‘Consequences of War’–Veterans Incarcerated at Higher Rates and Face Longer Sentences

Late in the afternoon of Sept. 11, 2001, Brockton Hunter, a defense attorney in Minnesota, was having drinks with a friend from law school. Hunter had served in the Army before becoming a lawyer; his friend had been in the CIA. The conversation turned from that day’s devastating attacks to what they felt would inevitably follow.

“Both of us understood that we were going to be going to war like we hadn’t since Vietnam,” Hunter said.

In the two years since he’d hung out his shingle as a public defender, Hunter had watched veteran after veteran cycle through his law practice. Most were Vietnam veterans, he said recently, and more than 20 years after the war ended, many of them were “still very much in Vietnam.”

“I just said, ‘I wonder how long it’s going to be before we start seeing young folks that are about to be deployed coming back with post-traumatic stress and falling into the criminal courts.’”

Veterans are now twice as likely as nonveterans to face incarceration, and a 2017 study found that nearly a third reported having been arrested at least once in their lives. In 1998, Department of Justice statistics counted about 156,000 veterans incarcerated in state or federal prisons. By 2016, that number had fallen to about 107,000 veterans. More than a quarter of those had combat experience. On average, veterans receive longer sentences than nonveterans, and they are more likely to have committed a violent sexual crime.

“Our veterans of Afghanistan and Iraq deployed over and over and over again,” said Jim Seward, the director of the Veterans Justice Commission at the Council on Criminal Justice, a think tank. “Some of those veterans have had rough experiences, whether it was in the service, or in transition, or post-transition.”

VA estimates that nearly 30% of veterans of the wars in Iraq and Afghanistan have experienced post-traumatic stress at some point in their lives; veterans with PTSD have about a 60% higher likelihood of being arrested for a violent offense than veterans without it. Veterans with traumatic brain injuries—a hallmark injury of the post-9/11 wars—are similarly more likely to become involved in the criminal justice system.

Since World War II, the percentage of discharges characterized as less than honorable have been steadily rising. Discharges that are less than honorable can impact veterans’ transition to civilian life and their access to benefits. Data visualization by Sonner Kehrt (Data source: Turned Away: How VA Unlawfully Denies Health Care to Veterans with Bad Paper Discharges/OUTVETS, Legal Services Center of Harvard Law School & Veterans Legal Services)

The military does little to prepare soldiers, many of whom have been trained to view violence as a way to solve problems, for civilian life. In fact, the rate of “bad paper” discharges—discharges that are not honorable—has been steadily rising since World War II. A veteran’s status can affect access to VA care and benefits, as well as the ability to pass background checks, get jobs, and find housing. A report from the Government Accountability Office has found that service members discharged for misconduct, which frequently results in a bad paper discharge, often have PTSD, traumatic brain injuries, or substance abuse disorders, meaning that the veterans who could most benefit from support and care can find themselves with even fewer resources as they transition to civilian life. As a result, advocates argue, some of these veterans get funneled toward the criminal justice system.

“These folks are going to be in our justice system one way or the other,” Hunter said. “The question is whether we just blindly punish their behaviors, label them as felons, throw them in a cage and hope that that solves all the problems, like we did after Vietnam and other prior conflicts. Or we can use that contact as an intervention opportunity to get at the roots of their issues that drive their conduct.”

The percentage of veterans in state prisons with discharges that are less than honorable is higher than in the veteran population at large. Data visualization by Sonner Kehrt (Data sources: Turned Away: How VA Unlawfully Denies Health Care to Veterans with Bad Paper Discharges/OUTVETS, Legal Services Center of Harvard Law School & Veterans Legal Services and Survey of Prison Inmates, 2016: Veterans in Prison/Department of Justice. Discharges characterized as “other” omitted from DOJ data set)

‘The United States Was Not Prepared—It’s Just That Simple’

When Ari Merretazon came home from Vietnam, nobody wanted to talk about what he had been through.

“There was no reception for veterans or acknowledgment of the war that we had fought,” he said, adding that veterans came back to, “a community that really didn’t understand what had happened to you.”

