A Veterans Day Review: Uneven Progress Understanding the Role of Military Service in Capital Crimes

In 2015, DPIC’s Battle Scars report brought world­wide atten­tion to the issue of mil­i­tary vet­er­ans on death row. DPIC found approx­i­mate­ly 300 vet­er­ans incar­cer­at­ed under a sen­tence of death, rep­re­sent­ing at least 10% of death row, and many more who had been exe­cut­ed. Since that report, research and under­stand­ing about Post-Traumatic Stress Disorder (PTSD), trau­mat­ic brain injury (TBI), sub­stance use dis­or­ders, and men­tal ill­ness among vet­er­ans has only grown. A 2023 sur­vey of mem­bers of the Wounded Warrior Project found that 76% of ser­vice­mem­bers who incurred a men­tal or phys­i­cal injury in ser­vice since 9/​11 had expe­ri­enced PTSD, and a Veterans Affairs study found that vet­er­ans with PTSD are 60% more like­ly to have crim­i­nal jus­tice sys­tem involve­ment than those with­out. However, the legal sys­tem has deliv­ered incon­sis­tent results regard­ing the impact of mil­i­tary ser­vice on the lives of peo­ple charged with cap­i­tal crimes. While sev­er­al vet­er­ans were grant­ed relief in cap­i­tal cas­es this year, states also exe­cut­ed five vet­er­ans in a four-month peri­od from October 2022 to February 2023. For sev­er­al for­mer ser­vice­mem­bers exe­cut­ed in recent years, a jury nev­er heard about the extent or effects of the trau­ma they expe­ri­enced fight­ing in the American Armed Forces.

The Supreme Court rec­og­nized the impor­tance of an individual’s mil­i­tary ser­vice in assess­ing cul­pa­bil­i­ty for a cap­i­tal crime in Porter v. McCollum (2009), when it ruled that George Porter’s attor­ney had been inef­fec­tive for not pre­sent­ing mit­i­gat­ing evi­dence of his ser­vice in the Korean War and sub­se­quent chal­lenges. In addi­tion to symp­toms of anx­i­ety, depres­sion, and PTSD from his time in war, a neu­ropsy­chol­o­gist found that Mr. Porter ​“suf­fered from brain dam­age that could man­i­fest in impul­sive, vio­lent behav­ior.” The Court described Mr. Porter as a vet­er­an ​“both wound­ed and dec­o­rat­ed” whose ​“com­bat ser­vice unfor­tu­nate­ly left him a trau­ma­tized, changed man,” and not­ed that ​“our Nation has a long tra­di­tion of accord­ing lenien­cy to vet­er­ans in recog­ni­tion of their ser­vice, espe­cial­ly for those who fought on the front lines as Porter did.”

However, recent cas­es sug­gest that the same fail­ures Mr. Porter expe­ri­enced at tri­al con­tin­ue: not all vet­er­ans have their ser­vice con­sid­ered mean­ing­ful­ly before the legal sys­tem impos­es pun­ish­ment. Thomas Loden Jr. (pic­tured), exe­cut­ed by Mississippi on December 14, 2022, embod­ied many of the strug­gles faced by vet­er­ans return­ing to civil­ian life. As a child, Mr. Loden was phys­i­cal­ly and sex­u­al­ly abused by fam­i­ly mem­bers and a church leader, and had attempt­ed sui­cide sev­er­al times before he joined the Marine Corps at age 18. However, he flour­ished in the mil­i­tary, earn­ing the rank of gun­nery sergeant and receiv­ing awards includ­ing the Navy and Marine Corps Commendation Medal and the Good Conduct Medal. His com­mand­ing offi­cer described him as ​“a poster Marine” and ​“the hard­est charg­ing Marine I have ever had work for me.” Mr. Loden served in the Gulf War, where he expe­ri­enced many attacks on his unit and wit­nessed the death of a close friend. On his return, he fought night­mares, flash­backs, and anx­i­ety, becom­ing a heavy alco­hol and drug user even as he bal­anced a pres­ti­gious job on the Marine Corps’ Anti-Terrorism Security Team. He raped and mur­dered 16-year-old Leesa Gray while under the influ­ence, then tried to com­mit sui­cide in the after­math, carv­ing ​“I’m sor­ry” into his chest. He plead­ed guilty and waived a jury for tri­al and sen­tenc­ing, so a factfind­er nev­er heard the evi­dence of his child­hood and military trauma.

