Exploring Therapeutic and Militaristic Contexts in a Veteran Treatment Court

Specialty Courts

The initial problem-solving courts were drug courts that began in the late 1980s (Listwan, Sundt, Holsinger, & Latessa, 2003). These courts subsequently expanded to include mental health courts and other types of specialty courts, ultimately including VTCs. Since 2008, the number of VTCs has grown rapidly due, in part, to the reports of VTC success, and notions that military service of combat veterans was likely a factor in their criminal justice involvement (Frederick, 2013; Holbrook & Anderson, 2011). As of early 2014, more than 220 VTCs were in operation (Justice for Vets, 2015).

State legislatures may establish statutory requirements for VTCs, and many focus on the relationship between mental health and criminal justice involvement. For example, in 2009, the State of Texas passed legislation, similar to many other states, allowing for the creation of specialty courts for veterans (Texas Government Code Chapter 124.001). By statute, counties in Texas may establish VTCs that meet certain criteria:

An eligible defendant must (1) be a veteran or current member of the U.S. armed forces and (2) must suffer from a brain injury, such as TBI, or a mental disorder, such as PTSD, as a result of military service in a combat zone and (3) the brain injury or mental disorder must have materially affected the conduct of the defendant in regard to the crime committed.

As VTCs typically have components that address mental health and substance abuse issues underlying the criminal conduct of military veterans, we draw on research on drug treatment courts (DTCs), mental health courts (MHCs) as well as VTCs. These problem-solving courts are different from traditional courts in three significant ways.

First, these courts focus on the root causes, not outcomes of criminal behavior. For example, DTCs focus on offender’s drug addiction (Hora, Schma, & Rosenthal, 1999) and MHCs provide psychological treatment to address emotional or mental health problems leading to offending (Goldkamp & Irons-Guynn, 2000). Judge Robert T. Russell, Jr., noted that many veteran defendants experienced issues with alcoholism, drug abuse, homelessness, mental illness, and strained family relations. These factors were thought to contribute to veterans’ criminal justice involvement (Russell, 2009). Russell’s experience working in drug and mental health courts led him to believe that a court process that addressed the specific needs of veterans might be more successful than a traditional court, hence his establishment of a VTC in New York in 2008. Generally, VTCs combine the treatment regimens of both DTCs and MHCs and focus on individualized treatment.

Second, these courts utilize a collaborative rather than an adversarial approach. Unlike the process of the traditional court setting, the judge, prosecutor, defense attorney, and probation officer act as a team to promote the best interest of the defendant. In specialty courts, judges take a more active role and regularly monitor the compliance of offenders, rather than act as referee between the prosecutor and defense attorney (Wexler & Winick, 1996). In one study that provided an in-depth examination of the nature of the VTC, Baldwin and Rukus (2015) found evidence that the VTC emphasized a collaborative and non-adversarial approach to case management. They found that nearly all respondents (VTC team members) reported that confrontation was not at all present between court staff and probationers during court sessions (Baldwin & Rukus, 2015). In general, specialty courts were developed as a community-based, team-oriented, criminal justice intervention that utilizes community support and resources (Listwan et al., 2003). An additional facet of specialty court practice arising from the collaborative and ongoing nature of monitoring is that probationer successes, large and small, are often recognized by court personnel and other probationers through praise or applause (Redlich, Steadman, Monahan, Robbins, & Petrila, 2006).

Third, these courts focus on outcomes beneficial to the offender, the victim, and society, not on punishment (Frederick, 2013). Specialty courts focus on the cause of the criminal behavior, not solely the symptoms that bring the offender into the criminal justice system. By addressing the root of the problem, specialty courts hone in on the dysfunction that improves the health of the offender and the safety of society (W.B. Brown, 2011). Specialty courts, such as drug courts, have found a lower rate of recidivism in participants who complete the program, ultimately helping the offender, family, and their community (Listwan et al., 2003). In addition, successful completion of a specialty court can lead to deferred adjudication as opposed to a misdemeanor or felony conviction. A successful participant is therefore not labeled and can recreate a life with better employment opportunities, fewer child custody issues, and other community support (Cooper, 2007). Ultimately, the primary focus of specialty courts is to provide supervision, treatment, and service to reduce future involvement in the criminal justice system (Burns, Hiday, & Ray, 2012).

