Military Service as a Mitigating Factor

Over the weekend we observed Veterans Day. Thank you to all who have served. [Editor’s note: Jamie is himself an Air Force veteran, as he mentions below, so thanks to him for his prior service in addition to his current outstanding work.]

The holiday calls to mind the sentencing mitigating factor set out in G.S. 15A-1340.16(e)(14), that the defendant has been honorably discharged from the Armed Forces of the United States. There are very few cases discussing the factor. It seems that one of the few things the court can do wrong with respect to it is to refuse to consider evidence of it altogether. See State v. Hanes, 77 N.C. App. 222 (1985) (remanding for resentencing when the trial judge refused to consider oral testimony about the defendant’s military service without documentary proof of his honorable discharge). The statutory mitigating factor refers only to defendants who have been honorably discharged, but current service, either on active duty or as a reservist or member of the National Guard, could probably be the basis for a non-statutory mitigating factor under G.S. 15A-1340.16(e)(21).

Military service occupies a special place in the minds of many judges. That unique status has been validated all the way to the Supreme Court. In Porter v. McCollum, 558 U.S. 30 (2009), the Court held that a decorated Korean War veteran’s lawyer was ineffective in failing to present any evidence about the defendant’s military service during the penalty phase of his murder trial. The Court described Porter’s military service in detail, including the “horrifying experiences” that led to two Purple Hearts and other decorations. It then recounted the “dreadful nightmares” and substance abuse Mr. Porter experienced upon his return home. Lower courts disagreed about whether the lawyer’s failure to present the information was prejudicial under Strickland v. Washington, 466 U.S. 668 (1984), but a unanimous Court had no trouble concluding that it was. Per curiam, the justices deemed it unreasonable to assume that Porter’s military service would not have made a difference at sentencing. Most pointedly, the Court wrote:

Our Nation has a long tradition of according leniency to veterans in recognition of their service, especially for those who fought on the front lines as Porter did. Moreover, the relevance of Porter’s extensive combat experience is not only that he served honorably under extreme hardship and gruesome conditions, but also that the jury might find mitigating the intense stress and mental and emotional toll that combat took on Porter.

Every once in a while I hear of a defendant’s military affiliation being framed as an aggravating factor, on the rationale that a service member ought to be held to a higher standard than someone who has not served. Interestingly, when that view is expressed it tends to be by someone who is himself or herself a veteran. There may be something to that in the context of the military justice system itself, but when prior service comes up in the civilian courts it is almost always a mitigator. And for some it is the ultimate mitigator—a virtual get out of jail free card for all but the most serious offenses.

One could reasonably ask whether other types of public service should receive similar credit at sentencing. Should service as a police officer or first responder also qualify? What about other noble and underappreciated jobs, like schoolteacher or stay-at-home parent? Even among veterans there is a spectrum. For instance, my mostly comfortable time in the Air Force clearly should not carry the same weight as Mr. Porter’s wartime sacrifice. Judges inevitably do some line drawing about what credit a defendant gets, if any, for his or her life experience, but it is understandable to me that military service in combat is in a category virtually all its own.

In many jurisdictions “veterans treatment courts” have emerged to handle the unique set of problems veterans face as they return from war. The model combines elements of drug treatment court and mental health treatment court with additional structure and peer motivation familiar to military personnel. More information is available here. To date there are no veterans courts in North Carolina (although I learned today that there is some veteran-focused coordination between existing problem-solving courts in Mecklenburg), but as home to some of the largest and most active military installations in the country, our state seems an appropriate place to give the program a try.