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Military Veterans, Culpability, and Blame

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Abstract

Recently in Porter v. McCollum, the United States Supreme Court, citing “a long tradition of according leniency to veterans in recognition of their service,” held that a defense lawyer’s failure to present his client’s military service record as mitigating evidence during his sentencing for two murders amounted to ineffective assistance of counsel. The purpose of this Article is to assess, from the just deserts perspective, the grounds to believe that veterans who commit crimes are to be blamed less by the State than offenders without such backgrounds. Two rationales for a differential treatment of military veterans who commit crimes are typically set forth. The Porter Court raised each, stating that we should treat veterans differently “in recognition of” both “their service” and “the intense stress and mental and emotional toll” of combat. The former factor suggests there being a “social contributions” or gratitude-based discount, whereas the latter factor points towards a “mental disturbance” discount. This Article analyzes the two accounts and raises some doubts about both. This Article then argues that a military veteran who commits a crime should not be blamed to the full extent of his blameworthiness, not necessarily because of his mental capacity nor because of his social contribution, but because the State’s hand in producing his criminality undermines its standing to blame him.

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Notes

  1. Porter v. McCollum, 130 S. Ct. 447, 455 (2009).

  2. US Sentencing Guidelines Manual § 5H1.11 (2011); US Sentencing Guidelines Appendix C, Amendment 739 (2011). For a recent case discussing the phrase “present to an unusual degree,” see United States v. Jager, 2011 WL 831279 (D.N.M. 2011).

  3. See, e.g., Erica Goode, Coming Together to Fight for a Troubled Veteran, NY Times, July 17, 2011; John Schwartz, Defendants Fresh from War Find Service Counts in Court, NY Times, Mar. 15, 2010; James Dao, Study Suggests More Veterans May Be Helped by Talking About Killing, NY Times, Feb. 13, 2010; Lizette Alvarez and Dan Frosch, A Focus on Violence by Returning G.I.’s, NY Times, Jan. 1, 2009; Deborah Sontag and Lizette Alvarez, In More Cases, Combat Trauma Is Taking the Stand, NY Times, Jan. 27, 2008.

  4. Amir Efrati, Judges Consider New Factor at Sentencing: Military Service, Wall St. J., Dec. 31, 2009; see also Hawkins (2010).

  5. Hessick (2008, pp. 1116–1117).

  6. U.S. Sentencing Guidelines Manual § 5H1.11 (2009); Hessick (2008, pp. 1119–1125).

  7. See, e.g., Forgey v. State, 886 N.E.2d 16, 24 (Ind. App. 2008) (“While we recognize that Forgey was honorably discharged from the Marine Corps in 1993 and commend Forgey for his service to this nation, we cannot conclude that the trial court abused its discretion by failing to consider Forgey’s service to be a significant mitigating factor with respect to the instant crimes. Indeed, many of Forgey’s actions during the commission of the instant crimes appear to be attributable to his military training. For example, Forgey dressed in military fatigue-style camouflage clothing, duct-taped the ankle shackles and thumb cuffs together to maintain silence, and hid on Gus’s property, undetected, for nearly 24 h before committing the offenses. The trial court was within its discretion to conclude Forgey’s military training assisted his commission of the instant offenses and to reject Forgey’s military record as a mitigating sentencing factor.”); Deborah Sontag and Lizette Alvarez, Across America, Deadly Echoes of Foreign Battles, NY Times, Jan. 13, 2008; Tim McGlone, Navy Officer Who Claimed PTSD in Child-Porn Case Gets 40 Months, Virginia-Pilot, Dec. 12, 2009; Anne Jungen, Iraq War Veteran Avoids Prison in Bar Robbery, La Crosse Tribune, Jan. 9, 2009. See also Grey (2012).

  8. Porter, 130 S. Ct. at 455.

  9. Id.

  10. See, e.g., Giardino (2009); Hawkins (2010, p. 563).

  11. Dahlia Lithwick, A Separate Peace: Specialized Courts for War Veterans Work Wonders. But Why Stop at Veterans? Slate, Feb. 11, 2010.

  12. Id.; see also Hawkins (2010).

  13. See, e.g., Giardino (2009); Hawkins (2010, p. 563).

  14. Grey (2012, p. 54); Hafemeister & Stockey (2010, p. 96); Sparr (1996, p. 406).

  15. Hawthorne (2009, p. 12).

  16. For a useful discussion of some conceptual difficulties concerning the distinction between full and partial defenses, see Husak (1998).

