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A Restorative Instrument of Justice

Inside Philly’s Veterans Court

by JOHN GRANT

John Fleming is a 58-year-old African American born and raised in Philadelphia who served in the Army from 1969 to 1972 maintaining nuclear weapons in silos in Germany.

It was 10:45 AM on Friday outside Courtroom 1006 in Philadelphia’s Criminal Justice Center. Fleming had been "caught with an illegal substance" and he was there for Veterans Court. Instead of taking his chances in the regular court system in Philadelphia, he had volunteered to participate in Philadelphia’s Veterans Court.

He was pacing in the hall. He had been told to be there at 10 AM for court that would not begin until 11 AM. Earlier there had been some kind of misunderstanding and he had to come back. He was impatient.

When Municipal Court Judge Patrick Dugan arrived at a little after 11 AM, as he does every Friday, he opened the court by explaining that Veterans Court was a completely voluntary court and that those in attendance could at any time choose to leave the program and take their chances in the regular court system.

Dugan, a man in his early fifties with a ready smile and a no-nonsense demeanor, called Fleming as the first case of old business.

Fleming walked from the gallery through a swinging gate to stand between the court’s full-time district attorney and its public defender. He stood there facing the judge wearing a white Houston Astros shirt. Fleming had intentionally worn the Astros shirt to tweak the judge, who is very public about being an enthusiastic Philadelphia sports fan. Dugan is famous for putting on his re-election flyer that he "Prefers cheesesteak wiz witout" and he "HATES the Dallas Cowboys." Fleming had worn a Lakers shirt to his last court hearing. The shirt provoked a few minutes of good-natured, mock-hostile back-and-forth wise-cracking. Then, the judge turned to Fleming’s case.

Judge Dugan wanted to know if Fleming had been holding up his end of the contract he signed with Veterans Court to attend rehab treatment. From all the reports Dugan had in Fleming’s file, Fleming was good.

"Keep up the good work," Dugan told him. Dugan and court staff looked at their calendars and gave Fleming a court date three week later to, again, check in.

"He’s a great guy," Fleming later said of Dugan. "He’s fair and straight forward. He knows what’s going on. But he also won’t take no bullshit from you."

That Friday, many of the veterans appearing before Dugan seemed to feel the same way. A few, however, were there to refuse the veterans court and be re-assigned to court dates in the regular court. One 60ish Vietnam veteran who did this was outraged over a charge that he had lied on a gun registration form about an Abuse Prevention Order from Brockton, Massachusetts. He wanted to plead not guilty and fight the case. If he lost, of course, he had a chance of being sent to "State Road," the array of prisons in the northeast area of the city.

The Philadelphia justice system is notoriously overburdened and lot of human details get lost along the way in the procedure that begins with arrest. Next comes the assignment of a public defender, a process that often doesn’t allow much time for the attorney to learn about a case ? let alone undertake any kind of investigation — before facing a judge. Plea-bargaining tends to become the name of the game, with the public defender and the district attorney both interested in streamlining their case loads.

I’ve taught creative writing in the city’s maximum security prison for ten years, and many of my students are incarcerated there without a trial ? even though there is a law that says trials should occur within 180 days of arrest. Technicalities allow it to be overlooked, and it is not uncommon to have someone in the city jail for two, three or four years without having a trial. Many inmates are simply overwhelmed.

The Drug War, of course, is a major cause of this dysfunctional, overloaded, often insensitive and prejudicial system. Sending so many people to jail seems to make less and less sense. Jail for possession of drugs should, by now, be seen as a waste of tax-payer money, but men and women are still sent to jail for this. Jailing people for small-time drug sales in the inner city has become absurd.

Judge Dugan told me he expressed how fed up he was with the Drug War in open court in February, when he was moved to declare, "The Drug War is officially lost." What made him say this, he said, was seeing poor, African American grandmothers in his court for selling drugs. The way he put it, when you begin to see the famous last line of parental responsibility in a poor, dysfunctional community selling drugs to make ends meet and survive you have to realize something is terribly wrong. A new approach was called for.

Dugan was appointed a municipal judge by Governor Ed Rendell in 2010. Before that, he spent a lot of time in military service, beginning as an enlisted man, then being commissioned an officer in the legal JAG Corps. He is proud of his service in both the Iraq and Afghanistan war zones. At a dinner for the 82nd Airborne Association, where he introduced Supreme Court Justice Seamus McCaffery, he jokingly said he had served in the war zones as both "a pogue and a grunt." A pogue stands for Personnel Other than Grunts or POG. Dugan was awarded a Bronze Star and the Combat Action Badge in Iraq.

