LADY JUSTICE KEEPS UP WITH THE TIMES

By William M. DiMascio
   Executive Director

Lady Justice has so often been depicted in cold, hard stone, blindfolded and with a scale in hand. The statue portrays a dispassionate and immoveable object; the intent is to show that justice is - or should be - the same for all.

Of course, we all know of cases where the ideal of fair and even-handed justice has given way to other interests - money, politics, various prejudices, to name a few. But even setting aside those despicable factors, justice truly needs to change once in a while to keep up with the times. Perhaps the best example of this is the current use of DNA testing which has itself accounted for the reversal of at least 115 capital convictions. Our interest as a society in truth and fairness clearly is what leads to real justice.

In the quest for such justice, the Prison Society and a group of supporters continue to struggle on behalf of a small group of life sentenced prisoners who were victims of post traumatic stress disorder when they participated in commission of murder. These inmates were convicted prior to 1980 when the Diagnostic and Statistical Manual III for the first time recognized PTSD as a mitigating factor that should be considered in criminal cases.

The group, which calls itself the Pennsylvania Equity Project (PEP), has been working primarily with military veterans because of the abnormally high incidence of PTSD related to combat, especially the Vietnam War. PTSD affects non-veterans also. Battered women, fire fighters and others who experience extraordinary trauma have been its victims. Our advocacy was targeted, however, in an effort to keep the issue simple, and some estimates of PTSD among Vietnam veterans has run as high as 50 percent.

Our belief was that the sentences for the same crime varied greatly depending on the year of the trial. Working from the list of prisoners who were veterans convicted of homicide we discovered:

· The number of first-degree convictions fell from 78 percent prior to 1980 to 44 percent between 1980 and the present. The number of third-degree convictions went from 6 percent prior to 1980 to 36 percent afterwards. First- degree is used for premeditated murder, whereas third-degree usually involves some form of diminished capacity on the part of the perpetrator.

· Between 1997 and 2004 first-degree convictions accounted for 31 percent of all homicide convictions, while third-degree convictions were 46 percent. The year 1997 is significant because that is when the guidelines increased the penalty for a third-degree conviction from 10 to 20 years to 20 to 40 years.

Getting back to our list of veterans, only 36 were convicted prior to 1980: 28, first-degree; 6, second-degree; and 2, third-degree. No one knows for sure how many of the 34 serving life sentences had PTSD. We're guessing it is fewer than 17. What we do know is that all of them have been imprisoned for more than the 10-year minimum they would have received if they were charged or convicted with consideration given to some form of diminished mental capacity. And, all of them have served more than the 20-year minimum under the more recent standard set for third-degree convictions.

The Pennsylvania State Council of Vietnam Veterans of America recently adopted a position of unanimous support for this advocacy and launched an aggressive campaign with their local chapters across the state. In a letter announcing the Council's action, the group's president, Jeffrey R. White, wrote:

"The work done to help our brother and sister veterans now can have an impact on future generations of veterans who have residual effects of combat such as PTSD and on their treatment by the courts and prosecuting attorneys."