Sentencing and Military Service:

Lawprofblogging rock star Doug Berman (Sentencing Law & Policy) writes:

Back in this post in April, I noted a story about the federal sentencing of Sergeant Patrick Lett, a defendant with 17 years of honorable Army service including two tours of duty in Iraq. There I asked whether a sentencing system that punishes prior bad deeds (via criminal history enhancements) ought also to reward prior good deeds through sentence reductions for, say, prior honorable military service. I suggested that, especially during a time of war, a sentence reduction based on honorable military service would tangibly recognize and reward service to our country.

Half a year later, a lot has happened in Patrick Lett's case. And, through a student, I have become indirectly and then more directly involved. Specifically, Lett ultimately received a below-guideline sentence (which allowed him to return to military service), but the Justice Department has appealed the reasonableness of his sentence to the Eleventh Circuit. Troubled greatly by DOJ decision to appeal and its overall treatment of Sergeant Lett, I have written and just filed (with the help of great folks at Holland & Knight) an amicus brief that assails the government's suggestion that Lett's sentence was unreasonable.

You can download the full amicus [brief here], and here's perhaps my favorite passage:

Attorney General Alberto Gonzales during his confirmation hearings last year stressed that prison is best suited "for people who commit violent crimes and are career criminals." Gonzales also asserted that a focus on rehabilitation for "first-time, maybe sometimes second-time offenders ... is not only smart, ... it's the right thing to do;" in his words, "it is part of a compassionate society to give someone another chance." Similarly, President George W. Bush in his 2004 State of the Union Address spoke passionately about the importance of showing compassion (and providing job training and placement services) to convicted offenders because "America is the land of second chance."

Judge Steele, in accord with these sentiments expressed by President Bush, Attorney General Gonzales, and Justice Department officials, obviously concluded that Patrick Lett deserved a second chance and that his non-violent first offense did not merit a long term of imprisonment. Given Lett's 17 years of honorable service to this country, which has included two life-threatening tours of duty on the Iraqi battlefields, it is hard to imagine an American more deserving of a second chance.

Anderson (mail) (www):
Makes sense to me, though I'm also against the guidelines' mandatory application, on general principle.
10.26.2006 5:56pm
Dave Hardy (mail) (www):
I always thought (tho I have slight experience here) that there were two basic ways of laying out guidelines:

1. Define punishment for the "average" offender, and allow departures up or down based on defendant being better or worse than the guessed average. Arizona does that for the most part.

2. Define punishment for the "best" offender -- assume he is first time, unlikely to do it again, and did the minimum necessary to create the offense -- and allow departure upward for worse ones.

The Federal guidelines tend to be thought of as (2) but in practice are (1) or maybe worse. Very stiff punishments, with only minor reductions for good things (and those often backfire... cooperate fully, 3 points down, but if in doing that you admit to unproven offenses, it can be 20 points up). On the other hand, there are many ways in which points can be increased --size of the offense, priors, use of weapons or force, etc., etc.

If the people setting the guidelines were made to realize "the punishment you are prescribing is what will be given to a first-timer, upstanding record, who made only this one mistake, is contrite, maybe harmed no one, etc., etc." I suspect the numbers would come way down.

AZ also has a provision where, if the judge considers the minimum he can give to still be too much, he can report the case to the governor's commission on pardons and directly recommend commutation. From what I've heard, they take those seriously.
10.26.2006 6:24pm
Dave Hardy (mail) (www):
BTW, amusing story of how one local federal district judge dealt with the guidelines, back when they were mandatory. A "mule," low level guy carrying drugs across the border, was caught. Judge gave him lighter sentence than the guidelines allowed. The prosecution appealed.

The judge, sua sponte, released the guy OR during the appeal. He was of course over the border before nightfall.

I'm told the US Attorney did not appeal another one of his sentences...
10.26.2006 6:30pm
The judge, sua sponte, released the guy OR during the appeal. He was of course over the border before nightfall.

