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March 19, 2012

Sympathy for a devil?: Eager to hear (civil) thoughts on military mass murderer and death sentencing

SympathyThe provocative start to the title of this post (as well as the image I have posted) not only borrows from my favorite Rolling Stones' song, but also seeks to encourage thoughtful reflections on readers' reactions and feelings concerning Staff Sgt. Robert Bales, the Army soldier who is set to be charged in the killings of 16 Afghan civilian men, women and children. The personal and professional history of Bales emerged in the media this past weekend, and his backstory adds many potential layers to what is already a dynamic story of one man's experiences with both guns (in the military) and roses (though succes in other parts of his life). Here is some of that backstory via this lengthy Wall Street Journal article:

Interviews with those who knew Staff Sgt. Bales where he grew up outside Cincinnati, where he was known as "Bobby" and at Joint Base Lewis-McChord outside Tacoma, Wash., where he was stationed, expressed disbelief over the accusations he is facing.  "That just wasn't him. That's why it's torn anybody up that knew him," said Nita Pertuset, who lives three doors from the house in Norwood.

Military officials have said alcohol was likely involved in the killing spree, and Staff Sgt. Bales has had minor skirmishes with the law over the past 10 years, according to records.

Records and interviews reflect the family's financial stress, a recent decision to sell their Lake Tapps, Wash., home at a loss, and professional disappointment, first at missing out on a promotion after a tour in Iraq and then being sent to Afghanistan after believing his overseas assignments were finished.

"It is very disappointed [sic] after all of the work Bob has done and all the sacrifices he has made for his love of his country, family and friends," Karilyn Bales, the soldier's wife, wrote last year on her family blog, say excerpts quoted by the Associated Press.  "I am sad and disappointed too, but I am also relieved, we can finally move on to the next phase of our lives."

She said that she hoped Staff Sgt. Bales would be given a new assignment in a different location, perhaps Germany, Italy or Hawaii. "We are hoping that if we are proactive and ask to go to a location that the Army will allow us to have some control over where we go next," she wrote.

Some who knew Staff Sgt. Bales in the community of Norwood, outside Cincinnati, were puzzled when he abandoned what seemed like a promising career in the financial-services industry to enlist in the Army following the Sept. 11 attacks.  He went to Norwood High School, where he played on the varsity football team. He was popular among other players: "The kind of guy that got everybody pumped up," said Mr. Berling, who was a teammate. "Popular guy, captain, big smile," Mr. Berling said. "He was always very personable."...

Robert Bales was ... a student of military history.  Mr. Berling remembers a course in which Staff Sgt. Bales went back and forth with the teacher over particulars of war.  "He knew all the names of the generals and battles, from the Revolutionary War and Bunker Hill, and all that," Mr. Berling said.

Still, some didn't understand why he enlisted in the Army, especially after attending Ohio State University and beginning a career as a financial adviser.  In a high school graduating class of about 125, most students had gone on to college, and few went into the military, which wasn't a particularly big part of the culture.

Another friend and neighbor in Ohio, Michael Blevins, 35, said he has known "Bobby" since he was 2 years old and Staff Sgt. Bales was 5.  Mr. Blevins still lives across the street from the red brick single-family home where the suspect grew up.  He and Mr. Berling both recalled that Staff Sgt. Bales helped care for a special needs man in the neighborhood. When he enlisted in 2001, he was heading to boot camp, and called Mr. Blevins the night before he left. Mr. Blevins said he told him that it "felt right to him.  He had a real sense of pride about it."

Once in the military, many of those who served with him considered him a "likable guy" — always laughing, quick with a joke, said retired Capt. Blake Hall.  Both were from Joint Base Lewis-McChord near Seattle and served in Mosul, Iraq, then saw fighting in Najaf and Karbala as well as action in Baghdad.  "He was involved in all of that," said Mr. Hall, who now operates an online firm called TroopSwap, which arranges consumer bargains for military families....