Context of Therapeutic Jurisprudence

VTCs can be seen as operating on the backcloth of the philosophy of therapeutic jurisprudence, and they may even draw on therapeutic jurisprudence principles to enhance their procedures (Wexler & Winick, 1996). Therapeutic jurisprudence broadly contends that laws and legal procedures through which laws are applied may therapeutically affect all actors involved in the legal process (Wexler & Winick, 1996; Winick, 2003). Another important consideration drawn from this philosophy is that an offender’s perception of fairness and transparency in the decision-making process may influence success in specialty courts (Frazer, 2007). For the purposes of this study, the key contribution of therapeutic jurisprudence to specialty court philosophy is that court officials view offender’s problems from a broader point of view—these actors rely on treatment and resources as opposed to punishment to induce desistance (Castellano, 2011). Furthermore, this process unfolds in a collaborative, rather than an adversarial manner. In this way, judges, attorneys, and other court personnel act as therapeutic agents, attempting to “heal” the defendant through this non-traditional court process to resolve the underlying issues causing the offender to be involved in the criminal justice system (Russell, 2009; Wexler & Winick, 1996).

Taken together, the specialty court and therapeutic jurisprudence literature paint a broad picture of how VTCs, as well as MHCs and DTCs, are different from traditional courts (Castellano, 2011; Drug Court Programs Office, Office of Justice Programs, 1997; Russell, 2009; Wexler & Winick, 1996; Winick, 2003). The general point is that specialty courts, like the VTC, often take a therapeutic approach instead of a solely punitive approach. Therefore, we refer to the specialty court approach as a therapeutic one, keeping in mind that specialty courts are not necessarily linked to the specific philosophies of therapeutic jurisprudence.

The Military and VTC

VTCs are unique because they support the idea that combat-injured military offenders should be honored for their service to the country by diverting them from traditional court and sentencing (Cartwright, 2011). There is, however, little to no research that examines how the military influences VTC practices or procedures. In the one study that has discussed the role of the military in VTC procedures, Baldwin and Rukus (2015) found that the military community provided a support network for veteran defendants—this network was characterized by a sense of camaraderie instilled in the military community. In building on this prior research, a logical place to continue exploring is the presumption that because the court defendants are veterans (and perhaps court personnel), a shared culture is imported into the VTC process. In other words, because VTC defendants are, by definition, either currently or previously enlisted in the U.S. military (and to an unknown extent, this may also be true of VTC staff), we may reasonably assume that some form of assimilation to the military culture has taken place prior to the entry of defendants (and staff) into the VTC process, and as a result this culture pervades the court.

The culture of an organization is described as the values, philosophies, and traditions that animate the organization (Collins, 1998). Furthermore, cultures typically have their own language, norms, belief systems, rituals, and dress (Reger, Etherage, Reger, & Gahm, 2008). Military organizations have a distinct culture from that of the greater society. In a report on military culture in the 20th century, Collins (1998) reported though similarities exist between the values of the civilian and military culture, differences necessarily exist. The military imposes strict values, norms, and expectations on soldiers who are in training, deployed, and in combat. Society, however, has a different set of norms, values, and expectations that govern behavior. The total institution (TI) is one model for explaining how these differences in society’s norms and the military’s norms come to exist.

The Current Study

We had the unique opportunity to study a VTC in central Texas as part of a larger study, including 6 months of court docket observation, attendance of staff meetings, and interviews with participants. We took, as our point of departure, the question, “What is the veteran treatment court experience?” In this article, we present findings from our observation of VTC docket calls, the regular meetings held between the judge and defendants in court. We investigate whether each orientation, therapeutic and militaristic, is present in the court proceedings. We developed preliminary expectations concerning each orientation utilizing the current theory and research surrounding specialty courts and justice-involved veterans. Regarding military orientations, we asked the question “What military values, references, or mannerisms appear in the VTC?” We expected, based on the assumption that defendants would import an existing culture (Goffman, 1961; Zurcher, 1967), that we would observe at least some aspects of the military in play. However, how the military influences the court procedures is unknown. Although no research to date has documented the role of the military in the VTC, we suspect it is an important factor that differentiates VTCs from DTCs and MHCs. For the purposes of the present study, we broadly approach military influence, taking a first step toward describing this unique context.