Would you mind telling who the judge was. I would like to let Chairman Sensenbrenner know.
10.26.2006 6:51pm
How do you measure service to the country from non military individuals? Say civil engineers who are building bridges, dams, roads, buildings? Or doctors who are patching up the injured and facilitating the healing of the ill?
10.26.2006 6:54pm
Public_Defender (mail):
Now that Berman is participating in the case, he has an opportunity most litigants don't have--he can effectively supplement his arguments at any time just by updating his blog.
10.26.2006 7:04pm
Dave Hardy (mail) (www):
Would you mind telling who the judge was. I would like to let Chairman Sensenbrenner know.

I know the judge. I don't know this Sensenbrenner fellow. 'round here, what happens in the legal community stays in the legal community.
10.26.2006 7:33pm
Visitor Again:
The federal judge who recently setenced lawyer Lynne Stewart gave her credit for community service--for taking on cases without fee or at greatly reduced fees throughout her career.

In the mid-Seventies, in the Los Angeles County Superior Court, I represented a vet who got probation after committing four armed robberies of liquor stores over a two-week period and after having become a fugitive for two years when he failed to show up for his original sentencing date. He had served several tours of duty in Viet Nam and had won not one but two Silver Stars for battlefield bravery. Certainly one of my most satisfying cases. It was a freebie.
10.26.2006 7:50pm
Le Messurier (mail):
Dave Hardy

'round here, what happens in the legal community stays in the legal community.

I have no real problem with that, but is that why we don't know why JP Jacque McVay is on Administrative leave?
10.26.2006 7:51pm
Daniel Chapman (mail):
Good for you. I hope it helps.
10.26.2006 7:59pm
Kovarsky (mail):

The sentencing guidelines are not mandatory, fyi. They're advisory, and the sentence must be "reasonable." Since I left the frantic "figure out what the hell booker's remedial opinion means" fray about a year and a half ago, i'm not sure how courts have treated the "reasonableness" standard, except requiring that courts departing from the advisory guideline range to commit their opinion's to writing.

Can you clarify something - was the departure just below below the advisory guideline minimum, or was it below the statutory minimum for the defense, in which case, unfortunately, I would guess the DOJ has a case. I could just read the whole brief, but I don't have time.
10.26.2006 8:12pm
logicnazi (mail) (www):
Is military service, even in time of war, really a 'good deed'?

First of all is signing up for the military in time of peace a good dead? I submit, while not a bad thing, it is not a good dead in the sense required for criminal punishment.

Presumably people join the military because they find the benefits (pay, type of service, self confidence whatever) to be a worth the labor. In an all volunteer military people aren't joining the military because they are making a noble sacrifice but because we have set the pay level high enough and the benefits good enough to attract soldiers.

In other words signing up for the military is no more of a 'good deed' than paying your taxes. If we didn't have enough soldiers we would raise taxes and raise military pay until we got enough.

Now *maybe* there is an argument that people like Pat Tillman who delibratly sign up in the middle of a war are doing a good deed. Even there though it isn't clear. However, surely once you have signed up for the military fulfilling your oath to serve is not a good deed. Soldiers are paid what they are during peace time because they are taking the risk that there will be a war.

The problem is we confuse the fact that we should respect and express gratitude to our soldiers with the notion that they have done a good deed. But this is just like the fact that it is good to thank your teacher for helping you during office hours despite the fact that this is your job. The social rule that we should express gratitude for people who do things for us isn't dissipated just because they are paid for doing these things.
10.26.2006 8:24pm
Lawgirl (mail):
Good point, logicnazi. However, teachers do not necessarily have to deal with losing their limbs on a daily basis. Besides, soldiers don't necessarily get that much better pay than if they go into an occupation that has less risk, and maybe greater rewards.
I do however agree that others give service to the country, but from what little I have seen of sentencing, judges have been accounting for those who have given exemplary service in other ways -- although of course, when you depart from the guidelines, it is variable depending on the judge.
10.26.2006 8:32pm
A. Zarkov (mail):
I know the judge. I don't know this Sensenbrenner fellow. 'round here, what happens in the legal community stays in the legal community.

That sounds like the Mafia code of omerta.

