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December 1, 2009

Prior military service as a sentencing mitigator gets a big boost from SCOTUS

Long-time readers know that I have long discussed the notion that prior honorable military service could and perhaps should serve as a reason to reduce a sentence (see, for example, prior posts here and here).  As Lyle Denniston notes here at SCOTUSblog and as a bunch of major media articles also spotlight, the Supreme Court's summary reversal via this per curiam opinion in Porter v. McCollum (08-10537) gives considerable conceptual and constitutional heft to the idea of military service as a mitigating factor at sentence.  This passage from Porter in particular likely can and should be used by many veterans in many sentencing proceedings:

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.  Moreover, the relevance of Porter’s extensive combat experience is not only that he served honorably under extreme hardship and gruesome conditions, but also that the jury might find mitigating the intense stress and mental and emotional toll that combat took on Porter.

Because Porter is a death penalty case, some will surely wish to contend that its discussion of "according leniency to veterans" ought only to be consequential in capital cases.  But I do not think the Supreme Court wants this pro-veteran sympathy to be confined only to capital cases, and I am certain that at least some veterans facing sentences other than death will be eager to cite Porter in many other settings.

December 1, 2009 at 08:49 AM | Permalink


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"As Lyle Denniston notes here at SCOTUSblog and as a bunch of major media articles also spotlight, the Supreme Court's summary reversal via this per curiam opinion in Porter v. McCollum (08-10537) gives considerable conceptual and constitutional heft to the idea of military service as a mitigating factor at sentence."

Not quite. First of all, the idea that a capital defendant's attorney can and should present his military service is dictated by existing SCOTUS precedent. So this ruling simply confirms that. IIRC, one of the Bell v. Cone decisions touched on military service as a mitigator as well. Therefore, I am not sure that a whole lot of constitutional heft was given here. As for "conceptual heft", your assessment is probably correct, although I think that most lawyers, judges and jurors would readily agree that military service is a mitigator.

The bottom line is that this case shows that the Supreme Court is going to ensure that the failure to present significant mitigating evidence that has little or no downside in capital cases is IAC. The military service aspect is more sizzle than steak.

Posted by: federalist | Dec 1, 2009 10:37:40 AM

Federalist is right that this case breaks no new ground. After all, in current practice that is the hallmark of a Per Curiam opinion. (If the question were at all close or contestible, there would have been no decision without oral argument.)

However, the fact that several courts ruled against the petitioner demonstrates that existing precedent was not as clear as it perhaps should be. A short Per Curiam opinion that crisply summarizes the controlling law might offer a helpful guide to counsel in future cases.

Posted by: Marc Shepherd | Dec 1, 2009 10:55:49 AM

Does anyone think that the libs demanded this PC as a quid pro quo for going along with Van Hook and Belmontes?

Posted by: federalist | Dec 1, 2009 11:04:24 AM

As a former defense attorney in the Army, I held to the belief that a war hero would rarely be charged, let alone convicted of a crime (non-egregious) at a court-martial. Those folks would more likely be given non-judicial punishment, or, at most, a summary court-martial.

I believe that an egregious crime, like murder, would lead to court-martial and might even result in a conviction, but that the panels would give light sentences.

I think it entirely conceivable that a medal of honor recipient would be given one free murder, i.e., convicted by a court-martial, but given no jail time.

Posted by: Allan | Dec 1, 2009 11:19:57 AM

I just wonder how federalist would square clemency for military heros with the concerns for dangerousness in the juvenile LWOP post on the Clemmons case. Aren't former soldiers more dangerous since they've been trained to kill without compunction? (I should say that I support clemency for military heros, but not because I believe them to be less dangerous. I support clemency for military heros for the same moral reasons I support clemency for juveniles. I believe in second chances and I believe in redeemability. And I also think we have a duty to acknowledge the sacrifices veterans have made for us. These are all issues relevant to clemency that are not about foreseeability of danger, and will require us to put innocent victims at risk in order to vindicate our moral values.)

Posted by: Linda | Dec 1, 2009 1:08:42 PM

Former military may be more dangerous.

But military heroes are in a special class. Their heroism in fighting for our country outweighs the dangerousness factor. It is a form of giving them "thanks". Non-veterans have not earned that.

I would posit that those cited for heroism may be more dangerous than others. Not only are they trained for violence, they have (generally) killed a great number of people and they have disregarded their own well-being to win a battle.

Nevertheless, I would still find that a veteran, such as Porter deserves my thanks. If that is demonstrated by sparing his life, so be it. He fought to save our lives and our way of life. If the damn communists could not kill him, I don't think we should, either.

Posted by: Allan | Dec 1, 2009 2:09:05 PM

Linda, nowhere did I say that I support clemency simply because someone is a military veteran. I was merely describing the state of the law re: Strickland and Lockett. The bottom line is that military service is a mitigating factor. How much weight to give it--another question entirely.

Posted by: federalist | Dec 1, 2009 2:57:52 PM

I concur with the substantive points made by federalist and Marc Shepherd.

Posted by: Bill Otis | Dec 1, 2009 6:13:01 PM

Bill...why do you think anyone cares about your opinion and why do you have the need to weigh in on virtually every post? Get a life !!!!

Posted by: SheliaB | Dec 1, 2009 6:49:41 PM

Leona Helmsley at tax evasion trial:

"but I paid $hundred of millions in taxes already. What is $4 million?"

Jury: jail time.

Someone has to explain in plain language how prior achievements get to mitigate the sentence, and how not bring that weird argument is inadequate representation.

Posted by: Supremacy Claus | Dec 2, 2009 4:33:06 AM

Blogs are so informative where we get lots of information on any topic. Nice job keep it up!!

Posted by: Tourism Dissertation | Jan 8, 2010 2:49:15 AM

It's a complicated issue; on one hand military personnel deserve our thanks and gratitude for their service. On the other hand the victim's family has suffered a lot. There's no clear cut answer.

Posted by: Military Education Programs | Apr 20, 2011 5:07:23 PM

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