39

The Magic Pill

Prazosin (Minipress) = Alpha-adrenergic blocker

Increases sleep time (94 minutes)

Increases REM sleep

Reduces trauma-related nightmares

Reduces distressed awakenings

Palliative only; no lasting therapeutic effect

Daly et al., 2005; Raskind et al., 2007; Taylor et al., 2008

Psychotherapy

Evidence-based Psychotherapy

Cognitive Behavioral Therapy (CBT) Stress management

Sleep management

Anger management

Mood management (Guilt and Grief)

Exposure-based treatments


40

VA Treatment

Vancouver VA: Residential Rehabilitation Treatment Program

Roseburg VA: PTSD Domiciliary- Intensive Inpatient Program

Portland VA: Substance Use Disorder Intensive Outpatient Program and PTSD Clinical Team


41

Community Resources

Returning Veterans Project

Private practice professionals provide pro bono services to Post 9/11 Veterans and their families

www.returningveterans.com

Cedar Hills Hospital Military Program

7 to 45-day Veteran inpatient program for PTSD, substance abuse, and chronic pain treatment

Military Liaison: (503) 413-9779

On-Line Resources

National Center for PTSD

www.ptsd.va.gov

Swords to Plowshares

www.swords-to-plowshares.org

International Society for Traumatic Stress Studies

www.istss.org

Books

van Der Kolk (2014). The Body Keeps the Score: Brain, Mind and Body in the Healing of

Trauma

Hoge (2010). Once a Warrior Always a Warrior: Navigating the Transition from Combat to

Home Including Combat Stress, PTSD, and mTBI

Armstrong, Best, & Domenici (2006). Courage After Fire: Coping Strategies for Troops

Returning from Iraq and Afghanistan

_________________________________________________________________________________ Suzanne R. Best, Ph.D. - Resources

42

http://www.ptsd.va.gov/

http://www.istss.org/

Veteran’s Justice Project, Veterans Courts, and Community Services that Address Homelessness, Substance and

Alcohol Abuse, and Other Issues

John Haub John Haub Law LLC

333 SW Taylor, Suite 300 Portland, OR 97204

503-782-4997

[email protected] johnhaublaw.com

____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

_________________________________________________________________________________ John Haub - Notes

43

____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

_________________________________________________________________________________ John Haub - Notes

44

Veteran’s Justice ProjectMay 10, 2017

John Haub Law, LLC333 SW Taylor Street

Suite 300Portland, OR 97204

[email protected]

What is the Veteran’s Justice Project? And, what is SSVF?• Access to legal assistance (all things “civil”)

• Metro Defenders “Veteran’s Justice Project”

• Daniel Zene Crowe, Metro PD 503.225.9100

• Leslie Nelson, Metro PD 503.225.9100

• VA/HUD grants• Non‐Profits implement grants in all but two counties in Oregon

• Central City Concern, Impact NW, Transition Projects, Inc.,

• VA/HUD grant funding available to support SSVF programs

_________________________________________________________________________________ John Haub - Presentation Slides

45

Goal of the Supportive Services for Veteran Families Program • The goal of the SSVF Program is to promote housing stability among very low‐income Veteran families who reside in or are transitioning to permanent housing.


46

Supportive Services

• Any of the following provided to address the needs of a participant:

• (1) Outreach services as specified under 38 CFR 62.30.

• (2) Case management services as specified under 38 CFR 62.31.

• (3) Assisting participants in obtaining VA benefits as specified under 38 CFR 62.32.

• (4) Assisting participants in obtaining and coordinating other public benefits as specified under 38 CFR 62.33. (SNAP, Oregon Trail)

• (5) Other services as specified under 38 CFR 62.34.

Why SSVF

• It saves the government money

• It helps to combat homelessness and other barriers to success

• It’s the right thing to do – responding to Vets impacted by the long wars


47

Who qualifies as a Veteran for SSVF

• Veteran: A person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable.

• The period of service must include service in active duty for purposes other than training. (Not all Reservists or National Guard members qualify.)

• Veteran family: A Veteran who is a single person or a family in which the head of household, or the spouse of the head of household, is a Veteran

Barriers to housing stability and success of Vets• No housing/evictions

• Sex Offender Registration

• Criminal conviction(s)

• Fines and Fees—no drivers license until fines and fees paid

• Family law/child support/DV

• No job skills for civilian market


48

Responses to barriers to housing stability and success of Vets• Eviction—representation at FED proceedings

• Sex Offender Registration—relief from registration (judicial order)

• Criminal conviction(s) —expungements

• Fines and Fees—no drivers license until paid—”Clean Slate” “Stand‐down” (substitute community service for fines)(Removal of fines for the indigent)

• Lack of funds for qualification courses for jobs—flagging course fees, protective equipment, etc.

• Addiction treatment (RRTF, Detox, SATP)

Responses to barriers to housing stability and success of Vets• No housing—responses, TPI, Impact Northwest, Vancouver housing (Freedom’s Path), Salvation Army Home For Veterans and Veteran’s Families (Beaverton), White City housing, housing assistance—HUD VASH vouchers, Veteran’s Homes (The Dalles & Lebanon)

• Mental health issues, PTS, TBI—VA Medical Treatment, outpatient care, phone support

• Discharges other than honorable (OTH)—Assistance in upgrade to promote eligibility for programming in appropriate cases


49

What SSVF does not cover

• Restoration of competency (Aid and Assist)

• Funding for criminal defense representation

Oregon SSVF Coordinators

Organization Name Area Served Organization Address SSVF POC Telephone Number Email

Transition Projects, Inc.Multnomah, Clackamas,

Washington, and Clark (WashingtonState) Counties

665 NW Hoyt Street, Portland, OR 97209

Alex Glover 855‐425‐5544 [email protected]

Mid‐Willamette Valley Community Action Agency

(MWVCAA)Marion and Polk Counties

1164 Madison St NE, Salem, OR 97301

Linda Strike 503‐399‐9080, x0 [email protected]

Community Action Team, Inc.

Columbia, Clatsop, Tillamook, and Washington Counties

125 N 17th St, Saint Helens, OR 97051

Dan Brown 503‐366‐6580 dbrown@cat‐team.org

1001 SW Baseline St., Hillsboro, OR 97123

Martha Olmstead(503) 726‐0814 (o)(971) 563‐8002 (c)

molmstead@cat‐team.org

St. Vincent de Paul Society of Lane County, Inc.

Lane, Benton, Linn, and Lincoln Counties

2890 Chad Dr., Eugene, OR 97408

PO Box 24608, Eugene, OR 97408

Tim Angle 541‐743‐7166 [email protected]

Anne Williams 541‐743‐7166 [email protected]

Community Action Partnership of Oregon

Wasco, Hood River, Sherman, Yamhill, Malheur, Harney, Klamath, Lake, Baker, and Grant Counties

945 Columbia St. NE, P. O. Box 7964, Salem, OR

97301Claudette Vincent 503‐316‐3951 ext. 608 [email protected]

Jo Zimmer [email protected]

Central Oregon Veteran's Outreach

Deschutes, Crook, and Jefferson Counties

123 NW Franklin Avenue, Bend, OR 97701

Kathy Skidmore 541‐383‐2793 kathy.skidmore@covo‐us.org

AccessCoos, Curry, Douglas, Jackson,

Josephine

3630 Aviation Way, PO Box 4666, Medford, OR

97501David Mulig 541‐779‐6691 x328 [email protected]

Blue Mountain Action Council

Morrow, Umatilla, Union, and Wallowa Counties (in Oregon)

1520 Kelly Place, Suite 140, Walla Walla, WA

99362Debbie Baker (509) 529‐4980 [email protected]


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Veterans Justice Outreach

• The Health Care for Re‐Entry Veterans Program helps incarcerated Veterans successfully rejoin the community through supporting programs including those addressing mental health and substance use problems.

• The Readjustment Counseling Service’s Vet Center Programs feature community‐based locations and outreach activities that help to identify homeless Veterans and match homeless Veterans with necessary services.

What can a VA Justice Outreach Officer offer to Circuit Courts• Coordination with County Corrections for assistance to Veterans on pre‐trial supervision

• Coordination with County Corrections for assistance to Veterans on probation

• Coordination with County Corrections for assistance to Veterans on post prison supervision


51

Matthew Byrge—Veteran’s Judicial Outreach Officer (Clackamas County)• [email protected]

• VA Medical Center, Portland, OR

• 503‐721‐1025

• 503‐220‐8262 x 34075

Aaron Baxter—Veteran’s Judicial Outreach Officer (Multnomah & Washington County)• [email protected]

• VA Medical Center, Portland, OR

• 503‐721‐1025

• 503‐220‐8262 x 32269


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Where to start?

ODVA—Oregon Department of Veteran’s Affairs


53

CRRC—1st & Oak

Impact Northwest Helps Vets

• Prevention services

• Income development

• Benefits advocacy

• Tenant education courses, e.g., “Rent Well”

• Assistance in accessing mainstream VA services


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Impact Northwest Helps Vets

• Finds and helps veterans and their families move into and retain safe, permanent housing.

• Short term shelter

• Short‐term residential programs

• Rapid rehousing

TPI – Bridges To Change – Mentor Program

• Those engaged in Bridges to Change are survivors.

• They have overcome challenges, resolved barriers, and successfully made the jump from homelessness to permanent housing.

• And they are passionate about helping others to do the same.

• Through peer‐guiding, advising and supportive teaching, Mentors help those who are beginning their journey out of homelessness to identify and harness their strengths, support systems, resources, and skills.


55

Bridges To Change – Mentor Program

• Mentors provide motivation and navigation in obtaining employment, mental health, addictions, and medical services utilizing a strength‐based and solution‐focused approach.

Coaching Into Care

• Coaching Into Care helps Veterans having difficulty transitioning from combat to home life

• Returning home can be a tough adjustment, and loved ones can help. Coaching Into Care offers free coaching to help you help your Veteran.

• Call in counselling: 888‐823‐7458.

• Hours: Monday ‐ Friday 8 a.m. ‐ 8 p.m. EST


56

Leaving Military May Require Mental Health Assistance• Engaging in self‐destructive behaviors, including extensive alcohol or illegal drug use.

• Expressing feelings of hopelessness, worthlessness, or suicidal thoughts such as “the world would be better off without me.” (note: 22 suicides per day for Veterans)

Roseburg VA Medical Center


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Roseburg VA Medical Center – TCM

• The Transition & Care Management (TCM) program is a special program to meet the needs of Veterans returning from current combat in Iraq, Afghanistan, and many other "hostile fire" areas and also Post 9‐11 era Veterans.

