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LAW JOURNAL
DECEMBER 31, 2009

Judges Consider New Factor at Sentencing: Military Service

By AMIR EFRATI

A small but growing number of judges say U.S. military veterans should be treated differently from nonveterans when they are sentenced for crimes.

As more soldiers return home from combat overseas and end up in the criminal-justice system, a number of state and federal judges are deciding to show former soldiers leniency in light of their service. Some veterans are receiving probation coupled with psychological treatment, generally for nonviolent crimes that normally would land them in prison.

That is raising concern among some legal experts, who say singling out veterans for special treatment indulges criminal behavior and risks establishing a two-tier system of justice.

John Brownfield

Iraq war veteran John Brownfield, shown in Mosul in 2006 when he was employed by a contractor, received probation for a bribery conviction.

Many veterans returning from war zones develop behavioral and psychological problems, which in some cases leads to alcohol and drug abuse -- and crimes.

"We dump all kinds of money to get soldiers over there and train them to kill, but we don't do anything to reintegrate them into our society," says John L. Kane, a federal judge in Denver. Earlier this month, Mr. Kane sentenced an Iraq war veteran convicted of bribery to probation instead of prison.

Most U.S. courts don't have rules on giving veterans special consideration, says Doug Berman, a law professor at Ohio State University. But in North Carolina, if a defendant was honorably discharged from the military, judges must use that fact as a mitigating factor at sentencing. And in several states, including Tennessee and Louisiana, courts have ruled that judges are allowed to use prior military service to lessen a sentence.

There are no special courts for veterans in the federal court system. Current sentencing laws allow federal judges to take into account a defendant's "history and characteristics," though some judges choose not to.

But momentum for special treatment is growing. Since last year, about 16 counties and cities -- from California's Orange County, to three cities in western New York, have started veterans courts, according to the National Association of Drug Court Professionals. Three counties in and around New York City launched similar programs in July, and state legislatures have approved the formation of such courts in places such as Harris County in Texas and the state of Nevada.

The goal of the courts, which serve veterans of any era, is to keep defendants out of prison. Veterans are put into treatment programs for war-related illnesses, among other problems, that aren't available in the prison system. Their probation includes rigorous drug testing.

After veterans complete treatment, some prosecutors' offices drop the criminal charges as long as the veterans didn't have a prior felony conviction.

Many veterans who get probation in special courts would almost certainly have faced prison time under normal circumstances, says Mark Kammerer, a psychotherapist for the Cook County State's Attorney office in Illinois and the coordinator for the veterans court in the Chicago area.

Some legal experts worry the movement could result in special consideration for all veterans, regardless of whether their criminal conduct was influenced by their military service.

"What we think goes over the line is the creation of two separate systems based solely on somebody's status," says Allen Lichtenstein, the general counsel for the American Civil Liberties Union in Nevada. "Police are under particular stress -- should there be a court for them?"

Some prosecutors argue that defendants shouldn't be able to use military service as an excuse for committing crimes.

John Cherry, a federal prosecutor in Mobile, Ala., who served in the military in Iraq, objected to a sentence of probation handed down earlier this year to a defendant who also served in Iraq. The defendant, Patrick Lett, had pleaded guilty to distributing illegal drugs in the U.S., during a brief period in 2004.

"I, too, lost soldiers," Mr. Cherry said at a 2006 hearing. "I didn't come back and sell drugs."

The federal judge in the case, William Steele, who also is a military veteran, said at the hearing that Mr. Lett "is to be credited for his contributions to the United States Army, to his unit and, in turn, to this country."

Taking military service into account at sentencing isn't a new tradition. In the Civil War era, members of the military were routinely shown leniency by judges, notes Carissa Hessick, a law professor at Arizona State University. During the World War II and Vietnam eras, certain judges allowed criminal charges to be dropped if defendants enlisted in the armed forces. That practice is no longer allowed.

More on Brownfield

Memorandum Opinion and Order on Sentencing
Sympathy for new veterans aided John Brownfield of Caņon City, Colo. The former U.S. Air Force firefighter pleaded guilty to accepting a bribe as a public official for illegally selling tobacco to federal prison inmates while working as a correctional officer in 2007, two years after he returned from tours in Iraq and Afghanistan.

The federal prosecutor and Mr. Brownfield's lawyer agreed to recommend to the judge that he serve a year in prison. But the judge, Mr. Kane of Denver, instead ordered a psychiatric evaluation and earlier this month sentenced Mr. Brownfield to five years of probation.

The judge said: "It would be a grave injustice to turn a blind eye to the potential effects of multiple deployments to war zones on Brownfield's subsequent behavior."
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