  17. Loo (1986); Mann & Neece (1990); Rivard et al. (2002); Stratton et al. (1984).

  18. Brackbill et al. (2009).

  19. American Psychiatric Association (2000, pp. 463–464).

  20. Gold & Simon (2001, p. 507); Herman (1992, p. 49).

  21. Walker (1991); Walker (1992).

  22. Laufer et al. (1985); Laufer et al. (1984).

  23. American Psychiatric Association (2000, p. 468).

  24. Id. p. 464.

  25. McNally (2003, p. 105).

  26. Id.

  27. Id. p. 106.

  28. Id. p.116.

  29. Id. pp. 106, 118–120.

  30. Hafemeister & Stockey (2010, p. 114).

  31. Pollock (1999, p. 186).

  32. For discussions, see Wilson & Zigelbaum (1983, pp. 73–76); Sparr et al. (1987); Pentland & Dwyer (1985, pp. 407–410).

  33. Bremner et al. (1996).

  34. Id.; Friedman (2006); Lasko et al. (1994).

  35. Carroll et al. (1985); Chemtob et al. (1997); Chemtob et al. (1994).

  36. Wilson & Zigelbaum (1983, p. 74).

  37. As mentioned above in Introduction, in considering this question, I set aside cases where PTSD-related disability is so extreme that the person suffering from it can avoid criminal liability altogether. This Article is only about those who are capable enough to be held criminally responsible.

  38. See, e.g., State v. Bilke, 781 P.2d 28, 30 (Ariz. 1989) (en banc) (“Had the sentencing judge been aware that a mental disease known as PTSD existed, that defendant suffered from it as a direct result of his outstanding military service in Vietnam, and that the disorder was a causative factor leading to the commission of the crimes, he might well have sentenced defendant differently.”); Kathleen Kreller, Iraq War Veteran George Nickel Won’t Go to Prison for Armed Standoff with Police Last Summer, Idaho Statesman, Apr. 6, 2010 (quoting the trial judge during sentencing a defendant for a firearms offense as saying that “[b]ecause he served his country honorably and courageously, he has developed some significantly bad conditions with his alcoholism …”).

  39. Hart (1968, pp. 136–157).

  40. See, e.g., Giardino (2009, p. 2975); Shein (2010, p. 48).

  41. Kruppa (1991, p. 401).

  42. Rogers et al. (2000, p. 514).

  43. Pollock (2000, p. 179).

  44. For more discussion of criminals suffering from PTSD caused by their own behaviors, see, for example, MacNair (2005, pp. 60–63); Kruppa et al. (1995).

  45. See, e.g., Model Penal Code § 2.08(2).

  46. People v. Decina, 138 N.E.2d 799 (1956).

  47. Dimock (2011, p. 12).

  48. Id. p. 17.

  49. LaFave (2010, § 10.4(e)).

  50. Id. § 10.1(d)(6).

  51. Robinson (1985, p. 11).

  52. Id. pp. 3–7.

  53. Cf. Stephenson v. State, 179 N.E. 633 (1932). This conclusion is controversial, and there may be a debate over whether the suicide victim’s actions are foreseeable.

  54. 22 N.E. 188, 190 (N.Y. 1889).

  55. Dworkin (1986, pp. 15–21).

  56. Again, as discussed in Introduction, if one’s disability is serious enough to negate criminal liability altogether, the source of the disability should not make a difference.

  57. See generally Hilberg (2003, pp. 275–408).

  58. Id. pp. 327–328.

  59. Earl (2009, p. 7).

  60. See Hilberg (2003, p. 337); see also Rhodes (2002, pp. 215–228).

  61. Hoess (2000, p. 148); see also Earl (2009, pp. 165–178).

  62. Höhne (1970, pp. 363–366).

  63. Walzer (2006a, p. 21).

  64. Rome Statute of the International Criminal Court, art. 8.

  65. For an account of the Einsatzgruppen trials after the war, see generally Earl (2009).

  66. See Seymour M. Hersh, Torture at Abu Ghraib, New Yorker, May 10, 2004.

  67. See William Yardley, Calvin Gibbs Convicted of Killing Civilians in Afghanistan, NY Times, Nov. 10, 2011; William Yardley, Soldier Gets 24 Years for Killing 3 Afghan Civilians, NY Times, Mar. 23, 2011.

