A Memorial Day Call to Action: Our Local Criminal Justice System is Failing our Combat Veterans

But, in a larger sense, we can not dedicate, we can not consecrate, we can not hallow this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract. The world will little note, nor long remember what we say here, but it can never forget what they did here. It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us—that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion—that we here highly resolve that these dead shall not have died in vain—that this nation, under God, shall have a new birth of freedom—and that government of the people, by the people, for the people, shall not perish from the earth.
— President Abraham Lincoln, November 19, 1863

I am writing this blog post on Memorial Day. As I write, people all over Texas are pausing to reflect on the sacrifices that members of the Armed Forces of the United States have made, including “the last full measure of devotion,” so that we may live free. To those who have sacrificed their lives in the service of our great country, we owe a debt we can never repay. As President Abraham Lincoln exhorted our nation in his immortal Gettysburg Address, we must always strive to give meaning to the sacrifices of the brave men and women who serve our country in combat.

While Memorial Day is generally devoted to those brave service men and women who have given their lives in defense of our way of life, there is a huge component of service men and women to whom we owe an enormous debt that we just may be able, in some small way, to repay. In the past several decades, tens of thousands of veterans of foreign wars and conflicts have returned to Texas alive, but nevertheless bearing the lasting and profound scars of combat. As they return to their families, their jobs, and their communities, they struggle with the ordeals and tribulations of having suffered through horrors that you and I, who have not served in combat, cannot properly comprehend. But, we owe it to these warriors to try.

While I am a veteran of the United State Marine Corps, I never served in combat. However, I have known many who have, including my father, First Sergeant Peter J. Phelps (USMC, Ret.), who served two tours of duty in Vietnam. I have seen, but still cannot fully understand, the struggles they have endured as they have tried to put their lives back together after extended separation from their families and lives. Some handle it better than others. In the wake of the wars in Vietnam, the Persian Gulf, Afghanistan, and Iraq, tens of thousands of veterans of combat have returned to Texas and are battling the after-effects of their experiences in combat. In Brazos County, we enjoy a fairly large community of veterans, some of whom suffer daily trying to re-assimilate into our community.

In my practice as a criminal defense attorney, I have represented a number of combat veterans charged with criminal offenses, everything from possession of marijuana and DWI to aggravated assault and domestic violence. Often, the commission of these offenses is related to a combat veteran’s struggle to cope with the lingering and damaging effects of having experienced the trauma of combat. In almost every case, alcohol or some controlled substance is involved. There can be no argument that some combat veterans return to our community damaged psychologically. For many veterans, it is hard to admit this. Some do not recognize the signs until it is too late. It can be a very lonely struggle. In every case, they need our understanding and our help.

And while we pride ourselves in this community for being veteran-friendly, we are missing valuable opportunities to help these veterans in their struggles.

A criminal prosecution or conviction can affect a veteran for the rest of his or her life. It can create strains on marriages and hinder the search for a meaningful job. It is often a humiliating experience. I expect that it is difficult from the perspective of the combat veteran to accept coming from serving his or her country to being treated as a criminal when they return because they are having difficulty putting their lives back together.

Here’s the bottom line: we take these service members from their homes and families, send them into combat where they experience fear, danger, psychological trauma, and violence, and then, if they are fortunate to survive, bring them home to their communities. That the transition back to civilian life can be difficult is undeniable. As a country, we do what we can to help ease this transition with psychological screening, counseling, and other support. But, we can do more.

In Brazos County, we have no meaningful or dedicated process to identify and help these troubled veterans. Certainly, a good defense attorney will bring the experiences of the veteran to the attention of the prosecutor in plea negotiations or to the judge in sentencing, but often these issues are assumed to be just a “defense strategy” or just another excuse and are discounted. This attitude, and the lack of a meaningful response to the struggles of the combat veterans in our community, is unacceptable. I know that this community loves and honors its veterans, but we can and should be doing more in the criminal justice system.

In 2009, the Texas Legislature passed legislation to allow counties to create special veterans courts to address the needs of combat veterans caught up in the system whose offense is related in some way to a psychological disorder from combat such as anxiety disorder or post-traumatic stress disorder. The legislation sets fairly high criteria for participation in the program, establishes a protocol for providing services specifically tailored to the combat veteran, and, most importantly, results in a dismissal of criminal charges after successful completion of the program. You can read the statute, located in the Texas Government Code, here.

At least ten counties in Texas have created Veterans Courts and, by all accounts, they have been very successful. Those counties include Harris, Travis, Bexar, Dallas, and Tarrant.

The Veterans Court would provide judicial supervision, with prosecutor consent, over a special caseload of carefully screened applicants. Upon completion, charges against the veteran would be dismissed and, presumably, expunged from their records.

One of the often-cited obstacles to the creation of a Veterans Court is funding. However, there are numerous funding sources, including the Governor’s Criminal Justice Division, which provide grants for creating and operating these courts. Even if there was no external funding available, however, the expense of establishing a Veterans Court in one of our three district courts would be an expense worth undertaking for the sake of our veterans. And, I don’t think the expense would be significant, certainly not in light of the sacrifices and struggles of our combat veterans. Brazos County already funds a drug court for drug offenders. I think our embattled veterans deserve no less.

And there is an alternative. Prosecutors have the discretion to create within their offices pre-trial diversion programs that can accomplish the same ends. It would take little effort to craft programs in the District Attorney’s Office and the County Attorney’s Office, in conjunction with our courts and probation department, to address the special needs of our deserving veterans.

Thus, a call to action: it is time to honor Brazos County’s combat veterans by recognizing that there are criminal cases involving struggling veterans that deserve our special attention.

To County Judge Duane Peters and the members of the Brazos County Commissioners Court, I respectfully call upon you to vote to create and fund a Veterans Court in Brazos County.

To Brazos County District Attorney Jarvis Parsons and Brazos County Attorney Rod Anderson, I respectfully call upon you to work with Commissioners Court in creating and funding a Veterans Court. In the alternative, I respectfully request that you develop office policies to identify deserving veterans in the criminal justice system and use your prosecutorial discretion to provide the services they need and encourage them toward success and recovery by dismissing their cases and agreeing to expunctions when they are successful.

I have enough experience in the Brazos County justice system, both as a prosecutor and a defense attorney, to know that this is not too much to ask to repay our combat veterans as they struggle to put their lives back together. There is no downside to creating a Veterans Court and by doing so, we honor the service and sacrifice of these deserving veterans.

And it still will not be enough to repay them.

I will be following up with Judge Peters, Jarvis Parsons, and Rod Anderson to further encourage action on their parts. They are honorable elected officials and I have every reason to believe that they will embrace a Veterans Court in Brazos County. I encourage all Brazos County voters to let these officials know of your support for this effort.

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