If this judge really did release someone who he knew was likely to flee, then he it seems to me that he has betrayed a public trust and the public should know. Did the prosecutor try to extradite this “mule.”
10.26.2006 8:33pm
Not a bad idea in principle, but the sentencing judge would need to have broad discretion in applying this rule-- otherwise "good deeds" would start to look like the more corrupt kind of medieval indulgences, allowing people to reduce their punishment for crimes they haven't even committed yet. Perhaps the provisions we already have for downward variances within the current "reasonableness" scheme are sufficient.
10.26.2006 8:59pm
Andrew J. Lazarus (mail):
The year I moved to California, a US Navy sailor on leave raped a 17-year-old Berkeley freshman woman (in the Eucalyptus Grove by the West Circle). They caught him later because she bit his tongue so badly he had to get medical treatment. (In keeping with journalistic tradition, her name wasn't mentioned, which is too bad in a way: this woman, whoever she is, has been a hero of mine for bravery.)

The judge looked at the sailor's exemplary Navy record, and gave him an extremely lenient sentence. Four years, if I recall.

Luckily, inspired prosecutors matched up this man's shore leaves with at least one other rape of a university student, and the judge handling a case arising at Stanford gave him what he deserved.

Now, in the case at hand, I'd say the lower sentence is reasonable—even more appropriate—for this defendant. There's PTSD probably involved. But I'm pretty skeptical of the general premise.
10.26.2006 9:03pm
Peter Wimsey:
That sounds like the Mafia code of omerta.

Why, do you think he'll be killed if he talks?
10.26.2006 9:25pm
Kovarsky (mail):
i checked everywhere for the appellant's brief in the 11th circuit, but i couldnt find it. it's docketed, so its there, but i cant get a copy. what is the argument?
10.26.2006 9:59pm

I guess the E-1 making about $1250/month said to himself, "Self, I can sign up, scrub some toilets, get yelled at, maybe get shot at, for about 70 hours a week, and all of that definitely outweighs the easy 40 hours/week stocking shelves at WalMart for roughly the same pay. Same for the O-1 with an engineering degree making $30K rather that $60K market. While the military can definitely help a poor kid get ahead in life, I haven't met many soldiers or sailors who did it just for the pay and bennies. More than a few still have a little idealism as to doing the right thing ... Probably why so many of them come from the South and other rural parts of the country. So yeah, on balance, it probably makes sense to give them a bit more credit for "good deeds" than your average Joe who decided he wanted to coach high school football.
10.26.2006 11:35pm
A. Zarkov (mail):
Why, do you think he'll be killed if he talks?

He might be made to suffer in some way. Even the Mafia doesn’t always kill.
10.26.2006 11:41pm
BruceM (mail) (www):
First off, I have always had a problem with enhancing sentences based on prior criminal conduct for which a defendant has already served time and paid his debt to society. A second rape should not be punished more severely than a first rape, although I'm sure most people disagree, especially when phrased so bluntly. Needless to say, I am thoroughly opposed to using prior bad acts of which a defendant has not been convicted (much less acquitted, as is done in federal court!).

However, I have three problems with sentence reduction due to previous good deeds.

First, what is the burden of proof in establishing a prior good deed? At least with a previous criminal conviction it was presumably established beyond a reasonable doubt. If a defendant says he did X and Y good deeds, what is the burden of establishing that? What if it is only a good deed like taking care of your sick mother which may not have concrete documentation/proof? People with a lot of friends and family will likely have a much easier time proving up the "fact" that they previously did "good deeds" than people with few friends and family. To that extent, it's unfair and will cause sentencing disparity.

Second, "good deeds" are relative. As someone pointed out previously, signing up for the military in time of peace is not necessarily a good deed. If they waived payment, funds for college, and all other benefits, then I suppose it would be unquestionably charitable. One man's good deed is another man's sin. A prior bad act is much less subjective.

Third, if this is permitted, religious people will milk this system for all it is worth, causing "people of faith" to receive lesser sentences than more secular folks. It will inject religion into sentencing which is certainly a BAD thing. Christians, being the people most prone to flaunting their religiosity, will rattle off all the things they've ever done in the name of their religion/Jesus to show why they should get a lesser sentence... "I converted X, Y, and Z... I have a Jesus fish on my car... I tithed 10% of my income to my church each year for the past 5 years... I organized my church's bake sale... I fed the homeless (while forcing them to read the Bible in exchange for food so I could feel like a good Christian)...." Since a majority of federal judges are conservative christians, if permitted to mitigate a sentence based on such factors, christians will all end up getting probation while our prisons become overcrowded with the "unsaved" secular hell-bound.

