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December 31, 2009

"Judges Consider New Factor at Sentencing: Military Service"

The title of this post is the headline of this new article in today's Wall Street Journal.  Here are excerpts from the effective piece:

A small but growing number of judges say U.S. military veterans should be treated differently from nonveterans when they are sentenced for crimes.

As more soldiers return home from combat overseas and end up in the criminal-justice system, a number of state and federal judges are deciding to show former soldiers leniency in light of their service.  Some veterans are receiving probation coupled with psychological treatment, generally for nonviolent crimes that normally would land them in prison.

That is raising concern among some legal experts, who say singling out veterans for special treatment indulges criminal behavior and risks establishing a two-tier system of justice.

Many veterans returning from war zones develop behavioral and psychological problems, which in some cases leads to alcohol and drug abuse -- and crimes. "We dump all kinds of money to get soldiers over there and train them to kill, but we don't do anything to reintegrate them into our society," says John L. Kane, a federal judge in Denver.  Earlier this month, Mr. Kane sentenced an Iraq war veteran convicted of bribery to probation instead of prison.

Most U.S. courts don't have rules on giving veterans special consideration.... But in North Carolina, if a defendant was honorably discharged from the military, judges must use that fact as a mitigating factor at sentencing. And in several states, including Tennessee and Louisiana, courts have ruled that judges are allowed to use prior military service to lessen a sentence.

There are no special courts for veterans in the federal court system....  But momentum for special treatment is growing. Since last year, about 16 counties and cities -- from California's Orange County, to three cities in western New York, have started veterans courts, according to the National Association of Drug Court Professionals.  Three counties in and around New York City launched similar programs in July, and state legislatures have approved the formation of such courts in places such as Harris County in Texas and the state of Nevada.

The goal of the courts, which serve veterans of any era, is to keep defendants out of prison. Veterans are put into treatment programs for war-related illnesses, among other problems, that aren't available in the prison system.  Their probation includes rigorous drug testing.  After veterans complete treatment, some prosecutors' offices drop the criminal charges as long as the veterans didn't have a prior felony conviction....

Some legal experts worry the movement could result in special consideration for all veterans, regardless of whether their criminal conduct was influenced by their military service.  "What we think goes over the line is the creation of two separate systems based solely on somebody's status," says Allen Lichtenstein, the general counsel for the American Civil Liberties Union in Nevada.  "Police are under particular stress -- should there be a court for them?"...

Taking military service into account at sentencing isn't a new tradition.  In the Civil War era, members of the military were routinely shown leniency by judges, notes Carissa Hessick, a law professor at Arizona State University.  During the World War II and Vietnam eras, certain judges allowed criminal charges to be dropped if defendants enlisted in the armed forces.  That practice is no longer allowed.

Sympathy for new veterans aided John Brownfield of Cañon City, Colo.  The former U.S. Air Force firefighter pleaded guilty to accepting a bribe as a public official for illegally selling tobacco to federal prison inmates while working as a correctional officer in 2007, two years after he returned from tours in Iraq and Afghanistan.

The federal prosecutor and Mr. Brownfield's lawyer agreed to recommend to the judge that he serve a year in prison.  But the judge, Mr. Kane of Denver, instead ordered a psychiatric evaluation and earlier this month sentenced Mr. Brownfield to five years of probation.

In the Brownfield case, Judge Kane wrote a lengthy opinion explain his sentencing decision.  The Brownfield opinion can be accessed at this link, and it starts this way:

I have written this sentencing memorandum, which is more extensive than most such findings and conclusions, because this case involves issues the Sentencing Guidelines do not address regarding the criminal justice system’s treatment of returning veterans who have served in Afghanistan and Iraq.  As I conclude that the Sentencing Guidelines’ advice is not persuasive in the circumstances of this case, I will make specific findings necessary to achieve the purposes of 18 U.S.C. § 3553 (2006).  This memorandum opinion will be published and copies provided to the United States Sentencing Commission pursuant to the implicit suggestion in Rita v. United States, 551 U.S. 338, 357-58 (2007).

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Do you have any thoughts on this?

Posted by: shg | Dec 31, 2009 12:05:37 PM

In a perfect world, we (read the US government) would take care of psychological and emotional issues caused by serving in theater. Alas, we do not live in that perfect world. Thus, I do see some merit in what these courts are doing.

However, I think it would make more sense to extend these types of sentencing options to all people who suffer from emotional and behavioral disorders. I won't be holding my breath waiting for that to happen.

Posted by: Justin_Anderson | Dec 31, 2009 3:58:29 PM

Not directly on point, but related:

"WASHINGTON - A federal judge dismissed all charges Thursday against five Blackwater Worldwide security guards accused of killing unarmed Iraqi civilians in a crowded Baghdad intersection in 2007.

