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April 8, 2014

How many states now require judges to consider military service and/or PTSD at sentencing?

The question in the title of this post is prompted in part by this short local article headlined "Calif. Bill Urges Judges To Consider PTSD In Sentencing Of Military Veterans." Here are the basics:

A bill moving through the state Legislature would urge judges to grant probation and give shorter prison terms to defendants who have mental health problems stemming from their military service.

AB2098 passed the Assembly on Monday on a 70-1 vote.  It requires courts to consider post-traumatic stress disorder and other mental health issues in sentencing.  The bill’s author, Democrat Marc Levine of San Rafael, says as many as one in five soldiers returning from Iraq and Afghanistan have PTSD and are more likely to commit crimes.

California law already requires judges to consider ordering treatment when granting probation for veterans with mental illness.  The bill is one of several that address how to deal with veterans in the criminal justice system.  It now heads to the Senate.

I view legislative action regarding consideration of military service and/or PTSD at sentencing to be part of a broader set of modern sentencing developments focused on the importance of offender characteristics. The modern structured/guidelines sentencing reform era has often generated laws and practices suggesting sentencing decision-making could and should focus much more, if not exclusively, on the specifics of an offense rather than the nature of the offender.

But the Supreme Court's recent Eighth Amendment rulings in Graham and Miller now suggest that an offender's youth is a constitutionally essential sentencing consideration (at least in some settings).  State sentencing laws requiring consideration of military service and/or PTSD seems another example of the (post-modern?) view that consideration at sentencing of at least some offender characteristics may be essential to a fair and effective sentencing system.

Some older related posts:

April 8, 2014 at 11:44 AM | Permalink


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Actually, Doug, having just taught Williams v. New York this very day, I think the trend is not post-modern, or even modern, but cyclical. And the consideration of offender characteristics in a medicalized model, remember (where "Retribution is no longer the dominant objective of the criminal law"), need not result in lesser sentences. Because Williams was essentially incorrigible, he got the death penalty, even within a rehabilitative framework...

Posted by: W. David Ball | Apr 8, 2014 1:34:14 PM

Once again. Aggravating factor converted to a fictitious mitigating factor by the pro-criminal lawyer.

Someone has been screened for endurance, toughness, and resourcefulness, and then extensively trained to kill. Then some are traumatized, so their nervous systems are on edge, and they over-react to imaginary threats or offenses. Most have other pathologies to explain their symptoms, such as alcoholism, or caffeinism. They get a $60K tax fee disability payment if they lie and get qualified as having a combat related disability.

So when they commit crimes, they have far mor similarity to criminals than to other veterans.

But the lawyer wants less incapacitation, not more, as warranted by their dangerousness.

Posted by: Supremacy Claus | Apr 8, 2014 3:25:31 PM

Generally, military culture embraces personal responsibility. Laws such as this one seem paternalistic and may stigmatize veterans with PTSD and veterans in general. One of the benefits of being a veteran is society's belief that veterans possess increased self-discipline. Equating PTSD to violence undermines this belief. Instead, veterans could be perceived as impulsive and prone to violence.

As future attorney and veteran of multiple combat operations, the last thing I need a potential employer or client wondering if I have violent impulses.

Posted by: Jesse Lemon | Apr 8, 2014 3:31:19 PM

The United States Supreme Court recently ruled, "Our Nation has a long tradition of according leniency to veterans in recognition of their service. . . ." Porter v. McCullom, 558 U.S. 30, 43 (2009). Lest anyone think that this is something imposed by a bunch of liberal judges, Porter was a unanimous per curium reversal of the denial of habeas relief in a death penalty case. That means Roberts, Alito, Scalia, and Thomas supported it.

In my state, Ohio, the General Assembly last year mandated that trial courts consider military service when sentencing: "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." R.C. 2929.12(F).

(I represent represent a U.S. Marine in an Ohio Supreme Court case in which the trial did not treat combat-related PTSD as mitigating. The case has been argued and is awaiting decision.)

Posted by: Stephen Hardwick | Apr 8, 2014 4:14:01 PM

I have mixed minds on this topic. On one hand I think these laws are nothing but another attempt to imposes the "externalities" of a stupid and foolish set of wars on an unsuspecting populace. I wonder how many Congressmen who voted for those wars honestly communicated with their constituents that one consequences was going to be a herd of rampaging lunatics in their midst. Why weren't these bills passed at the same time as the authorization of force? It is not like PTSD is a new phenomenon. Honestly, these "get out of jail free" cards are noting more than constituent service to the bloodlusters at the core of the Republican party.