• If you have served in Operation Iraqi Freedom or Operation Enduring Freedom, or any other "Combat Zone/ Hostile Fire pay area" after November 11, 1998, please contact the VA TCM program at 541‐440‐1282 or 541‐285‐3819.

• Cynthia Houston, TCM Patient Advocate will assist with admission to VAMC Roseburg.

Southern Oregon Rehabilitation Center and Clinics – White City


58

Converted WWII Barracks—Housing (White City)


59

Portland VA Hospital

Vancouver Campus


60

Disclaimer

• The Veterans Administration did not prepare this presentation. Any statements, descriptions, and pronouncements are solely those of the presenter—John Haub and may not represent the views of the Veterans Administration or its employees.

Questions?


61

Oregon SSVF Coordinators

Organization Name Area Served Organization Address SSVF POC Telephone Number Email

Transition Projects, Inc.Multnomah, Clackamas,

Washington, and Clark (Washington State) Counties

665 NW Hoyt Street, Portland, OR 97209

Alex Glover 855‐425‐5544 [email protected]

Mid‐Willamette Valley Community Action Agency

(MWVCAA)Marion and Polk Counties

1164 Madison St NE, Salem, OR 97301

Linda Strike 503‐399‐9080, x0 [email protected]

Community Action Team, Inc.

Columbia, Clatsop, Tillamook, and Washington Counties

125 N 17th St, Saint Helens, OR 97051

Dan Brown 503‐366‐6580 dbrown@cat‐team.org

1001 SW Baseline St., Hillsboro, OR 97123

Martha Olmstead(503) 726‐0814 (o)(971) 563‐8002 (c)

molmstead@cat‐team.org

St. Vincent de Paul Society of Lane County, Inc.

Lane, Benton, Linn, and Lincoln Counties

2890 Chad Dr., Eugene, OR 97408

PO Box 24608, Eugene, OR 97408

Tim Angle 541‐743‐7166 [email protected]

Anne Williams 541‐743‐7166 [email protected]

Community Action Partnership of Oregon

Wasco, Hood River, Sherman, Yamhill, Malheur, Harney, Klamath, Lake, Baker, and Grant Counties

945 Columbia St. NE, P. O. Box 7964, Salem, OR

97301Claudette Vincent 503‐316‐3951 ext. 608 [email protected]

Jo Zimmer [email protected]

Central Oregon Veteran's Outreach

Deschutes, Crook, and Jefferson Counties

123 NW Franklin Avenue, Bend, OR 97701

Kathy Skidmore 541‐383‐2793 kathy.skidmore@covo‐us.org

AccessCoos, Curry, Douglas, Jackson,

Josephine

3630 Aviation Way, PO Box 4666, Medford, OR

97501David Mulig 541‐779‐6691 x328 [email protected]

Blue Mountain Action Council

Morrow, Umatilla, Union, and Wallowa Counties (in Oregon)

1520 Kelly Place, Suite 140, Walla Walla, WA

99362Debbie Baker (509) 529‐4980 [email protected]

_________________________________________________________________________________

John Haub - O

regon SS

VF C

oordinators

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James A. GardnerPublic Defender Services of Lane County, Inc.

Veterans Defense Resource Center

Jesse Wm. BartonAttorney at LawSalem, Oregon

Representing Veterans: Defense and Mitigation Strategies

Veterans Defense Resource Center (VDRC)

• How did we get here?• What is VRDC and how can I can help?• Website

_________________________________________________________________________________ John Haub - Gardner & Barton PowerPoint

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Percentage of Veterans in Prison

• 2012 – DOC 2,682 self identifying veteran-inmates• 19.1% of prison population (California 2.7% and New York

4.5%)• Veteran-imprisonment rate 159% greater than the non-

veteran rate or 813 per 100,000 veterans living in prison• 2016 – DOC estimate based on WA State 8.5%• Lane County Jail 25-50 every week• Marion County Jail: Pacific Policy & Research studies

showed that from 2007 to 2011, % of veteran inmatesnearly doubled

0 2 4 6 8 10 12 14 16 18 20

CONNECTICUT

CALIFORNIA

NEW YORK

GEORGIA

SOUTH CAROLINA

NORTH CAROLINA

ARIZONA

FLORIDA

VIRGINIA

MINNESOTA

OHIO

WISCONSIN

WASHINGTON

TEXAS

KANSAS

COLORADO

NEVADA

OREGON

2.3

2.7

4.5

4.8

5.3

5.7

5.9

6.4

6.7

6.7

6.8

7

7.1

8

8.2

9.2

11.3

19.1

VETERANS AS PERCENTAGES OF STATE PRISON POPULATIONS, 2012

Pacific Policy and Research Initiative, LLC


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How can VDRC help?

• Consequent to its June 18, 2015, PublicDefense Services Commission committed tocreating VDRC, to address Oregon’s growingcrisis where disproportionate number ofveterans with untreated or undiagnosedservice-related injuries and illnesses who getlost in the criminal justice system

• VDRC provides support, advice, and assistanceto attorneys representing veterans

Website

• http://www.lanepds.org/• Treatment resources• Documents and materials• Experts


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Local National Guard Units(Components of the Oregon Army National Guard’s

41st Infantry Brigade Combat Team)

• Company D, 2nd Battalion, 162nd Infantry Regiment• HQ & HQ Battery, 2nd Battalion, 218th Field Artillery

Regiment• F Forward Support Company, 141st Brigade Support

Battalion

Defending Veterans

1. Determine nature and extent of militaryservice / veterans status

2. Build your case3. Defense4. Mitigation5. Collateral Consequences


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Veteran?• Under ORS 135.881(4) “servicemember” means a person

who currently serving in the active duty military, thereserves, or the National Guard; or a person who previouslyserved (a veteran) and who received (i) an honorabledischarge, (ii) a general discharge under honorableconditions, or (iii) a discharge under other than honorable

• Definition excludes those who received bad conduct ordishonorable discharges, both of which require UCMJconvictions

• Use special intake form (see Veteran / servicememberinterview sheet)

Why is it important to understand nature and extent of military service?

• Most attorneys know very little about military culture and terminology

• Understanding nature of service can build your case

• For example, if veteran-defendant tells you he was deployed toOperation New Dawn, his MOS was 13B, his rank was E-4, and heoperated and 240B. Most lawyers would have no idea what thatmeans.

• “MOS” means Military Occupational Specialty, which is the Army’ssystem of job descriptions. USMC also uses MOS terminology, but witha different enumeration system.

• The Navy and Coast Guard uses systems called “ratings.”

• The Air Force uses a system called “Air Force Specialty Codes.”


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Build your case• Service Records – corroborate

• Active Duty, Reserve (USC Title 10 v. Title 32), NationalGuard

• Orders, DD214 (Certificate of Release or Discharge fromActive Duty), NG Form 22 or 2-1

• SMIF• OMPF

• Still active?• SF 180 or www.archives.gov/veterans/military-service-

records/


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Build your case

• VA Records• PTSD, MST, TBI, service connected disabilities• Substance abuse

• VA Form 5345 / www.va.gov/directory• Screen Client PTSD or TBI (common not to disclose)• Independent Examination (Expert Consultant)

Common Defenses

•Self Defense – PTSD, TBI, Moral Injury,Military Total Institution•These may form bases for defenses tocharges’ mens rea and actus reuselements

•Good Soldier Defense – credibility


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Mitigation

• Explain how client’s individual military serviceaffected his or her criminal behavior

• Drug behavior related to service, PTSD, TBI,MST, or undiagnosed condition

• Military Total Institution, PsychologicalConditioning, or Moral Injury (confession orassault)

• Good Soldier Defense (deployment)

Mitigation• Military service by itself is an enumerated mitigating factor under OAR 213-

008-0002(1)(a)(J) (felony cases) and ORS 137.090(2) (felony andmisdemeanor cases) if defendant is a “servicemember”

• Non-enumerated factors include deployment, PTSD, and others (see Statev. Speedis, 350 Or 424, 432-33 (2011) (state constitution separation ofpowers does not prohibit guidelines delegation of authority to createnonenumerated departure factors).

• Example: NCO assigned to a unit and is scheduled to deploy to a combatzone. NCO will attest to his performance and the unit needs him to deployand will affect the unit’s mission. See State v.Milikowsky, 65 F3d 4, 8 (2dCir 1995) (“[a]mong the permissible justifications for downward departure ** * is to reduce the effects that incarceration of a defendant may have oninnocent third parties”)


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Mitigation

• Use enumerated factors in conjunction with non-enumeratedfactors for departure

• Example: Veteran-defendant whose criminal conduct could beexplained as a by-product of PTSD and/or TBI, caused by aroadside blast while deployed. For that veteran-defendantconsider seeking mitigation under OAR 213-008-0002(1)(a)(B),(C), and (I), as well as OAR 213-008-0002(1)(a)(J)

• Although guidelines enumerated mitigating factors don’texpressly apply to misdemeanors, may use them inmisdemeanor cases by analogy

DA Diversion for Servicemembers• Enlarged diversion authority if defendant

• (1) Is a “servicemember,” (2) pays $100 program fee (unlesswaived); (3) not facing a DUII charge; (4) not previously participatedin DA diversion; (5) not charged with first-degree sexual abuse, orwith first- or second-degree rape, sodomy, or sexual penetration; (6)no “serious physical injury”; (7) not facing Class A or B felonyinvolving “physical injury”; and (8) not charged with a “domesticviolence” crime involving an alleged victim who has pendingprotective order against the servicemember

• For example, Unlawful Use of Weapon or Assault III would qualify

• In qualified domestic-violence cases, requires a guilty or no-contestplea and a diversion period of two years, instead of standard 270days (felony) or 180 days (misdemeanor). ORS 135.898


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DA Diversion for Servicemembers

• Inflexible DA in Lane County, cannot have a policy not to offerservicemember diversion in domestic violence cases.

• When determining “[t]he impact of diversion upon thecommunity,” ORS 135.886(2)(f), DA should consider theimpact on the servicemember’s military community, includingeffects on deployment. See Milikowsky, 65 at 8.

DUII Diversion Authority for Servicemembers

• Otherwise diversion eligible servicemembers could be denied DUIIdiversion owing to active-duty military obligations, because one yeardiversion period and 180 day limited extension. ORS 813.200 and813.225.

• ORS 813.220(12) prohibits courts from denying DUII diversion becauseof active-duty military service

• Courts have discretion to allow servicemembers as many extensions oftime of whatever length to complete DUII diversion agreement. ORS813.225(7)

• Courts also have discretion to allow servicemembers serving outside thestate to complete comparable treatment programs. ORS 813.233.

