Buffalo Giving Vets a Break
posted by Carissa Hessick
Yesterday, the AP reported on a special criminal court in Buffalo, New York aimed at veterans. The city developed this diversion program, which resembles drug courts that have been implemented in many cities, after realizing that a significant number of criminal cases involved defendants who had previously served in the military.
I’ve recently written an article that argues, at least in part, for more lenient treatment of veterans and others who have performed good works, so I found this article intriguing. The basic premise of my article is that, if we are going to increase criminal sentences because defendants have committed bad acts in the past (i.e., committed previous crimes), then we should also decrease sentences for those defendants who have committed good deeds. The Buffalo program is in keeping with my own intuition that we should cut some slack to those who have served in the armed forces, and who later find themselves in the criminal justice system, so long as their crimes are not particularly numerous or serious. But while I was researching and workshopping the article, I was surprised to learn how many people don’t share this intuition.
Several people who read and commented on my paper questioned whether there is sufficient public support for a punishment system that punishes military veterans less severely. Indeed, when news of Doug Berman’s efforts to obtain a reduced sentence for a convicted veteran reached the Volokh Conspiracy, the comment thread contained a lot of remarks opposing sentencing leniency for vets — in fact a few commenters questioned whether enlisting in the military constitutes a “good deed.”
Perhaps the most telling remark I heard on this issue was from a colleague who asked me what military service tells us about a person’s character. If military service is indicative of good character, and if that good character is the reason for leniency, then how does a veteran’s subsequent criminal act bear on his or her character?
The Buffalo program avoids the character question by segregating veterans from the rest of the criminal court system because of “their unique mental health issues.” As the daughter, granddaughter, niece, and cousin of military veterans, I admit that my own views on this subject may not be entirely free from personal bias. But I find it kind of sad that we find it easy to give veterans a criminal justice break because we think they’re crazy, but not because we think that they’re heroes.
July 8, 2008 at 1:24 am
Posted in: Criminal Law
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Responses (8)
Michael - July 8, 2008 at 10:22 am
It’s an interesting idea to treat veterans differently, but I’m not convinced that the veteran-status is the appropriate distinguishing factor for such a separate program. For example, why are police officers, firemen, and teachers not given that special treatment?
There’s no question that military troops serving in obvious parts of the world are placing their lives at risk everyday. But what is the connection between that service and a justice system’s leniency that makes them more deserving of lenient treatment than a teacher, firefighter, or civil servant who commits the same crime? I suppose I like to think that we treat every person who commits a certain crime the same regardless of who they are——ignoring military status, occupation, race, gender, wealth, etc.
If mental health status is what makes them deserving of leniency, then we should treat everyone with such an illness the same way. Otherwise, we risk granting leniency to some military members with very low-risk jobs (staffing the Pentagon) or who never even saw combat, while denying it to others who have put much more on the line for the public good (firemen).
ParatrooperJJ - July 8, 2008 at 10:27 am
Michael – The difference is that a veteran, at one point in their life, signed a blank check for their life and gave it to the government. While police and firemen have dangerous jobs, they can quit at anytime, veterans could not.
Jack - July 8, 2008 at 10:57 am
What do you do with vets with other than honorable discharges, is it an aggravating factor if they served in the military, but did a not-so-good job? What if the defendant was drafted into one of the great conscript armies of WW II, Korea or Vietnam, so there was no moral choice to enlist? Is the prosecutor allowed to show that the defendant intentionally enlisted in a non-combat branch, or did so for the pay and allowances?
Veteran status is much more ambiguous than a criminal conviction, and taking it into account opens up a can of worms. This is not to say it should not be part of the picture in extreme cases.
Dan Markel - July 8, 2008 at 11:35 am
Carissa, as you know, I’m in exact agreement with Michael’s comment on this post. For those interested, I make the argument pithily constructed by Michael in much more bloviated form in an article called Against Mercy that addresses this issue. Here’s the link:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=392880
There I argue it is both illiberal and inconsistent with retributive justice to give sentencing discounts based on, among other things, veteran status alone (as opposed to say mental illness contracted through veteran status).
Michael - July 8, 2008 at 12:00 pm
Veteran status is much more ambiguous than a criminal conviction, and taking it into account opens up a can of worms.
I think Jack raises a good point. I would go one step further to say that if the reason we want to treat “veterans” with leniency is because of their voluntary decision, then we need to identify whether an individual veteran made such an equally-laudable decision. There are a significant number of “veterans” whose military service resulted from great financial need, from aggressive high-school recruiting, or from a draft. Friends of mine have enrolled as a way to pay for medical school with a short service period after it, as a chaplain, to pay for law school, as well as for a feeling of civic duty.
While the majority, if not the vast majority, of military service members may be deserving of such leniency, it is due to either their reason for singing up or their service while on duty, but not because they are a “veteran.”
Also, ParatrooperJJ, the “blank check” is not a lifetime commitment. Do we treat members who extend their enrollments or re-enroll differently than those who only serve a few years and then decide they’ve had enough? Is someone who never left the U.S. as deserving of leniency as someone serving in an active combat zone? I understand that the contract to serve is not as easily broken as at-will employment as a firefighter, but fighting one fire is more dangerous than certain (although perhaps the vast minority) military roles. We need to know exactly what it is that makes a person deserving of leniency rather than such a broad title.
Carissa Hessick - July 8, 2008 at 3:32 pm
Wow —it’s great to see such thoughtful comments. I actually address several of them in my paper (though Danny Markel and I continue to disagree
).
ParatrooperJJ - July 9, 2008 at 2:48 pm
Michael – I would argue that those of us that have lasting disabilites from military service have made a lifetime commitment.
Jack - July 10, 2008 at 12:49 am
JJ,
If the criminal offense was arguably caused by the service, I am with you 100%. I represented a guy who got hooked on heroin in Vietnam, a great record over there, not so good here. He got a break and deserved it. Another lady who was in the Air Force, but in peacetime, accounting, etc. Couldn’t make much of that, beyond her general lack of a criminal record, and record of steady employment.
Jack
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