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April 8, 2014
Military service in the federal sentencing guidelines, then and now (and in the future?)
As a follow-up to our class discussion about military service and to provide a specific proposal to debate in our next class, I thought it would be useful to review the history of how the federal sentencing guidelines have treated military service.
For starters, the original federal sentencing guidelines promulgated in 1987 said not one word about military service. Then, in 1991, the following provision was added to the guidelines:
§ 5H1.11. Military, Civic, Charitable, or Public Service; Employment-Related Contributions; Record of Prior Good Works (Policy Statement)
Military, civic, charitable, or public service; employment-related contributions; and similar prior good works are not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range.
Then, in 2010, § 5H1.11 was amended so that it now reads:
Military service may be relevant in determining whether a departure is warranted, if the military service, individually or in combination with other offender characteristics, is present to an unusual degree and distinguishes the case from the typical cases covered by the guidelines.
Civic, charitable, or public service; employment-related contributions; and similar prior good works are not ordinarily relevant in determining whether a departure is warranted.
Now, circa 2014, I propose mendment to the first paragraph of § 5H1.11 to read as follows:
If the defendant served in the active military prior to the commission of the offense, and if evidence suggests that personal or professional issues resulting from military service played any role in contributing to the commission of the offense or impacted the defendant's mental or emotional condition at the time prior to or during the offense, reduce the otherwise applicable guideline sentencing range by one third.
REAL-WORLD UPDATE: Here is a timely press report on an interesting and on-going federal case raising these issues and other offender-circumstances for consideration at sentencing:
A federal judge next week will re-start the sentence hearing for an Iraq combat veteran with PTSD who pleaded guilty to trying to hire the KKK to kill a black neighbor. Chief U.S. District Court Judge Karon Bowdre on Wednesday set Monday, April 14, as the date for continuing the sentencing hearing for Allen Wayne "Big Dad" Morgan. The hearing will begin at 1:30 p.m. at the Hugo L. Black U.S. Courthouse in downtown Birmingham.
Bowdre had started the sentencing of Morgan on Feb. 27 but after it began she continued it to give prosecutors time to respond to a witness Morgan's attorneys planned to call. The hearing continued on Monday with testimony about Morgan's drug addiction, his alleged sexual abuse as a child, and his diagnosed PTSD from his combat missions. Defense attorneys argue that the Federal Bureau of Prisons is not equipped to handle combat veterans with PTSD. Bowdre announced that she would continue the hearing after more than four hours.
Morgan, 30, pleaded guilty to using and causing someone else to use interstate facilities and travel -- a telephone and a motor vehicle -- with the intent to commit a murder-for hire. He is charged with trying to hire the KKK to kill a neighbor, who is black, because he believed the man had raped his wife.
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I am not sure if I am taking the right approach to the relevancy of military service to the federal sentencing guidelines, but I think considering military service could be a double edged sword in some ways. As it's currently written in the guidelines, it initially sounds like an offender's military service could only really help him; see "military service may be relevant in determining whether a departure is warranted, if the military service, individually or in combination with other offender characteristics, is present to an unusual degree and distinguishes the case from the typical cases covered by the guidelines."
Although military service will usually be helpful for an offender, I could see a variety of situations where military service could be hurtful. Imagine a situation where the offender was dishonorably discharged for a similar crime, had a history of disciplinary issues related to the current offense while in the military etc. I could see an upward departure from the sentencing guidelines resulting in a longer sentence in one of those situations.
Also, how would Professor Berman's proposed language treat an offender who was a terrible, dishonorably discharged soldier who also suffered from PTSD?
Posted by: Max Reisinger | Apr 9, 2014 2:42:57 PM
I like the idea of adding a causation requirement to the 2010 Guidelines provision, but I don't think proposed amendment goes far enough. The proposal suggests that military service reduce a sentence by 1/3 if personal/professional issues due to service (1) "played any role" in commission; OR (2) "impacted the defendant's mental or emotional condition" during or even prior to the offense.
These conditions seem broad enough to allow all defendants who served in the military to get a 1/3 sentence reduction. I'm not saying this is a bad idea, but the result seems to go against the point of the amendment. Even without this amendment, I can't imagine a defense attorney forgetting to mention that the client bravely served her country, and that service has since affected her emotional condition.
I would either tighten up the causal requirement ("played a material role in contributing to the offense," and remove the second optional causal connection entirely); or just take out the causation requirement and allow judges to imply one under the current language ("... an unusual degree and distinguishes the case from the typical cases covered by the guidelines").
Posted by: Kris Missall | Apr 10, 2014 3:04:35 PM
What I fail to see is from a broad policy perspective, why are we limiting the amendment to those with military service? Is it simply to encourage military service? If so, do we really want more people signing up to join the armed forces because they think they could potentially get 1/3rd of their time knocked off for their crimes? I think it would be quite a stretch for any legislator to argue for the above approach. What remaining justifications are there then? Should military service, however honorable be automatically held in higher esteem than that of a fireman or police officer? I think a valid argument could be made that a citizen who works in the private sector yet freely donated time or money should be held equally as worthy of a sentence adjustment as that of a soldier who draws a salary.
In short, I think the proposed amendment must either be broadened or removed entirely. Unless a more justifiable reason can be offered behind the broad policy reasons for the amendment, I see no reason for the distinction offered.
Posted by: Joe Gallagher | Apr 13, 2014 6:46:45 PM
I like the thought here coming from Joe. In fact, when I read the proposed amendment the first thought I had was"Well shouldn't it be the case that if any criminal was scarred because of some traumatizing event, that factor should be taken into consideration." But after some thought I came to the conclusion that this sort of sentencing consideration(for PTSD) might be best utilized if limited only to those who were in the active military. My reason for thinking this admittedly is somewhat cynical and is in accordance with my general bias towards the prosecution, PTSD, like so many other things is a somewhat subjective.Therefor I think that anyone could get a psychiatrist to say that this person was suffering from some sort of trauma. I think such a widespread use of the concept would be ripe for abuse. BY limiting to those who were in active military duty(and in my mind this should be even further limited to those who saw combat) one can reasonably infer that this person may have ptsd. i.e. there is at least some sort of factual basis for the belief. By even further limiting it those who saw time in active combat I think we can also further limit abuse. I want to avoid a situation like that of in the classic Adam Sandler comedy "Anger Management"(sarcasm), where an individual claimed PTSD after fighting in Grenada, an ordeal which lasted only hours. I also believe that this should be limited to only certain violent crimes, One should not be able to have a lesser sentence for drug trafficking because they had a rough experience in the military. I do not see what one thing has to do with the other. If however you are convicted of a violent crime, such as assault, or some sort of homicide, then I can understand how PTSD would be reasonably related to the crime. So while I certainly agree with the notion that certain military members should be subjected to less punishment if suffering from some sort of ptsd, I do not think that this should extend to crimes not reasonably related to those symptoms.
Posted by: Chris LaRocco(OSU Student) | Apr 14, 2014 2:56:46 PM
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