• ORS 813.225(4)(a)-(b) allows servicemember’s attorney to appear at thetermination hearing; appear by telephone, stay the proceeding.


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Collateral Consequences• Lautenberg Act qualifying conviction

• Felony or misdemeanor involving domestic violence

• Military Career (implications)• Crime / Officer versus enlisted

• VA Benefits and Apportionment• Disability compensation is reduced (felony and imprisoned for more than 60

days, 10% rate if more than 20% disabled, 5% rate of 10% disabled, can bereinstated upon release)

• Pension and health care suspended (61st day felony or misdemeanor)• Apportionment for Disability (must notify VA apportioned to family members)• Education and Health Care is limited

Bar Performance Standards• Board of Governors approved revision to standards, effective Apr. 25,

2015

• Under PDSC Standard III.5, authorized by ORS 151.216(1), compliancewith standards is a contractual obligation for PDSC-funded providers

• Revised standards include provisions proposed by bar’s Military &Veterans Law Section, including:

• Identify which clients are servicemembers

• Obtain military and (when applicable) VA records, including physical andmental health records, and seek expert assistance when applicable

• Seek diversion under special provisions for servicemembers

• Seek sentence mitigation under special provisions for servicemembers

• Avoid collateral consequences to military service


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Forthcoming Publication• In conjunction with the Oregon Criminal Defense Lawyers Association,

the VDRC will publish a practitioner’s manual titled Still at War: A Guidefor Defenders, Prosecutors, & Judges Dealing with Oregon’s Veteran-Defendant Crisis

• The manual will be dedicated to the “father” of the modern veterans-rights movement, Oregonian and World War I veteran Walter W. Waters

• The manual will cover approximately 16 topics, including thoseaddressed in this presentation, authored by defense attorneys, socialscience professionals, a circuit court judge, and a deputy districtattorney

• Projected release date is June 15, 2017

• Will be available for purchase in both “hard copy” and electronic formats

Forthcoming Publication


74

IN THE SUPREME COURT OF THE STATE OF OREGON

STATE OF OREGON, ) Yamhill County Circuit Court

) No. CR060548

Plaintiff-Respondent, )

Respondent on Review ) Court of Appeals

) No. A138184

vs. )

) Supreme Court

JAMES ANTHONY HARRELL, ) No. S059513

)

Defendant-Appellant, )

Petitioner on Review. )

BRIEF OF AMICUS CURIAE

Review of the Decision of the Court of Appeals on Appeal from a Judgment

of the Circuit Court for Yamhill County, the Hon. John L. Collins, Judge

Opinion filed: February 23, 2011

Author of opinion: Sercombe, Judge

Concurring: Ortega, Presiding Judge; and Landau, Judge Pro Tempore

PETER GARTLAN #870467

Chief Defender

ANNE FUJITA MUNSEY #994080

Senior Deputy Public Defender

1175 Court Street N.E.

Salem, OR 97301

Phone: (503) 378-3349

Attorneys for Defendant-Appellant

JOHN R. KROGER #077207 Attorney General MARY H. WILLIAMS # 911241 Solicitor General

ANNA M. JOYCE #013112 Assistant Attorney General

1162 Court Street N.E. Salem, Oregon 97301-4096

Phone: (503) 378-4402

Attorneys for Plaintiff-Respondent

JESSE WM. BARTON #881556

Attorney at Law

P.O. Box 5545

Salem, Oregon 97304

Phone: (503) 391-6283

On behalf of Amicus Curiae

The Bunker Project

6/11

_________________________________________________________________________________ John Haub - Amicus Brief by Jesse Barton on Behalf of The Bunker Project

75


---------------------------

TABLE OF CONTENTS

SUPPLEMENTAL STATEMENT OF THE CASE……………………………1

ARGUMENT OF AMICUS CURIAE…………………………………………..1

CONCLUSION…..……………………………………………………………14

TABLE OF AUTHORITIES

Cases

State v. Allery,

101 Wash 2d 591, 682 P2d 312 (1984) ............................................................. 4

State v. Janes,

121 Wash 2d 220, 850 P2d 495 (1993) ............................................................. 4

State v. Oliphant,

347 Or 175, 218 P3d 1281 (2009) ..................................................................... 3

State v. Wanrow,

88 Wash 2d 221, 559 P2d 548 (1977) ............................................................... 4

State v. Wheeler,

43 Or App 875, 604 P2d 449 (1979) ................................................................. 4

State v. Whitney-Biggs,

147 Or App 509, 936 P2d 1047,

rev den, 326 Or 43, 58 (1997) ........................................................................... 4

Tush v. Palmateer,

179 Or App 434, 39 P3d 943 (2002) ...............................................................11


76

ii

Statutes

ORS 161.195(1) ..................................................................................................12

ORS 161.195(2)(d) .............................................................................................12

ORS 161.209 ......................................................................................................... 3

Other Authorities

Barry Levin & David Ferrier, Defending the Vietnam Combat Veteran:

Recognition & Representation of the Military History & Background of the

Combat Veteran Legal Client (1989) ................................................................ 1

Dave Grossman, On Killing: The Psychological Cost of Learning to Kill in War

& Society (1995) ................................................................................................ 9

David Wood, Duty, Honor, Isolation: Military More & More a Force Unto

Itself, The Star Ledger (Newark, NJ), April 21, 1991 ....................................13

Erving Goffman, Asylums: Essays on the Social Situation of Mental Patients &

Other Inmates (1961) ........................................................................................ 7

Evan R. Seamone, Attorneys as First-Responder: Recognizing the Destructive

Nature of Posttraumatic Stress Disorder on the Combat Veteran’s Legal

Decision-Making Process,

202 Mil L Rev 144 (2009) ................................................................................. 6

In Country (Warner Bros. 1989) ........................................................................... 6

Katrina J. Eagle & Steve R. Binder, Veterans Facing Criminal Charges: How a

Community of Professionals Can Serve Those Who Served Our Country

Nevada Lawyer 16 (Nov. 2008) ........................................................................ 1

Melody Finnemore, Firestorm on the Horizon: Specialists Say Legal

Professionals Ill-prepared to Help Growing Populations of US Military

Members with Post-traumatic Stress Disorder,

Oregon State Bar Bulletin (Apr. 2010) ............................................................. 6

On War (Michael Howard & Peter Paret, ed. 1976) ..........................................14


77

iii

Paul Yingling, The Founders’ Wisdom,

Armed Forces Journal, Feb. 2010 ...................................................................13

Returning Home from Iraq & Afghanistan: Preliminary Readjustment Needs of

Veterans, Service Members, & Their Families,

Institute of Medicine (2010) ............................................................................13

Shepherds of Helmand (Lucky Forward Films 2010) .......................................... 6

The Best Years of Our Lives (Samuel Goldwyn Co. 1946) .................................. 6

The Hurt Locker (Voltage Pictures 2008) ............................................................ 6

The Man in the Gray Flannel Suit (20th Century Fox 1955) ............................... 6

William B. Brown, Another Emerging “Storm”: Iraq & Afghanistan Veterans

with PTSD in the Criminal Justice System,

Justice Policy Journal, Fall 2008 ...................................................... 7, 8, 10, 11

William B. Brown, From War Zones to Jail: Veteran Reintegration Problems,

Justice Policy Journal, Spring 2011 ......................................................... 13, 14

William B. Brown, War, Veterans & Crime,

in Transnational Criminology (Prof. Martine Herzog-Evans,

Univ. of Reims, France, ed. 2010) ................................. 5, 6, 7, 8, 9, 10, 11, 12

www.oregonlive.com/news/index.-

ssf/2009/04/oregon_guard_schedules_may_mob.html ...................................11


78


---------------------------

SUPPLEMENTAL STATEMENT OF THE CASE

Undersigned counsel files this Brief of Amicus Curiae on behalf of The

Bunker Project—an entity whose primary goal is assisting veterans, veterans‟

families, and legal practitioners who represent veterans and their families to

achieve the best possible results in judicial and other legal proceedings. As

explained in its motion to appear, The Bunker Project is aligned with the

interests of defendant James Anthony Harrell.

ARGUMENT OF AMICUS CURIAE

“All too often we read about returning Iraq and Afghanistan war

veterans facing criminal charges for offenses, the origin of which

may well be related to their military training, experience or battle

trauma. Sadly, the first time the veteran is forced to confront his or

her problem(s) often is when he or she is already caught up in the

criminal justice system.”

Katrina J. Eagle & Steve R. Binder, Veterans Facing Criminal Charges: How a

Community of Professionals Can Serve Those Who Served Our Country,

Nevada Lawyer 16 (Nov. 2008).1

Defendant Harrell‟s case presents what may be this court‟s first of the

type that Eagle and Binder described—one involving a veteran of the Global

1 See also Barry Levin & David Ferrier, Defending the Vietnam

Combat Veteran: Recognition & Representation of the Military History &

Background of the Combat Veteran Legal Client (1989).


79

2

War on Terror, who is facing criminal charges for offenses whose origin is

related to his military training and experience.

Harrell is from a military family (both his parents served in the United

States Army). During the three-year period after his high school graduation in

1999, Harrell served on active duty, including with the Army‟s 3rd Infantry

Division. Immediately after his honorable discharge in 2002, Harrell enlisted in

the Oregon Army National Guard. In late 2004, his prior unit, the 1-82 Cavalry

Regiment, was called onto active duty for deployment to Iraq. Although

Harrell‟s primary military occupational specialty (MOS) is as an armor (tank)

crewman, in Iraq he served as an infantryman. After the 1-82 completed its

deployment in February 2006, Harrell again was honorably discharged from

active duty. He now serves as an infantry sergeant with the 3-116 Cavalry

Regiment.

But Sgt. Harrell also faces a judgment of conviction and sentence that

would imprison him for 70 months. The judgment results from an incident in

McMinnville in September 2006, when Sgt. Harrell used a small folding knife

to injure an intoxicated man who picked a fight with Sgt. Harrell and threatened

Harrell‟s friends. The man later forgave Sgt. Harrell and testified for the

prosecution only because he was subpoenaed.

Sgt. Harrell grounded his self-defense claim on his military training and

experience. He testified that in the face of his adversary‟s provocation, he


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3

“defend[ed] himself as he had been trained to do in Iraq.” App Br at 10 (citing

Tr 412-13). The issue on appeal is whether, after the jury expressed confusion

with Sgt. Harrell‟s self-defense claim, the trial court erred in denying his jury

waiver, and then declined to effectuate its own (provisional) verdict of not

guilty on all counts.2

The pertinent self-defense statute provides in relevant part:

“Except as provided in ORS 161.215 and 161.219, a person

is justified in using physical force upon another person for self-

defense * * * from what the person reasonably believes to be the

use or imminent use of unlawful physical force, and the person

may use a degree of force which the person reasonably believes to

be necessary for the purpose.”

