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No Sugar Coating: Combat Trauma and Criminal Conduct

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No Sugar Coating: Combat Trauma and Criminal Conduct CHAPTER 1 [Draft—not for Jonathan Shay Oct 8, '11, 10:06 AM Added: Space distribution] NO SUGAR COATING: COMBAT TRAUMA AND CRIMINAL CONDUCT by Dr. Jonathan Shay, M.D., Ph.D.1 Dr. Shay was a staff psychiatrist at the Department of Veterans Affairs Outpatient Clinic, Boston, 1987-2008, where his only patients were combat veterans with severe psychological injuries. He is the author of Achilles in Vietnam: Combat Trauma and the Undoing of Character (1994) and of Odysseus in America: Combat Trauma and the Trials of Homecoming (2002). The latter has a Foreword authored jointly by US Senators John McCain and Max Cleland. He was the Omar Bradley Chair of Strategic Leadership at the US Army War College, Spring semester, 2009. He was Chair of Ethics, Leadership, and Personnel Policy in the Office of the US Army Deputy Chief of Staff for Personnel (2004-2005), and performed the Commandant of the Marine Corps Trust Study (1999-2000). He is author of many book chapters and journal articles, and is recipient of a MacArthur “genius” Fellowship (2008-2012, incl.) He has spoken with audiences ranging from his own specialty to classicists, surgeons, military commanders, historians, philosophers, legislators, civilian and military lawyers, clergy, and judges. He is currently retired from clinical practice and he describes himself as a missionary to the Armed Forces on prevention of psychological and moral injury from the veterans he has served. I. Combat Service and Criminal Lifestyle I’ll put this as bluntly as I can because it is terribly important that the legal practitioner understand this point: combat service in a long, close fight on land, per se, smoothes the way into criminal careers after return to civilian life. War itself does this, because the skills, instincts and other valid adaptations essential to survive combat have few civilian equivalents that are not illegal. To illustrate this point, let’s consider a selection of the strengths, skills and capacities 1 DISCLOSURE: The author has no formal forensic training and a single de minimus experience as an expert witness. He has had many uncompensated conversations with civilian and military defense lawyers (JAGs), and is currently under contract for future services by the Capital Habeas Unit in a Federal Defenders Office. acquired during prolonged ground combat2: • Control of fear; • Cunning, the arts of deception, stealth, camouflage, misdirection, and concealment; • The arts of the “mind-fuck;” • Control of violent members of their own group; • The capacity to respond skillfully and instantly with violent, lethal force; • Vigilance, constant mobilization of the mind and body for danger; • Regarding fixed rules as possible threats to their own and their comrades’ survival; • Regarding the enemy’s fixed rules as possible advantages to be gained ; • Suppression of compassion, horror, guilt, tenderness, grief, and disgust; • The capacity to lie fluently and convincingly; • Physical strength, quickness, endurance, and stealth; • Skill at locating and grabbing needed supplies, whether officially provided or not, “pilfering;” • Skill in the use of a variety of lethal weapons, including improvised weapons; • Skill and fortitude in adapting to harsh physical, cultural, and mental conditions; • Patient, intelligent observation of a target’s physical dispositions and habits. My clinical experience has born this out, as illustrated by the stories of Vietnam veterans I have treated, retold in Achilles in Vietnam and Odysseus in America. At least a score veteran have pointed out—with bitterness or black humor—Block 23b of the standard basic military discharge document, the DD-214. The label on this block is “Civilian Equivalent Employment.” It contains a Department of Labor job classification code number and the title of that classification. When the entry in Block 23a, “Military Occupation Specialty” is 11B (or the Marine equivalent 0311) Infantryman, the Block 23b is filled in . what?. “Firearms Proof Technician.” Why bitterness? How many such civilian jobs have ever existed in America? The tiny handful could readily be filled by the equally tiny number of former Armorers, not to speak of the shallow belief that the infantryman’s most important capacity is shooting a gun in a test range. One veteran bitterly described being interviewed by HR at the phone company. The interviewer cheerily asked what his military occupational specialty had been, apparently hoping or expecting something directly useful to her company, like a wireman or electronics 2 Take care with assumptions that a Navy or Air Force veteran cannot have had such combat experiences. Examples: Forward Air Controllers, riverine forces. maintenance technician. When the veteran said, “Machine Gunner,” she said, “We have all of those that we need,” and tittered at her own wit. Without another word, the veteran rose and walked out of the