Abraham Lincoln, Justice-Involved Veterans And Thanksgiving
Let’s be thankful for our veterans. Our judicial system needs bold leadership to energize the Veterans Criminal Diversion Program, conduct a public relations campaign, and overcome disparate treatment of Veterans among the various counties.
November 08, 2021 at 10:00 AM
15 minute read
By Thomas Roughneen
According to a 2021 report from the U.S. Department of Justice, Bureau of Justice Statistics, 61% of prisoners released in 2008 were re-incarcerated within 10 years. Compare that to justice-involved Veterans, whose recidivism rates range from 1% to 10% in the various Veterans Treatment Courts across the country, according to Justice for Veterans, a division of the National Association of Drug Court Professionals. Prosecutors can refer arrested Veterans into treatment and avoid unnecessary incarceration.
Yet the NJ Criminal Justice Reform Act (CJRA) has led to the incarceration in pre-trial detention of scores of justice-involved Veterans who do not have a criminal record, have little risk of re-arrest nor are they a flight risk, most often. Yet County Prosecutors are pressured to use complaint-warrants almost guaranteeing three days in jail, and regularly up to a week, before release.
In one case last year, after spending weeks in an in-patient facility for risk of suicide before medical professionals diagnosed him and stabilized him, one Marine combat Veteran still went into the county jail afterwards because law enforcement charged him with a complaint-warrant. Although he was originally charged with carrying a loaded handgun, the young Marine still had to be sent into the Passaic County Jail and—but for one hard-working and reasonable judge, who worked through her lunch hour with her staff—he would have spent over a week in the county jail, including Columbus Day weekend, due to pretrial detention.
Prosecutors ultimately have charging discretion but fall back on the NJ AG Guidelines. That judge and her staff surely did not have to accommodate this combat Veteran and most would not have done so. But the judge properly released him since he did not belong in the jail and was not a flight risk or a threat to others. Another regular concern is that pretrial detention keeps justice-involved Veterans from essential follow-up medical appointments and, unfortunately, jails rarely, in my experience, properly administer prescription medications, and that is what happened to this Marine.
NJ’s Veterans Criminal Diversion Law Does not Require Pretrial Detention of Veterans
This Marine Sergeant learned that one of his fellow Marines had been killed in action and that horror triggered excessive drinking, flashbacks, and it led to him leaving his home with a loaded handgun and these charges. The judge, thankfully, reviewed the Marine’s supportive and close family ties and carefully considered that he had served three deployments in the Middle East. Not only that, this active duty Marine recruiter belonged to a well-supervised unit whose Commander was a Major and would be responsible for supervising him.
Notably, the CJRA uses a Public Safety Assessment (PSA) to assist courts in making release determinations, and the Marine was adjudged a low-risk offender with a score of 1 for risk of failure to appear and a score of 1 for risk of new criminal activity, the lowest possible scores possible. Given that the Marine Sergeant was charged with his first offense and had no history of violence in the community, was adored by his family, friends, fellow Marines, and because of his amenability to treatment, it was unnecessary to incarcerate a man for almost a week who had not been convicted of a crime. These decisions require careful examination but jail without convictions for any stretch of time needs to be more closely examined. Prosecutors need to carefully make charging decisions, as nonviolent individuals are subject to what I consider abuse in too many cases.
Indeed, in another case involving unnecessary pretrial detention for fourth-degree nonviolent charges, the Army Sergeant lacked a criminal record. But by charging him with a complaint-warrant, the decision made it nearly impossible to transfer him from the county jail to the VA for desperately needed in-patient treatment, which the court was trying to achieve. That Veteran’s case required three separate hearings over the course of 12 days before his transfer to the East Orange VA from jail. Moreover, the judge only released the Sergeant on the condition that he immediately travel to this hospital. Without anyone to transport him, because the Sheriff’s Office was unauthorized to transport a released prisoner, I loaded my client into my car and took him from Elizabeth to the VA Hospital. None of that would have been necessary if the prosecutors and the police used a complaint-summons, and offered the option of medical in-patient treatment, instead of a complaint-warrant and mandatory incarceration.
Presumptions That Combat Veterans With PTSD Are Predisposed to Violence
In another recent New Jersey case involving domestic violence, counsel moved to disqualify a judge who evidenced a clear bias against a retired and disabled Marine. The judge refused to strike incendiary testimony and trial counsel’s leading questions that equated a Marine’s service to that of a “killer.” Those who serve in the U.S. military are trained in escalation of force and to be compliant with Geneva and Hague Convention requirements. All members of the U.S. military are also sworn to uphold and defend the United States Constitution and, of course, those in uniform, deployed to combat zones or not, are subject to the Uniform Code of Military Justice, drafted, in part, by the late Judge John Gibbons.
Those who honorably serve in the United States military and who deploy on behalf of our nation make our system of justice possible. For a judge to permit a plaintiff and her lawyer to disparage a disabled Marine or any combat Veteran, with such generalizations, cannot be tolerated. Moreover, lawyers and judges must appreciate the incredibly harmful effects caused to vulnerable parties when they disparage a combat Veteran’s service, especially one suffering from depression and substance abuse. More Vietnam Veterans reportedly have died from suicide than in combat.
