Military Veterans, Culpability, and Blame

Youngjae Lee

Fordham University School of Law

December 19, 2012

Criminal Law and Philosophy, 2013, Forthcoming
Fordham Law Legal Studies Research Paper No. 2191880

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.

Number of Pages in PDF File: 21

Keywords: veterans, culpability, posttraumatic stress disorder, PTSD, mitigation, punishment, retribution, blame, military, just and unjust war, war crimes

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Date posted: December 20, 2012  

Suggested Citation

Lee, Youngjae, Military Veterans, Culpability, and Blame (December 19, 2012). Criminal Law and Philosophy, 2013, Forthcoming; Fordham Law Legal Studies Research Paper No. 2191880. Available at SSRN: http://ssrn.com/abstract=2191880

Contact Information

Youngjae Lee (Contact Author)
Fordham University School of Law ( email )
140 West 62nd Street
New York, NY 10023
United States
212-636-7662 (Phone)
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