  68. See Raffi Khatchadourian, The Kill Company, New Yorker, July 6, 2009.

  69. Paul von Zielbauer, American Soldier Is Found Guilty in Iraqi Killings, NY Times, April 15, 2009.

  70. Michael S. Schmidt, Junkyard Gives Up Secret Accounts of Massacre in Iraq, NY Times, Dec. 14, 2011.

  71. See generally Grossman (2009, pp. 225–227); MacNair (2005, pp. 13–27).

  72. See Mumola (2000).

  73. See Wilson & Zigelbaum (1983); Hafemeister & Stockey (2010, pp. 101–102).

  74. See Hiley-Young et al. (1995).

  75. See Breslau & Davis (1987, p. 583).

  76. Id. p. 581; see also Fontana & Rosenheck (1995); Haley (1974); Strayer & Ellenhorn (1975, p. 90); Yager et al. (1984, p. 327).

  77. See, e.g., The Wounded Platoon (PBS 2010) (“We were trigger-happy … Like, we’d … open up on anything. We usually rolled with three or four trucks. One of them got hit and there was, like, any males around, we’d open up and we’d shoot at them. It was kind of like that … [T]hey even didn’t have to be armed. We were just bragging like that. We’d be, like, ‘Well, I got one last week, all right?’… “We were keeping track. We were keeping scores.”); see also id. (“Most of all it’s all murder … It’s easy to get away … You can just do it and be, like, ‘Oh, he had a gun. I don’t know’. … I mean, nobody really looks into it. They’re like, ‘Fuck it. It’s just another dead haji.”); Michael S. Schmidt, Junkyard Gives Up Secret Accounts of Massacre in Iraq, NY Times, Dec. 14, 2011 (“The stress of combat left some soldiers paralyzed, the testimony shows. Troops, traumatized by the rising violence and feeling constantly under siege, grew increasingly twitchy, killing more and more civilians in accidental encounters. Others became so desensitized and inured to the killing that they fired on Iraqi civilians deliberately while their fellow soldiers snapped pictures, and were court-martialed.”).

  78. Rome Statute of the International Criminal Court, art. 33.

  79. Id. art. 31(1)(d).

  80. See Cassese (2008, pp. 285–289).

  81. Statute of the International Criminal Tribunal for the Former Yugoslavia, art. 7(4) (“The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him of criminal responsibility, but may be considered in mitigation of punishment if the International Tribunal determines that justice so requires.”); Statute of the International Criminal Tribunal for Rwanda, art. 6(4) (same).

  82. Rome Statute of the International Criminal Court, art. 33; see also Walzer (2006a, p. 39).

  83. Some also argue that the pressures of the combat zone drive people to commit acts of atrocities. See, e.g., James Dao, Reprehensible Behavior is a Risk of Combat, Experts Say, NY Times, Jan. 13, 2012. However, it is not generally argued that such pressures excuse reprehensible behaviors. See id.

  84. Now, it is true that even if defenses of duress and superior orders do not fully exculpate, they can serve as a mitigating factor at sentencing. The question is whether we could say something similar. That is, if the defendant D does a wrongful act W under duress or a superior order that would mitigate his sentence if he were punished for W and if W causes in D symptoms of PTSD which eventually cause D to commit a crime C, should the fact that he would have received mitigation for W translate to a culpability reducer for D for the crime C? I do not think so. The connection between the duress/superior order and the wrongful act W is not only immediate but also causal; D’s wrongful acts can be partially attributed to the duress/superior order in a way that diminishes D’s responsibility. The connection between the duress/superior order and the crime C, on the other hand, is attenuated. The duress/superior order cannot plausibly be described as (partially) causing the crime C because in order to believe that, one would have to posit that the causal link from the duress/superior order to the crime C runs through two autonomous actors at different time periods, first through D at the time of the event that gave rise to PTSD and second through D at the time D committed the crime C. Perhaps some trace of effects from the duress or superior order remains, but it would be marginal.

  85. Earl (2009, pp. 148–154, 249–250).

  86. U.N. Charter art. 2, para. 4; see also Walzer (2006a, pp. 61–62).

  87. U.N. Charter art. 51; Walzer (2006a, pp. 61–62).

  88. On Iraq, see, for example, Walzer (2006b); McMahan (2004). On Afghanistan, see, for, example, Miller (2011); Walzer (2009).