In that DV allegation, counsel clearly encouraged the plaintiff’s testimony that the Marine was “trained by the government as a killer.” Perhaps counsel even coached the witness, evidenced by the aggravation of the improper testimony and misquoting of her client in follow-up direct. That particular lawyer further mischaracterized the Marine as a “government trained killing machine,” evidencing ignorance of lawful combatants.
Plaintiff: Well, clearly he’s much larger than me, and me being that I’ve had multiple surgeries so—and I am disabled, I cannot defend myself against him. It’s been shown in the video. He’s also trained by the government as a killer, so I’m afraid of that.
Defense Counsel objected.
Plaintiff’s Counsel: How do you know that?
The Court: Okay, hold on. There’s an objection. I’m sorry. What’s your objection is to the reference that he—
Defense Counsel: It’s nonresponsive to the question, certainly, and it’s also grossly inflammatory and also offensive (indiscernible). Your Honor, so I ask that the answer be struck from the record.
Plaintiff’s Counsel: It certainly is responsive to my question, Your Honor, when I asked my client why she continues to be afraid of him, and I was about to ask her a follow-up question when she stated that he is a government-trained killing machine. I was about to ask her how she knows that.
The Court: Okay. I’ll allow you to ask it, but I’ll just note the objection and the characterization made by the plaintiff with respect to him being a killing—trained by the government as a killing machine. So, I’ll allow you to explain—or ask the follow-up question, but I’ll note the objection and as to the characterization.
Plaintiff’s Counsel: Why do you say those words?
Plaintiff: Because [the Marine] would always talk about various stories about being overseas and talk about killing insurgents and things of that nature, so why would I not be afraid being that he has that type of training and that kind of background? And then seeing how he has acted toward me already just being drunk and how he’s turned on me with, like, a flip of a switch. I definitely feel afraid knowing that he’s already had that type of background ….
Counsel moved pursuant to N.J. Court Rule 1:12-2 that “[a]ny party, on motion made to the judge before trial or argument and stating the reasons therefor, may seek that judge’s disqualification.” Specifically, based on the testimony in the case and the judge’s rulings, the Marine’s military service was central to the judge’s prejudgment of the facts. The judge specifically referred to the Marine’s military service as the cause of the events in this case and as the basis to find the disabled and retired Marine a continuing threat to plaintiff.
Four Years Later: NJ’s Veteran Criminal Diversion Law
Well over 90% of justice-involved Veterans with mental health issues who participate in Veterans Diversion Programs and Veterans Treatment Courts are not arrested in the next five years. These numbers are unmatched when compared to other demographics. But New Jersey Prosecutors, with a few exceptions, have not and appear unwilling to implement the statute signed over four years ago. Therefore, New Jersey has done a poor job in living up to Abraham Lincoln’s challenge: “To care for him (her) who shall have borne the battle and for his widow and his orphan.”
Veterans do not receive preferential consideration, but they have earned mental health benefits from the Department of Veterans Affairs (VA). When Governor Christie made the diversion law effective in December 2017, New Jersey recognized this fact and mandated both State and County-level programs to avoid unnecessarily incarcerating combat Veterans. But NJ’s courts and prosecutors stubbornly resist implementing the program in a manner that integrates the VA, the VA’s Veterans Justice Outreach (VJO) liaisons and the incredible health benefits that are available. NJ has also failed to integrate and train Veteran Mentors as the statute requires.
Convicting combat Veterans should be rare when they have earned the right to federal taxpayer medical care and rehabilitation opportunities. Veterans are clearly not the typical defendant with these kinds of federal resources available. Not only that, the VA created a special program called Veterans Justice Outreach (VJO), with trained counselors to serve as liaisons between the VA, judges, prosecutors, defense attorneys and probation to integrate the federally funded programs that exist and share medical information.
Regionalization of Municipal Courts: A Welcome Development
VJO Liaisons need to be used efficiently to maximize their usefulness. It is simpler than it looks. Even though there are only four VJOs in New Jersey, the various Counties or Vicinages must coordinate their calendars to link and share resources and expertise. Counties need a designated judge and time. Progress in this area would benefit from leadership in Trenton. The solution is a fairly simple one: counties can centralize Veteran case management and exploit the VA’s resources. To properly function, VJOs must routinely be present at court hearings. Municipal courts in Newark and Toms River have centralized Veterans’ cases, and Superior Court Vicinages should do likewise for indictable and municipal court criminal charges.