Mr. Browne, his attorney, has suggested in several interviews that Staff Sgt. Bales may have been deployed too often.  After three stints in Iraq, he has said the family thought the Middle East deployments were finished.  Then, however, Staff Sgt. Bales was sent to Afghanistan.

But others disagree with that complaint, and even some who knew him said they didn't think the massacre was a result of U.S. military policies and deployments.  "What he did is not systemic; he was a lone actor," said Mr. Hall, the retired captain, commenting on the allegations.  "The media is painting this as 'too many deployments,' [but] he broke several orders, first drinking and then shooting women and children."

In addition to urging readers to keep civil here, I am especially interested to hear from supporters of the death penalty concerning whether (and why) they think these and other personal background matters are important in assessing Bales' punishment for what seems like a death-deserving crime.  Unprovoked slaughter of many women and children is often justifiably viewed as a the kind of horrific crime for which death is a fitting punishment.  I fully expect the anti-death penalty crowd will be eager to stress the personal factors to explain why, even for an extreme mass murder, death is not a justifiable punishment.  But, especially due to the political and social overtones of this case, I want to know if strong death penalty supporters have a unique kind of sympathy for this (not-so-unique?) kind of devil.

Recent related post:

UPDATE:  This lengthy new profile of Bales in the New York Times adds these addition details concerning how those who knew Bales before his recent arrest have come to think about why he was involved in this awful crime:

Friends, relatives and his lawyer say they have an idea of what that horrible thing was [which happened to him]: war.  Three deployments in Iraq, where he saw heavy fighting, and a fourth in Afghanistan, where he went reluctantly, left him struggling financially, in danger of losing his home.

And there were more direct impacts. During his deployments, Sergeant Bales, 38, lost part of a foot and injured his head, saw fellow soldiers badly wounded, picked up the bodies of dead Iraqis, was treated for mild traumatic brain injury and possibly developed post-traumatic stress disorder, his lawyer and military officials said.

March 19, 2012 at 11:07 AM | Permalink

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To a certain extent, I grant that I have sympathy for US servicemen who commit crimes in a war zone. However, death is an appropriate punishment here. And the US needs to send a message to the world that US servicemen who commit these beastly crimes will be held to account. And nothing says accountable like the big jab.

In other words, I think that the harm done to the reputation of the Armed Forces is an aggravating factor, which would prima facie negate any mitigating factors here.

Posted by: federalist | Mar 19, 2012 11:33:14 AM

"But, especially due to the political and social overtones of this case, I want to know if strong death penalty supporters have a unique kind of sympathy for this (not-so-unique?) kind of devil."

I'm trying to figure out what this question means, or at least the unstated assumptions on which it is based. Are you just suggesting that the grounds for sympathy may be so strong that, unique among reasons for sympathy generally, this ground may be _shared_ by proponents and opponents of capital punishment alike? Or (more interestingly) are you asking if death-penalty supporters are _uniquely sympathetic_ to Bales (i.e., more or differently sympathetic than death-penalty opponents)?

It's hard to tell which one you mean, because you suggest that the cause of DP-supporters' sympathy may be "the political and social overtones of this case," which I take to refer not to Bales's personal history, but to something about his reasons for murder. Much depends on what political and social overtones you have in mind. If you're referring to the allegation that Bales may have snapped after over-deployment, that sounds like the first version of the question; something like 'Lefties are more often associated with providing defendants with an excuse for behavior based on circumstances, but maybe this guy's prior patriotism will inspire right-wingers to share that sympathy in this special case.' But if, on the other hand, you mean that there's something about who Bales killed, why he did it, or how, that engenders some sympathy among death-penalty supporters because they think of those killings as less culpable than other murders, that seems like a pretty serious implication.

Perhaps I'm the only one who thought the question was susceptible of the second reading in the first place. This is not meant as hostile in the least; I'm just really curious what you meant.

Posted by: Matt | Mar 19, 2012 12:31:19 PM

Service in the armed forces in time of war, and in a theater of combat, is dangerous and honorable. But thousands upon thousands of other servicemen have served in equally horrible (or worse) conditions and have managed not to engage in mass murder of civilians. Instead, hundreds of them have adopted children and brought them back to the USA to give them love and the hope for a life incomparably better than the one that awaited them.