"U.S. District Judge Ricardo Urbina said Justice Department prosecutors improperly built their case on sworn statements that had been given under a promise of immunity. Urbina said the government's explanations were 'contradictory, unbelievable and lacking in credibility.'"

What a heartening way to start off the New Year. Congratulations to Judge Urbina for tossing this dishonest and politically rigged prosecution against some brave men who put country first. And shame on the Justice Department.

I generally tend to give the benefit of a doubt to the prosecution, but in this instance the prosecution was a disgrace and the defense bar a sentinel of honor.

Posted by: Bill Otis | Dec 31, 2009 8:46:13 PM

"but in this instance the prosecution was a disgrace"

I swear, Mr. Otis there is hope for you yet. Like to see a few more?

Happy New Year

Posted by: HadEnough | Dec 31, 2009 9:18:19 PM

And a Happy New Year to you as well!

Party time!!

Posted by: Bill Otis | Dec 31, 2009 10:12:39 PM

A few comments.

I think it would be a bad idea, and probably unconstitutional under the equal protection clause, to set up "veteran courts." Drug courts deal with a particular type of crime, not a particular type of defendant.

On a different tack, the article illustrates how difficult it is to align theory and practice in criminal sentencing. the article says "in NC if a def was honorably discharged from the military, judges must use that fact as a mitigating fact in sentencing." Our statute may appear to say that, but in reality, judges have total discretion to decide to use the fact of honorable discharge as a mitigator or not. Our Court of Appeals imposed a construction on the statute which in my opinion violates the separation of powers clause of the NC Constitution and allows judges to ignore the honorable discharge if they want to. Judges don't like the legislature tying their hands so they have decided to just ignore in their discretion things the legislature says they should consider.

Finally, another point about criminal sentencing is that it is becoming so complex, that it is becoming increasingly more difficult to reconcile it with itself in various scenarios. For example, honorable discharge from the military is a statutory mitigator in noncapital cases, but not in capital cases. When I challenged that irrational distinction about ten years ago, the NC Sup Ct found no problem with what I believe is a totally unreasonable distinction.

The truest thing I have heard about "structured sentencing" aka, micromanagement of the criminal justice system by the legislative branch, came from a DA who said, "It is at the same time too simplistic and too complicated."
It is simplistic to think the legislature can anticipate the infinite number of circumstances surrounding a case and a defendant. It is too complicated when the legislature attempts to dictate sentences from afar.

happy new year everyone. My wish for the new year is a move toward reason in criminal sentencing and away from political pandering.

bruce cunningham

Posted by: bruce cunningham | Dec 31, 2009 10:28:53 PM

I would expect nothing less than lathered support for the forces of darkness and fascism by our resident apparatchnick. (Is that spelled right?). thanks for not letting me down, Bill. . .

Posted by: Mark # 1 | Dec 31, 2009 11:03:53 PM

This decision is a left wing insult to Bush and demeans all our warriors/heros. It implies going into combat is a cause of crime or an excuse for such. It absolutely is not. Loosing combat trained criminals on the public and on their families, by coddling them is not cool. Catastrophic to the kids. But then, the judges do not reside in their neighborhoods.

The criminals returning from combat have exactly the same family genetics, bastardy rates, and upbringings as the criminals not returning from combat. If one has PTSD, wouldn't one avoid robbing and beating people, being scared of conflict?

These are left wing judges not even making sense.

Posted by: Supremacy Claus | Jan 1, 2010 9:45:16 AM

As theorized above, Judge Kane is a Carter atrocity, a left wing wack job extremist, and America Hater.


Posted by: Supremacy Claus | Jan 1, 2010 9:49:43 AM

Judge Kane's decision in the Hot Dog Vendor case makes the point that the case decision being discussed here is political.

Someone swindled people. The lawyer asked for leniency based on a mental illness. The Judge increased the sentence instead.

Posted by: Supremacy Claus | Jan 1, 2010 9:56:09 AM

MarK # 1 --

Take it up with Judge Urbina, a Clinton appointee and the same judge who ordered the release of the Uighurs.

Urbina is the fellow who issued the order; I'm merely a bystander applauding him. Is Urbina too a vessel of "the forces of darkness and fascism" and an "apparatchick?"

RIGHT!! Just like all the other Clintonista judges.

I love it. For once I take the side of the defense rather than DOJ and STILL you're not satisfied. Far out! Where would we be without you to remind us that America stinks?

Happy New Year anyway.

Posted by: Bill Otis | Jan 1, 2010 12:25:34 PM

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