In the aftermath of earlier wars, veterans were collectively honored by a nation grateful for their service. But after Vietnam, Merretazon said, “We came home as individuals.”

In 1969, Merretazon was arrested for robbing an armored truck full of Treasury Department cash en route to be incinerated—an event later dramatized in the film Dead Presidents. He was sentenced to 10 to 30 years in prison. While incarcerated, he took law classes and began organizing fellow inmates who were veterans, helping them apply for VA benefits. He also started lobbying public officials to learn more about why so many of his fellow veterans were behind bars.

Merretazon continued the crusade after a judge commuted his sentence in 1975, collecting data that would help shape the Justice Department’s first survey of incarcerated veterans. When the study was released in 1981, it found that nearly a quarter of the U.S. state prison population had served in the military. In federal prisons, one out of five prisoners was a veteran.

“The United States was not prepared for the return of vets, for the consequences of war,” Merretazon said. “It’s just that simple.”

Although just 16% of those who served in Vietnam were Black, the study found that they made up a third of veterans who were incarcerated in 1979. African-American soldiers were disproportionately punished in the Vietnam war and discharged other than honorably at higher rates than white soldiers, making it difficult to access the support and resources they needed to treat their wounds of war. Even today, Black service members are more likely to receive a less-than-honorable discharge than white service members.

And for all soldiers, what was then called “post-Vietnam syndrome” was not an official diagnosis. Veterans returning from Vietnam were expected to put the war behind them and rejoin society. Many turned to drugs or alcohol to self-medicate.

Despite the Justice Department report and congressional hearings on the subject, the number of veterans behind bars continued to grow.

“Nixon launched the war on drugs at the same time that he started pulling American soldiers out of Vietnam,” said Jason Higgins, an assistant professor at Virginia Tech, who has authored a book about the experiences of incarcerated veterans.

As the country moved on from the war, there was less appetite for revisiting Vietnam and less tolerance for those still struggling with their experiences there.

“The political landscape was changing in the 1980s,” Higgins said. “In light of the Reagan era, I think that they wanted to heal from the divisions that the war caused. And so, to point out injustices, or to point to antiwar veterans as a group that experienced these, would have been politically difficult.”

In the decades after the war, prison populations swelled with both veterans and civilians. By the time of the Justice Department’s 2016 study, the 107,000 veterans incarcerated across the country represented just 7% of the U.S. prison population—but almost 40,000 more veterans than had been incarcerated during data collection for the department’s first report in 1981.

“While I would argue that the arc bends toward justice, there’s still injustice happening,” Higgins said. “There are a lot of similarities, in other words, between Vietnam, and Iraq and Afghanistan.”

‘That Must Have Been, Like, Real’

Brockton Hunter’s first client from the post-9/11 wars was an Army Green Beret who was arrested for domestic violence after coming home from a deployment in Afghanistan to find his wife had been cheating on him.

Then Hunter had another veteran client, and another.

“We were off to the races,” Hunter said.

Every year, some 245,000 service members transition off active duty and enter civilian life.

The transition from civilian to soldier is a rigorous process: Military haircuts and uniforms begin to erase traces of who you were before; boot camp inculcates a new identity. Mobilizing for deployment—particularly for combat—is even more onerous: trainings, drills, briefings, gear issuance.

But the reverse is not true. When people come home from war and leave the military, there is little to guide the process. Service members leaving active duty are typically required to attend what is called the Transition Assistance Program, which aims to prepare new veterans for the civilian world. But attendees have long questioned its value, saying it can feel like the program just “checks the box.” A Government Accountability Report in 2022 found that nearly a quarter of service members deemed most in need of support did not attend the training.

Veterans do not automatically receive VA health care when they leave the military, nor are they connected with VA counselors or benefits. Navigating bureaucracy and wait times for care can be burdensome, particularly for people who are already struggling. It’s even worse for veterans with discharges for misconduct, who are five times more likely to experience homelessness. Reentering civilian society can be profoundly destabilizing, particularly after wars that many Americans paid little attention to.