The only question is whether he knew what he was doing. If he didn't, then obviously the death penalty (or any punishment, really) is out of the question.

If he knew what he was doing, the DP is in order. If we can't say NO to something like this and mean it, we have forfeited all moral authority. Aren't we fighting in Afghanistan to prevent the Taliban and al Qaeda from doing exactly this kind of thing to us?

Posted by: Bill Otis | Mar 19, 2012 12:35:23 PM

To expand a bit on Bill's comment, for a crime of this magnitude I can't imagine any circumstance in mitigation that would not also be a negation of criminal guilt. A psychotic split from reality where he thinks he is doing something entirely different from what he is actually doing would qualify for NGBI, mooting any question of punishment. Anything less does not outweigh the aggravating.

Posted by: Kent Scheidegger | Mar 19, 2012 12:55:16 PM

I agree with Matt. I think the question is written a little strangely. I also wonder is it the body count that overrides the mitigation? At what number dead do we say nothing short of NGRI ameliorates the offense?

Posted by: defense attorney | Mar 19, 2012 1:16:36 PM

Predictions (from a former Army JAG defense counsel).

1. This will be a capital case. The convening authority would not do anything else, and would leave it up to a jury to decide the case. Politically, the convening authority can do nothing else without ruing US/Afghan relations even more. Any convening authority that referred this to a court-martial without a capital murder charge would effectively be ending his or her career.
2. The court-martial will be tried in the US. The JAG will ensure that a seasoned prosecutor, most likely a seasoned captain or a major represents the government (probably with one or more co-counsel). The defense team will consist of the already hired attorney and a highly skilled TDS lawyer. Most likely, the first TDS lawyer will be transferred during the litigation and it will be interesting to see if the defense files a motion to keep the lawyer, and how the government will respond.
3. There will be a competency hearing. I predict that the defendant will be found competent.
4. There will be no plea bargain. If there were, there would be no capital referral.
5. The court-martial panel will find the guy guilty (because he is).
6. The court-martial panel will take all of the mitigating circumstances under consideration, most importantly the "good soldier" defense and the fact that a friend had recently been killed. The panel will issue a sentence of 5 to 10 years (with reduction to private and dishonorable discharge). If the defendant has an Army Commendation Medal with a "V" device (for valor), a bronze star with a V device, a silver star, or a soldier's medal, the sentence will likely be less. (If he had a medal of honor, which he does not, there might not even be any jail time).
7. The government will be angry. The Afghan government will be angry.
8. The US Attorney for some district will decide that it has jurisdiction and charge the defendant with murder and bring a capital case (no double jeopardy, see the McDonald case from the 1970s).
9. The defendant will be found guilty and sentenced to life in prison.

Please remember, the purpose of the Uniform Code of Military Justice is NOT punishment of crimes. It is a tool the commander uses to ensure good order and discipline among his or her troops. If the defense can persuade the court-martial panel (which can include 1/3 non-commissioned officers) that good order and discipline does not require a stiff sentence, the sentence will be relatively low.

Things to pay attention to:

1. Who is appointed as the judge.
2. Who is appointed as the Article 32 hearing officer (the result of the hearing, i.e., referral to court-martial, is a foregone conclusion).
3. Who is prosecuting the case.
4. The results of the competency hearing.
5. The composition of the panel. IMHO the more who have served in Afghanistan and Iraq, the better it is for the defendant.

Posted by: Allan | Mar 19, 2012 1:31:46 PM

One more prediction:

The trial will be in 2014 or 2015 and will be AFTER the US withdraws the majority of its troops from Afghanistan.

Posted by: Allan | Mar 19, 2012 1:40:32 PM

It is interesting to me that as soon as we had a name and face for the accused there was a rush of sympathy, a need to explain/excuse his purported actions.

Where are the names and faces of the murdered Afghans that we might have sympathy for them and for their families? Why have they become almost a footnote in this morality tale?