On the other hand I kind of like the laws. At least this way when the drums of war are beat again by vapid and facile men it's one more argument in the anti-war cause. The monsters can't pretend next time as their own support for these law will put the lie to the test. They are going have to justify this additional cost.

Posted by: Daniel | Apr 8, 2014 4:33:07 PM

Daniel touches on the real message behind these decisions and statutes. "See what George Bush did to our heros." That is the left wing propaganda message of this movement. And behind that Bush bashing message is, "Bush took care of his pals in the oil industry, and spent our raises in the left wing constituency on the military. We have not gotten a raise in 10 years, thanks to his militarism."

Posted by: Supremacy Claus | Apr 8, 2014 5:57:01 PM

Yes, terrible left-wingers like Roberts, Scalia, Thomas, and Alito.

Posted by: Stephen Hardwick | Apr 8, 2014 6:48:58 PM

There is no difference between conservative and liberal judges. Scalia led the charge on the mandatory guidelines once lawyer unemployment rose through the roof as crime dropped by 40%. All lawyers are rent seekers. All support government make work jobs for the profession, even if worthless or toxic to our nation. All lawyers are pro-criminal, not a single exception. Take Bill. Propose to kill all violent criminals at a young age, up to the number of murder victims. He could never consider that, despite the murder of 15,000 victims a year. Inconceivable he would support the end of crime by getting rid of the criminals. OK, that goes too far. Propose to immunize citizen self help against violent predators. He would oppose that too. Never mind paying any citizen who kills a vilent predator a handsome reward, such as $10,000, even the citizen has saves the nation likely $100 million in damage done by the violent predator in injuries, social services and drops in real estate prices.

The self styled conservative jurists cited are just bigger hypocrites than their liberal colleagues. As I predicted years before, Roberst would support the ACA and gay marriage.

How could I make such a prediction? Family law is in trouble because only a suicidal male fool would get married today. That business is hurting. Gay marriage is not a homosexual idea, since they are not idiots either. It is a lawyer idea. because they need the family law business.

My next prediction, animals get civil standing and the right to marry humans. They are the absolutely perfect client, can't speak, and cannot object when picked clean of their assets by the lawyer.

Posted by: Supremacy Claus | Apr 8, 2014 10:05:30 PM

PTSD is an anxiety disorder. Anxiety makes people avoid situations. It does the opposite of causing crime. It causes greater caution, care and worry.

In support of Mr. Lemon's argument, the unemployment of veterans is similar to that of the general age matched population of a state.


What was not stated in the above. Veterans include more minorities than the general population. If corrected for race (not done) their employment rate is far superior to that of the general population. Hire a vet, you are getting a disciplined, self reliant, persistent, and improvising employee, who has held life and death responsibilities and thrived with them at an extremely young age.

So far from less culpability, criminals who are veterans are far more culpable, betraying the investment and trust placed by our nation.

I have also cited an early study of opiate addicts (40% in Vietnam), dropping to 1 or 2% back in the US, with the remaining veteran addict being the same as non-vet addicts, i.e. sociopaths.

Mr. Lemon may be too mature to characterize this mitigating factor as offensive to the dignity of our warriors. But it is highly offensive insult for base partisan political points by Democratic Party Bush bashers.

Posted by: Supremacy Claus | Apr 8, 2014 10:19:09 PM

The flaw in a system that relies on defined consideration criteria is twofold: first, it inherently omits relevant circumstances; second, it fails to comprehend the uniqueness of human beings.

On the first point, when gauging a person's culpability or his/her proclivity for recidivism, it is impossible to forecast all of the factors that may be relevant in making such a determination.

Secondly, the use of statistics overly simplifies humans. People are more than their labels, they are a collection of unique and shared experiences. Classifying them is dangerous. For instance, lets suppose we have a MIT graduate black jewish orphan army veteran millionaire. How would this person be classified? What statistical model would he most resemble?

Judges should follow a "totality of the circumstances" model. Looking at the offender and offense in their totality, the judge gives a sentence within a statutory range. Sentences handed out previously can act as a guideline.

Posted by: Jesse Lemon | Apr 9, 2014 11:16:03 AM

Because crime is highly rewarding, and carries such little risk, the one statistic that is reliable is 123D.

Posted by: Supremacy Claus | Apr 9, 2014 11:42:54 AM

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