ORS 161.209 (emphasis added).

This statute‟s focus on the reasonable belief of “the person” who used

physical force “establishes that, in general, a person‟s right to use force in self-

defense depends on the person‟s own reasonable belief in the necessity for such

action[.]” State v. Oliphant, 347 Or 175, 191, 218 P3d 1281 (2009) (court‟s

emphasis). As the Washington Supreme Court has explained, this type of self-

defense statute requires presenting the jury

“facts and circumstances * * * to the end that they could put

themselves in the place of the appellant, get the point of view

which he had at the time of the tragedy, and view the conduct of

2 Although Sgt. Harrell grounded his self-defense claim on his

military training and experience, the Court of Appeals opinion does not mention

his military background. The opinion thus overlooks a crucial factual aspect of

the case.


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4

the [deceased] with all its pertinent sidelights as the appellant was

warranted in viewing it. In no other way could the jury safely say

what a reasonably prudent man similarly situated would have

done.”

State v. Wanrow, 88 Wash 2d 221, 235-36, 559 P2d 548 (1977) (internal

quotations omitted). Accord State v. Wheeler, 43 Or App 875, 879, 604 P2d 449

(1979) (where defendant claimed defense of another, trial court erred in

excluding testimony about his awareness of a husband‟s violent temper and

previous violence against his wife; such evidence was relevant to whether the

defendant could have reasonably believed that the husband was about to assault

his wife). Cf. State v. Whitney-Biggs, 147 Or App 509, 528, 936 P2d 1047, rev

den, 326 Or 43, 58 (1997) (specific acts of violence by victim, which were

unknown to defendant at time of his crime, were not admissible to bolster self-

defense claim).

Because the jury views the facts from the defendant‟s “own” “point of

view,” the defendant may present facts particular to him or herself. For

example, the defendant may present facts that he or she suffers from battered-

child syndrome, or from battered-spouse syndrome, to establish that his or her

use of force was reasonable. See, e.g., State v. Janes, 121 Wash 2d 220, 850

P2d 495 (1993); State v. Allery, 101 Wash 2d 591, 594, 682 P2d 312 (1984).


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5

Sgt. Harrell‟s own point of view is that of a soldier trained for and tried

in the crucible of combat. This implicates the admonitions of Eagle and Binder,

and of The Bunker Project‟s executive director, Prof. William B. Brown3:

“[C]riminal justice systems must understand that veteran

defendants are distinct from non-veteran defendants. * * *

[P]rosecutors, in their rhetoric about supporting veterans must

desist ignoring [post-traumatic stress disorder (PTSD)] and the

ramifications accompanying that psychological disorder. * * *

[Defense] attorneys must learn more about the influence the

military total institution has had on their veteran clients. * * *

[J]udges must develop a comprehensive understanding of veteran

defendants and consider alternatives for treatment as opposed to

punishment.”

William B. Brown, War, Veterans & Crime, in Transnational Criminology 614

(Prof. Martine Herzog-Evans, Univ. of Reims, France, ed. 2010) (emphasis

added).

The phrase emphasized in Brown‟s admonition—“the military total

institution”—is key to understanding Sgt. Harrell‟s self-defense claim. Much

has been written about how service-connected PTSD so “often leads [veteran-

defendants] to * * * criminal behavior.” Evan R. Seamone, Attorneys as First-

Responder: Recognizing the Destructive Nature of Posttraumatic Stress

Disorder on the Combat Veteran’s Legal Decision-Making Process, 202 Mil L

3 In his Motion—Appear Amicus Curiae, undersigned counsel

summarizes Brown‟s qualifications for involvement in veteran-defendant cases

such as this one.


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6

Rev 144, 155 (2009).4 See also Melody Finnemore, Firestorm on the Horizon:

Specialists Say Legal Professionals Ill-prepared to Help Growing Populations

of U.S. Military Members with Post-Traumatic Stress Disorder, Oregon State

Bar Bulletin (Apr. 2010).5 Indeed, for decades even popular culture has

explored the challenges that veterans suffering from service-connected PTSD so

frequently face when they reenter civilian society.6

But outside of Brown‟s work, far less has been said “about the influence

[that] the military total institution” has on veterans when they reenter civilian

society.7 War, Veterans & Crime at 614 (emphasis added). Brown‟s seminal

work on the subject is William B. Brown, Another Emerging “Storm”: Iraq &

4 Discussions of service-connected PTSD typically focus on combat

veterans, see, e.g., Seamone, 202 Mil L Rev at 154, but other veterans suffer

from it, too. Consider, for example, a female veteran who was a victim of

military sexual assault while serving stateside. She is not a combat veteran, but

she very well may suffer from the version of service-connected PTSD called

“military sexual trauma.”

5 Available at www.osbar.org/publications/bulletin/10apr/firestorm.-

html.

6 Examples include the characters of Emmett Smith (Bruce Willis)

in the Norman Jewison film, In Country (Warner Bros. 1989); Tom Rath

(Gregory Peck) in the Nunnally Johnson film, The Man in the Gray Flannel

Suit (20th Century Fox 1955); and Fred Derry (Dana Andrews) in the William

Wyler film, The Best Years of Our Lives (Samuel Goldwyn Co. 1946).

7 The Kathryn Bigelow film, The Hurt Locker (Voltage Pictures

2008), explores this topic a bit. But the film‟s catchphrase, “war is a drug,”

clarifies that its focus is on war‟s addictive quality. Shepherds of Helmand

(Lucky Forward Films 2010) also explores the topic. But that documentary

mostly is limited to examining the efforts of 17 soldiers from Oregon‟s 2-162

Infantry Regiment to train Afghan soldiers in the military total institution.


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7

Afghanistan Veterans with PTSD in the Criminal Justice System, Justice Policy

Journal, Fall 2008, which was published after Sgt. Harrell‟s 2007 trial.8

Brown explains the “total institution” concept generally:

“A total institution is a place of residence and work where

significant numbers of like-situated individuals, who are isolated

from the wider society for a substantial period of time, together

lead an enclosed, formally administered life. The basic

characteristics germane to any total institution include: (1) all

components of an individual‟s life occur in the same place or

setting; (2) large numbers of people are treated nearly or exactly

the same; (3) all stages of the individual‟s day and night are tightly

scheduled and monitored; and (4) all participants are required to

accept and adapt to the total institution‟s cultural expectations and

standards.”

Brown, War, Veterans & Crime at 608 (citing Erving Goffman, Asylums:

Essays on the Social Situation of Mental Patients & Other Inmates (1961)).

Brown then applies the total institution concept to the military

specifically. Total institution “characteristics,” Brown explains, “are prevalent

in all military institutions throughout the world.” Id. Military institutions

“require complete control of the [military] recruit‟s entire being,

and replacement of the recruit‟s civilian cultural beliefs and

responses. * * * The military total institution requires the

modification of the thought processes of its civilian inductees to

meet the needs and the goals of the military. Principles and values

acceptable within the civilian environment are generally not

beneficial to the military milieu. On the other hand, a good

8 Available at: http://www.cjcj.org/files/another_emerging.pdf.


85

8

soldier‟s principles, which are artefacts of the military total

institution, are not always favourable to the civilian environment.”9

Id. at 609 (citing Brown, Another Emerging “Storm”).

Brown further explains,

“Four indispensable factors—obedience, discipline, survival,

and sacrifice—sustain the foundation of the Military Total

Institution. * * *

“Recruits are placed in stressful situations where they are

forced to make decisions. The punishment is generally more severe

for those recruits who cannot or will not make a decision. The

logic is that a bad decision is better than no decision.”

Id. at 610.

In the context of Sgt. Harrell‟s situation, this leads to the military total

institution‟s most significant feature:

“Trainees [recruits] are conditioned to select the fight option, as

opposed to the flight option, when confronted with dangerous or

stressful circumstances. Recruits are trained to respond

instantaneously and aggressively to any and all perceived or real

dangerous circumstances or confrontations without hesitation.

Failure to comply typically results in punishment ranging from

individual humiliation to physical exploitation. * * *

“Weapons training, with the emphasis on defensive and

offensive responses, is a primary function of military training. For

those trained extensively in the use of weapons, the more likely the

weapon will be used instantaneously in a time of threat. For many

military personnel, resorting to the use of a weapon is similar to a

professional table tennis player who automatically reacts when an

opponent hits the ball. * * * Recruits trained in combat arms MOS

classifications must demonstrate high levels of obedience and

9 The reason some of the words are spelled in an odd fashion—e.g.,

“artefacts” and “favourable”—is that the publisher of War, Veterans & Crime is

European.


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9

discipline, they must develop skills to insure their own survival

and the survival of others in their units, and recognize the

importance and develop their willingness to make sacrifices in

order to insure that the goals and mission of the military total

institution are met—defeat the enemy.[10]

“For many veterans, particularly those veterans who have

participated in combat, their military total institution experiences

are embedded for life. Similar to PTSD, for which there is no cure,

the experiences acquired in the military total institution become[]

part of the baggage that many veterans will carry as they navigate

through their reintegration process back into the civilian culture.

Many veterans are not aware of that baggage until they become

homeless, involved in a domestic violence situation, or a

defendant in the criminal justice system.”

Id. at 610-11 (emphasis added; citing Dave Grossman, On Killing: The

Psychological Cost of Learning to Kill in War & Society (1995)).

In his earlier work, Brown addressed these features of military training in

colloquial terms—as a “reprogramming” of recruits, from civilian to soldier—

that largely is not followed by a “deprogramming”—from soldier back to

civilian after the individual leaves the military. Brown explains:

“Following release from military service many veterans experience

a „software‟ problem—the „software‟ that was installed while they

were in the military often does not work in a civilian landscape.

Human beings develop a mental process that assists them in

making decisions that typically result in responses to a variety of

social stimuli. This process is constructed as they learn social

customs, values, and beliefs. Killing another human being, for

10

This parallels von Clausewitz‟s statement: “The end for which a

soldier is recruited, clothed, armed, and trained, the whole object of his

sleeping, eating, drinking, and marching, is simply that he should fight at the

right place and the right time.” On War 95 (Michael Howard & Peter Paret, ed.

1976).


87

10

example, is considered an unnatural act in the civilian

environment. In the military, killing is viewed differently—killing

becomes a more natural act that enhances the likelihood of survival

and advances the probability that the military will succeed in its

mission. When civilians are inducted into the military it is

imperative that their thought processes be converted to facilitate

the needs of the military. Acceptable civilian principles are not

necessarily beneficial to the military. Conversely, a good soldier‟s

principles, created in the military total institution, are not

necessarily acceptable or advantageous in mainstream society.”