It is not that I want to prejudice sentiment against the defendant. It is that I want us as a country that chose to go to war to take responsibility for all the consequences of that choice.

Posted by: Joe Power | Mar 19, 2012 2:50:21 PM

Hmmm..interesting question.

If this happened in the US, for instance, would there be any difference in the investigation and prosecution of the crime? Certainly, if I were the father or family member of one of the murdered, I wouldn't allow for insanity defense.

A very applicable analogy can be found through sex offender prosecution and registration laws in the US. Many sex offenders were themselves violently abused as children. But that doesn't give THEM sympathy when they commit their similar crimes; we treat them just as harshly as any abuser.

Same goes for Bales. As honorably as he had served prior to the horrific admitted murders, there can be no excuse for his behavior. Keep in mind that it was all premeditated. It was NOT a direct result of an active operation but was conducted following debriefing, which is a huge difference.

Posted by: Eric Knight | Mar 19, 2012 3:07:36 PM

Matt and defense attorney: I intentionally wrote an opaque prompt to see what folks might make of it.

Interestingly, federalist suggests the setting for this mass murder is an AGGRAVATOR, while Bill and Kent seem to assert that context here is inconsequential because (any and every?) unjustified mass murder by a sane person merits the punishment of death. And Allan, apparently with some astutue insider insights, suggests that the punishment of death, which federalist and Bill and Kent all think is essential, is very unlikely to be administered by the military justice system (presumably because of some/all of the potential mitigating personal factors identified int he press reports).

Posted by: Doug B. | Mar 19, 2012 4:48:00 PM

Excess deployment is code for Bush bashing. Irrelevant and political.

The crime is horrendous but ordinary. Half the murderers are legally drunk. Half the murder victims in the US are legally drunk.

Posted by: Supremacy Claus | Mar 20, 2012 1:02:04 AM

FWIW, there is no inconsistency between my view that death is the appropriate punishment and Allan's prediction it won't actually be imposed. Even when it is imposed, the military doesn't actually carry it out. The judgment in Loving v. United States has not been executed 16 years after the Supreme Court affirmed the sentence.

Posted by: Kent Scheidegger | Mar 20, 2012 8:56:47 AM

Does anyone know the legal theory under which Bales was brought to the United States after allegedly committing mass murder in Afghanistan, against civilians during non-combat activity ?

I am trying to imagine the situation in reverse, where a foreign national is accused of mass murder in an American city. I can't imagine the accused in the American case being permitted to leave the country under any circumstances.

Posted by: Stanley Feldman | Mar 20, 2012 10:27:47 AM

it's easy stanley. Under the agreement we blackmailed the new govt of afghanistan to sign after we blasted the taliban the new govt agreed that any crimes comitted by american and coaliton forces would be dealt with by thier own governments. That afghanistan gave up any jurisdiction.

Posted by: rodsmith | Mar 20, 2012 5:06:26 PM

@rodsmith
That seems fair, the Afghan and Iraqi governments would not exist without us and they don't have anything resembling a fair judicial system. The alternative is that any Americans accused of crimes would most likely be strung up after a show trial. Think something like the Eric Volz case.

Posted by: MikeinCT | Mar 20, 2012 8:46:53 PM

oh i agre mike...but it was still put in place via blackmail. agree or we pack up and leave! then the taliban comes back and kills you all!

sounds like blackmail to me.

but i agree their present justice system seems to date from BEFORE the dark ages!

Posted by: rodsmith | Mar 21, 2012 1:02:41 AM

Reading the posts I am forced to wonder how many of the writers have ever been in combat and if so for what lengths of time. War is different and prolonged combat and/or repeated re-deployments ,especially unexpected ones, can have repercussions beyond the consideration of those not so exposed.
There can be no excuse for such behavior - but, there can be and are reasons for it. We must recognize them and deal with them with the concern and respect that they, and this person, deserve.
To quote: "War is hell." Those who have not been in one cannot know, in the least, what it is like or what may seem "like a good idea, at the time" under its forces.

Posted by: tim rudisill | Mar 26, 2012 4:43:44 AM

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