To place the military influence in proper context, we asked a parallel question, “Does the VTC operate similar to other specialty courts?” We drew on specialty court research that suggests that regardless of whether or not the VTC was militaristic, the VTC would emphasize treatment, collaboration, and support for the veteran participant and family. Furthermore, specialty courts typically employ teams of criminal justice, social work, treatment, and veterans’ assistance working together to help and support the veteran defendant (Listwan et al., 2003). This research aims to broadly address the therapeutic orientation of the VTC to describe the differences and similarities from other specialty courts’ practices. In other words, we do not investigate specifically how elements of therapeutic jurisprudence manifest in VTC. Rather, we gauge whether the court operates in a way generally consistent with specialty court philosophy—a philosophy that is typically therapeutic (Goldkamp & Irons-Guynn, 2000; Hora et al., 1999; Russell, 2009).

Procedures

At each docket, two (of three) researchers were present and utilized laptop computers to record observations by taking detailed notes. ¹ The researchers could be clearly seen by the court personnel and the veteran offenders. At certain dockets (the first, and about every other docket throughout the study), the court administrator informed the defendants of the researchers’ presence and activity. There were slight, unavoidable deviations in our procedures, such as laptop failure resulting in hand-recorded notes for one observer on one day, and limited seating availability resulting in one observer recording from within the gallery on one day. There were no noticeable differences in the participants’ behaviors when the administrator announced the researchers’ presence, or when there were variations in our collection procedures.

The researchers were complete observers, having no interaction with the veteran offenders. At each docket call, one researcher sat in the witness stand directly next to the judge and had complete visual and auditory access to each individual proceeding (See Figure 1 for diagram of observer locations). The second researcher sat in the jury box close to the front of the courtroom. This observer focused on the body language of the veteran offender while in front of the judge, the interaction between the veteran offender and other court personnel standing with him or her, and the interaction between the veteran offender “unit” and the veteran offender before the judge (see Figure 1). The researchers also took note of the reactions of those in the gallery as the interaction with the judge played out before them.

OPEN IN VIEWER

Figure 1.

Diagram of Court Proceedings including locations of observers.

At the end of each docket call, the researchers dated their field notes and saved them in a password protected folder. The field notes of the researchers included (a) the content of the exchange (i.e., discussion or verbal exchange), (b) the emotional or affective response of the defendant and other veteran defendants in the courtroom, (c) the tone and expression of the judges and court officials, and (d) the structure, flow, atmosphere, and climate of the entire docket call. The collection procedures resulted in two sets of notes. The notes made by each individual researcher were combined into a single Microsoft© Word file so that the notes for each observer for each interaction were paired. The dockets were divided into segments: pre-docket announcements, graduate speeches, interactions, and post-docket announcements. The two sets of notes created by each observer were collapsed into a single observation for each pre-docket address, each graduate speech, and so forth. As a result, each type of interaction could be examined as a complete picture with each observer’s notes being combined.

Although the researchers commonly recorded the same information for a given interaction, there were times where one observer purposefully recorded details the other observer did not. The researcher in the witness box commonly recorded as much detail about the interaction between the judge and the defendant as possible, and the observer in the jury box recorded more details about the reactions of observers and the environment. This tended to be due to the amount of activity at any given time as observers would be attentive to different aspects of the exchange. The decision was made to have two observers present, to capture a more detailed, comprehensive picture of the court. ²

