Trendspotting: Veteran Criminal Sentencing

Posted in Trendspotting by Mike Sacks on December 31, 2009

The WSJ Law Blog ran a piece today detailing how a “small but growing number of judges say U.S. military veterans should be treated differently from nonveterans when they are sentenced for crimes.”

Surprisingly, the piece does not note that just several weeks ago, the Supreme Court ordered a new hearing for a Korean War veteran sentenced to death in Florida because his lawyer failed to present evidence of post-traumatic stress disorder.  The Court went on to give lower courts a sharp, suggestive elbowing:

Our Nation has a long tradition of according leniency to veterans in recognition of their service, especially for those who fought on the front lines as Porter did.

Linda Greenhouse, the former New York Times Supreme Court correspondent, wrote that while such lenience is honorable, the Court’s empathy may be selectively applied:

Just last month, the same nine justices, also per curiam and also unanimously, sent chills down the spine of death-penalty opponents by overturning a different federal appeals court’s grant of habeas corpus to an Ohio death-row inmate who also claimed ineffective assistance of counsel. The inmate, Robert J. Van Hook, robbed and murdered a man he picked up in a gay bar. He is also a military veteran, but one whose service was terminated because of alcohol and drug abuse. …

[T]he Supreme Court parsed the evidence that was presented and concluded that the lawyer’s decision “not to seek more” fell “well within the range of professionally reasonable judgments.” The American Bar Association standards in effect at the time of trial required no more, the opinion said.

One Response

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  1. Raha Wala said, on January 5, 2010 at 3:56 pm

    This is an interesting development in criminal law, especially the growth of these veterans courts, as the WSJ article points out. Although it seems right that judges and legislatures are concerned with accounting for PTSD and other factors that might affect a veteran’s culpability for a given crime, it also seems wrong to exclude other criminal defendants from like treatment during sentencing. This special treatment for veterans cannot be explained by disproportionately high rates of certain mitigating factors; the criminal justice system is designed to account for mitigation on an individual basis, and could surely accomodate mitigation claims from veterans just like any other criminal defendant. The only reasonable explanation is that veterans are receiving leniency in recognition of their service to the United States as opposed to their relative culpability for their crimes: through service in time of war, veterans earn a get out of jail free card (or a get out of jail sooner card).

    This seems deeply problematic to me. As an initial matter, special treatment in criminal sentencing for veterans confers upon defendants benefits associated with their group status rather than their individual character traits. One might argue – as I’m guessing proponents of this special treatment often do – that joining the armed forces and serving during war is a sufficient display of good character to warrant mitigation. This argument is consistent with the more general and commonly accepted line of thinking that takes as a given that soldiers are good, noble people who risk all for the lives of others.

    However, this line of thinking does not reflect reality. Many (perhaps most) soldiers are good people, and some are indeed heroes. But soldiers in the end are human like the rest of us, with all the frailties and flaws that come with the human condition. Some soldiers murder and enjoy it and other soldiers torture or beat captives on nothing more than a superior officer’s order. Most soldiers probably join the service to serve their country but many soldiers join with nothing more in mind that their careers.

    The point is not that we should be skeptical of soldiers’ intentions or motives, but that we should treat them like everyone else when it comes time to judge. It seems to me that this is the best way to give soldiers the respect and recognition they deserve.

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