Prison Reform in Pennsylvania

Justice McCaffery is a tough-guy former cop and Marine veteran who has taken the lead in advocating for Veterans Courts in Pennsylvania. He says, "What we don’t see are the hidden wound … the scars these people bring back. Our mission here is to work with the VA, to get them (veterans) out of the system. We don’t want these people to get criminal records; we want them to get help."

McCaffery has also stepped into the much more intense political mine field surrounding the question of releasing Vietnam veterans serving life-without-parole terms for murder committed while affected by war-related Post Traumatic Stress Disorder (PTSD.) Recently, with two state representatives in tow, he traveled to Graterford State Prison to listen to, and speak with, veteran lifers and inmates.

One of those lifers, Commer Glass, is an African American who fought in the famous battle of the Ia Drang. He is now 68 and in his 35th year of a life-without-parole sentence at Graterford. From talking to those who knew him at the time, it’s clear Glass was a friendly kid with no problems with the law before he joined the Army. After Vietnam, he became a volatile time bomb in the Germantown section of Philadelphia. He concedes he killed the woman he was charged with killing, though to this day he insists he does not remember doing it, something explained by what psychiatrists call a "dissociative state" related to PTSD. He picked her wounded body up off the street and drove her to the hospital, where she later died. He was charged and convicted in 1976; four years later, PTSD was officially recognized in the Diagnostic and Statistical Manual of Mental Disorders (DSM).

All this is controversial and Glass’ case is one among many, but it nicely lays out the issues. In a complex 1993 federal habeas corpus case involving testimony from psychiatrists and others, Federal District Justice William Yohn ordered the commonwealth of Pennsylvania to either give Glass a new trial within 120 days or release him. Glass’ lawyer was a notoriously bad actor, and at a time ? the late 1970s ? Philadelphia was noted for intense racial tensions. Yohn ruled Glass had "suffered a fundamental miscarriage of justice" because he had been charged with (and convicted of) first-degree murder "when he is actually innocent of that crime and guilty of murder in the third-degree."

In a dismissive opinion, the Third Circuit Court of Appeals reversed Yohn’s ruling, quashing the order for a new trial and leaving the virtually blind Glass — at $50,000 a year ? in Graterford until he dies. The Third Circuit decision effectively tossed the political hot potato back to the Commonwealth of Pennsylvania, a rare state that allows no parole for lifers.

Getting even a modicum of reasonable prison reform out of the Pennsylvania capital of Harrisburg is like expecting a giant mushy sea anemone to grow a backbone. The operative political instinct in Harrisburg when it comes to issues of criminal justice, as in many capitals, is cover your eyes and, then, cover your ass. Don’t ask questions; if a man has been convicted, he’s a "criminal" and no longer a citizen and, thus, he deserves his fate. Better to play up citizen fears of criminals and call for lower taxes. Call for tougher laws, more cops and more prisons, many of which are now built and operated by private corporations.

The New York Times has reported that data from Arizona shows private prisons, argued by many conservatives as more efficient than public prisons, are in fact more costly to tax-payers, despite the fact they tend to house the least costly inmates. A private prison corporation, of course, has an incentive to increase the inmate population to increase profits.

It is in this powerful, politically conservative, anti-crime climate that Supreme Court Justice McCaffery and others have begun to talk a reform game, using a politic focus on veterans to get in the door. McCaffery and Dugan do not, of course, put their emphasis on the reform aspects of "jail diversion" programs like Veterans Court; they stick with empowering a perpetrators veteran identity and playing up the patriotic "band of brothers" theme. Viewed from the angle of overdue reform, however, it’s like they’re attacking prison reform by using the gung-ho, macho language of soldiers and veterans as a strategic beachhead.

Dugan is well aware of the politics involved in efforts like Veterans Courts. When he introduced Justice McCaffery at the 82nd Airborne Association dinner, Dugan referred to the state supreme court justice as "flying top cover for me." In turn, McCaffery likes to stress that his efforts are about "not leaving any of our soldiers behind."