Similarly, a jury nev­er heard ade­quate infor­ma­tion about the ser­vice-relat­ed trau­ma of for­mer Marines John Hummel, who was exe­cut­ed by Texas in 2021, or John Thuesen, who cur­rent­ly sits on Texas death row. A court rec­om­mend­ed a new sen­tenc­ing tri­al for Mr. Thuesen in 2015, rul­ing that the Veterans Administration did not prop­er­ly treat his PTSD and his lawyer had failed to explain the mean­ing of Mr. Thuesen’s PTSD or its effect on his behav­ior. However, the Texas Court of Criminal Appeals declined to grant a new tri­al, and Mr. Thuesen remains on death row.

Three oth­er men exe­cut­ed dur­ing the four-month peri­od last win­ter had also served in the Marines, while a fourth had served in the Army and Army Reserves. Oklahoma exe­cut­ed for­mer Marines Benjamin Cole and Richard Fairchild in the fall of 2022, both of whom were con­vict­ed of the mur­ders of young chil­dren under their care and showed sig­nif­i­cant signs of men­tal ill­ness. Texas exe­cut­ed for­mer Marine John Henry Ramirez on October 5, 2022. On February 7, 2023, Missouri exe­cut­ed Leonard Taylor, who served in the Army and Reserves for six years as a light-wheel mechan­ic and gen­er­a­tor repair expert, and whose father had also been a vet­er­an. Mr. Taylor con­sis­tent­ly main­tained his inno­cence in the mur­der of his girl­friend Angela Rowe and her three chil­dren, and evi­dence showed that he was in anoth­er state dur­ing the time peri­od the med­ical exam­in­er orig­i­nal­ly stat­ed the crime occurred. By the time of the tri­al, the med­ical exam­in­er had changed his assess­ment to fit a win­dow where Mr. Taylor was still in town; pathol­o­gy experts con­test­ed this sec­ond find­ing. Mr. Taylor became involved in the drug trade after his mil­i­tary ser­vice and believed that a rival may have tar­get­ed Ms. Rowe and her fam­i­ly due to his activities.

However, sev­er­al vet­er­ans have won recent relief in death penal­ty cas­es or had the death penal­ty tak­en off the table in part due to their mil­i­tary ser­vice. On October 19, 2023, Frederick Hopkins was sen­tenced to life with­out parole after plead­ing guilty in the mur­der of two police offi­cers. Mr. Hopkins, a 79-year-old Vietnam vet­er­an, had set up a ​“sniper’s nest” in his home in South Carolina and fired at police offi­cers approach­ing to serve a search war­rant for his son. Mr. Hopkins had received medals for marks­man­ship dur­ing his ser­vice before he was med­ical­ly dis­charged in 1977. He had seen doc­tors many times over the years with symp­toms of PTSD, and one opined that Mr. Hopkins showed ear­ly signs of demen­tia before the killings. Mr. Hopkins said that dur­ing the shootout he was respond­ing to mem­o­ries of a Vietnam fire­fight in 1970 where 27 men in his unit per­ished. ​“While [PTSD and demen­tia] can in no way ame­lio­rate the tragedy of his actions I firm­ly believe they pro­vide a gen­e­sis for the explo­sion which result­ed in the death of these two offi­cers,” said David Ferrier, an inves­ti­ga­tor who works with vet­er­ans and reviewed Mr. Hopkins’ records. Victims’ fam­i­lies and sur­vivors of the shoot­ing sup­port­ed a life sen­tence, cit­ing Mr. Hopkins’ advanced age, and pros­e­cu­tors promised not to seek the death penal­ty after Mr. Hopkins agreed to plead guilty.

A fed­er­al judge ruled on September 28 that Scott Panetti (pic­tured), whose high-pro­file case was tak­en up by the Supreme Court in 2007 to clar­i­fy the law for defen­dants with men­tal ill­ness, could not be exe­cut­ed due to men­tal incom­pe­tence. Mr. Panetti was hon­or­ably dis­charged from the Navy after receiv­ing sev­er­al men­tal health diag­noses. He entered the care of the Veterans Administration, under which he was hos­pi­tal­ized numer­ous times and diag­nosed with con­di­tions includ­ing schiz­o­phre­nia and schizoaf­fec­tive dis­or­der. His ser­vice appeared to influ­ence his own per­cep­tion of his crime, the mur­der of his in-laws: he dressed in com­bat fatigues dur­ing the killing and tes­ti­fied that the mur­der was com­mit­ted by an alter ego named ​“Sarge.” Representing him­self at tri­al, his ram­bling tes­ti­mo­ny con­tained numer­ous sto­ries from his time in the Navy. The court ruled that Mr. Panetti ​“lack[s] a ratio­nal under­stand­ing of the con­nec­tion between his actions and his death sen­tence” and is there­fore ​“not sane enough to be executed.”