Brown, Another Emerging “Storm” at 18.

Applying these concepts to the present situation, Brown explains that Sgt.

Harrell‟s primary MOS was tank crewman, but that

“while serving in Iraq his primary role was * * * Infantryman.

Both of these MOS classifications are components of the combat

arms branch of the military. Veterans [such as Sgt. Harrell] who

have earned either of these MOS classifications are more likely to

experience civilian reintegration problems—particularly when they

have been exposed to combat situations. They are more likely to

experience hyper vigilance, and be aware of perceived threats or

hazards. Moreover, they are more likely to respond instantaneously

to perceived threats or hazards. They were trained and conditioned

to understand that hesitation is much more serious than making a

wrong decision. This is particularly true when another soldier or

anyone they know or feel responsible for is confronted with a

threat or hazard.”11

This paragraph shows that Sgt. Harrell‟s situation essentially “fits to a

tee” the veteran that Brown describes in War, Veterans & Crime and in Another

11

The Bunker Project‟s Motion—Appear Amicus Curiae explains

that about two years ago, Sgt. Harrell‟s appellate counsel, Anne Fujita Munsey,

retained Brown for expert-consultant services in her then on-going effort to

move this case into the Appellate Settlement Conference. The preceding

paragraph is a summary of the social history of Sgt. Harrell that Brown

prepared for Munsey. Amicus includes the summary with permission from

Munsey.


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11

Emerging “Storm”. Sgt. Harrell functions in two parts of the Army‟s combat

arms branch (armor and infantry). Those functions demand of him a high

competence with and the capacity to use weapons. Sgt. Harrell was deployed

with the 1-82 Cavalry to a combat zone (Iraq). Not long after his honorable

discharge following combat deployment, Sgt. Harrell found himself and persons

he felt “responsible for confronted with a threat or hazard.” He “defend[ed]

himself as he had been trained to do in Iraq.” App Br at 10 (citing Tr 412-13).

Cf. Tush v. Palmateer, 179 Or App 434, 441-42, 39 P3d 943 (2002) (in absence

of evidence that petitioner suffered from PTSD, testimony regarding the effects

of such disorder would have been irrelevant in his criminal prosecution).

It bears mentioning that during the seven-month interval between his

combat deployment in Iraq and his combat in McMinnville, Sgt. Harrell could

not and should not have shed the “baggage” from his training and experience in

the military total institution. When he came off active duty, Sgt. Harrell did not

become a civilian. Instead, he remained a tank crewman/infantryman with the

1-82 Cavalry at a time when his unit could be redeployed to Iraq or

Afghanistan.12

To be sure, the “good soldier‟s principles” and “artefacts” that

Sgt. Harrell previously had embraced were not “favourable to the civilian

environment” in which he found himself. Brown, War, Veterans & Crime at

12

As part of Oregon‟s 41st Infantry Brigade Combat Team, the 1-82

participated in the 41st IBCT‟s spring 2009 deployment to Iraq (which was the

state‟s single largest deployment since World War II). See www.oregonlive.-

com/news/index.ssf/2009/04/oregon_guard_schedules_may_mob.html.


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12

609. But he could not and should not have shed those principles and artefacts,

because as a combat-arms soldier with the 1-82 Cavalry, he still was part of the

military total institution. Had he shed those principles and artefacts, he would

have risked his “own survival and the survival of others in” any future

redeployment, thus detracting from his duties as a soldier “to insure that the

goals and mission of the military total institution [would be] met—defeat the

enemy.” Id. at 611.

Interestingly, the criminal code itself recognizes that if the man Sgt.

Harrell faced in McMinnville had been an enemy combatant, Sgt. Harrell would

have had a complete defense to criminal prosecution. See ORS 161.195(1)

(“conduct which would otherwise constitute an offense is justifiable and not

criminal when it is required or authorized by * * * [(2)](d) [l]aws governing the

military services and conduct of war”). But because Sgt. Harrell faced a

civilian, rather than an enemy combatant, he was prosecuted and convicted, and

now faces extended imprisonment. By comparison, if Sgt. Harrell‟s jury had

comprehended his self-defense claim, based as it was on the “good soldier‟s

principles”—those “artefacts of the military total institution,” Brown, War,

Veterans & Crime at 609, that Sgt. Harrell first embraced in 1999 (and still

embraces today)—his jury might very well have given him the same sort of

consideration found in ORS 161.195(1) and (2)(d).


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13

To be fair, the jury‟s lack of comprehension is understandable. Observers

have long recognized that owing to the nation‟s decades-old commitment to an

all-volunteer force (AVF), the military largely has become “a self-contained

society, one with its own solemn rituals, its own language, its own system of

justice, and even its own system of keeping time.” David Wood, Duty, Honor,

Isolation: Military More & More a Force Unto Itself, The Star Ledger

(Newark, NJ), April 21, 1991, at 1. Simultaneously, the AVF has permitted

virtually the entirety of American society to avoid military service. For

example, a scant .006 percent of the nation‟s population has fought its nearly

decade-old Global War on Terror. See William B. Brown, From War Zones to

Jail: Veteran Reintegration Problems, Justice Policy Journal, Spring 2011,13

at

38 (citing Returning Home from Iraq & Afghanistan: Preliminary Readjustment

Needs of Veterans, Service Members, & Their Families, Institute of Medicine

(2010)). Owing to its reliance on such a tiny sliver of the population to fight

such an extended war, the nation has adopted the so-called “backdoor draft”—

i.e., “stop-loss policies or an endless cycle of year-on, year-off deployments of

overstressed and exhausted forces.” Paul Yingling, The Founders’ Wisdom,

Armed Forces Journal, Feb. 2010.14

13

Available at http://www.cjcj.org/files/From_war.pdf.

14

Available at http://armedforcesjournal.com/2010/02/4384885/.


91

14

Thus, modern American society is almost wholly detached from direct

military experience. As a consequence, it is understandable that the jury failed

to comprehend (i) how “the effect of social experiences and influences acquired

within the” military total institution affected Sgt. Harrell‟s own “behavior

and/or state of mind at the time of the alleged crime,” Brown, From War Zones

to Jail at 7; and (ii) how to take those experiences and influences into account

“when determining [Sgt. Harrell‟s] guilt or innocence.” Id.

Since 1999, Sgt. Harrell has been always ready to meet his duty to

answer his nation‟s call to “fight at the right place and the right time.” On War

95 (Michael Howard & Peter Paret, ed. 1976) . The jury‟s confusion over his

service-connected self-defense claim informed the trial court of its own duty—

i.e., to accept his jury waiver and to effectuate its (provisional) verdicts of not

guilty. The court erred when it declined to do so.

CONCLUSION

For the reasons set forth above, amicus curiae The Bunker Project asks

that the court allow review of Sgt. Harrell‟s petition for review, and that the

court order the relief that Sgt. Harrell seeks in his petition.

Respectfully submitted,

s/Jesse Wm. Barton

JESSE WM. BARTON #881556

Attorney at Law

Attorney for Amicus curiae

The Bunker Project


92

Panel Discussion on

Community Services & Resources for Veterans

Marie Ramage Veterans’ Service Officer (VSO)

Multnomah County Veterans’ Services Office 412 SW Oak Street, Suite 510

Portland, OR 97204

503-988-8387 [email protected] multco.us/veterans-services

Peggy Kuhn, LCSW Veterans Justice Outreach Specialist

VA Portland Health Care System 3710 SW U.S. Veterans Hospital Road, V3SATP

Portland, OR 97239

503-220-8262 ext. 33839 [email protected]

Martin Ornelas Portland Claims Office Manager

Oregon Department of Veterans’ Affairs 101 SW Main Street, 2nd Floor

Portland, OR 97204


oregon.gov/odva

_________________________________________________________________________________ Panel Discussion

93

_________________________________________________________________________________ Marie Ramage - VSO Overview

94

_________________________________________________________________________________

Marie R

amage - V

SO

Pam

phlet

95

_________________________________________________________________________________

Marie R

amage - V

SO

Pam

phlet

96

A

Our Mission:

The Veterans Justice Outreach (VJO)

program assists Veterans who have

contact with the criminal justice

system through courts, law

enforcement, or jails. We strive to

ensure that these justice-involved Vet-

erans have timely access to Veterans

Health Administration (VHA) services,

as clinically indicated.

Veterans Justice

Outreach Program

VA Portland Health Care System

Justice Outreach Process

Justice Outreach Specialist

How to Contact us:

Peggy Kuhn, LCSW

Aaron Baxter, LCSW, JD

Matthew Byrge, LCSW

Phone: 503-721-1025

Fax: 360-750-5373

8/2016 648PA#O0024

Public Defender

Prosecutor

Veteran’s Service Officer

VISN Reentry Specialist

Jail Outreach

VA Staff

Substance Abuse Treatment

Mental Health Treatment

VA Housing Resources

Primary Healthcare

Veterans Service Officers

Vocational Rehabilitation

_________________________________________________________________________________

Peggy K

uhn, LCS

W - V

JO P

rogram P

amphlet

97

VJO Initiative

Department of Veterans Affairs

(VA) has committed to preventing

incarceration and reducing

recidivism among Veterans

through the development of the

Veterans Justice Outreach (VJO)

Program.

The VJO initiative is to avoid

unnecessary criminalization of

mental illness and extended

incarceration among Veterans by

ensuring that eligible Veterans in

contact with the criminal justice

system have access to VA mental

health, substance abuse, housing,

and medical services.

VJO Scope of Practice

VJO CAN:

1. Assess Veteran’s needs and ID

appropriate VA and some non-VA

services.

2. Refer and link qualified Veterans to

appropriate VA services.

3. Liaise between VA and courts,

attorneys, and community

partners.

VJO CANNOT:

1. Provide any legal advice

2. Perform forensic psychological

evaluations for the court.

3. Accept custody of a Veteran.

4. Guarantee VA program

acceptance.

Areas of Focus

Courts & Attorneys: Provide

information and education to

attorneys and courts about VA

services available to eligible

Veterans as well as education on

Veteran issues such as PTSD & TBI.

Develop, implement, and

participate in Veterans courts.

Law enforcement: Provide training

to local law enforcement on

Veterans issues. Collaborate on

strategies to effectively help

Veterans who come into contact

with law enforcement.

Jails: Collaborate with jails to

identify incarcerated Veterans who

are eligible for VA services. Assist

eligible Veterans to engage in VA

services upon their release.

