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.