Mentally Ill Veterans Should Not Be Executed

Two Honorably Discharged US Marines Among Next to be Executed

Op-Ed by Captain Art Cody, U.S. Navy (Retired)

Mentally ill veterans should not be executed.

Executions in the United States have become relatively rare, so much so that many Americans are unaware when they occur. As an example, there are two executions currently scheduled this summer, and neither has received significant press coverage. Yet there’s something both different and saddening about these two executions.

Texas and Nevada each plan to execute an honorably discharged U.S. Marine; John Hummel in Texas on June 30 and Zane Floyd in Nevada on July 26. To be sure, their crimes are horrific, and society deserves to hold them accountable and to be safe from further harm by them. However, we can accomplish those goals without executions. This is particularly true with respect to veterans.

I base my views on veterans in the criminal justice on my experiences both in the military and in criminal defense. I had the privilege of serving for over 30 years as a military officer, including deployments onboard the USS Enterprise (CVN-65) in the initial response to the 9–11 attacks and most recently to Afghanistan (2011–12). I was a helicopter pilot in the military, not a military lawyer. As a civilian attorney, however, I have represented hundreds of veterans accused of serious crimes

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

A relatively small portion of the US population takes on the burden of military service. These volunteers undergo an experience far removed from the vast majority of those who may later sit in judgment of them in the justice system. The military experience, particularly if it involves combat, indelibly shapes the veteran, and often has significant causal or mitigation implications relating to criminal offenses. The Veterans Administration (VA) estimates 30% of veterans have serious battle-borne mental health problems, including Post Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI) or Substance Abuse.

The U.S. Supreme Court recognized the existence of these issues in Porter v. McCollum in 2009. Yet far too often that experience and its effects upon the veteran are neither properly treated by the Veteran Administration nor adequately presented by the defense bar to juries and judges considering capital punishment, if they are treated or presented at all.

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

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

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

We as a nation should take the occasion of the two pending veteran executions to reexamine our treatment of veterans and ensure that they are given the best in both in mental health treatment and criminal representation. We may wish to consider whether mentally ill veterans should be eligible for the death penalty at all.

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