'John Brown Went off to War': Considering Veterans’ Courts as Problem-Solving Courts
Nova Law Review, 2013, Forthcoming
59 Pages Posted: 21 Feb 2013
Date Written: 2013
In this paper, I seek to contextualize veterans courts in light of the therapeutic jurisprudence (TJ) movement, the turn to problem-solving courts of all sorts (especially focusing on mental health courts), and the societal ambivalence that we have shown to veterans in the four decades since the Vietnam war.
I argue that TJ’s focuses on how law actually impacts people’s lives, on the law’s influence on emotional life and psychological well-being and on the need for law to value psychological health and avoid the imposition of anti-therapeutic consequences whenever possible can serve as a template for a veterans courts model (if we are to expand these courts robustly). TJ is the explicit inspiration for many of the most important problem-solving courts (including Judge Ginger Lerner-Wren’s mental health court in Broward County), but it is also clear that many such courts – specifically, some drug courts – do not follow TJ principles, existing, instead in a “due process-free zone” (implicitly rejecting the basic TJ premise that therapeutic outcomes cannot trump due process). Just as mental health courts should ensure that defendants receive dignity and respect, and are given a sense of voice and validation, so should veterans courts.
And we must also recognize that our treatment of injured war veterans provides a vivid example of society’s general ambivalence toward guaranteeing robust social rights. Thirty years ago, in Falter v. Veterans’ Administration, a case seeking to force the VA into implementing a “patients’ bill of rights” at VA hospitals, the trial judge observed that the case was basically about “how [plaintiffs] are treated as human beings.” This observation must be at the forefront of any assessment of veterans courts. Despite general low recidivism rates, Veterans Courts have received criticism as some have argued that they provide veterans with a “hall pass“ to certain criminal-defense rights that others do not have, and that, from an entirely different perspective, they are stigmatizing because they perpetuate the stereotype that veterans are returning “war-crazy.” I address these and other criticisms in my paper.
One critical issue that has received almost no attention we are just beginning to take seriously in the mental health courts context: how can we assure that there is experienced, dedicated, knowledgeable counsel assigned to represent defendants in such tribunals? We know that if there has been any constant in modern mental disability law in its thirty-five-year history, it is the near-universal reality that counsel assigned to represent individuals at involuntary civil commitment cases are likely to be ineffective. How can we be sure that counsel in these cases be more effective?
I offer some conclusions and suggestions for those jurisdictions that are implementing veterans courts, so as to optimally assure adherence to TJ values in a court setting that continues to provide litigants with the full range of constitutional rights to which they are entitled.
Keywords: Veterans courts, mental health courts, problem-solving courts, therapeutic jurisprudence, counsel, competency, criminal procedure, mental disability law, Veterans, post-traumatic stress disorder
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