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December 6, 2012

Ohio bill to require consideration of military service at sentencing

As reported in this local news piece, which is headlined "Judges to consider veteran experiences before sentencing," my own state of Ohio appears poised to enact a notable (and novel?) bill to require consideration of military service at all sentencings.  Here are the details:

Before sentencing, veterans who commit a crime may soon be given consideration by a judge for their military service. The goal is rehabilitation instead of incarceration.

A bill unanimously passed by the Ohio Senate would require a court to consider a person's military service as well as their emotional, mental and physical condition before being sentenced for a crime.

The legislation proposed by Senator Joe Schiavoni would apply to both misdemeanor and felony charges. "They have been through things that most of us haven't," Schiavoni said. "It's so, so important we consider that before they get thrown into jail and their problems aren't handled properly." Schiavoni says the bill has bipartisan support from both legislators and judges.

Youngstown Municipal Judge Robert Milich supports the bill. He says judges shouldn't only consider what role a veteran's experiences overseas may have played in the crime, but how that experience could better their odds of rebuilding and becoming a productive part of society. "As soon as you start getting them to talk about their military experience, which I do, you can see they stand a little taller because it was a time when they did something they were proud of, they were respected, they controlled resources, and people," said Judge Milich. "This brings it back, gives them something to build on, and you don't find that in a lot of the defendants."

The bill will now go to the Ohio House of Representatives, where it is expected to be voted on before the end of the lame duck session. 

The text of this bill is available at this link, with the provisions setting forth the change in Ohio's sentencing law underlined.  Here is one version of the key language in the bill requiring consideration of military service at sentencing:

(F) The sentencing court shall consider the offender's military service record and whether the offender has an emotional, mental, or physical condition that is traceable to the offender's service in the armed forces of the United States and that was a contributing factor in the offender's commission of the offense or offenses.

Hard-core federal federal sentencing fans know that, effective November 2010, section 5H1.11 of the federal sentencing guidelines was amended to change a policy statement that  previously deemed military service "not ordinarily relevant" to a departure.  The current version of these guidelines now say military service "may be relevant in determining whether a departure is warranted," but the proposed change to Ohio law goes further by requiring consideration of military service.

I am aware that North Carolina statutorily provides that having "been honorably discharged from the United States armed services" is a mitigating factor at sentencing, see N.C. Gen. Stat. § 15a-1340.16(e)(14), but this new Ohio law also goes further because it demands a broader consideration of factors and does not demand an honorable discharge.  Thus, I am pretty sure if and when this Ohio bill becomes law it will be breaking some new and valuable sentencing ground.

December 6, 2012 at 10:01 PM | Permalink


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In practice, federal law and the Ohio bill would likely be roughly the same. The sentences imposed by Ohio judges are reviewed on an abuse of discretion standard. And if the judge does not explain her sentence, appellate courts will generally presume that she properly considered and weighed all factors. Federal judges face a less deferential standard of review and must generally explain their sentences.

So requiring an Ohio trial judge to consider a factor is roughly equivelent to permitting a federal district court judge to consider it.

Posted by: Stephen Hardwick | Dec 7, 2012 5:26:42 AM

Factors outside the matter in question have not been allowed to be introduced. For example Leona Helmsley was on trial for deducting work done on her private residence as a business expense, avoiding $4 million in taxes. She argued she had paid $400 million in taxes in the past, analogous to the irrelevant military service in the above article. Judge did not allow it, and she got a full sentence.

I would be interested in any case law on the Eighth Amendment problem of imposing a sentence on someone who has greatly suffered from the natural consequences of a crime. For example, an arsonist is horribly burned, and suffers burn care for a year. Full sentence?

A bank robber is shot multiple times at the scene, and is suffering unspeakable agonies, is paralyzed. Full sentence?

Posted by: Supremacy Claus | Dec 7, 2012 6:37:22 AM

Justice Sonia Sotomayor filed a lengthy dissent from the Court’s denial of review in a Kentucky murder case, Hodge v. Kentucky

Posted by: Claudio GiustiI | Dec 7, 2012 6:51:07 AM

Justice Sonia Sotomayor filed a lengthy dissent

YEAH it's FAB!!!!!
Read all about it at:

Posted by: Adamakis | Dec 7, 2012 12:41:43 PM

rob de matt
It's more important the military service that a
“most severe and unimaginable level of physical and mental abuse"

Posted by: Claudio GiustiI | Dec 7, 2012 2:07:54 PM

Clear Errors About the Death Penalty
NYT December 7, 2012
When the United States Supreme Court reinstated capital punishment in 1976, it said that the penalty could never be mandatory. Even if a jury finds a defendant guilty of a brutal murder, it still must weigh evidence about how to sentence him. Aggravating evidence concerns why a jury should impose a death sentence. Mitigating, or moderating, evidence concerns why it should not. That is the law of the land.
But it is not the law of the Kentucky Supreme Court. The U.S. Supreme Court decided this week not to review a ruling by that state court which upheld the 1986 death sentence of Benny Lee Hodge. Justice Sonia Sotomayor wrote that because “this is a capital case, and clear errors of law such as those here should be redressed,” she dissented from her court’s decision and laid out the Kentucky court’s errors.

Posted by: Claudio GiustiI | Dec 8, 2012 10:52:26 AM

HEY! Good for Sotomayor, but really, no one really cares.

It is a solo dissent from cert. Some around here find the reasonable specious, some don't. But, you know, it doesn't matter much.

Still, like a concurring or dissenting opinion that adds something to the conversation, and might cause someone to take notice, good for her.

Posted by: Joe | Dec 8, 2012 10:54:57 AM

[that should be "find the REASONING specious"]

Posted by: Joe | Dec 8, 2012 6:24:15 PM

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