  89. For a detailed development and defense of this core idea, see McMahan (2009). Among other things, McMahan challenges the conventional view that one can abide by jus in bello principles in wars that violate jus ad bellum principles and argues that unjust combatants cannot satisfy the principles of jus in bello. Id. pp. 15–32.

  90. Walzer (2006a, p. 38).

  91. Id.

  92. Zupan (2008, pp. 224–225).

  93. 10 U.S.C. § 85 (2006).

  94. Id. § 86.

  95. Id. § 92.

  96. Id.

  97. See Zupan (2008, pp. 218–221); see also Estlund (2007).

  98. Ryan (2011); see also Zupan (2008, pp. 221–222).

  99. Sylkatis (2006, p. 408).

  100. 10 U.S.C. § 85 (2006).

  101. Associated Press, Military Makes Little Effort to Punish Deserters, June 28, 2007.

  102. Sylkatis (2006, p. 401 n. 5).

  103. Melba Newsome, Going AWOL, Details, Nov. 2007.

  104. As we also saw when we considered jus in bello principles, there are some complications here. See supra note 84.

  105. Cf. Berman (2011, pp. 70–71) (“While it would be lunacy to suppose that we are under an obligation to deliberate about all our actions, we do have such an obligation whenever we become aware of a prima facie or pro tanto moral reason not to do whatever we happen to be contemplating.”).

  106. Cf. McMahan (2009, pp. 72–73).

  107. There is a threshold issue here, however, that some readers may have trouble getting past. If what I am proposing here as a standard is to be adopted, we would have to devise a way, within our judicial system, to determine whether a particular armed conflict is just or unjust, and the prospect of such a thing happening will strike most as remote. Here is my response. First, there is a difference between arguing that it is difficult for people to come to an agreement on whether a war is just and arguing that there is no such thing as the right answer on the question. This Article assumes that there are right and wrong answers on such questions. Second, there is a difference between rejecting an idea because it is theoretically unsound and rejecting an idea because the idea, for a host of ideological and pragmatic reasons, is unlikely to be implemented, and the focus of this Article is to defend the soundness of the theory, not necessarily to propose that we in fact implement these ideas. Third, there is a difference between arguing that we, as a matter of practice, have not held individuals morally responsible for participating in unjust wars in formal, legal settings and arguing that individuals are not morally responsible for participating in unjust wars. Much of the discussion in this section has been devoted to the latter, normative issue, not in the former, more pragmatic issue. Fourth, if it is the case that there are just wars and unjust wars, and if it is the case that individuals can be thought to be culpable in participating in unjust wars, and if it is the case that a person’s PTSD should not mitigate his culpability if he has acquired his PTSD through culpable conduct on his part, then the question as to whether the war a veteran participated in was just or not has to be asked in order to evaluate the claim that his PTSD reduces his culpability. Otherwise, the analysis will be woefully incomplete, and one modest goal of this section has been to highlight that incompleteness.

  108. Cohen (2006); Duff (2010); Scanlon (2008, pp. 175–179); Tadros (2009).

  109. The claim advanced here should be distinguished from the idea that soldiers who follow orders are either justified or excused and hence rendered blameless. Rather, the argument is that X who orders Y to do P lacks standing to criticize Y for having done P.

  110. Grossman (2009, pp. 141–148).

  111. McMahan (2009, p. 119).

  112. Grossman (2009, p. 3).

  113. Collins (2008, pp. 47–48).

  114. Giardino (2009, pp. 2967–2971); Grossman (2009, pp. 252–263); Hafemeister & Stockey (2010, pp. 103–104).

  115. This explanation for a sentencing discount for military veterans gives us the third reason why we may think that members of Einsatzgruppen are not entitled to mitigation. Unlike, say, the United States government responsible for Vietnam, Iraq, and Afghanistan wars, which, for better or worse, is thought of as “our” government by Americans, very few people—not even Germans—would identify with the Nazi government as their own government. The only government whose moral standing to blame has been undermined by its own complicity of atrocities committed by Nazi soldiers is the Nazi government, which no longer exists. The closest candidate would be the current German government, and even if there were a viable argument that the current German government has no standing to judge its own war criminals, reasons of transitional justice—a need to make a decisive break with the past in order to reconcile oneself with its own past—militate against any gesture that would be construed as sympathy for Nazi war criminals. Plus, to the extent that the current German government cannot make a complete break from its Nazi past, the fact that it has been scrupulous about blaming itself for its past deeds at least partially restores its moral standing to blame. Cf. Duff (2010, pp. 139–140); Tadros (2009, p. 410).