I realize this last issue is more cynical than the first two, which are more practical problems. But I have no doubt that, if permitted, this is what would happen. To an extent, our system is already like that. I practice criminal defense and I've seen a lot of sentencings, and I can't recall one where a defendant did not mention "God" (if not "Jesus") at least once. If we affirmatively endorse "good deeds" as a means of mitigating a sentence, get ready for a full blown religious resumé presented at each and every sentencing. And for those who are atheists... get ready for prison.
10.26.2006 11:53pm
Daniel Chapman (mail):
I'd just be happy to stop hearing people argue in their sentencings that they have drug problems. The fact that anyone considers that worthy of mitigation is disturbing.
10.26.2006 11:58pm
Anderson (mail) (www):
A second rape should not be punished more severely than a first rape, although I'm sure most people disagree, especially when phrased so bluntly.

I think "most people" would differ w/ you b/c we have a different theory of punishment; it's as much to protect society as to repay a criminal for his wrongdoing. A repeat rapist appears more likely to rape again than a one-off (ha, ha) rapist.
10.27.2006 12:05am
Thorley Winston (mail) (www):
Presumably people join the military because they find the benefits (pay, type of service, self confidence whatever) to be a worth the labor. In an all volunteer military people aren't joining the military because they are making a noble sacrifice but because we have set the pay level high enough and the benefits good enough to attract soldiers.

Right, that’s why we have so many members of the armed forces going on public assistance to meet the basic needs of their families – because of the high pay and benefits.
10.27.2006 12:24am
Mike BUSL07 (mail) (www):
logicnazi, I find the relevant the quote of fictional military veteran Walter Sobchak - you are out of your element. There is a reason they call it service. Not to get all holier than thou on you, but when I served (admittedly, before college, and before these wars), I did it because I owed a lot to this country, which I do still.

This was in no way an exceptional attitude. People join the military because they want to serve the United States. When the United States gets an opportunity to pay it back through something greater than a pair of jump boots and some wool socks, it should take that opportunity.
10.27.2006 12:47am
Mike BUSL07 (mail) (www):
I find the relevant... OOPS
10.27.2006 12:47am
logicnazi (mail) (www):
Mike (and others),

I tried to separate these two issues in my comment but perhaps I wasn't clear enough. I do agree that we ought to be grateful to soldiers and take care of them after they are discharged. If we were debating whether people like this (who haven't committed crimes) ought to be given extra government benefits, more educational funding etc.. I would be in support.

However, I think this is a different question. Here we are asking if he did 'good deeds' that warrant leniency not whether he deserves gratitude.

Or to put the matter differently I agree many people enter the service because they come from parts of the country that view military service idealistically. In effect this means part of their compensation is the regard given to them by society and the gratitude of those not in the military.

In other words we have made am implicit bargain with those in the military that in return for their service we will be grateful and do what we can to make sure the government takes care of them. This is why we owe them services and support not explicitly agreed to in their contracts. However, in this case we are not asking what they are implicitly owed as part of their compensation but whether they did a good deed and that is a wholly different question.


Or to put it differently do the early posters really think it is a better life to go work at walgreens then to join the military? For some people maybe but I suspect for most members of the military they are better off in the service then at walgreens. Sure they run the risk of getting shot at but they also gain respect, self-confidence and regard by the rest of society.

So do you believe joining the military makes your life worse? If not then how is it a good deed? If so are you willing to admit all those army commercials suggesting joining up is a good choice are lying, or at least deeply mistaken?


Note I'm not arguing that a higher sentence should be sought. I just think it shouldn't be sought regardless of whether he was in the military or worked as an accountant.
10.27.2006 3:08am
logicnazi (mail) (www):

I agree in principle with much of what you said but I think what you miss is that criminal punishment is not only about giving people the sentence they deserve. It is also about protecting society and preventing future crimes.

The reason we should punish the second rape more than the first has nothing to do with the person being more deserving of punishment. If anything it suggests they are (statistically) less able to control their impulses. Rather it is because this suggests they will be even more likely to rape again when we let them go free. Thus we give them a longer sentence to better protect the innocent people they might rape.


