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December 15, 2009

"Purple Hearts On Death Row: War Damaged Vets Should Not Be Executed By the State"

Thanks to a reference from Death Penalty Information Center, I just came across this commentaryby By Karl Keys and Bill Pelke which has the title that appears in the heading of this post.  Here are excerpts:

Mental exhaustion. Battle fatigue. PTSD. Whatever it's called, many of our soldiers who served in wars over the years came home with combat-related mental illness, traumatized by the carnage and destruction they saw and experienced.

Unfortunately, too many veterans' mental conditions have fueled criminal behavior resulting in their imprisonment.  Dating back to the Civil War, veteran incarceration rates increased after each conflict.

This is not a small, marginal problem. Government statistics for the 1980s show that 21 percent of state prison inmates then were Vietnam veterans.  The U.S. Department of Defense and the Veterans Administration estimate that two of every five of the 800,000 new Iraq and Afghanistan war veterans exhibit post-traumatic stress disorder (PTSD) symptoms....

As veterans ourselves, we believe that people who commit crimes as a result of severe mental impairments should not be executed. In 2006, the American Bar Association's House of Delegates adopted that recommendation, which was officially endorsed by the American Psychiatric Association, the American Psychological Association, and the National Alliance on Mental Illness.

The piece discusses the cases of two Vietnam veterans — James Floyd Davis and Manny Babbitt — who were sentenced to death for murders after their return from war.  (Davis is still on death row and Babbitt was executed a decade ago.)  Unfortunately, the piece does not discuss or try to document how many of the 3200+ persons now on death row are veterans with (or without) direct experiences in a theater of war.

Of course, some of the most notorious modern American murderers have military service on their resume — including Tim McVeigh and the Fort Hood shooter, Nidal Hasan — so I doubt many will soon be calling for an Atkins-like categorical rule that past military service should make one ineligible for the death penalty.

Some recent related posts:

December 15, 2009 at 11:10 AM | Permalink


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At the very least, an instruction to the jury at the penalty phase along the lines of the following could be appropriate:

"Members of the jury, I instruct you that you should consider the defendant's extensive combat experience as a factor that militates against imposition of the death penalty in this case. In this regard, you may consider that Mr. ___served his country 'honorably under extreme hardship and gruesome conditions.' Thus, althogh in no way excusing his crimes, in determining whether Mr. ____should live or die, you may 'find mitigating the intense stress and mental and emotional toll that combat took on' him" and on that basis alone may reject the penalty of death.

See Porter v. McCollum 130 S.Ct. 447, 455 (U.S.,2009) (per curiam)

Posted by: Michael R. Levine | Dec 15, 2009 11:57:48 AM

I'm not sure this proposal is overly controversial. "People who commit crimes as a result of severe mental impairment should not be executed." That rule is frequently applied to mitigate death sentences, veteran or not.

My only fear in creating a specific instruction for military service is, it creates a subconscious presumption that if a veteran commits a crime, it is likely due to a mental impairment brought on by service. By its nature, the proposed rule is not categorical, and nor should it. Not all veterans suffer from "severe mental impairment," and not all (dare I say, not even the majority?) commit crimes due to such an impairment. Some veterans--just like some pro athletes, or some police officers, or some doctors, or some teachers--are just assholes. McVeigh or Hassan are cases in point--the evidence points to the fact that they were heartless radicals, not mentally ill.

The better solution, I would think, is to give a specific instruction on severe mental impairment separately from other "mitigating factors" that may be considered, such as military service. Military service should be a mitigating factor worthy of consideration (though not necessarily dispositive), but I'm wary of connecting it to PTSD or whatnot in jury instructions.

Posted by: Res ipsa | Dec 15, 2009 12:22:33 PM

Res ipsa.

You miss the point. No one is arguing for giving a break for veterans because they care about veterans just like the people aren't arguing over one drug or three for death because they care about drugs. These people hate the DP with a hate that frankly I've come to see as an insanity. They will do anything and say anything to undermine the Constitution in the same why that the Abolitionists claimed the Constitution was a contract with the devil.

Posted by: Daniel | Dec 15, 2009 1:33:22 PM

Daniel -

Hey, if you want to compare opposition to the death penalty to opposition to slavery, be my guest. I think both were, and are, wrong and both should have been, and should be, abolished.

That said, I'm not sure how DP opponents are "undermin[ing] the Constitution" by expressing disagreement with the DP. The question of whether a particular punishment is cruel and unusual is open to some debate. Sorry if you don't like that.

I'm not insane, any more than most DP supporters are insane. There are wild extremists on both sides of every argument. I pay little attention to them at both ends, as I don't find them helpful to any reasoned debate.

Posted by: AC | Dec 15, 2009 1:42:59 PM

This series of posts on combat vets, PTSD, and mitigation is more extraordinary than people realize.

The left has discovered a cause of criminality. This is the first, and would rank among the great discoveries in medicine, such as the lack of insulin caused diabetes. It is that big.

The problem? It is left wing propaganda to bash our warriors, and to bash the Bush administration. Such a theory would require markedly above average evidence and proof. There is not a scintilla of evidence to support this left wing propaganda.

They were criminals before combat, they were criminals after comnbat. As criminals, they angered officers who assigned them dangerous jobs.

Posted by: Supremacy Claus | Dec 15, 2009 2:38:05 PM

Two lines from the original post jump out:

"Eventually he broke into the home of Leah Shendel, an elderly woman, and beat her. She later died of a heart attack."

"...people who commit crimes as a result of severe mental impairments should not be executed."

Karl, if you are watching this thread, would you care to back up your assertions of fact that (1) Mrs. Shendel died later, not while Babbitt was beating and possibly raping her, and (2) this crime of violence was caused by Babbitt's PTSD.

I don't believe either of those is true.

Posted by: Kent Scheidegger | Dec 15, 2009 4:20:41 PM


I have little doubt that Mr. Babbitt's action were directly attributable to his duty in country. I'm not sure how the fact that he tied a leather strap to her toe as a makeshift toe-tag and other actions he took that night don't scream it. And yes she died of a heart attack.

Like you, I am often left scratching my head why one case gets reversed in the Ninth Circuit and one does not. Why Babbitt didn't receive relief somewhere along the line either on direct appeal, in the district court, or the Ninth is beyond me. Although, I might venture, that the utter disrespect this nation -- right and left -- historically has shown Viet Nam era veterans may be one reason.

With that stated, I believe this editorial helps continue the discussion Doug and others started here and elsewhere some time ago about the appropriate role of veteran status should play in the context of punishment. Perhaps put differently, if we are to retain capital punishment (and I am realistic enough to realize that nationally capital punishment is unlikely to be repealed any time soon) what steps can be taken to improve the process to assure a fair process and guarantee that only the worst of the worst get executed and not just those who have the worst luck or worst attorneys. Providing life imprisonment for war veterans/heroes who face capital murder charges should be one such improvement we make.


[My apologies for any typos, its been a long day after several weeks/months of them.]

Posted by: karl | Dec 15, 2009 8:39:17 PM

AC, "Hey, if you want to compare opposition to the death penalty to opposition to slavery".

Except, that's not what I did. And you know that's not what I did. And when you twist another person's words that is no way to have a "reasoned debate" now is it. But then, that's not your strategy. Your goal is to shoot everyone around you and then claim you're in the middle on the road.


Posted by: Daniel | Dec 16, 2009 2:08:52 AM

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