Poor or No Implementation of Veteran Diversion in Too Many Counties
NJ has to do better than the poor performance thus far. Just how bad has implementation been? The percentage of eligible Superior Court defendants to gain a Veteran diversion is 0.74%. What is even worse is that most eligible defendants who would benefit are in municipal court, and their cases are not within the scope of New Jersey’s County Prosecutors, and their percentage of admission is even lower. According to the Judiciary’s Fiscal Year 2019-2020 report to the New Jersey Legislature, 35 defendants had been diverted through the 2017 Veterans Diversion Law. That was from a total of 1,528 cases involving a military service member or Veteran in Superior Court and of the 3,161 cases identified in municipal courts.
Proclamation of Thanksgiving and its Ties to Veterans and Those Killed in Action
With Veterans Day upon us, the holiday and Thanksgiving are both tied to those who have served. Thanksgiving began, in earnest, after the Union had appeared to turn the tide against the South. Abraham Lincoln’s Generals had finally achieved massive victories in Vicksburg and Gettysburg. And it was Lincoln’s October proclamation that set the precedent for America’s national day of Thanksgiving.
According to AbrahamLincolnOnline.com, Sarah Josepha Hale, a 74-year-old magazine editor, wrote a letter to Lincoln on Sept. 28, 1863, urging him to have the “day of our annual Thanksgiving made a National and fixed Union Festival.” She explained, “You may have observed that, for some years past, there has been an increasing interest felt in our land to have the Thanksgiving held on the same day, in all the States; it now needs National recognition and authoritive fixation, only, to become permanently, an American custom and institution.”
Prior to this, each state scheduled its own Thanksgiving holiday at different times, mainly in New England and other Northern states. President Lincoln responded to Mrs. Hale’s request immediately, unlike several of his predecessors, who ignored her petitions altogether. In her letter to Lincoln she mentioned that she had been advocating a national thanksgiving date for 15 years as the editor of Godey’s Lady’s Book. George Washington was the first president to proclaim a day of thanksgiving, issuing his request on Oct. 3, 1789, exactly 74 years before Lincoln’s.
The document below sets apart the last Thursday of November “as a day of Thanksgiving and Praise.” According to an April 1, 1864, letter from John Nicolay, one of President Lincoln’s secretaries, this document was written by Secretary of State William Seward, and the original was in his handwriting. On Oct. 3, 1863, fellow Cabinet member Gideon Welles recorded in his diary how he complimented Seward on his work. A year later the manuscript was sold to benefit Union troops.
October 3, 1863
By the President of the United States of America.
The year that is drawing towards its close, has been filled with the blessings of fruitful fields and healthful skies. To these bounties, which are so constantly enjoyed that we are prone to forget the source from which they come, others have been added, which are of so extraordinary a nature, that they cannot fail to penetrate and soften even the heart which is habitually insensible to the ever watchful providence of Almighty God. In the midst of a civil war of unequalled magnitude and severity, which has sometimes seemed to foreign States to invite and to provoke their aggression, peace has been preserved with all nations, order has been maintained, the laws have been respected and obeyed, and harmony has prevailed everywhere except in the theatre of military conflict; while that theatre has been greatly contracted by the advancing armies and navies of the Union. Needful diversions of wealth and of strength from the fields of peaceful industry to the national defence, have not arrested the plough, the shuttle or the ship; the axe has enlarged the borders of our settlements, and the mines, as well of iron and coal as of the precious metals, have yielded even more abundantly than heretofore. Population has steadily increased, notwithstanding the waste that has been made in the camp, the siege and the battle-field; and the country, rejoicing in the consciousness of augmented strength and vigor, is permitted to expect continuance of years with large increase of freedom. No human counsel hath devised nor hath any mortal hand worked out these great things. They are the gracious gifts of the Most High God, who, while dealing with us in anger for our sins, hath nevertheless remembered mercy. It has seemed to me fit and proper that they should be solemnly, reverently and gratefully acknowledged as with one heart and one voice by the whole American People. I do therefore invite my fellow citizens in every part of the United States, and also those who are at sea and those who are sojourning in foreign lands, to set apart and observe the last Thursday of November next, as a day of Thanksgiving and Praise to our beneficent Father who dwelleth in the Heavens. And I recommend to them that while offering up the ascriptions justly due to Him for such singular deliverances and blessings, they do also, with humble penitence for our national perverseness and disobedience, commend to His tender care all those who have become widows, orphans, mourners or sufferers in the lamentable civil strife in which we are unavoidably engaged, and fervently implore the interposition of the Almighty Hand to heal the wounds of the nation and to restore it as soon as may be consistent with the Divine purposes to the full enjoyment of peace, harmony, tranquillity and Union.
In testimony whereof, I have hereunto set my hand and caused the Seal of the United States to be affixed.
Done at the City of Washington, this Third day of October, in the year of our Lord one thousand eight hundred and sixty-three, and of the Independence of the United States the Eighty-eighth.
By the President: Abraham Lincoln
William H. Seward,
Secretary of State
Thomas Roughneen practices at CitizenSoldierLaw and focuses his general practice on Veterans.
Reprinted with permission from the Nov. 8, 2021, issue of the New Jersey Law Journal. Further duplication without permission is prohibited. All rights reserved. © 2021 ALM Media Properties, LLC.