Actually I don't believe that the notion of deserving a punishment even makes sense. As far as I am concerned punishing someone only makes sense to the extent it deters/prevents future crime. The only valid moral goal is to minimize total suffering.

Frankly I don't understand how Christian's can take any other position. That one has to punish some people to prevent more harm is a reasonable justification but punishing people more than is necessary to accomplish this goal seems to fly right in the face of the turn the other check business.

But this is getting kinda off topic.
10.27.2006 3:22am
Kovarsky (mail):

Drug addiction is a relevant sentencing element in a variety of contexts. If someone is a drug addict, and a statutorily imposed interrogatory in a death penalty case poses the question of whether the person poses a future danger, the the presence of a past addiction is relevant insofar as if the offender kicks it, he will cease to commit the act in the future.

Drug addiction is also legally cognizable as a means of demonstrating an absence of "deliberateness," also a standard question requring an affirmative answer for death penalty convictions. It often goes to the question of whether the offender was zooted at th et ime he perpetrated the crime.

In fact, there are many cases (both state and federal) that call the effectiveness of assistance under the sixth amendment into question if an attorney fails to put that evidence in front of a sentencer.

I don't know why you would be sso hostile to defendants being able to introduce it at sentencing, juries usually don't pay too much attention to it.
10.27.2006 3:50am
Mr. T.:

If "it's not clear" that Pat Tillman was doing a good deed, then what was he doing? You argue that military pay and benefits alone are high enough to purchase labor on the market; therefore the decision to serve should be regarded no differently than the decision to perform any other kind of work for pay. How does this analysis explain Tillman?

You seem to address this by stating that service members are compensated with "respect... and regard by the rest of society". Respect and regard for service is exactly the reason why leniency should be considered in a case like this. Together, your comments seem to argue that service members don't deserve any respect and regard, because they've already been compensated by... respect and regard.

Finally, I take serious issue with the premise that a good deed must make one's life worse. I knew a teacher who threw his entire life into teaching. He was selflessly dedicated, an outstanding educator, loved what he did, and eventually died revered and beloved by generations of faculty and students. Was he not doing good deeds? Or was he making his life worse?

Going back to Tillman, I think you would have a stronger case for arguing that he did not do a good deed on the grounds that he was misguided - that is, that the military creates destruction and pain, and that devoting himself to peace work would have been more appropriate. However, I think you err by discounting the importance of either honor-seeking or selfless service in the decision to serve, and by extension, the vital role that society's respectful acknowledgment of sacrifice (for example, by granting leniency in sentencing) plays in the very concept of military service.
10.27.2006 10:30am
Mike BUSL07 (mail) (www):
logicnazi, you also make a bit of a leap when you argue, and I think that's what you argue, that veterans should not "extra" receive leniency because that would be inconsistent with society's interest in incapacitation/specific deterrence. You are assuming that these factors are not taken into account.

However, suppose the veteran has committed a very serious crime, but does not fit the bill of a likely recidivist. The major theory of punishment under which his sentence would be longest, would be retribution. Accordingly, where we are concerned primarily with retribution, i.e., making the criminal pay his moral debt to society, our moral debt to him mitigates his moral debt to us.
10.27.2006 11:08am
I read the brief, and I think that Prof. Berman's post oversells its novelty.

On appeal, the government has the burden of proof to show that the sentence wasn't reasonable. Prof. Berman's brief makes a compelling argument that the sentence actually was reasonable. I think that's about it. The argument isn't that Sgt. Lett should get a pass because he's been in the military, or even that good deeds should be balanced against bad ones, just that Sgt. Lett's pattern of behavior, which includes 17 years in the military, does not show that he's the sort of person who needs to be locked away and who doesn't deserve a second chance. The guy's also a first-time offender who was just looking for work, and was willing to reenlist in the military to find it. Unfortunately, one of his attempts at finding work had him delivering drugs. Whatever one thinks of the merits of the argument, the sentencing judge wasn't so unreasonable in accepting it that the case needs to go back.

