Perils of the PTSD defense

Understandable sympathy for veterans traumatized by war is transforming the conduct of criminal trials. A recent story by Times staff writer David Zucchino reported that post-traumatic stress disorder is increasingly being cited by defense attorneys in arguing that a defendant lacked the intent necessary for conviction of most offenses. The implications for the criminal justice system are significant. Already, 170,000 Iraq and Afghanistan veterans have been diagnosed with PTSD, according to the Department of Veterans Affairs.

Post-traumatic stress disorder, which is not limited to veterans, is a recognized psychological ailment that is included in the Diagnostic and Statistical Manual of Mental Disorders. But just because a person is diagnosed with it doesn’t mean that he or she can’t form the requisite intent to commit a crime. And the defense is not always successful. Zucchino told of Joshua Stepp, an Army infantryman convicted of killing his infant stepdaughter, who had cited post-traumatic stress disorder in his defense. (The jury deadlocked on whether to impose the death penalty.)

Stepp’s attorney told the jury, “People with untreated PTSD do not have the same checks and balances, or brakes, that the rest of us hopefully do.” It isn’t unprecedented to argue that certain groups have a greater propensity to violence. Six years ago, in striking down the death penalty for juveniles, the Supreme Court remarked on “the susceptibility of juveniles to immature and irresponsible behavior.” But it doesn’t automatically follow that an individual defendant is unable to form intent to commit a crime because of his youth; so too a diagnosis of post-traumatic stress disorder shouldn’t automatically lead to leniency.

It isn’t clear whether judges and juries are too tolerant of defenses based on post-traumatic stress disorder. But there is a danger that the mere invocation of PTSD, especially in a case involving a veteran, might substitute for a nuanced examination of the case for leniency. Experts should be closely questioned about the unique psychological factors that resulted in impairment for a specific defendant.

Like other defendants, veterans deserve to have mitigating factors taken into account by the criminal justice system. But there is the danger that post-traumatic stress disorder will become a talisman for leniency where none is justified — and a synonym for criminal tendencies. That would be unfair to other defendants and demeaning to the military.