The grow­ing research into the expe­ri­ences of ser­vice­mem­bers has con­tributed to legal inno­va­tions such as Veterans Treatment Courts (VTCs), which pri­or­i­tize ​“diver­sion” sen­tences that direct vet­er­ans to men­tal health and sub­stance abuse care instead of prison. However, VTCs are typ­i­cal­ly used for low­er-lev­el crimes or first offens­es, and no clear frame­work has devel­oped for assess­ing the role of mil­i­tary ser­vice in seri­ous vio­lent offens­es. A recent report from the Council on Criminal Justice sug­gests a nuanced inter­play of child­hood, mil­i­tary, and post-mil­i­tary expe­ri­ences con­tribute to crim­i­nal offens­es by vet­er­ans. In the report, Dr. Ugur Orak found that ​“mil­i­tary ser­vice mem­bers are more like­ly than their civil­ian coun­ter­parts to have socioe­co­nom­ic and fam­i­ly char­ac­ter­is­tics, ACEs [Adverse Childhood Experiences], and per­son­al­i­ty traits that, with­out tar­get­ed inter­ven­tion and sup­port sys­tems, may increase their risk of crim­i­nal jus­tice involve­ment.” Those risks are then com­pound­ed by phys­i­cal and men­tal trau­ma from mil­i­tary ser­vice and fur­ther exac­er­bat­ed if the ser­vice­mem­ber can­not access care. Dr. Orak found that ​“approx­i­mate­ly one-third of vet­er­ans with men­tal health and/​or sub­stance use dis­or­ders do not receive treatment.”

In addi­tion to men­tal health con­di­tions like PTSD, mil­i­tary ser­vice also expos­es sol­diers to new tech­nolo­gies or bat­tle tac­tics that may affect neu­ro­log­i­cal health, includ­ing exec­u­tive func­tion and impulse con­trol. Historically, the phys­i­cal effects of such tech­nolo­gies have only become clear after their wide­spread use. An esti­mat­ed 3 mil­lion U.S. sol­diers were exposed to the her­bi­cide Agent Orange, used as a chem­i­cal weapon dur­ing the Vietnam War, and an esti­mat­ed 175,000 vet­er­ans of the Gulf War devel­oped symp­toms from expo­sure to nerve gas and oil well fires (dubbed ​“Gulf War Illness”). Both con­di­tions have been shown to cause wide­spread phys­i­cal and psy­cho­log­i­cal prob­lems, and DPIC’s Battle Scars report describes a num­ber of vet­er­ans sen­tenced to death who were exposed. A recent New York Times inves­ti­ga­tion found that a long-range artillery strat­e­gy used in 2016 and 2017 against ISIS in Syria may have caused sig­nif­i­cant brain and organ injury, result­ing in symp­toms such as severe headaches, hal­lu­ci­na­tions, per­son­al­i­ty changes, and increased vio­lent and sui­ci­dal ten­den­cies. Soldiers fired tens of thou­sands of blasts pow­er­ful enough to launch 100-pound rounds 15 miles away, releas­ing an immense and repeat­ed force that pum­meled the sol­diers’ bod­ies. Many of the vet­er­ans on those units have com­mit­ted or attempt­ed sui­cide since return­ing home, and at least one was tried for mur­der. Lance Corporal Brady Zipoy was found not guilty by rea­son of men­tal ill­ness in 2021 for break­ing into a home and fatal­ly shoot­ing a stranger dur­ing a psy­chot­ic episode, with the court con­sid­er­ing his mil­i­tary ser­vice in the decision.

The use of cap­i­tal pun­ish­ment for mem­bers of the mil­i­tary also aris­es in the con­text of mil­i­tary courts, which oper­ate sep­a­rate­ly from state and fed­er­al courts and only exer­cise juris­dic­tion over cur­rent ser­vice­mem­bers. The mil­i­tary has not con­duct­ed an exe­cu­tion since 1961. Four men cur­rent­ly sit on mil­i­tary death row, includ­ing Sergeant Timothy Hennis, who was acquit­ted of mur­der in North Carolina and recalled to active duty from retire­ment specif­i­cal­ly so that a mil­i­tary court could try him and sen­tence him to death with­out vio­lat­ing dou­ble jeop­ardy. In September, the U.S. Court of Appeals for the Armed Forces affirmed the death sen­tence of Major Nidal Hasan (pic­tured), con­vict­ed of killing 13 peo­ple on the base at Fort Hood, Texas in 2009. Mr. Hasan had served as an Army psy­chi­a­trist coun­sel­ing sol­diers with PTSD, which acquain­tances and experts believed con­tributed to the dete­ri­o­ra­tion of his men­tal state as he faced an immi­nent deploy­ment to Afghanistan. President Joe Biden, who promised to work to elim­i­nate the fed­er­al death penal­ty dur­ing his cam­paign, would have to per­son­al­ly sign Mr. Hasan’s exe­cu­tion war­rant for it to occur.