Mr. Kovarsky, the circuits have taken different approaches to "reasonableness" review after Booker. Judge Sutton's concurring opinion in United States v. Buchanan, 449 F.3d 731 (CA6 2006) summarizes the approach each circuit has taken. In some circuits, a within-Guidelines sentence is presumptively reasonable. In others, it's not. The Eleventh Circuit (where Sgt. Lett's appeal will be) has taken a fuzzy middle ground approach. The relevant quote from Buchanan is below.

By my count, six circuits have held that a district court's decision to sentence a defendant within the range of the advisory guidelines receives a “presumption of reasonableness” upon appeal. United States v. Williams, 436 F.3d 706, 708 (6th Cir.2006); United States v. Johnson, 445 F.3d 339, 341 (4th Cir.2006); United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.2006); United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir.2006); United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.2005); United States v. Lincoln, 413 F.3d 716, 717-18 (8th Cir.2005). One circuit, without addressing the propriety of a “presumption of reasonableness” in so many words, says that sentences within the advisory guidelines “ordinarily” will be reasonable. United States v. Talley, 431 F.3d 784, 788 (11th Cir.2005). And four circuits, all of them after our decision in Williams, have declined to adopt a presumption of reasonableness. See United States v. Jiménez-Beltre, 440 F.3d 514, 518 (1st Cir.2006) (en banc); United States v. Fernandez, 443 F.3d 19, 27 (2d Cir.2006); United States v. Cooper, 437 F.3d 324, 331-32 (3d Cir.2006); United States v. Zavala, 443 F.3d 1165, 1168-70 (9th Cir.2006) (rejecting a district-court presumption of reasonableness).

No mention of what the DC Circuit has done, but I guess they probably deal with this less often than the others. The catch in "reasonableness" review seems to be the tension between (1) with the Guidelines now advisory, judges are supposed to give a "reasonable" sentence in light of the factors listed in 18 U.S.C. sec. 3553(a), and (2) the judges are supposed to "give weight" to the Guidelines, which consider--albeit mechanically--all of the factors in sec. 3553(a), and one of those factors is "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct."

Basically, the advisory Guidelines still retain some gravitational pull post-Booker, and the circuits disagree about precisely how much that is.
10.27.2006 11:16am
Sk (mail):
The federal judge who recently setenced lawyer Lynne Stewart gave her credit for community service--for taking on cases without fee or at greatly reduced fees throughout her career.

"In the mid-Seventies, in the Los Angeles County Superior Court, I represented a vet who got probation after committing four armed robberies of liquor stores over a two-week period and after having become a fugitive for two years when he failed to show up for his original sentencing date. He had served several tours of duty in Viet Nam and had won not one but two Silver Stars for battlefield bravery. Certainly one of my most satisfying cases. It was a freebie."


10.27.2006 11:26am

For some people maybe but I suspect for most members of the military they are better off in the service then at walgreens.

The real problem is that people think that the only reason you join the military is because you have no other options than working at walgreens or walmart. This is hardly the case for the vast majority of those who enlist.
10.27.2006 11:29am
Arbusto Spectrum:

The real problem is that people think that the only reason you join the military is because you have no other options than working at walgreens or walmart. This is hardly the case for the vast majority of those who enlist.

And now, we have another reason -- enlist, because it will get you leniency should you commit a crime later in life...

I don't think it is appropriate for there to be an all-encompassing rule that military service, whatever the motivation behind it, should be a mitigating factor in sentencing. However, demonstration of exemplary military service should be a valid consideration, as should be demonstration of any form of exemplary community service.

In my view, the real problem is the piss-poor quality of community reintegration efforts and mental health services afforded to soldiers returning from combat overseas. Those who have a stable family structure that serves as support often do okay, but those who do not often end up with significant difficulties. It would be much easier to take care of our returning troops on the front end, rather than relying on lenient sentencing as the payback for our "moral debt."

And, for those who may have taken my initial statement seriously, please -- add some salt before firing up the flamethrower.
10.27.2006 12:18pm
Anderson (mail) (www):
enlist, because it will get you leniency should you commit a crime later in life...

Society should *reward* that kind of planning in advance!
10.27.2006 12:22pm
logicnazi (mail) (www):
Mr. T,

Alright I agree that a good deed could turn out unexpectedly to make one's life better. But if you choose to do something knowing that it is a better choice how could that possibly be a good deed? Presumably that would be the very same choice you would make merely to have the best life so what differentiates it from any other self-interested choice?