Researcher Perspectives

Each researcher brought a unique lens to the courtroom observation and each pairing of researchers brought a different combination of lenses into the courtroom. As we present mainly descriptive findings, we present information on these lenses to frame our findings. The first researcher, a White male, has not served in the military, nor has close ties with members of the armed forces. This researcher has experience with VTCs in Texas. Having worked with VTC personnel, this researcher’s perspective of the court is likely influenced by the goals and communicated intentions of the court leading to an emphasis of goals and intentions in his observation of this VTC. However, implicit expectations are a part of norms and the transmission of norms, so sensitivity to different interpretations of judge and defendant interactions will be important. The second researcher, a White female, formerly worked with victims of domestic violence to access court services and certified probation officers. Her experience in courtrooms and with probation may increase her attentiveness toward the offender/service provider interactions. Furthermore, this researcher has a close circle of friends who have served in the military for varying terms and both her father and brother served 4 years each in the Navy. Although the researcher has never served in the military, her exposure to those who have allows for some knowledge of the culture of the military, which may affect this researcher’s observation of the VTC. The third researcher, a White female, formerly practiced as a criminal defense attorney for many years in central Texas. Her experience in the traditional courtroom environment may have increased her awareness of differences between traditional courts and the VTC. In addition, this researcher has never served in the military and has no close ties to members currently serving in the military. Lack of familiarity about the informal subculture of the military may affect this researcher’s observation of the VTC. Collectively, these lenses provided a balanced view of the VTC, as one researcher was attuned to the differences in therapeutic and traditional court approaches, one was familiar with military culture, and one was familiar with the scholarly/theoretical approaches of each, therefore making a mediator for points of view.

Data

The findings presented are based on 422 exchanges that were observed over the study period. For the present study, exchanges were instances in open court where one or more individuals addressed another person. This includes pre- and post-docket announcements made by the court personnel or defendants. The announcements commonly included information about job fairs, the purpose of the court, or reminders about the court procedure. Also included in the term exchanges are the speeches given to the court by defendants on their graduation. The majority of exchanges though occurred between a defendant and the judge (364 of 422 exchanges)—we referred to these exchanges as interactions throughout the remainder of the article, as they are more focused than the pre- and post-docket addresses and graduate speeches. We also recorded and detailed the observations made about the courtroom environment and announcements made at each visit. We ended our observation after 6 months due to saturation, that is, the docket was quite predictable, and the environment was very consistent. Because there were no new occurrences or themes that emerged late in the period of observation, the researchers ceased the field observations to begin later phases of the research.

Despite varying researcher perspectives, the two features we examined were the therapeutic and militaristic nature of the VTC. Below, we present findings based on the fieldwork and development of themes that took place between the researchers. The researchers met throughout the fieldwork to discuss each aspect of the treatment court. We also conducted “member checks”—discussing our observations with court personnel who were able to clarify the meaning of terms or procedures in the VTC process. The field notes for each date were transcribed into NVivo, a software program that aids in the collection, storage, and analysis of non-numeric data (Bazeley & Jackson, 2014). The researchers read each observer’s notes, considered the totality of field research data, and developed themes separately. On comparing the themes that were developed individually, three themes were ultimately constructed collaboratively. The themes we identified as forming the basis for examining the general presence of therapeutic and militaristic contexts were “Help,” “Reinforcement,” and “Military Reference.” Each theme was, for the most part, structural. In other words, we emphasized the aspects of the court that were manifest or concrete in our observations. These themes were then coded in NVivo. Two independent coders reviewed each interaction to identify times where help was offered, given, or requested (three sub-themes to Help), where reinforcement was given in the form of applause, incentives, or positive evaluation (three sub-themes to Reinforcement), and where a military reference or allusion was made.

Descriptive Themes

Therapeutic Context of the VTC

The therapeutic context of the VTC manifested in ways that were generally consistent with the underlying philosophy and motivation for specialty courts. As expected, much of the initial theme construction for “help” and “positive reinforcement” informed the therapeutic context. The administrators and court personnel frequently explained the purpose of the court to the participants through pre-docket addresses, as well as during interactions with individual veterans. The court was described by court personnel to the veteran participants as non-adversarial, collaborative, and treatment oriented. For example, the judge or court administrator announced to veterans on multiple occasions phrases such as

Non-adversarial/Collaborative: “The thing about VTC is the prosecutors and defense attorneys are a team, in most courts, this is an adversarial relationship”; “everyone works together to ensure that veterans get the treatment they need”; “[The] focus of the court is treatment and we have a team; in our meetings we discuss the cases, we do it regularly.”

