Non-Uniform Justice: An Equal Protection Analysis of Veterans Treatment Courtss Exclusionary Qualification Requirements

Abstract

When a military veteran commits a crime, should he be afforded a separate criminal justice system -- one that allows the veteran to avoid incarceration and possibly conviction altogether -- simply because he is a veteran? In an increasing number of jurisdictions in the United States, the answer to that question is yes. In just six years, the number of Veterans Treatment Courts (VTCs) in the United States has exploded from zero to 170, with more created each year. VTC participants enjoy a more lenient and beneficial system of adjudication of criminal misconduct than non-participants who commit identical crimes in the same jurisdiction. This article dissects the equal protection ramifications of VTCs’ exclusionary qualification requirements. After briefly describing VTCs and other problem-solving courts, the article examines the appropriate level of scrutiny for equal protection-based challenges to exclusion from VTC participation. This assessment includes an extended analysis of whether there is, as some have suggested, an equal protection-based “fundamental right to equal access to the courts,” concluding there is not such a right that applies to issues associated with exclusion from VTCs. The article then turns to an evaluation of the government interests and classifications associated with VTCs, concluding that each of the examined classifications survives rational basis review. The article closes with a brief argument that VTCs illustrate a flaw of fundamental rights jurisprudence: declaring broad fundamental rights based on equal protection can have the unintended consequence of prohibiting non-invidious state efforts the Equal Protection Clause has never been understood to address.