A new commission established by the Council on Criminal Justice think tank is working to help change policies that may have led to a surprisingly high number of military veterans winding up behind bars, with getting better data on former service members a top priority for the group.

The nonpartisan Veterans Justice Commission, which was launched in August, will spend the next two years examining the risk factors that lead to veterans' involvement in the justice system, the adequacy of transitional assistance for service members as they reenter civilian life and the justice system's response to veterans who break the law.

The commission plans to make recommendations to Congress and the White House to potentially expand the funding of certain veterans' programs or to incentivize local officials to do so.

Veterans Justice Commission Director Jim Seward, general counsel for then-South Dakota Gov. Dennis Daugaard from 2010 to 2016 and an enlisted combat arms soldier who now serves as a colonel in the U.S. Army, recently spoke to Law360 about the group's priorities.

According to Council on Criminal Justice statistics, an estimated one in three veterans ends up in the criminal justice system at some point after leaving the military. However, Seward said there needs to be a more accurate system of verifying exactly how many U.S. veterans are in prison, jail, on probation, on parole or in community programs.

"It seems like a tragedy to the commission that in 2022, we don't know how many veterans are incarcerated," Seward said. "We know from a 2011 survey that a high number were incarcerated. We also know that veterans don't like to self-identify themselves for lots of reasons — shame, embarrassment, fear of loss of benefits."

Getting an updated, accurate number of incarcerated veterans identified and counted is one of the commission's first steps before real policy changes can be made in areas including policing, arrest, diversion in the courts, sentencing, release, corrections and reentry, he said.

"Just about every program that you find across the United States for veterans in the criminal justice system, we either don't have good data, the program hasn't been evaluated, or it is not consistently available throughout the country," Seward said.

Take veterans treatment courts, for example.

"The concept sounds great. Most people love the idea of some kind of restorative justice for our veterans," Seward said. "But they're inconsistently applied and inconsistently available in some communities."

Veterans courts are available only in about one in six communities in the country, and many don't accept veterans with felony charges or those who left the military with an "other than honorable discharge." That type of discharge often stems from low-level, uniquely military offenses and can result in a sort of "life sentence" in the civilian world, Seward said.

The 15-member commission is chaired by former Republican Defense Secretary and ex-U.S. Sen. Chuck Hagel and includes Chief Georgia Supreme Court Justice Michael P. Boggs, ex-Defense Secretary and White House chief of staff Leon Panetta, who served under President Bill Clinton, and two previously incarcerated veterans.

Another priority for the group is improving the U.S. Department of Veterans Affairs' two databases.

One database, the Status Query and Response Exchange System, or SQUARES, is a VA web application that aims to provide VA employees and external homeless service organizations with reliable, detailed information about veterans' eligibility for programs.

SQUARES is currently being used in the criminal justice world to find out if a suspect is a veteran. Seward said the idea is that by using the database a police officer should be able to connect veterans in crisis immediately with the VA for mental health treatment, as opposed to arresting them.

However, only 15 out of 18,015 law enforcement agencies in the United States use SQUARES, Seward said.

"The commission will be looking at that database to find out if it's the right system," he said. "Some anecdotal evidence suggests that maybe it's cumbersome or difficult to get on and easy to get kicked off."

The commission will also be examining the other VA database, Veterans Re-Entry Search Services, or VRSS. The VRSS website allows correctional and other criminal justice system entities to identify inmates or defendants who have served in the U.S. military to provide outreach and veteran-specific programs to them.

Another topic of discussion is how the VA, the Department of Labor and the Department of Defense can improve the transition period from military to civilian life.

"It's fascinating to me that the federal government has a transition program, and it's run by three federal agencies, but there's no one person or one agency in charge of it," Seward said. "And in my 35 years of leadership experience, I would say that if nobody's in charge, or if three people are in charge, nobody's in charge."

David "Mac" MacEwen, an independent consultant for the Council on Criminal Justice and a former adjutant general of the U.S. Army, discussed the military's transition issues in a council webinar called "Veterans and the Criminal Justice System" earlier this month.

"The transition program is mandated by law, and I call it 'one size fits none' because everyone does the same thing," MacEwen said on the webinar.

Seward said the commission's transition advisory committee will be meeting through 2023 to see what can be done to improve that area, including how the VA responds to the laws and the rules in place regarding who is and isn't eligible for VA benefits.

For example, when a veteran suffering from post-traumatic stress disorder is incarcerated, the individual's VA health care benefit immediately ceases.

"Every expert I've ever talked to says the VA has the best PTSD treatment in the country," Seward said. "If you're sitting in the Topeka, Kansas, jail, and you're struggling with PTSD, you need to try to convince the jail administrators to find you someone in the community to help you, or maybe the veterans justice officer from the VA will come and talk to you and find out if there's a community provider that would give you PTSD treatment, but it's not the VA treatment."

Seward noted that 95% of such veterans will eventually leave jail, so their successful treatment — and continued care — is of utmost importance to the community as a whole.

"There's a federal rule that says [the VA] cannot provide health care to those who are incarcerated. Somebody else is responsible for that, and that's the local official," Seward said. "The commission is looking at the question of: Should the local taxpayer be responsible for that?"

--Editing by Jill Coffey.

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.