Treatment Oriented: “The treatment providers and POs are here for you, we don’t want you to go to jail, we want you to complete the program”; “Before you have to stand there and get thrown in jail, come see us,” “We don’t want treatment to become punishment.”

These court officials referred to “we” as the entirety of the court staff and used the term to signal collaborative interest. It was apparent from their comments to veteran participants that each of the treatment providers, probation officers, court administrative staff, and the judge maintained a common interest in improving the veterans’ lives as a unified treatment team. One address to the veteran participants in particular characterized the environment of the court quite well and was delivered from the criminal defense attorney to the veteran participants:

You don’t hear much from me because we are here to help rehabilitate you. You have heard the judge talk about MTR [motion to revoke probation] and you don’t want one because you will then hear from the prosecutor and me. We will be in an adversarial role and I will be defending you before the judge. . . . As the judge says, he will pull that trigger. So don’t make me work hard . . . the DA doesn’t want to prosecute you. We all want to help you. If you need to, seek out help.

Veteran defendants were also given a chance to address the remaining defendants when they graduated from the court. Veterans commonly used this address as a way to encourage their veteran peers and to emphasize how the court personnel were motivated to assist defendants. For example, one veteran emphasized how versatile the court personnel were and how many resources were at their disposal: “Everyone here is a resource, if you need anything, someone in this room can find it for you.” Another veteran identified how salient his experience was with a probation officer: “I can’t imagine where I would be without this place; I have had experiences with probation officers that I can’t explain; they came and did a home visit and they left food for me for about a week.”

We also found that interactions between the judge and the individual veterans were on display for everyone in court. Like other specialty courts, participants’ compliant and noncompliant behaviors were known to each observer in court, including their peers. This means that every interaction was an opportunity for the court personnel and the judge to emphasize the goals and purpose of the treatment court. We found that it was common for court personnel to take this opportunity and would interject this information into exchanges between veterans and themselves.

One way that the judge communicated the purpose of the court was offering help to participants. This particular judge offered help regularly at the end of his interaction with participants; in 178 of 364 (48.9%) one-on-one interactions between the judge and a participant, the judge explicitly offered help to the veteran. These offers were most often of a routine nature; this judge had made a habit of asking veterans “Is there anything else going on we can help you with?” This was especially true of interactions between the judge and participants who were being seen for the first time in court.

We also found the court to applaud good behavior, both figuratively and literally. We found the collaborative approach emphasized positive evaluation of probationers’ behavior. In no less than 230 of 364 interactions (63%), a member of the court personnel explicitly expressed a positive evaluation of a participant’s progress. These evaluations took on several forms. An obvious example of positive evaluation is promotion. In our observations, the court used positive evaluation and praise alongside promotion. The judge often made an example of veteran participants who were progressing and rewarded them with promotion in front of their peers by saying, “they say you’re doing so well that we get to promote you!”

The probation and treatment personnel flanking the participants as they stood before the judge also frequently voiced praise and positive evaluation of the veteran participant’s progress. Probation officers reported their satisfaction with communication, compliance, progress in required courses (Driving while intoxicated prevention education, anger management, among others), clean urinalyses, and having a positive attitude generally. Treatment personnel reported to the judge on the veteran participant’s progress in group or individual treatments, and commonly praised them for consistent attendance and engagement.

Veterans were also given monetary incentives for exceptional behavior. The court sometimes singled out participants who were overcoming particularly difficult life circumstances and persisting in their effort in court for special recognition. Veterans who were working hard to comply or were fighting back from previous misbehavior were also recognized. This particular court used gift cards for groceries or food as an incentive for good behavior. The judge made sure that the incentive was clearly announced to the veterans sitting in the gallery. While we were observing, a total of 39 incentives were given (10.7%). Clearly these rewards were reserved for a specific cross-section of the veteran participants.