For instance suppose I go get a job or start a business in order to make money. As good capitalists we know that such acts significantly benefit society. Therefore by your logic acting to make money in the market is a good deed.

As for the argument that part of what we owe to soldiers is a reduced sentence I agree that one could reasonably hold this position. I don't in fact think this is part of the implicit bargain we make with our service members but I'm not totally sure and there is no reason why it couldn't be. However, this is a very different position from the one I am rejecting. The soldier is no longer being given leniency for good deeds but rather we are giving him a lesser sentence as part of our implicit bargain to treat military people well.

As for Pat Tillman I'm less inclined to give him hero/moral debt status than the average grunt. He was making millions of dollars per year and was quite rich. Do you really think that he was such an awesome soldier that the military was better off with him in the service rather than say with half his salary they could use to lure several people into joining up?

Tillman seems like a good guy and his decision to join the military was perfectly reasonable but it was hardly selfless devotion to the country. Selfless devotion would have asked him to give some of that money he was making to the military or otherwise use it to support US efforts. I suspect he joined the military rather than doing something with his money because it is exciting, makes him feel proud and has a certain appeal to many people.



Well there is always deterrence as well. I don't believe in retribution but I am supposing I do for this discussion.

I agree if we had a genuine moral debt to the soldier you would be correct. If this soldier had been drafted or volunteered only to find out we had reneged on our agreement to take care of him when he came back (as we did after Vietnam) then we would owe him a real moral debt. However, so long as this soldier is getting the respect and support that we implicitly promise our soldiers I don't see how we have a moral debt.
10.27.2006 1:16pm
logicnazi (mail) (www):
Let me put the argument differently.

Clearly many people here don't believe becoming a soldier is necessarily a personal sacrifice. I think they are right. For some people being a soldier is actually a very positive life experience.

Now consider first person S who is in reasonably good shape, deals well with the very masculine soldier culture, and finds the idea of combat/being a soldier a bit exciting. Compare this person C who has medical problems rendering them unfit, doesn't fit in well to masculine soldier culture, or finds the notion of being in combat very distasteful.

Clearly these differences between C and S don't make one a morally better person than the other anymore than liking cake or brownies does. Now both S and C graduate from HS in a poor area and have limited opportunities. Quite possibly S will decide the best option for him personally is to join the military as he thinks he will enjoy the experience (or at least not hate it too much) and get to go to college. Likely person C will realize that joining the military would be impossible/an awful idea for him. Thus both deciding in their own best interests S would join up and C would go try to work his way through community college.

Yet surely if their initial preferences were morally equivalent and they both acted out of self interest one of their choices can't be a good deed while the other is not. So are you at least willing to admit in this case S did not do any more good deeds than C?

If not what about the case of someone like Kerry who (I suspect) joined up as part of a political ambition? I don't think there is anything wrong with this but how could it possibly be that a machiavellian career calculation could be a good deed?
10.27.2006 1:29pm
Falafalafocus (mail):
Logicnazi states a good case. I think that the problem that I am having is that you are begining with a premise that I do not agree with (I have no idea where the other objectors stand, so I will not claim to speak for them).

You are presuming that a good deed is measured by the subjective intent of the doer. Under that premise, then your conclusion naturally follows.

However, I view such deeds through the result to society. As an analogy, I think that the the person who gives $100 to a homeless man but does so while insulting the guy is probably doing a "better" good deed than the one who kindly gives the man $10 with a word of praise (assuming of course, that we value only the cash and not the gestures. A discussion about that can probably fill books).

As a result, it may be, as you point out, that both S and C choose their career paths based on personal motives and may not even consider whether they are "helping society" or "bettering others". Nevertheless, it is entirely reasonable for society to look at S and note that S's contribution in the military was more meaningful for society than C's private career. If we look at "good deeds" from this perspective, then I see nothing at all wrong with "rewarding" the soldier.
10.27.2006 2:02pm
logicnazi (mail) (www):

Is that name based on the falafel food item?

Anyway I think that is an interesting way to approach the question but the standard you propose has some very counterintuitive consequences.