VJO does NOT provide legal advice

Veterans Justice Outreach

_________________________________________________________________________________

Peggy K

uhn, LCS

W - V

JO P

rogram P

amphlet

98

OREGON DEPARTMENTVETERANS' AFFAIRS

STATE AND FEDERAL BENEFIT RESOURCE GUIDE FOR VETERANS AND FAMILY

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_________________________________________________________________________________ Martin Ornelas - ODVA Benefits Magazine

99

____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

_________________________________________________________________________________ Panel Discussion - Notes

100

____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________


101

____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________


102

Resources for Veterans

Organization & Contact Information Services

COMMUNITY RESOURCES

A Home for Every Veteran

211Info: dial 211

CRRC: 503-808-1256

Multnomah County Veterans’ Services: 503-988-VETS (8387)

Transitions Project: 855-425-5544

Partners with other organizations to assist veterans in:

Requesting assistance to find permanent housing

Applying for VA and non-VA benefits Accessing safety services while

looking for housing

More info on CRRC, Multnomah County Veterans’ Services, and Transitions Project below.

The Bunker Project

503-566-3771 or 855-220-3020

[email protected]

www.thebunkerproject.org

1775 32nd Place NE

Salem, OR 97301

The Bunker Project helps veterans identify that programs that best meet their individual needs, and then provides referrals to veterans and their families for services such as:

Educational assistance Access to veterans services Civilian career opportunities Legal referrals

Cedar Hills Hospital – The Military Program

503-413-9779 or 877-601-5303

www.cedarhillshospital.com/military

In-patient care:

10300 SW Eastridge Street

Portland, OR 97225

Out-patient services:

1815 SW Marlow Avenue, Suite 218

Portland, OR 97225

Cedar Hills’ The Military Program is a specialized mental health and substance abuse treatment program for military members, veterans, and military families; specializations include:

Substance use, abuse, or dependence

Depression Military sexual trauma Combat induced PTSD/trauma Military related chronic pain Co-occurring mental health and

substance abuse issues

_________________________________________________________________________________ Resources for Veterans

103


Center for Women Veterans Health

503-220-8262 or 800-949-1004

ext. 52939

www.portland.va.gov/wvhc.asp

Portland VA Medical Center 3710 SW U.S. Veterans Hospital Road

Portland, OR 97239

Medical services such as:

Primary Care – general care and gender specific primary care

Mental Health – Including PTSD Military Sexual Trauma – counseling

and treatment for mental and physical health conditions related to MST

Reproductive Health Care Rehabilitation, Homebound & Long-

Term Care

Metropolitan Public Defender Services – Veteran’s Project

503-225-9100

(Ask to speak with Chelsey Cornell, the Legal Assistant of the program)

Contact:

www.mpdlaw.com/?q=/contactveterans

Website: www.mpdlaw.com/?q=veteransproject

630 SW 5th Avenue, Suite 500

Portland, OR 97204

Metropolitan Public Defender Veteran’s Project provides high-quality legal services to help eligible veterans overcome legal barriers they sometimes face in finding and retaining stable and permanent housing. Legal services include:

Landlord-Tenant Advocacy Public Benefit Issues VA Guardianship Review Family Law Issues VA/SSA Disability Disputes Outstanding Warrants/Fines (Oregon

and outside Oregon) Driver's License Issues Debt & Bankruptcy Advice Expungements (Sealing of an

Oregon Conviction) Restraining Order and Stalking Order

Advocacy Relief from Sex Offender Registration Public Transport Exclusions

Other services provided by SSVF case managers via Transitions Projects (see below for more information):

Assistance with housing search Assistance with employment search Assistance in finding transportation Connection with local support

services


104


Multnomah County – Veterans’ Services Office (VSO)

503-988-VETS (8387)

[email protected]

www.multco.us/veterans-services

Main office:

421 SW Oak Street, Suite 510

Portland, OR 97204

The VSO provides benefits information, assistance, and advocacy to all who have served and their families for the following:

VA benefits counseling VA health care enrollment assistance Claims preparation, submission &

follow-up to ensure final decisions Initiate and develop appeals on

unfavorable VA decisions when appropriate to include representation at VA hearings

Networking and advocacy with federal, state, and local agencies

Justice involved outreach

Returning Veterans Project

503-954-2259

www.returningveterans.org

833 SE Main, MB 122

Portland, OR 97214

Returning Veterans Project provides free health and wellness services to post-9/11 war zone veterans, including:

Mental Health/Counseling Drug & Alcohol Counselors (CADC I,

CADC II & CADC III) Primary Care Services Physical & Occupational Therapy Speech Language Pathology Chiropractic & Naturopathic Medicine Acupuncture & Massage Therapy Music, Art, & Equine Therapy

Transitions Projects – Supportive Services for Veteran Families (SSVF)

855-425-5544

(Multnomah, Clackamas & Washington Counties)

www.tprojects.org/help/veterans

Day Center:

650 NW Irving Street

Portland, OR 97209

Transitions Projects offers housing case management to low-income veterans and their families who are homeless or in imminent danger of becoming homeless; services offered:

Shelter Short-term residential programs Rapid rehousing Prevention services Access to legal assistance Income development Benefits advocacy Tenant education courses Assistance in accessing mainstream

VA services


105


Veterans’ Community Resources & Referral Center (CRRC)

503-808-1256

Portland VA Medical Center

308 SW 1st Avenue

Portland, OR

CRRC is a community-based resource and referral center that provides access to both VA and community services, including:

Medical, mental health, and substance abuse treatment, including on-site primary care

Housing programs Employment programs On-site compensation and pension

exams Computer and phone access Clothing and hygiene items

NATIONAL & ON-LINE RESOURCES

National Call Center for Homeless Veterans

877-4AID-VET (424-3838)

va.gov/homeless/nationalcallcenter.asp

The National Call Center for Homeless Veterans provides trained counselors to call or chat with veterans who are homeless or at risk of homelessness..

National Center for PTSD

ptsd.va.gov

The National Center for PTSD is dedicated to research and education on trauma and PTSD and works to assure that the latest research findings help those exposed to trauma.

Veterans Crisis Line

Call 800-273-8255 or text to 838255

The Veterans Crisis Line provides free and confidential support to veterans and their loved ones even if they are not registered with the VA or enrolled in VA health care.


106

ARE YOU A HOMELESS VETERAN?

A VETERAN AT RISK OF BECOMING HOMELESS?

Access A Home for Every Veteran partners to:

Request assistance to find permanent housing

Apply for VA and non‐VA benefits

Access safety services while looking for housing

CALL 211Info Dial 211

Transition Projects Veterans Hotline (855) 425‐5544

Multnomah County Veterans’ Services 503‐988‐VETS (8387) Email: [email protected]

Call or email any time to schedule appointment or see walk‐in hours in left column.

Veterans Crisis Line (800) 273‐8255

Call Center for Homeless Veterans (877) 424‐3838

Multnomah County Veterans’ Services Aging, Disability & Veteran Services Helpline (503) 988‐3646

DROP IN VA Community Resource & Referral Center (CRRC) 308 SW 1st Ave, Portland ‐ (503) 808‐1256 Weekdays 8:00 am – 3:00 pm, Thursdays 10am ‐ 3pm

Transition Projects Day Center at Bud Clark Commons, 650 NW Irving Street Mon‐Fri 7 am – 7 pm Weekends 8am – 4pm

Multnomah County Veterans’ Services at Lincoln Building 421 SW Oak Street, Portland

First Wed. of the Month Second Tues. of the Month 12:30 PM – 4:00 PM 1:00 PM – 4:00 PM

Third Wed. of the Month Fourth Tues. of the Month 1:00 PM – 4:00P M 8:00 AM – 11:30 AM

at CRRC 308 SW 1st Ave, Portland Every Friday 9:00 AM – 12:00 PM

at East Area Office 600 NE 8th St., Room 100, Gresham First Friday of the Month Third Friday of the Month 8:30 AM – 11:30 AM 1:00 PM – 3:30 PM

WE CAN HELP


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esources for Veterans

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Hospital: 10300 SW Eastridge Street

Portland, OR 97225

(877) 601-5303

Outpatient Services: 1815 SW Marlow Avenue, Suite 218

Portland, OR 97225

(971) 228-8000


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The Military Program is a specialized mental health and substance abuse treatment program for military

members, veterans, and military families. Specializations include combat induced PTSD / trauma, addiction,

co-occurring disorders, and military related chronic pain.

Our website has helpful information for service members and families. We are available 24/7 to accept referrals

and admissions to The Military Program. To learn more, please contact our 24/7 International Call Center at

877-601-5303 or visit our website at CedarHillsHospital.com/military to obtain more information.

Our specialized inpatient military programs can require a length of stay from seven days to six weeks.

Programs for family members and veterans vary. All of our programs are provided in a safe and secure

environment. Some liberties will be restricted to provide safety for all service members. Most service members

are able to focus on their treatment goals in spite of these limitations. While in a long-term military program,

service members who are safe to leave the unit under supervision may do so as part of planned group

therapeutic outings. They must have a physician’s order. Permission to participate in outings can be revoked at

any time if safety concerns arise.

Cedar Hills Outpatient Services provides partial hospitalization and intensive outpatient programs for patients,

family members and Veterans who are local to the Portland Metro Area. You can learn more about the

outpatient program at cedarhillshospital.com/outpatient.

Cedar Hills Hospital and Outpatient Services is an in-network provider for TRICARE and the VA Patient

Centered Community Care Program through TriWest Healthcare Alliance.

For additional assistance please call our Military Admissions Coordinator, Mr. Jobriath Morgan MSW, toll free

at 877-601-5303.

For program specifics, to arrange for on-site presentations / visits, or tours of our programs and facilities call the

Military Liaison, Mr. Greg Walker, at 503-413-9779, Monday – Friday (PST).


