SCHWARTZ: Unequal before the law

Dissentary
By Yishai Schwartz
Staff Columnist
Tuesday, November 13, 2012

In honor of Veterans Day, Governor Malloy made a special visit to the Yale Law School. He came to applaud a recent piece of legislation that expands veterans’ access to pretrial diversionary programs. But despite the fact that the bill is clearly designed to provide preferential treatment for veterans, the bill’s supporters seem embarrassed to admit it. Their unwillingness to do so both reflects and reinforces problems in the way we think about criminal justice.

The law, “An Act Concerning Services for Veterans in Pretrial Diversionary Programs,” provides for two small changes in the way the courts handle prosecutions of veterans charged with non-serious crimes. The Act allows veterans to enter the state’s accelerated rehabilitation program twice (instead of once, the limit for regular citizens), and it allows veterans to access the state’s existing supervised diversionary program (formerly available only to those with demonstrated psychiatric disabilities). According to the News, the Yale Law School’s Veterans Legal Services Clinic played a significant role in developing and advocating on behalf of the legislation.

Madeleine Witt

At first glance, it seems obvious that the law privileges veterans. Intuitively, this special treatment seems defensible. Military service is quite literally a service, and like all services, those who serve ought be rewarded by those whom they serve. It is precisely this logic that has led to the creation of an entire federal Department of Veterans Affairs devoted to providing veterans benefits that none of us would ever dream of receiving.

Yet, the law’s advocates seem adamant that this narrative of service and reward does not relate to their bill. Instead, they seek to justify the bill’s special treatment of veterans within a framework of need and mental illness. This past month, Margaret Middleton, the executive director of the Connecticut Veterans Legal Center and a visiting lecturer at the Yale Law School, described the bill in precisely these terms. She explained to the News: “The concern was that manifestations of [major depressive orders] would result in criminal behavior or criminal arrest of veterans.” Similarly, Clinic member Sofia Nelson LAW ’13 explained that a veteran’s contact with the criminal justice system may be “a direct result of their service.” According to Nelson, “that’s a unique circumstance that should be addressed.”

Underlying both Middleton’s and Nelson’s comments is an apparent discomfort with the thought that we might reward veterans through privileged treatment within the criminal justice system. They insist on seeing the veteran’s privileged treatment as deriving from “need” rather than “reward” or “desert.” These advocates on behalf of veterans surely believe we ought to provide our former soldiers with benefits simply because of their service, but balk at bundling those rewards into judicial treatment.

This hesitation is misleading and derives from an overly simplistic understanding of justice. It’s clear from the legislation itself that the law’s content cannot be justified with simple claims about the military’s effect on psychological health. Indeed, the legislation includes all veterans, not just those who are suffering psychological trauma. An army veteran who spends her whole life behind a desk will have claim to the same rights as a soldier who came under fire in Iraq. This hardly seems justified by appeals to the effects of war on a person’s mental health.

Framing the law in terms of need also reveals a deep discomfort with the thought that our justice system might serve as an avenue for rewards. This discomfort, too, makes a great deal of sense. As we walk into courthouses all over the country, we are confronted by the iconic image of a blindfolded lady of Justice. We all know what this image means: Justice is impartial; she takes no notice of an individual’s status or position in society. Given this bedrock assumption of total equality before the law, it becomes uncomfortable to suggest that the law ought to look more favorably on some by virtue of their service.

But this discomfort is misplaced. In concentrating on the image of Lady Justice, we blind ourselves to the reality that just criminal sentencing must be an individualized affair and represents the most fundamental of collective state actions. When judges calculate a convicted criminal’s sentence, they must look at the whole person: his strengths and faults, his gifts and foibles.

And when the judge passes judgment, she speaks for all of us. It is the moment when the power of the state comes into contact with the individual in the most forceful, personalized manner. In that moment, we must have the courage to say thank you. What’s more, on Veterans Day, we ought to have the courage to admit when our laws do precisely that.

Yishai Schwartz is a senior in Branford College. His column runs on Tuesdays. Contact him at yishai.schwartz@yale.edu .

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