Military Service
by: Jessbarton • June 8, 2013 • no comments
With OCDLA support, the executive committee of the Oregon State Bar’s Military & Veterans Law Section recently secured final approval of the second of its legislative proposals, Senate Bill 124. 1 This bill creates a new mitigating factor that explicitly authorizes courts at sentencing to consider military service as a mitigating factor. It does so by creating a new ORS 137.090(2), which states: “In determining mitigation, the court may consider evidence regarding the defendant’s status as a servicemember as defined in ORS 135.881.” 2
The Governor, whether by design or not, signed the bill into law on the appropriate date of June 6, 2013 (appropriate, because that is the anniversary of the D-Day Invasion of Normandy). SB 124 carries both an emergency clause and a retroactivity clause; consequently, it took effect on June 6 and applies to all cases not previously sentenced, and regardless of the date of the crime-commission dates.
At least in felony cases, courts will need to make a “substantial and compelling” finding in order to rely on SB 124 to impose a mitigated (downward) departure. ORS 137.671(1); OAR 213-008-0001. For guidance in meeting this requirement, defense counsel should consult established case law supporting reliance on a defendant’s military service as a reason for imposing a mitigated sentence. See, e.g., United States v. Canova, 412 F3d 331 (2d Cir 2005) (defendant convicted of offenses involving multi-million-dollar Medicare fraud; imposition of downward departure sentence based, in part, on six-year military service not error); United States v. Pipich, 688 F Supp 191 (D Md 1988) (where defendant was convicted of mail theft, his extraordinary military record warranted departure to probation). See also United States v. McCaleb, 908 F2d 176 (7th Cir 1990) (departure for military service might be warranted under some circumstances); United States v. Neil, 903 F2d 564 (8th Cir 1990) (same). See generally Ken Strutin, Veterans in the Criminal Justice System: Defending Conditions of the Mind (Apr. 20, 2012); “Case Annotations and Resources: Military Service: USSG §5H1.11 Departures and Booker Variances.” 3
SB 124’s mitigating factor also could apply in specific cases involving active-duty servicemembers. For example, consider a non-commissioned officer (NCO) who is assigned to a unit that is scheduled for deployment to a combat zone, but who is facing criminal prosecution that would bar his deployment. Further assume that the NCO’s superiors attest that his deployment is critical to his unit’s cohesion and performance, and that by preventing the NCO’s deployment, the prosecution could cause the unit to fail in its mission—including by suffering otherwise avoidable casualties. By analogy, the following case law supports mitigation in this sort of situation: United States v. Milikowsky, 65 F3d 4, 8 (2d Cir 1995) (“[a]mong the permissible justifications for downward departure * * * is the need, given appropriate circumstances, to reduce the destructive effects that incarceration of a defendant may have on innocent third parties”); United States v. Kloda, 133 F Supp2d 345 (SDNY 2001) (in business tax fraud case, mitigated departure granted in part because of “the needs of [defendant’s] business and employees”).
Under appropriate circumstances, certain of the guidelines’ enumerated factors independently or, preferably, in conjunction with the SB 124’s factor, could authorize basing a mitigated departure on military service. In Porter v. McCollum, 558 US ___, 130 S Ct 447, 175 L Ed 2d 398 (2009), the Supreme Court concluded that trial counsel provided ineffective assistance of counsel in his client’s capital trial by failing to present mitigating evidence grounded on his military service. The Court explained:
- “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 [petitioner] did. Moreover, the relevance of [petitioner’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 [petitioner].” 130 S Ct at 456 (internal citations omitted).
In light of Porter, consider a veteran-defendant whose conduct could be explained as a by-product of any combination of his training and experience in the military total institution, or his suffering from service-connected post-traumatic stress disorder or traumatic brain injury. For that veteran-defendant, Porter would support using the following enumerated factors to seek mitigation:
- “(B) The defendant acted under duress or compulsion (not sufficient as a complete defense).
- “(C) The defendant’s mental capacity was diminished (excluding diminished capacity due to voluntary drug or alcohol abuse).
- “* * * * *
- “(I) The offender is amenable to treatment and an appropriate treatment program is available to which the offender can be admitted within a reasonable period of time; the treatment program is likely to be more effective than the presumptive prison term in reducing the risk of offender recidivism; and the probation sentence will serve community safety interests by promoting offender reformation.” OAR 213-008-0002(1)(a).
Finally, SB 124’s enactment calls to mind a report issued previously, regarding the welfare of young prisoners who had served in the nation’s military, so many of whom were imprisoned on their
- “first convictions. * * * It [was seen as] a painful reflection that men who have periled their lives for the stability of our Government should be brought into this situation, some having long sentences. It is a suggestion whether something can not be done to alleviate their condition.”
That statement was made in December 1865—eight months after Appomatox—by the Committee on Discharged Prisoners of the Philadelphia Society for Alleviating the Miseries of Public Prisons.
Something equivalent could just as well be said today, here in Oregon, which currently is seeing an average of 7,000 veterans committed to jail each year. But the difference between post- Civil War Pennsylvania and Oregon, in what might be the waning days of the nearly 12-year-old Global War on Terrorism, 4 is SB 124, which, if aggressively used, could alleviate the condition of its veteran population.
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1 On June 4, the Governor signed the Committee’s other proposal, Senate Bill 125.
2 This definition is the same as is used in Senate Bill 999 district attorney diversion situations. ORS 135.881(4) defines “servicemembers” as past and current members of the active duty service, reserves, and the National Guard. Whether past members of the active-duty military—veterans—are servicemembers depends on the levels of their discharges. Discharges are ranked in the following order: (1) honorable, (2) general under honorable conditions, (3) under other than honorable conditions, (4) bad conduct, and (5) dishonorable. To qualify as a servicemember, a veteran must have received a discharge under other than honorable conditions or higher, i.e., not have received a bad conduct or a dishonorable discharge (either of which requires a courts-martial conviction). ORS 135.881(4).
3 This document is available on OCDLA’s Library of Defense. It is found in the Veterans & Military wiki page, under the heading Military Service as a Mitigating Factor.
4 The extent to which the war is in its waning days is a matter of perspective. In 2014, Oregon will commit 1,500 of its citizen-soldiers to the GWOT. This will mark the state’s second-largest deployment of soldiers since World War II. For those soldiers, the war isn’t waning.