building, never to return. What black humor? That Block 23b should read either “Criminal” or “Convict.”3 All phases of our nation’s criminal justice system—police, local jails, courts, prisons, parole, and the legislative and executive authorities responsible for them—have been offered the opportunity during and after every war to learn about the relation of combat service to crime, and have largely declined to learn. The Department of Veterans Affairs has a shameful history of turning its back on incarcerated veterans, but I shall stick to my narrower subject of criminal defense and spare the reader my rants on these themes. According to the massive, Congressionally-mandated National Vietnam Veterans Readjustment Study, 11.6 percent of Vietnam-theater veterans who met criteria for post traumatic stress disorder (PTSD) in the mid-1980’s, when the interviews were conducted, told the interviewer that they had been convicted of a felony.4 Even the U.S. Army’s FM 6-22.5 Combat and Operational Stress Control Manual for Leaders and Soldiers, 18 March 2009 recognizes the causal relationship between combat stress and “misconduct stress behaviors,” such as violent criminal acts or drug and alcohol abuse. 5 “Misconduct stress behavior is a form of COSR [combat and operational stress reaction] and most likely to occur in poorly trained, undisciplined units. Even so, highly trained, highly cohesive units, and individuals under extreme combat and operational stress may also engage in misconduct.[p.1-4]… Excellent combat Soldiers that have exhibited bravery and acts of heroism may also commit misconduct stress behaviors [p. 1-6].6 One veteran I treated, Wiry (pseudonym), explained to me what he was truly seeking in 3 This latter jibe is a dark commentary on the conditions on a prison tier as a “warzone,” where survival depends upon the skill and readiness to respond instantly with lethal violence. See Gilligan, James, Violence: Our Deadly Epidemic and Its Causes (1996). Also see my Odysseus in America, Chapter 3. 4 Richard Kulka, Ed., National Vietnam Veterans Readjustment Study: Tables of Findings and Technical Appendices. VII-21-1 (New York, Brunner/Mazel, 1996). 5 Headquarters, Department of the Army, Field Manual 6-22.5 Combat and Operational Stress Control Manual for Leaders and Soldiers, 18 March 2009. This was an update of the groundbreaking FM 22-51, Leaders Manual for Combat Stress Control. 29 September 1994 See particularly ch. 4 “Combat Misconduct Stress Behaviors.” 6 Ibid. page 1-6. his criminal carreer of ingeniously stealing locked safes from locked buildings7 and expertly opening them with the explosives—skills he gained in the service—“It’s not the money, it’s the action.” His skills, his cunning, his craft – all become valuable in “action” the way that they never are in civilian life. This observation that combat veterans may be readily enlisted into criminal gangs after war and to make criminal careers. is not new: Just as some thieves are not bad soldiers, some soldiers turn out to be pretty good robbers, so nearly are these two ways of life related. Sir Thomas More, Utopia, published in 15168 But will warriors lay down, together with the iron in which they are covered, their spirit nourished…by familiarity with danger? Will they don, together with civilian dress, that veneration for the laws and respect for protective forms…? To them the unarmed class appears vulgar and ignoble, laws are superfluous subtleties, the forms of social life just so many insupportable delays. Benjamin Constant, Swiss, 1767-18309 What was a necessary survival skill or a soldier's task in war is a transgression in civil society. This has always been true in the narrow sense that after return home, killing once again becomes homicide, foraging becomes theft, and incendiarism, arson. Words do matter; they are the furniture of our thought. No end of mischief has been created for veterans by the now-you-see-it-now-you-don’t history of what to call the damage that going to war can do to your mind and spirit. When most civilians—journalists, Congressmen, the public, non-medical military people—use the term “PTSD” today they mean it in this broad sense: an umbrella term for all the bad mental and social and spiritual outcomes of having gone to war. “He was never the same.” 7 By pulling them directly through the back or side walls of small, old commercial buildings, by means of a tow truck winch & cable. 8 Translated from Latin by RM Adams, New York: WW Norton, 1975, page 13 9 Benjamin Constant, Political Writings, trans. and ed. Biancamaria Fontana, Cambridge, UK: Cambridge University Press, 1988. p. 61. Thanks to Professor Eugene Garver for this quotation. “It turned him mean.” “Turned him to ice.” “It was like walking on eggs with him.” Unfortunately for military personnel and for veterans, the official definition of PTSD by the American Psychiatric Association is extremely narrow and excludes a great deal that wrecks lives, families, sometimes workplaces, and maybe even nations (e.g., the Weimar Republic).
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