"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).

Some recent related posts:

• "Judge suggests more sentencing options for war veterans"
• Can downloading of child porn be blamed on post-traumatic stress disorder?
• Prior military service as a sentencing mitigator gets a big boost from SCOTUS
• Should prior military service reduce a sentence?