These judges are doing courageous and innovative work to institutionalize creative, socially productive alternatives to sending so many citizens to jail. Jail as a solution to problems has led the US to become the most incarceration-obsessed nation in the world. The fact is, in our current depressed economy, we can no longer afford to incarcerate so many people. Like wars, locking up our citizens is busting the bank. Of note, the US Supreme Court just ordered California to release 30,000 inmates over the next two years due to overcrowding that amounted to unconstitutionally cruel and unusual punishment.

Besides Philadelphia, Pittsburgh and Scranton, Veterans Courts are now operating in some 60 areas across the nation. They’re popping up like mushrooms. Dugan has referred to the movement as an "epidemic." Many states like Massachusetts are now in the discussion stage. In Philadelphia, the jail diversion philosophy has also spawned a Drug Court and a Prostitute Court. Right now, the city’s veterans court only handles misdemeanor cases; but Dugan says the plan is to include felonies in the future.

How Veterans Court Works

The basis for Veterans Court is actually quite simple. Instead of a retributive instrument of justice, the court is seen as a restorative instrument of justice, a sort of broker of solutions for human problems. As Dugan told me, for a judge to send a drug user to a VA rehab program rather than to jail made sense. "Aren’t I doing more for our society by doing that?" he asked. But, then, he was quick to add, referring to defendants in court before him: "My philosophy is, if the crime fits it, you need to go to jail." Much of Dugan’s week is, of course, sitting as a regular municipal court judge.

While McCaffery and Dugan like to stress the "hidden wound" of PTSD and clearly have great respect for combat veterans, Dugan said, "We take any and all veterans in our court. The word ‘veteran’ to this court means you had the uniform on."

In the court on Fridays, besides the public defender and district attorney, there are two staff members who work with the Veterans Administration and a constellation of agencies and providers for counseling, housing aid and a host of other services. Veteran "mentors" are trained and made available by the court to help a veteran keep appointments and for any other needs he or she might have. A representative from the city’s Veterans Multi-Service Educational Center is always on hand. Veterans like Jim McPhail from Healing Ajax, a private, non-profit, apolitical counseling entity are present in the court to assess the needs of veterans.

One case on a recent Friday is instructive. A white Iraq combat veteran I’ll call Thomas was in jail custody for various charges including drug use. McPhail was asked to take him aside to speak with him and assess his condition. He found a highly stressed young man who was very uneasy in crowds. He had injured his back in Iraq and had been given pain medicine there. When he re-injured his back and his condition got worse, he began to augment his medicine with illegal narcotics. Once this was discovered, he was abandoned by the military and the VA system. It was only a matter of time before he collided with the criminal justice system.

Mike Brown, the staffer for veterans not eligible for the VA, arranged for Thomas to live in a halfway house run by a Vietnam vet. Thomas was put on a methadone program. McPhail arranged for no-cost, private PTSD counseling. Help for education and job needs would be made available to Thomas. All these efforts were to avoid sending him to jail on State Road, which would have been a downward slippery slope to oblivion. This is what restorative justice means.

Judge Dugan summed up the situation nicely when he spoke to Thomas, who had been led handcuffed into court by a sheriff’s deputy.

"Thomas, it’s gonna fall on you. You’re getting a sweetheart of a deal. You gotta step up. Work with us or it could become a real mess for you."

Thomas said he would cooperate with the two-year jail diversion program set up for him.

"We’re giving him the works," McPhail said, referring to the court and Healing Ajax’s efforts. "We’re going to make it all happen for him."

On a personal note, this case was especially rewarding for me, since the Veterans For Peace chapter I belong to raised over $10,000 for Healing Ajax in honor of a beloved Vietnam veteran member, Bob Hennel, who died of lung cancer. The money we raised was funding the effort to get Thomas back into the swing of life here in what we Vietnam vets used to call "the world." It felt good to be invested in the Veterans Court program.

Veterans Court is a great idea whose time is past due. In essence, what it does is say to poor and troubled men and women in front of the bench, we care about you. You may have screwed up and run afoul of a law, but you still are part of this society.

Veterans Court may not be perfect, but it’s a helluva lot better than the sinkhole we call "justice" rooted in a dismally failed Drug War. Making restorative justice available to veterans is great; eventually, maybe we could make it available to everyone.

JOHN GRANT is a founding member of ThisCantBeHappening!, the new independent, collectively-owned, journalist-run, reader-supported online alternative newspaper about to celebrate its first year of operation.