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http://www.cedarhillshospital.com/military

http://www.cedarhillshospital.com/military

http://www.cedarhillshospital.com/outpatient

http://www.cedarhillshospital.com/outpatient

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Youcanalwayscall503-988-VETSoremailusatveteran.services@multco.ustoscheduleanappointment

tomeetwiththeVeterans’ServiceOfficer

Walk-In Hours

LincolnBuilding421SWOakStreet,Portland,OR97204

FirstWednesdayoftheMonth1:00PM–4:00PMSecondTuesdayoftheMonth1:00PM–4:00PMThirdWednesdayoftheMonth1:00PM–4:00PMFourthTuesdayoftheMonth8:00AM–11:30AMEveryFriday9:00AM–12:00PM

EastAreaOffice600NE8thStreet,Room100,Gresham,OR97030

FirstFridayoftheMonth8:30AM-11:30AMThirdFridayoftheMonth1:00PM-3:30PMSecondTuesdayoftheMonth1:00PM–3:30PMFourthTuesdayoftheMonth1:00PM-3:30PM


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mailto:[email protected]


Youcanalwayscall503-988-VETSoremailusatveteran.services@multco.ustoscheduleanappointment

tomeetwiththeVeterans’ServiceOfficer

North/NorthEastAreaOffice5325NEMartinLutherKingBlvd,Portland,OR97211

EveryFriday1:00AM–4:00PM

PortlandVAMedicalCenter3710SWUSVeteransHospitalRdPortland,OR97239

Bldg101,Room121Monday,Tuesday,Thursday,&Friday1:00PM-3:30PM


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503-808-1256

Or

1-800-949-1004 Ext: 51256

Business Hours:

Monday, Tuesday, Wednesday & Friday

7:30AM - 4:30PM

Thursday

10:00AM - 4:30PM

Walk-in Intakes:

Weekdays 8:00AM - 3:00PM

Thursdays 10:00AM - 3:00PM

OR

CRRC ANNEX

Vancouver Campus

1601 E Fourth Plain Blvd.

Vancouver, WA 98661

Bldg. 18

Business Hours:

Monday - Friday

8:00AM - 4:30PM

Walk-in Intakes

Monday 8:00AM-3:00PM

Thursday 10:00AM-3:00PM

Vancouver Annex offers

Social Work Services & Referrals only

Veterans

Community Resource &

Referral Center (CRRC)

August 2015

VA Portland Health Care System

3710 SW US Veterans Hospital Rd.

Portland, OR 97239

503-220-8262 or 1-800-949-1004

V e t e r a n s C o m m u n i t y R e s o u r c e & R e f e r r a l C e n t e r ( C R R C )

308 SW 1st Ave.

Portland, OR 97204

Services for Veterans who

are experiencing

homelessness

or at risk of being

homeless

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A community–based resource and

referral center that provides access

to both VA and community services.

The CRRC Can Help

Access Services to Help

Prevent or End Homelessness

What is the CRRC?

Who is eligible?

Veterans (and their families) who

are homeless or at risk of becoming

homeless.

What if I am not eligible for medical care at the VA?

You still might be eligible for the

grant & per diem program or

community services.

CRRC Services:

Short-Term Case Management

On-Site Primary Care

Access to Medical, Mental Health

and Substance Abuse Treatment

Access to VA Housing Programs:

– Grant & Per Diem

– HUD/VASH

– Veterans Recovery House

Help Finding Market Rate,

Subsidized Housing, or Housing

Programs Within the Community

On-Site Compensation and

Pension Exams

Access to employment programs:

– Supported Employment

– Veterans Reintegration Program

On-Site Computers & Phones

Clothing and Hygiene Items

The CRRC is a Multi-Disciplinary

Team That Includes:

– Social Workers

– Peer Support Specialist

– Psychologist

– Program Support Assistants

– Physician

– Registered Nurse

– Licensed Practical Nurse

Partners Who Help Provide

Services to Veterans: VBA Homeless Coordinator

Compensation and Pension

Worksource Oregon

VA Vocational Rehab

HUD/VASH Case Managers

Transition Projects, Inc.

Dual Diagnosis Anonymous

The critical elements of Veteran

homeless assistance and prevention.

Not all Veterans are eligible for the same services.

On-Site screening may be necessary to determine

eligibility for different programs through the

Veterans Affairs or Community Partners.

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PTSD Case Summaries

Case Name / Citation Legal Issue Outcome

SUPREME COURT CASES

Porter v. McCollum, 558 U.S. 30 (2009)

Ineffective assistance of counsel (“IAC”), mitigation (capital case)

Supreme Court held that a defense attorney’s failure to present a defendant’s combat service and related trauma as a mitigating factor at sentencing in a capital case is proper grounds for a Strickland claim of prejudicially ineffective assistance of counsel.

Bell v. Cone, 535 U.S. 685 (2002) (Stevens, J., dissenting)

IAC; insanity defense; mitigation

Dissent believed that counsel was ineffective and stated “there is a vast difference between insanity—which the defense utterly failed to prove—and the possible mitigating effect of drug addiction incurred as a result of honorable service in the military. By not emphasizing this distinction, [trial counsel] made it far less likely that the jury would treat either the trauma resulting from [the defendant’s] tour of duty in Vietnam or other traumatic events in his life as mitigating.”

NINTH CIRCUIT CASES

Styers v. Schriro, 547 F.3d 1026 (9th Cir. 2008)

Mitigation Ninth Circuit held that the state court improperly weighed factors in sentencing when it failed to consider evidence of defendant’s service-induced PTSD.

Lambright v. Schiro, 490 F.3d 1103 (9th Cir. 2007)

IAC; mitigation (capital case)

Ninth Circuit held that defense attorney performed deficiently by failing to investigate and present evidence of mental health problems, including PTSD, during the penalty phase; this failure was prejudicial even though there is no requirement that there be a nexus between crime and mitigating evidence.

Gilley v. Morrow, 246 Fed. Appx. 519 (9th Cir. 2007)

IAC; mitigation (capital case)

Ninth Circuit affirmed the district court’s granting the defendant’s habeas corpus petition based on counsel rendering ineffective assistance during the penalty phase by failing to present any mitigating

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evidence at sentencing. New evidence that the inmate suffered from PTSD stemming from severe parental abuse, which was presented at the federal evidentiary hearing, was sufficient to overcome the presumption of correctness afforded the state court's penalty phase findings.

Warren v. Schriro, 162 Fed. Appx. 705 (9th Cir. 2006) (Fletcher, J., dissent)

IAC; Competency

Senior Circuit Judge Betty Binns Fletcher filed an impassioned dissent arguing that the defendant was denied due process and effective assistance of counsel when both the trial court and the defense attorney failed to request a competency evaluation based on the defendant’s severe PTSD as a result of his military service in Vietnam. Judge Fletcher rejected the majority’s characterization of defense counsel’s pursuit of only an insanity defense while neglecting the defendant’s competency to stand trial as an acceptable “strategy.”

United States v. Menyweather, 431 F.3d 692 (9th Cir. 2005)

Mitigation Ninth Circuit found no abuse in discretion in district court’s downward departure of 8 levels to probation under § 5K2.13 in part due to defendant’s PTSD where psychologist’s testimony was not rebutted.

Aguirre v. Alameida, 120 Fed. Appx. 721 (9th Cir. 2005)

IAC; mens rea

Ninth Circuit granted inmate’s habeas corpus petition finding that trial attorney who failed to investigate a PTSD defense, which could have negated the element of intent to commit robbery, was constitutionally ineffective.

United States v. Risse, 83 F.3d 212 (8th Cir. 1996)

Mitigation Defendant was convicted of use of a firearm during a drug trafficking crime and possession of a firearm. The Ninth Circuit upheld the district court’s downward departure from a range of 57-71 months to 18 months under § 5K2.13 based on the defendant’s PTSD connected to serving in Vietnam.

United States v. Cantu, 12 F.3d 1506 (9th Cir. 1993)

Mitigation Ninth Circuit reversed a lower court’s refusal to depart downward under § 5K2.13, where Vietnam veteran suffered from PTSD, which


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at least partially caused the veteran to fixate on weapons, which in turn lead him to possess a weapon as a convicted felon.

The court explained that “[t]he goal of the guidelines is lenity toward defendants whose ability to make reasoned decisions is impaired. . . . The focus of the guideline provision is reduced mental capacity, not the cause—organic, behavioral, or both—of the reduction.”

The severity of the condition is not controlling, rather the focus is on the “effect of the impairment on the defendant.”

While reduced mental capacity may not be caused by drug or alcohol use, “a defendant whose reduced capacity was caused in part by voluntary drug or alcohol use is not disqualified from departure” under § 5K2.13.

OTHER CIRCUIT CASES

United States v. Goodman, 633 F.3d 963 (10th Cir. 2011)

Insanity defense

Tenth Circuit found that it was an abuse of discretion to limit opinion testimony of lay witnesses in PTSD insanity defense.

United States v. Loranger, 319 F. App’x 430 (7th Cir. 2009)

Mitigation Seventh Circuit vacated sentence and remanded for resentencing when the trial court failed to consider evidence of defendant’s PTSD stemming from his tour of Vietnam.

United States v. May, 359 F.3d 683

(4th Cir. 2004)

Mitigation Fourth Circuit rejected a request by a veteran who was suffering from PTSD for a departure from the Guidelines under § 5K2.20 (aberrant behavior) but noted that such a departure may be applicable if it is an exceptional case.

United States v. Risse, 83 F.3d 212 (8th Cir. 1996)

Mitigation Eighth Circuit affirmed district court’s downward departure based on PTSD under § 5K2.13.


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United States v. Tracy, 36 F.3d 187 (1st Cir. 1994)

Competency In determining that the defendant was competent to stand trial, the court considered the defendant’s PTSD.

Bouchillon v. Collins, 907 F.2d 589 (5th Cir. 1990)

Competency It was not clearly erroneous for the district court to conclude that petitioner had met his burden of proving his incompetency by a preponderance of evidence, where petitioner was diagnosed with PTSD, his periods of diminished capacity would not necessarily be obvious to the layman, and psychiatrist testified in habeas proceedings that petitioner was probably incompetent at the time of his guilty plea.

DISTRICT COURT CASES

United States v. Pelloski, 31 F. Supp. 3d 952 (S.D. Ohio 2014)

Mitigation Pelloski pled guilty to accessing child pornography. Guidelines range was 57-71 months, with the AUSA requesting 18-48 months. The court sentenced the defendant to 12 months and 1 day based in part on his PTSD (based on his childhood sexual abuse), in addition to his lack of criminal history, struggles with depression, and potential contributions to society as a pediatric oncologist.

United States v. Flowers, 946 F. Supp. 2d 1295 (M.D. Ala. 2013)

Mitigation Flowers pled guilty to one count of passing a forged U.S. Treasury check. Guidelines range was 8-14 months, with the government recommending she serve 14 months in prison. Flowers moved for a downward variance based on her mental health, which included PTSD based on domestic violence trauma in childhood and adulthood, as well as major depressive disorder and other anxiety disorders. The court granted the variance, sentencing her to probation instead, taking into account her well-documented mental illness and her need for treatment outside of a carceral setting.


