Military Service as a Mitigating Factor

Over the weekend we observed Veterans Day. Thank you to all who have served. [Editor's note: Jamie is himself an Air Force veteran, as he mentions below, so thanks to him for his prior service in addition to his current outstanding work.] The holiday calls to mind the sentencing mitigating factor set out in G.S. 15A-1340.16(e)(14), that the defendant has been honorably discharged from the Armed Forces of the United States. There are very few cases discussing the factor. It seems that one of the few things the court can do wrong with respect to it is to refuse to consider evidence of it altogether. See State v. Hanes, 77 N.C. App. 222 (1985) (remanding for resentencing when the trial judge refused to consider oral testimony about the defendant’s military service without documentary proof of his honorable discharge). The statutory mitigating factor refers only to defendants who have been honorably discharged, but current service, either on active duty or as a reservist or member of the National Guard, could probably be the basis for a non-statutory mitigating factor under G.S. 15A-1340.16(e)(21). Military service occupies a special place in the minds of many judges. That unique status has been validated all the way to the Supreme Court. In Porter v. McCollum, 558 U.S. 30 (2009), the Court held that a decorated Korean War veteran’s lawyer was ineffective in failing to present any evidence about the defendant’s military service during the penalty phase of his murder trial. The Court described Porter’s military service [...]