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December 21, 2012

"Military Veterans, Culpability, and Blame"

The title of this post is the title of this notable new paper by Youngjae Lee, which I just noticed via SSRN.  Here is the abstract:

Recently in Porter v. McCollum, the United States Supreme Court, citing “a long tradition of according leniency to veterans in recognition of their service,” held that a defense lawyer’s failure to present his client’s military service record as mitigating evidence during his sentencing for two murders amounted to ineffective assistance of counsel. The purpose of this article is to assess, from the just deserts perspective, the grounds to believe that veterans who commit crimes are to be blamed less by the State than offenders without such backgrounds.

Two rationales for a differential treatment of military veterans who commit crimes are typically set forth. The Porter Court raised each, stating that we should treat veterans differently “in recognition of” both “their service” and “the intense stress and mental and emotional toll” of combat. The former factor suggests there being a “social contributions” or gratitude-based discount, whereas the latter factor points towards a “mental disturbance” discount. This article analyzes the two accounts and raises some doubts about both. This article then argues that a military veteran who commits a crime should not be blamed to the full extent of his blameworthiness, not necessarily because of his mental capacity nor because of his social contribution, but because the State’s hand in producing his criminality undermines its standing to blame him.

December 21, 2012 at 06:33 PM | Permalink


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We are fully back in the vile pro-criminal lawyer Twilight Zone. Government trained killers, taught discipline, taught to go forward in the face of fire, taught the articles of war, and subject to an extremely tight honor code. Those guys are less culpable? Only in the bizarro world of the sicko lawyer.

I can see less culpability if their service was highly material to the crime. For example, they went on a rampage in a VA facility, after waiting 3 hours in pain. That is less culpable.

Now, you drink, and stab the wife 50 times after she refuses to get you another beer. That is not less culpability, but more culpability.

Posted by: Supremacy Claus | Dec 21, 2012 7:43:42 PM

Leona Helmsley should have appealed on inadequacy of counsel. She reported work on her home as a business deduction. She was turned in by the workers, whom she stiffed. She threw the IRS out when they politely asked for their $ 4 million dollars owed.

She went on trial. She claimed to have paid $400 million in taxes. She served her country in that sense. Is she less culpable? That jury said, no. If the value of life is $ 6 million, she served her country more than the combined service of 90 veterans.

She went to prison. She had other prisoners make her bed for 50 cents. And guess what in support of the method of counting crimes. She stiffed those prisoners, and never paid them upon leaving prison.

Posted by: Supremacy Claus | Dec 21, 2012 7:48:54 PM

I wonder if there are any sentencing discounts for highly punitive, painful consequences taking place during the crime. An arsonist is burned, and spends a painful year on a burn unit. A bank robber is gut shot during the robbery. A purse snatcher, trips running away, and smashes his front teeth landing on his face. Any discounts? These natural consequences of crime seem to be more relevant, and compelling for a discount than past military experience. I would think military experience should be a cause for greater culpability, given the oath to uphold the constitution.

Would appreciate a brief reply from experience from with defense or prosecution.

Posted by: Supremacy Claus | Dec 22, 2012 5:55:52 AM

Here is the real agenda, finally spoken, "...because the State’s hand in producing his criminality undermines its standing to blame him."

This trend is cheap partisan Bush Bashing. Because of what Bush did to you, you can victimize others and get away with it. What Bush did was that horrible.

Posted by: Supremacy Claus | Dec 22, 2012 1:10:02 PM

The state's culpability as a mitigating factor in veterans' sentencing stems from the Clean Hand doctrine. I know we have left the world of reality at multiple levels when speaking of the law and sentencing. However, in formal logic, the unclean hands doctrine is an example of a tu quoque (you too), and has no formal logic validity.

Nice, brief review:


International Criminal Court rejected this argument in the Yugoslavia crimes against humanity. The Dachau trial court accepted it as a defense against charges of wearing American uniforms by German soldiers because one American wore a German uniform one time.

I know the author attended high school and learned this in 11th grade.

Posted by: Supremacy Claus | Dec 23, 2012 4:38:30 AM

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