This specialty court also followed the practice of applauding after positive interactions between the judge and a participant. Of the 364 interactions, the veterans observing the interactions applauded at the end of 298 (81.8%). The court administrator also announced to the veterans the purpose of applause:

Look, if one of our veterans is up there at the bench getting his butt chewed, I don’t want to hear a peep. The reason we do that is to encourage people who have done a good job. If someone’s getting chewed, I don’t want to hear anything. The good stuff, we want you to encourage one another.

Military and the VTC

We found this particular court to incorporate a number of militaristic elements, mannerisms, and sayings. Through the court personnel themselves, through procedure, and through language and behavior, there was apparent military influence. In all, we observed and recorded 1,107 references to the military during our study; this amounted to about two to three references per interaction. Simply put, the military was a pervasive influence in the court proceedings.

How the military or military references affect court proceedings is a complex question. We observed several circumstances in which military references were utilized. The simplest example of how the military affected this court was in their selection of employees. During the course of our fieldwork, we observed that the positions of court manager, case manager, judge, and defense attorney were filled by veterans. These individuals identified themselves as veterans to the court. Participants in the VTC knew of their service. The courtroom also provided visual cues as to the influence of the military in proceedings. Where you might see only an American Flag in a traditional courtroom, this court displayed each military branch’s flag as well. Furthermore, the judge preferred to don a camouflage robe instead of the traditional black robe.

The procedures used by the court also took on a structured form that was based in a military context. The most prominent example of how the military was apparent in this court was how it routinized the court docket. This court observed several practices that structured the docket proceedings from beginning to end. This particular court observed the practice of a court official announcing the judge into the court by shouting “VTC Attention!” or “VTC on your feet!” as opposed to the usual “All rise.” Each person in the courtroom then stood at attention as the judge entered, and then saluted the flag as they would say the pledge of allegiance of the United States. After the pledge, the defendants would shout, “Leave no veteran behind, sir!” The phrase was also visible hanging on the wall behind the judge on a large banner. We observed this procedure at every court docket.

In addition, we observed veteran defendants being called by their name and rank at every court docket without fail. The judge always called court personnel by their name and rank as well. The participants in court were also aware of the context and the expectations the judge had of them with regard to their behavior in court. Quite frequently, when veterans were called by their name and rank, they would stand up out of their seat in the gallery with a sense of urgency, meanwhile shouting “Moving, sir,” or “Moving, Your Honor,” or “Here, sir,” and walk to the bench. Once they arrived, veterans commonly stood before the judge with their feet shoulder-width apart and their hands behind their back, a posture known in the military as parade rest.

A number of other instances arose where the language used by the court personnel or veteran participants reflected some type of military reference. Importantly, there was term substitution, in that the court staff would use terms with a military flavor instead of, or in addition to, standard terms. For example, in reacting to other veteran’s exchanges or to announcements made by court personnel, veterans in the gallery would say “hooah” or “oorah” in addition to applauding, an affirmative utterance used by members of various branches. The judge frequently commented on the importance of veterans communicating with probation officers, but did so in a way that emphasized the importance of “commo”—sometimes referring to communication as being as important as life or death—a clear allusion to the importance of communication in combat or battle. The judge also used terms such as green light to signal permission. For example, the judge would remark on probation officer’s plans for moving the veteran through the court program by “green lighting” the plan, or granting permission to move forward.

The judge also referenced the military to admonish probationers. For example, the judge, finding a veteran in non-compliance told the veteran: “[I am going to] defer a motion to revoke probation until a future time and let you soldier your way out of it.” In a similar instance, the judge remarked on second chances in the treatment court: “just like the military, we will give you a chance to soldier your way out.” This judge clearly meant that the defendant would have to work hard but could overcome prior mistakes. The judge used military references for humor as well, noting that veterans who were not present for docket had “missed the chopper,” or making casual jokes toward veterans of particular ranks or military branches. In response to a veteran of the Navy completing classes and payments, the judge remarked, “Let’s give him a seal clap” and proceeded to bark like a seal, making reference to the special Naval unit, the Navy Seals. In a very serious manner though, the judge also drew on military experience to explain the expectations of the VTC, telling one Marine, “this should be easier to do than the Marine Corps [MC]. Here you gotta be good. In the MC you had to be bad, but you had to focus it on the bad guys.”