  116. However, as discussed in supra note 115, in exceptional situations, for reasons of transitional justice, where a State must distance itself from its predecessor in order for a polity to move forward, a State may be right in not displaying any sign of impunity regarding wrongdoers from the previous regime. In such cases, sentencing discounts may not be called for.

  117. It should be kept in mind that the State’s standing to blame is not undermined by the mere fact that the military training led one to become a criminal. The standing to punish argument here is limited to situations where a veteran’s criminal activity is brought about due to PTSD symptoms stemming from his or her military service. The reason this limitation is important is because the military may contribute to people’s criminal activities in all kinds of ways that do not undermine the State’s standing to blame. For instance, the military obviously trains people to be good at certain things (such as ability to shoot a gun), and some of the skills or character traits that one may develop in the military may be useful for criminal activities. And it seems odd to think that the State’s standing to blame is undermined just because the State has given a person tools that happen to be useful for criminal activities. For instance, John Allen Muhammad, the “Beltway Sniper,” was a Gulf War veteran who apparently used his skills as a marksman to go on a murder spree, setting aside the question of whether his mental stability had to do with his experience during the war. See Ian Urbina, Sniper Who Killed 10 Is Executed in Virginia, NY Times, Nov. 10, 2009; Byron Acohido and Blake Morrison, Expert Marksman, Eager Student Lived as Vagabonds, USA Today, Oct. 25, 2002. See also Forgey v. State, 886 N.E.2d 16, 24 (Ind. App. 2008) (noting that “many of Forgey’s actions during the commission of the instant crimes appear to be attributable to his military training”).

  118. One implication of this argument, for those who are interested in implementation questions, is that courts, when deciding whether to grant a sentencing discount for offenders with military backgrounds, may bypass the vexing question as to whether a particular conflict is morally justified and still grant the discount, simply because mitigation is called for whether the war that a veteran was involved in was just or not.

  119. See, e.g., DeSaussure (1994, p. 58); Eckhardt (2003, p. 440).

  120. See, e.g., Gardner (2011, p. 101). For a general discussion, see Duff (2007).

  121. See, e.g., Tasioulas (2011, pp. 45–48).

  122. Porter, 130 S. Ct. at 455; see also Amir Efrati, Judges Consider New Factor at Sentencing: Military Service, Wall St. J., Dec. 31, 2009 (quoting a judge stating that a criminal defendant “is to be credited for his contributions to the United States Army, to his unit, and, in turn, to his country”).

  123. Porter, 130 S. Ct. at 455.

  124. See, e.g., Jameel Jaffer and Larry Siems, Honoring Those Who Said No, NY Times, April 27, 2011.

  125. Ashworth (2010, pp. 182–183).

  126. One way of taking one’s social contributions into account without turning the institution of punishment into a forum to conduct an overall social accounting of a person’s entire life is by providing larger incapacity-based discounts to those whose incapacities are caused by injuries one has suffered while engaging in valuable conduct for the society. I thank Antony Duff for this suggestion.

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Acknowledgments

Thanks to Rachel Barkow for her very helpful comments as the discussant of this paper at the Columbia Criminal Law Roundtable, as well as to other participants at the event. Thanks also to Stephanos Bibas, Richard Bonnie, Debby Denno, Lauryn Gouldin, Abner Greene, Clare Huntington, Andrew Kent, Tom Lee, Ethan Leib, Dan Markel, Alice Ristroph, Victor Tadros, Ben Zipursky, and participants at NYU Criminal Law Theory Colloquium for helpful comments on earlier drafts, and to Tamar Lusztig for research assistance. Finally, special thanks are due to Antony Duff for his characteristically penetrating comments on the penultimate draft.

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    Youngjae Lee

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Lee, Y. Military Veterans, Culpability, and Blame. Criminal Law, Philosophy 7, 285–307 (2013). https://doi.org/10.1007/s11572-013-9207-z

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