Mitigation law has helped vets in plea deals, sentencing

In July 2008, Arthur Torgesen stabbed his wife to death and then set himself on fire. He survived the suicide attempt and was charged with murder.

The 63-year-old Vietnam War veteran had a long history of chronic, severe post-traumatic stress disorder stretching to his time in combat. Rather than send Torgesen to jail for the rest of his life for what clearly appeared to be a PTSD-induced incident, the prosecutor and defense counsel reached a deal that allowed Torgesen to plead guilty to second-degree murder and be civilly committed to a psychiatric hospital in St. Peter.

“In other words, we got the result of a not guilty by reason of insanity verdict without going to trial — and likely losing,” said Brock Hunter, the defense lawyer who represented Torgesen. Hunter said that the prosecutor, Anoka County Attorney Robert Johnson, who is a veteran himself, “deserves a lot of credit for thinking outside the box and doing the humane thing in this case.”

Minnesota is ahead of the curve in examining and considering mental health issues such as PTSD in incidents involving military veterans who commit criminal offenses. Last year, the state became the second jurisdiction in the nation to pass a law that encourages treatment over incarceration of those whose service-related psychological injury played a role in their crime.

Under the statute, when a defendant appears in court, judges must ask whether he or she is a veteran. If so, and the person has been diagnosed as having mental illness, the court may consult with the federal or state Department of Veterans Affairs to determine treatment options in lieu of or along with a jail sentence.

“If an ounce of prevention is worth a pound of cure this is a good statute,” said St. Paul criminal defense attorney Thomas Plunkett, who retired from the Army National Guard three years ago. “It asks defenders, prosecutors and judges to consider collateral issues that may bring a veteran to our courts. This protects the community by addressing the actual issue that is driving the unacceptable behavior.”

Johnson agreed, stressing that treating offenders can actually increase public safety by reducing recidivism.

“[Defendants] are unique and the issues they have should be dealt with; that’s essentially what this statute says,” he said. “If we do that properly, we’re going to reduce the chance they are going to go back and commit another crime.”

Hunter, an Army veteran who was instrumental in getting the legislation passed in Minnesota, said that he has been deluged with calls from people all across the country interested in pursuing similar measures in their own states.

Illinois has since passed a similar statute, and at least a dozen other jurisdictions are considering comparable legislation, said Hunter.

A long, bumpy road

Many returning war veterans, especially those who saw heavy combat, suffer silently, refusing to acknowledge their trouble readjusting to society or that they have symptoms of PTSD. Some turn to drugs or alcohol as a coping mechanism and end up in the criminal justice system, charged with everything from DWI to domestic assault and even murder.

A criminal charge, however, is what finally gets some veterans to come to terms with the fact that they have a problem. Because the statute requires judges to inquire into a defendant’s veteran status, it forces the defendant to acknowledge a need for help and to accept it.

“It is a difference that can reach beyond the veteran and to the people around them as well,” Plunkett said.

Practitioners who regularly represent veterans say the importance of getting treatment can’t be overstated.

“PTSD doesn’t just go away by itself. The earlier the intervention and treatment the better,” said Hunter.

In fact, Hunter views Torgesen’s case as representative of what will happen if returning Iraq and Afghan war veterans suffering from stress-related disorders go untreated.

Even the prosecution’s own expert came to the conclusion that Torgesen was undertreated for his PTSD over the years, said Hunter. Because he failed to get the proper treatment, Torgesen’s condition worsened.

“If we don’t do something with this new generation of veterans, it’s going to be a long, bumpy, tough road for the next 40 years with them.”

Improved negotiations

For many veterans struggling to assimilate back into society, contact with the criminal justice system only makes things worse.

“A criminal conviction just adds additional barriers to them reintegrating,” said Hunter.

To that end, criminal defense attorneys are using the mitigation statute to assist their clients in either avoiding a conviction or lessening the charge.

“In a lot of these cases, I’ve been able to convince prosecutors to willingly do a stay of adjudication where they might not otherwise agree to that,” said Hunter.

Other veterans’ attorneys agree that just having the statute in place helps ensure their clients’ mental health issues are considered as they make their way through the criminal justice system.

“[The statute is] making more prosecutors aware of veteran-related issues,” said Maplewood attorney and retired Marine Gunnery Sgt. John Baker. “It has been a little easier to plea bargain. But not everyone knows about it yet and then defense attorneys don’t always know how to talk to prosecutors about the issues.”

Baker said that when one client — an Iraq War veteran who saw a lot of combat — got orders to return to the war zone, he began to self medicate with alcohol, which caused his life to begin spinning out of control. One morning the client called Baker from jail, having been arrested the night before for fifth-degree assault after getting drunk and into an argument with his wife.

“In this case … I was able to use the intent of the statute to tell the prosecutor that my client was a combat veteran who was now getting treatment for alcohol abuse and now diagnosed PTSD,” said Baker, adding that he was able to secure a continuance for dismissal for the client.

Johnson pointed out prosecutors generally don’t know a defendant is a veteran unless they are advised so by defense attorneys.

“To the degree that defense counsel brings it into play, it would certainly become a consideration,” he said. “And it’s going to be a consideration by courts.”

Hunter said he is frequently contacted by both defense attorneys and probation officers around the state looking for assistance in making contact with veterans’ hospitals and coming up with treatment options.

“By all accounts, I am hearing there is a lot of use of this statute and it is having an impact on the way people are sentenced,” he said. “It has sent a general message that we should take a fresh look at the way that we deal with [veterans’ mental health issues]. It’s just sort of set a different tone.”

Outside the box

The mitigation statute doesn’t mandate that judges sentence a veteran in a particular way, nor does it give judges any discretion they don’t already have. But lawyers said it nonetheless serves an important purpose.

“What it really accomplishes is just ensuring that a person’s diagnosis and treatment options are up front and center for consideration by the judge at the point of sentencing,” said Hunter.

In many cases, a lot more can and should be done, he added, pointing to Torgesen’s case as an example.

“[It] did not directly involve the statute, but I believe the statute and the general change in the way people view mentally ill veterans in the criminal justice system did play a role in convincing the prosecutor … to think outside the box and to do the right thing by Artie,” said Hunter. “I hope that this case will cause other prosecutors to do the same in such cases.”

Minnesota veterans’ sentencing mitigation law

Minn. Stat. 609.115, subd. 10. Military veterans. (a) When a defendant appears in court and is convicted of a crime, the court shall inquire whether the defendant is currently serving in or is a veteran of the armed forces of the United States.

(b) If the defendant is currently serving in the military or is a veteran and has been diagnosed as having a mental illness by a qualified psychiatrist or clinical psychologist or physician, the court may:

(1) order that the officer preparing the report under subdivision 1 consult with the United States Department of Veterans Affairs, Minnesota Department of Veterans Affairs, or another agency or person with suitable knowledge or experience, for the purpose of providing the court with information regarding treatment options available to the defendant, including federal, state, and local programming; and

(2) consider the treatment recommendations of any diagnosing or treating mental health professionals together with the treatment options available to the defendant in imposing sentence.