Hector Matascastillo, a former Army Ranger with 13 combat deployments, recounted paying for something last year with a credit card from USAA—the bank used by many military members. The man behind the counter thanked him for his service. Then he asked him, “So—what were those wars? Did you fight in those wars?”

Did he mean Iraq and Afghanistan? Matascastillo asked, and said he had deployed to both countries.

“Damn,” Matascastillo remembered the man saying. “That must have been, like, real.”

In 2004, Matascastillo had been arrested after a dissociative PTSD episode. In his mind, he was facing down the enemy while searching for a target in some faraway country. In reality, he was on his front lawn in Lakeville, Minnesota, a gun in each hand, facing down eight armed police officers.

Matascastillo was charged with 13 felonies. But the judge overseeing his case decided not to send him to jail. Instead, he told Matascastillo that he needed to “exorcize [his] demons.” After undergoing mental health treatment, Matascastillo pleaded guilty to one count of terroristic threats and a misdemeanor. Today, he is completing a Ph.D. in clinical psychology and works as a negotiator on crisis response teams.

“The vast majority of our veterans do amazing things in America after their service,” Seward, at the Council on Criminal Justice, said. But, he added, the country cannot abandon those who inevitably struggle. “We need to embrace those folks,” he said.

A Need to “Save More of Our Own’

In 2009, the Supreme Court heard a case called Porter v. McCollum. It dealt with a wounded Korean War veteran named George Porter, who was convicted of killing his ex-girlfriend and her boyfriend. In the court’s ruling, which overturned Porter’s death penalty sentence, it found that Porter’s lawyers had failed to bring up his military service in their defense and determined that this amounted to ineffective counsel.

“[The Porter decision] sort of gave license to the idea that veterans’ military service and related mental health or substance abuse issues should be considered in criminal sentencing,” Hunter said. The ruling paved the way for expanding veteran treatment courts, which had been piloted the previous year in Buffalo, New York.

Today there are more than 600 veterans treatment courts across the country. Their exact programming varies among states, but typically combines therapy, substance abuse counseling, and drug testing, with the prosecution and defense working together towards rehabilitating veterans.

But advocates want judges in all courts to think more about the role of a defendant’s military background in sentencing. Last year, Hunter worked with the Council on Criminal Justice to draft a model policy for alternative sentencing options for veterans charged with certain crimes. The policy emphasizes probation, in conjunction with completing evidence-based treatment, in lieu of conviction for vets who have conditions like PTSD or traumatic brain injury. In August, ALEC, the conservative clearinghouse for model legislation, adopted the guidelines as a model policy.

The Council on Criminal Justice’s veterans commission also recently released a set of recommendations aimed at supporting veterans during their transition from active duty to civilian life, including establishing a new undersecretary of defense responsible for transition and revamping military justice to minimize bad paper discharges.

“Every person we can retain, we don’t have to recruit,” Seward said. “If we can save more of our own, we don’t have to spend money training a new person, and we can improve the outcomes for that veteran, for their families, for their communities.”

The idea is to have in place a full spectrum of support for veterans, starting before they leave the military, to help them through the stresses that have led to prison for generations of veterans. It’s a goal that requires bridging the disconnect between those who have served and those who have not.

“The biggest myth is, ‘Nobody can understand me,’” Matascastillo says. “You know what? People understand pain, people understand suffering, people understand trauma. It’s a human condition.”

It’s an approach that, perhaps one day, can extend beyond veterans.

“If you go to a vet court, you’re going to see all these people, you’re going to see a dedicated community of people committed to the idea that they’re saving people’s lives,” Higgins said. “They’re committed to the idea that they’re saving tax dollars, and they’re preventing people from going back to prison.”

He added, “You provide that type of genuine care with the power of federal resources behind rehabilitation in America—I would argue that you’re looking at the model for resolving some of the inequity in mass incarceration.”

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This War Horse feature was reported by Sonner Kehrt, edited by Erica Goode, fact-checked by Jess Rohan, and copy-edited by Mitchell Hansen-Dewar. Headlines are by Abbie Bennett.

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