Defendants Fresh From War Find Service Counts in Court

"The Supreme Court, however, in a series of cases, has declared that the federal sentencing guidelines are advisory, not mandatory"

March 15, 2010

Defendants Fresh From War Find Service Counts in Court
By JOHN SCHWARTZ

CHARLESTON, W.Va. — When Judge Robert C. Chambers handed down Timothy Oldani’s federal sentence for selling stolen military equipment on eBay, he gave the former Marine a break.

In Iraq, Mr. Oldani had performed the jangling work of detonating improvised explosive devices and had seen six of his fellow Marines burned alive in an armored vehicle. He left the service with traumatic brain injury and post-traumatic stress syndrome that, the judge concluded, had clouded his judgment. Under federal sentencing guidelines, the prison term could have been nearly five years; Judge Chambers decided on just five months, with three years of supervised release and treatment.

Many veterans like Mr. Oldani have returned from Afghanistan and Iraq burdened by post-traumatic stress, drug dependency and other problems. As veterans find themselves skirmishing with the law, judges are increasingly finding ways to provide them with a measure of leniency.

“More and more courts are noticing and asserting, in a variety of ways, that there seems to be some relevance to military service, or history of wartime service, to our country,” said Douglas A. Berman, a law professor at Ohio State University and an expert on sentencing.

At the federal level, judges are bucking guidelines that focus more on the nature of the crime than on the qualities of the person who committed it. States, too, are forming special courts to ensure that veterans in court receive the treatment their service entitles them to.

While veterans are not considered to be more likely to be arrested than the rest of the population, estimates released by the Bureau of Justice Statistics in 2008 found 229,000 veterans in local jails and state and federal prisons, with 400,000 on probation and 75,000 on parole.

 There are about 1 million veterans of the two current wars in the Veterans Affairs system so far, said Jim McGuire, a health care administrator at the agency. He cited statistics suggesting that 27 percent of active-duty veterans returning to civilian life “were at risk for mental health problems” including post-traumatic stress syndrome.

Judges have recognized that many of those returning from war are carrying a heavy burden of damage that might not be physically visible. As one federal district judge in Denver, John L. Kane, wrote in an order giving a defendant probation instead of a prison sentence, the soldier “returned from the war, but never really came home.” 

The judges’ decisions are part of a broader fight over sentencing, and over once-rigid federal guidelines that tend to punish the crime while giving little weight to the specific circumstances of the defendant. The guidelines explicitly state that “good works” like military service “are not ordinarily relevant” in determining whether to give sentences below the recommended range.

The Supreme Court, however, in a series of cases, has declared that the federal sentencing guidelines are advisory, not mandatory. The United States Sentencing Commission is considering proposals that would allow military service or other evidence of “prior good works” to be considered as mitigating factors in sentencing decisions.

(click here for complete article:  http://www.nytimes.com/2010/03/16/us/16soldiers.html )