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United States v. Keller, No. 3:11-cr-00111-RPC (M.D. Penn. Sept. 12, 2013)

Mitigation Army veteran suffering from PTSD pled guilty to sexual exploitation of minors, receipt of child pornography, and possession of non-registered firearm. Guidelines range was 151-188 months. AUSA and FPD agreed in the plea agreement to 60 months in light of Keller’s PTSD. The probation office recommended the court reject the sentencing agreement and impose a sentence of at least 84 months. After briefing from both the AUSA and FPD, the court followed their recommendation and sentenced the defendant to 60 months, noting Keller’s combat service and the emotional harm it caused him.

See Terrie Morgan-Besecker, “Army vet’s child-porn sentence less severe because of PTSD,” TIMES-TRIBUNE (Sept. 13, 2013), available at http://thetimes-tribune.com/news/army-vet-s-child-porn-sentence-less-severe-because-of-ptsd-1.1551598

United States v. Scott, No. 6:09-cr-00025 (D. Mont. Nov. 15, 2011)

Mitigation Scott pled guilty to possession of child pornography. Guidelines range was 135-168 months. At sentencing, AUSA recommended that sentencing be at the high end of the guideline range, while defense counsel cited Scott’s military service and diagnosis of PTSD as the basis for a sentence at the low end. The trial court granted defendant’s request and sentenced Scott to a total of 135 months imprisonment, to be followed by 180 months’ supervised release. The court also recommended residential sexual offender treatment and placement at a medical facility.

[Copy of transcript of sentencing hearing available.]

United States v. Erickson, No. 3:10-cr-00006 (E.D. Va. April 1, 2011)

Mitigation Erickson pled guilty to conspiracy and transporting contraband into prison. Guidelines range was 46-57 months in prison. But at his sentencing, defense counsel cross-


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examined the U.S. Bureau of Prisons’ psychiatric director, who testified that the federal prisons were not equipped to provide PTSD therapy designed specifically for veterans. Judge Payne stated from the bench that he found it “troubling” that the federal prison system is ill-equipped to treat inmates who suffer mental health problems resulting from their military service.

Judge Payne agreed that Erickson’s actions were egregious, but found that they were a product of “considerable stress” and sentenced Erickson to 2 years of home confinement, 5 years of probation, and fined him $10,000.

[Copy of transcript of sentencing hearing available.]

United States v. Madsen, No. 6:09-cr-00011 (D. Mont. Mar. 23, 2010)

Mitigation USAO allowed Madsen to plead guilty to possession of child pornography, dropping the more serious charge of receipt of child pornography, which carries a mandatory minimum sentence of 5 years in prison. The AUSA said that was done in part because of Madsen’s mental health diagnoses, which include PTSD, anxiety, OCD, and depression. The Court subsequently departed from the Guidelines range of 57-71 months to 24 months in prison, to be followed by 10 years of supervised probation.

See Eve Byron, “Man blames PTSD for child pornography downloads,” INDEPENDENT

RECORD, (Mar. 24, 2010), available at http://helenair.com/news/man-blames-ptsd-for-child-pornography-downloads/article_3fe0d0a8-3708-11df-bdd5-001cc4c002e0.html

United States v. Howard, No. 8:08-cr-00387, 2010 WL 749782 (D. Neb. Mar. 1, 2010)

Mitigation Howard, a veteran, pled guilty to one count of receipt of child pornography. The Guidelines range was 17.5-20 years with a mandatory minimum of 5 years’ imprisonment. At sentencing, Howard argued for a variance


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from the Guidelines in part because of his history of PTSD and treatment for major depressive disorder. The court granted the variance, sentencing him to 5 years’ incarceration, followed by 10 years’ supervised release with strict conditions and required mental health treatment and sex offender treatment.

United States v. Brownfield, No. 1:08-cr-00452 (D. Colo. Dec. 18, 2009)

Mitigation Brownfield was a returning veteran with suspected PTSD. He pled guilty the crime of accepting a bribe as a public official. Both the AUSA and defense counsel agreed to a sentence of one year and a day imprisonment plus two years of supervised release.

But U.S. Senior District Judge Kane declined to follow the Guidelines as he concluded that they did not adequately address the criminal justice system’s treatment of returning veterans, like Brownfield, who had served in Afghanistan and Iraq.

“Given the paucity of prison programs available to those serving one year or less and the relative lack of expertise compared with the Veterans Administration in treating war-zone related illnesses, corrective treatment will be more readily realized by a lengthy sentence to probation rather than a comparatively abbreviated one to prison.”

Judge Kane sentenced Brownfield to five years of probation with special conditions, which included obtaining mental health treatment and counseling, alcohol and substance abuse treatment, securing a VA mental health evaluation and participation if treatment is offered, among other programming.

[Commonly referred to as the “Brownfield Memo”; copies of this opinion were provided to the United States Sentencing Commission.]


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United States v. Hall, No. 2:08-cr-00198 (E.D. Va. Dec. 11, 2009)

Mitigation Hall pled guilty to one count of possession of child pornography. Defense counsel argued that his service-related PTSD led him to download child pornography. Guidelines range was 63-78 months. The AUSA asked for a 70 month prison term and argued that citing PTSD as mitigation was a “flimsy excuse.” But the judge sentenced Hall to 40 months imprisonment to be followed by 20 years’ probation, well below the Guidelines, and noted Hall’s military achievements.

See Tim McGlone, “Navy officer who claimed PTSD in child-porn case gets 40 months,” Virginian-Pilot (Dec. 12, 2009), available at http://hamptonroads.com/2009/12/navy-officer-who-claimed-ptsd-childporn-case-gets-40-months

United States v. Oldani, No. 3:09-cr-00010, 2009 WL 1770116, 2009 U.S. Dist. LEXIS 50538 (S.D. W.Va. June 2, 2009)

Mitigation Oldani suffered from PTSD and traumatic brain injury (“TBI”), resulting in a 60% disability rating by the VA. Oldani pled guilty to a conspiracy to steal property from the Marine Corps. Guideline range suggested a sentence of 46-57 months imprisonment, but the Court varied and imposed 5 months’ imprisonment to be followed by a 3 year term of supervised release. Crucial in the court’s decision seemed to be that the treatment the BOP could provide to Oldani would be inferior to that which he was already receiving by the VA:

“The service related disabilities suffered by Timothy Oldani -- specifically PTSD and TBI -- have been referred to as the "signature injuries" of the conflicts in Iraq and Afghanistan. Because of the frequencies with which these injuries occur among veterans, the VA is in a unique position to provide treatment.”


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United States v. Morris, 550 F. Supp. 2d 1290 (M.D. Ala. 2008)

Competency Court found that Morris, who had mental health issues including PTSD suffered as a result of service during the Vietnam War, was incompetent to stand sentencing.

United States v. Gonzalez, No. 03 Cr. 0285 (RWS), 2004 WL 230992, 2004 U.S. Dist. LEXIS 1616 (S.D.N.Y. Feb. 5. 2004)

Mitigation Gonzalez pled guilty to trafficking in firearms without a license, and thereafter moved for a downward departure pursuant to § 5K2.13 (diminished capacity). The court denied the motion, but determined that a two-level variance was warranted under 18 U.S.C.S. § 3553(b) due to defendant’s PTSD (based on childhood trauma), diminished intellectual capacity, and borderline personality disorder.

United States v. Rezaq, 918 F. Supp. 463 (D.D.C. 1996)

Insanity Court found defendant’s severe PTSD constituted a mental disease for purposes of insanity defense. The court limited the testimony of the three psychiatric experts to the severity of Rezaq’s illness; they were not allowed to testify regarding Rezag’s ability or inability to appreciate the wrongfulness of his actions.

But see United States v. Rezaq, 134 F.3d 1121 (D.C. Cir. 1998) (Rezaq raised defenses of insanity due to PTSD and obedience to military orders, which the jury rejected when it found him guilty).

United States v. Perry, No. 4:94-cr-03035, 1995 WL 137294, 1995 U.S. Dist. LEXIS 4472 (D. Neb. Mar. 27, 1995)

Mitigation Drug case where the court departed downward 5 levels because of Perry’s significantly diminished mental capacity, evidenced by a clinical diagnosis of PTSD induced by the horrible things the defendant experienced during the Persian Gulf War, which in turn lead the defendant to medicate himself with cocaine (relying on and citing Cantu).

The court rejected the government’s argument that § 5K2.13 should not apply because so many people are “potentially victims of [PTSD]” because it is “important to recognize that § 5K2.13, while an exception to


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a general rule, should not be interpreted in such a way as to make it a ‘dead letter.’”

A court’s “inquiry into the defendant’s mental condition and the circumstances of the offense must be undertaken ‘with a view to lenity, as § 5K2.13 implicitly recommends.”

OREGON STATE CASES

State v. Dennis, No. 15CR34012 (Lane Cnty Cir. Ct. Dec. 20, 2016)

Mitigation Dennis pled guilty to intoxicated driving and criminally negligent homicide on April 22, 2015. The prosecutor requested that Dennis be sent to prison for about three years, in line with Oregon’s felony sentencing guidelines. In its sentencing memorandum, defense counsel wrote that Dennis was diagnosed with PTSD and the condition was aggravated by his alcohol dependency, which contributed to his criminal conduct. Defense also noted that Dennis had been accepted into an inpatient treatment program offered through the VA. On December 20, 2016, the Judge departed from the guidelines and sentenced Dennis to six months in jail as a condition of probation.

See Jack Moran, “No prison for veteran with PTSD found guilty in DUII death of friend,” REGISTER-GUARD (Dec. 21, 2016), available at http://registerguard.com/rg/news/local/35108508-75/no-prison-for-veteran-with-ptsd-found-guilty-in-duii-death-of-friend.html.csp.

State v. Bratcher, No. 0808219CR (Grant Cnty. Cir. Ct. Oct. 5, 2009)

Insanity defense

Bratcher, who was being treated and compensated for service-connected PTSD when the crime took place, argued that his killing of an unarmed man occurred while he was having a flashback. A Grant County, Oregon jury found him guilty but insane due to PTSD on October 5, 2009.

On December 7, 2009, the trial court sentenced him to the jurisdiction of the state Psychiatric Security and Review Board for life, as long as he was mentally ill. Bratcher was released four years later on January 27, 2014,


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when the state Psychiatric Security Review Board made a finding of no mental disease or defect.

See Julie Sullivan, “Iraq veteran sentenced to state hospital in PTSD murder case,” OREGONIAN (Dec. 7, 2009), available at http://www.oregonlive.com/news/index.ssf/2009/12/post_34.html; see also Scotta Callister, “PTSD murder case ends, as psych board releases Bratcher,” BLUE MOUNTAIN EAGLE (Feb. 4, 2014), available at http://www.bluemountaineagle.com/article/20140204/ARTICLE/140209995/1424.


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