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March 15, 2010

Effective NY Times coverage of service as a sentencing factors

Writing in the New York Times, John Schwartz has this effective new piece on military service as a sentencing factor. The piece is headlined "Defendants Fresh From War Find Service Counts in Court," and here are excerpts:

At the federal level, judges are bucking guidelines that focus more on the nature of the crime than on the qualities of the person who committed it. States, too, are forming special courts to ensure that veterans in court receive the treatment their service entitles them to.

While veterans are not considered to be more likely to be arrested than the rest of the population, estimates released by the Bureau of Justice Statistics in 2008 found 229,000 veterans in local jails and state and federal prisons, with 400,000 on probation and 75,000 on parole.

There are about 1 million veterans of the two current wars in the Veterans Affairs system so far, said Jim McGuire, a health care administrator at the agency. He cited statistics suggesting that 27 percent of active-duty veterans returning to civilian life “were at risk for mental health problems” including post-traumatic stress syndrome.

Judges have recognized that many of those returning from war are carrying a heavy burden of damage that might not be physically visible. As one federal district judge in Denver, John L. Kane, wrote in an order giving a defendant probation instead of a prison sentence, the soldier “returned from the war, but never really came home.”

The judges’ decisions are part of a broader fight over sentencing, and over once-rigid federal guidelines that tend to punish the crime while giving little weight to the specific circumstances of the defendant. The guidelines explicitly state that “good works” like military service “are not ordinarily relevant” in determining whether to give sentences below the recommended range.

The Supreme Court, however, in a series of cases, has declared that the federal sentencing guidelines are advisory, not mandatory. The United States Sentencing Commission is considering proposals that would allow military service or other evidence of “prior good works” to be considered as mitigating factors in sentencing decisions.

The Supreme Court seemed to signal greater consideration for military service in a decision in November throwing out the death penalty for a Korean War veteran who was convicted in 1987 of murdering his former girlfriend and her boyfriend.  Calling for a new sentencing hearing, the justices wrote that lawyers for the defendant, George Porter Jr., should have presented evidence of “the intense stress and emotional toll that combat took” on Mr. Porter, who suffered from “dreadful nightmares and would attempt to climb his bedroom walls with knives at night.”

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Comments

Relentless repetition of left wing, criminal lover propaganda will have no effect on the validity of a proposition. This is an absurd lie that being in combat is a factor in crime.

It is a false, unwarranted insult to our heroes. If one has PTSD, one seeks to avoid violence that reminds one of ones traumas. Warriors are preselected for greater maturity and self-control. These are enhanced by rigorous military training. The point of these awful, insulting lawyers is that the crimes of these criminals is the fault of George Bush. It's the George Bush defense, being invented by internal traitors. No evidence supports this ridiculous idea.

Posted by: Supremacy Claus | Mar 15, 2010 11:31:01 PM

Hey SC, are you denying that PTSD could have role in the commission of a non-violent crime? Are you denying that PTSD could have a role in some drug/alcohol use, which in turn could have a role in commission of a crime?

Your comment seems to accept PTSD as a legitimate problem, but then denies its potential contribution to crime. But, in light of some of your other rants, I would have expected you to deny the existance of PTSD.

So I can better understand your gripe, SC, please explain more fully what you think is wrong with the idea that our "preselected warriors" should get some special consideration if/when they return home from battle and get involved in some form of criminal activity.

Posted by: Doug B. | Mar 16, 2010 11:43:22 AM

Prof. B,

Please don't encourage the troll.

Posted by: law123 | Mar 16, 2010 3:35:36 PM

PTSD is valid. It results in avoidance, not in lashing out. One tortured mechanism by which it may result in crime is by inducing self-medication with alcohol. The intoxicated vet may then commit a crime he otherwise would not.

Studies of returning Vietnam vets showed a 40% opiate abuse rate in Vietnam. Upon return to the US, the rate dropped to 1 to 2%, one similar to the general population. It was then shown that those remaining drug addicts in the US had backgrounds similar to non-vet addicts.

If one tries to suggest that many PTSD symptoms overlap with those of substance abuse, and that the diagnosis should only be made after a period of abstention, the VA staff goes nuts with fear. They do not want retaliation by the VA hierarchy for threatening multi-billion dollar treatment programs. These are endless therapies leading to no improvement, when one should suggest to the vet he cut back on the booze, the marijuana and the caffeine. And, that doing so may make him feel better, less likely to climb the walls if a Vietnamese person enters a restaurant. Rent seeking is not an isolated lawyer methodology.

So you are partially correct. The diagnosis exists, but is erroneously over diagnosed by Bush bashers and other low class political partisans, using distressed, damaged warriors to score political points.

Posted by: Supremacy Claus | Mar 16, 2010 4:17:32 PM

These are superior people. Should people with military skills, discipline, and ethical obligations receive a discount for their mistakes or greater accountability?

By the logic of the above decisions, children, the insane, and the mentally retarded should receive greater punishment for the same crime as adult, intelligent people with excellent self-control. Can you give sentencing discounts for inferior functional ability and for superior functional ability? Not logically, you cannot. The explanation for the discount accorded to superior people can only lie in the left wing external partisan political agenda.

Here is a heinous analogy. Leona Helmsley. She was brought to account at trial for evading $4 million in taxes by deducting costs of renovations in her private residence as a real estate business expense. Her argument was that she had paid $400 million in taxes over the years, far more than the entire audience of this blog. Because of her superior payments to the IRS, she should catch a break in sentencing. The jury disagreed. The judge disagreed. He sentenced her as he would others. Is there anything wrong with the judge's decision?

Posted by: Supremacy Claus | Mar 16, 2010 6:36:43 PM

this situation is very strange I can't understand it.

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