Suppose I am the scion of a rich family and inherit billions of dollars. In order to be popular I donate 10 million dollars to some worthy charity. Are you really prepared to say I have done a better dead than the middle class individual who makes great sacrifices to donate 50% of their income to charity as the net effect of my donation is better than that of the middle class individual?

More extremely does this make the crazed serial murderer who happens to get lucky and kill the next Hitler a saint?

Additionally in what way is the goodness of an act measured. Is it entirely about the net difference to society? In this case probably at least 1/10 of the soldiers who join up are doing a bad act. After all as in all things some people make better soldiers than others. I suspect that if the army had some perfect way to separate the worst 10% of soldiers and up pay a bit to replace some fraction of them it would be worth their while. Good evidence for this is the fact that the army now requires a HS diploma even though this was clearly an inexact criteria.

However, surely you don't want to say that whether joining up counts as a good deed or not is about whether you turned out to be better a positive or negative investment for the military.

Still having said this I do appreciate the intuition behind your post. Supposing the two people in your example have similar resources and the homeless guy isn't just going to drink all the money up I agree. However, I think this is still better explained in my framework.

I think the common thread in situations like you say is whether the person is really motivated by a desire to help others or just to feel good about themselves. I think all too frequently we give credit to the person who goes out of their way to sound sympathetic and show how much they care while giving short shrift to the person who isn't interested in convincing themselves of how good they are and just wants to make the world better.

I think what is wrong in your $100 example is that the person who donates the $100 and insults the guy is really willing to sacrifice more for the homeless man while the guy who gives $10 and a nice word not only gave less money but likely was more motivated by a desire to feel good about themselves than the insult donor.
10.28.2006 1:46am
I’m with logicnazi: From a behavioral economics perspective, a penal system that tends to give a particular class of people a lighter sentence for what amounts to doing their job would, for people at the margins, have the perverse effect of increasing crime rates among those people (here, relative to other people of similar stature who are not in military). This is certainly not consistent with a theory of punishment that focuses on prevention.

Moreover, from a retributive perspective, for certain classes of crimes, one could argue that military people should be held to a higher standard and receive greater punishment, especially when the crime committed is one that is anathema to military code of conduct.

There is no reason why a particular class of people should be given the benefits of mere service, without knowing the particulars of how they served. Several commenters (and Eugene) seem to be arguing: If you’re in the military and were honorably discharged, you should receive the benefit of the doubt for mere service to your profession. That’s nonsense without knowing the particulars of how an individual served, which could be used to give a lighter sentence to many people, in many professions other than the military.

There’s no necessary reason to treat military personnel who put their life in harm’s way different than firemen, policemen or FBI agents, who put their life in harms way -- except that some people here prefer to given one class of people (military) preferences over the other classes of people on the basis of group membership and mere service.
10.29.2006 3:03pm
a crime is a crime a judge should not take military service into consideration when determining a sentence. if a verteran does something wrong they should be punished the same as any other citizen who committed the crime. serving in the military does not make you special but committing a crime makes you guilty.
10.29.2006 4:55pm
Has anyone other than AnonVCFan actually read the amicus? Lett was convicted of delivering over two ounces of crack cocaine.

The judge reduced Lett’s sentence to time served and three years of supervised release. According to a comment in the linked blog, time served apparently amounted to a couple of days! The Guidelines generally recommend a minimum of 5 years for the infraction.

The amicus does not make clear whether Lott was conned into delivering drugs or knowingly aided and abetted the distribution of 2 ounces of crack cocaine (the latter seems more plausible and much worse, but both possibilities are very bad).

The amicus states that Lott was having trouble finding work after returning from the military and experienced a number of personal setbacks (family death and divorce). The storyline is that Lott’s participation in the delivery of drugs was an act of desperation, to resolve debts.

How many jobs did Lott interview for before he “delivered” 2 ounces of crack? Could he have reasonably secured a position at some place of employment (Wal Mart or McDonalds) to resolve his debts?

The presumption that Lott should be granted leniency based on his military service, without investigating the particulars of the case (re: intent to aid and abet distribution; resolve to look for and secure a job), sounds preposterous.

[Note: A comment by me (above) was targeted at Eugene and was based on the presumption that Eugene was supporting Lett. In fact, Eugene has taken no stance on the case.
10.29.2006 11:45pm