Friday, December 04, 2009

A new type of affirmative action for veterans?

Sandy Levinson

The most important "affirmative action" program in American history was the GI Bill of Rights, a thoroughly defensible program in which a grateful nation justifiably made it possible for millions of veterans to attend colleges and universities after World War II and to transform the nation as a result. Perhaps there was so much support for the program because most veterans were draftees. Today, of course, we have a "voluntary army," and I suspect that for all of the public rhetoric about "our heroes," there is insufficient support to provide them with sufficient contemporary forms of benefits because of a belief that, after all, they knew what they were in for when they signed up. I think this is a mistake, not least because I suspect that the "voluntary army" is composed disproportionately of youngsters who do not have better economic prospects, especially if, as I assume is the case, the immediate post-Sept. 11 spate of patriotism has diminished in the face of two wars, one of them indefensible from the outset, the other only barely defensible (if that) as we enter its ninth year. But this post isn't intended to promote a debate about Afghanistan or the wisdom of President Obama's decision to escalate the war there.

Rather, it appears that there is a new form of affirmative action for a certain subset of veterans, courtesy of the United States Supreme Court. The Court in effect seems to have declared that veterans should get special legal solicitude when they are sentenced to death for committing brutal murders. As Linda Greenhouse points out in a remarkable post on the New York Times blog site, titled "Selective Empathy," the Court, in an unsigned per curiam opinion issued without a moment of oral argument, said that it was obviously ineffective assistance of counsel to fail to point out to a jury that the murderer had been in the Korean War 38 years before and had gone through some really horrific events then that, apparently, traumatized him sufficiently thereafter to make it more understandable that he would become a brutal murderer. Indeed, the Court apparently sketched its own version of the argument the lawyer should have made, "with," according to Greenhouse, "a vivid recitation of the battles Mr. Porter’s unit had fought 'under extreme hardship and gruesome conditions.'”

She compares the unanimous verdict in this case with a similar case, also unanimous, in which the Court "also per curiam and also unanimously, sent chills down the spine of death-penalty opponents by overturning a different federal appeals court’s grant of habeas corpus to an Ohio death-row inmate who also claimed ineffective assistance of counsel. The inmate, Robert J. Van Hook, robbed and murdered a man he picked up in a gay bar. He is also a military veteran, but one whose service was terminated because of alcohol and drug abuse." There the Court held that the failure of his lawyer to present a host of potentially mitigating evidence about his abusive childhood was well within the range of professional responsibility, regardless of the views of the courts below. So that poor wretch will die, perhaps (if one favors the death penalty) justifiably. But the problem, of course, is trying to explain why the other poor wretch receives mercy from the Court save for its solicitude for veterans.

Perhaps the Court was being less causal in its analysis, with regard to the consequences of having served in Korea, and simply was sugggesting that a jury would of course wish to spare the life of a veteran as a gesture of appreciation even if they would fail to do so in the case of another murderer who hadn't served in the armed forces. After all, the per curiam opinion noted that “our nation has a long tradition of according leniency to veterans in recognition of their service, especially for those who fought on the front lines.” So, query: Would it be constitutional for a state simply to exempt any and all honorably discharged veterans--or at last those "who fought on the front lines"--from the possibility of receiving the death penalty, while keeping that possibility open for all the rest of us who did not serve in the armed forces (or served but received less than honorable discharges)? If not, then is the point that we rely on low-visibility and unaccountable juries, with the imprimatur of the United States Supreme Court, to administer such an affirmative action program? I leave open that perhaps the answer to my question is yes, since the Court upheld permanent veterans' preferences for civil service jobs money years ago in spite of the evidence that men were the overwhelming beneficiaries inasmuch as women had had very little opportunity to serve in the armed forces until quite recently. And the Court also upheld the right of Congress to treat veterans' groups uniquely by exempting contributions to them from certain tax treatment even if similar contributionsn to other groups engaging in similar lobbying would make it impossible for the contributor to deduct the contribution as a charitable contribution. So perhaps the next step is indeed to exempt veterans from the death penalty. That's cheaper, after all, than making sure that our veterans enjoy jobs and a full measure of food, clothing, and shelter on their return to civilian life.

In any event, I am delighted to have the opportunity, yet once more, to read Linda Greenhouse's observations on the work product of that most peculiar of all American institutions, the United States Supreme Court.


I don't know. The use of per curiams this term seems a bit strange overall. Not only this case helped the defense though.

Also, I asked a defense attorney, and death penalty opponent, about the first case. No fan of the Roberts Court. She thought the ruling fair with the proviso that this relies on trusting the facts supplied, no sure thing.

Only one opinion, sure, but I have no desire to deeply investigate each case here. But, the NYT article on the second one notes the person defended himself then pled guilty. Further:

He turned to a court-appointed lawyer, Sam Bardwell, to represent him in the sentencing hearing. Mr. Bardwell, who had never represented a defendant in a capital sentencing proceeding, did not interview any of his client’s relatives and did not obtain any school, medical or military service records. He presented only one witness, Mr. Porter’s ex-wife.

So, maybe the two cases are different? After all, apparently, just being a vet isn't enough.

The SC has over the years provided a very open-ended right to provide mitigating evidence in death penalty cases. The judge and jury has the power to be quite arbitrary when hearing such evidence. So, I'm not sure what alternative there is. Not offer it?

Anyway, Prof. Levinson has a collection of essays about affirmative action, so I welcome his insights on this area.

The defendant in the second case "is also a military veteran, but one whose service was terminated because of alcohol and drug abuse." Maybe he "abused" alcohol and drugs to help him cope with the stress of combat or with post-traumatic stress disorder arising from combat. Or maybe he did so to help him cope with the stress of hiding his sexual orientation (I am assuming, because he picked up his victim in a gay bar, that he himself was gay). I am not addressing the merits of affirmative action for veterans; I am merely suggesting the possibility that this defendant might have been as entitled to it as the other defendant.

It is difficult to know what the Court was thinking in these two cases (both unanimous, I believe).

But that is exactly what is troubling: we have no clear idea of the grounds on which either [sufficiently] ineffective counsel or special standing [being a vet who served in action] were significant in one case and not the other.

It does seem likely that the Court believed a jury would have been moved by the background of service in the one case and not in the other. But, why? Is this really rule by law?

Greenhouse is as weak a Supreme Court reporter as she always used to be. The difference between the two cases is that the Supreme Court found that the Sixth Circuit opinion in the Van Hook case was factually wrong, that his defense counsel had presented all the evidence the Sixth Circuit claimed he hadn't, and that contrary to the Sixth Circuit's opinion he hadn't waited until the last minute to begin mitigation preparations.

There's a big difference between not presenting (alleged) mitigation evidence at all (Porter) and simply not presenting cumulative mitigating evidence.

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