130 S.Ct. 447 (2009)
George PORTER, Jr., Petitioner,
v.
Bill McCOLLUM, Attorney General of Florida, et al.
No. 08-10537.
Supreme Court of United States.
November 30, 2009.
Linda McDermott, Wilton Manors, FL, for petitioner.
Kenneth S. Nunnelley, Daytona Beach, FL, for respondent.
PER CURIAM.
Petitioner George Porter is a veteran who was both wounded and decorated
for his active participation in two major engagements during the Korean
War; his combat service unfortunately left him a traumatized, changed
man. His commanding officer's moving description of those two battles
was only a fraction of the mitigating evidence that his counsel failed
to discover or present during the penalty phase of his trial in 1988.
In this federal postconviction proceeding, the District Court held that
Porter's lawyer's failure to adduce that evidence violated his Sixth
Amendment right to counsel and granted his application for a writ of
habeas corpus. The Court of Appeals for the Eleventh Circuit reversed,
on the ground that the Florida Supreme Court's determination that Porter
was not prejudiced by any deficient performance by his counsel was a
reasonable application of Strickland v. Washington, 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Like the District Court,
we are persuaded that it was objectively unreasonable to conclude there
was no reasonable probability the sentence would have been different
if the sentencing judge and jury had heard the significant mitigation
evidence that Porter's counsel neither uncovered nor presented. We therefore
grant the petition for certiorari in part and reverse the judgment of
the Court of Appeals. [1]
I
Porter was convicted of two counts of first-degree murder for the shooting
of his former girlfriend, Evelyn Williams, and her boyfriend Walter Burrows.
He was sentenced to death on the first count but not the second.
In July 1986, as his relationship with Williams was ending, Porter threatened
to kill her and then left town. When he returned to Florida three months
later, he attempted to see Williams but her mother told him that Williams
did not want to see him. He drove past Williams' house each of the two
days prior to the shooting, and the night before the murder he visited
Williams, who called the police. Porter then went to two cocktail lounges
and spent the night with a friend, who testified Porter was quite drunk
by 11 p.m. Early the next morning, Porter shot Williams in her house.
Burrows struggled with Porter and forced him outside where Porter shot
him.
Porter represented himself, with standby counsel, for most of the pretrial
proceedings and during the beginning of his trial. Near the completion
of the State's case in chief, Porter pleaded guilty. He thereafter changed
his mind about representing himself, and his standby counsel was appointed
as his counsel for the penalty phase. During the penalty phase, the State
attempted to prove four aggravating factors: Porter had been "previously
convicted" of another violent felony (i.e., in Williams'
case, killing Burrows, and in his case, killing Williams); [2]
the murder was committed during a burglary; the murder was committed
in a cold, calculated, and premeditated manner; and the murder was especially
heinous, atrocious, or cruel. The defense put on only one witness, Porter's
ex-wife, and read an excerpt from a deposition. The sum total of the
mitigating evidence was inconsistent testimony about Porter's behavior
when intoxicated and testimony that Porter had a good relationship with
his son. Although his lawyer told the jury that Porter "has other
handicaps that weren't apparent during the trial" and Porter was
not "mentally healthy," he did not put on any evidence related
to Porter's mental health. 3 Tr. 477-478 (Jan. 22, 1988).
The jury recommended the death sentence for both murders. The trial court
found that the State had proved all four aggravating circumstances for
the murder of Williams but that only the first two were established with
respect to Burrows' murder. The trial court found no mitigating circumstances
and imposed a death sentence for Williams' murder only. On direct appeal,
the Florida Supreme Court affirmed the sentence over the dissent of two
justices, but struck the heinous, atrocious, or cruel aggravating factor. Porter
v. State, 564 So.2d 1060 (1990) (per curiam). The court
found the State had not carried its burden on that factor because the "record
is consistent with the hypothesis that Porter's was a crime of passion,
not a crime that was meant to be deliberately and extraordinarily painful." Id., at
1063 (emphasis deleted). The two dissenting justices would have reversed
the penalty because the evidence of drunkenness, "combined with
evidence of Porter's emotionally charged, desperate, frustrated desire
to meet with his former lover, is sufficient to render the death penalty
disproportional punishment in this instance." Id., at 1065-1066
(Barkett, J., concurring in part and dissenting in part).
In 1995, Porter filed a petition for postconviction relief in state court,
claiming his penalty-phase counsel failed to investigate and present
mitigating evidence. The court conducted a 2-day evidentiary hearing,
during which Porter presented extensive mitigating evidence, all of which
was apparently unknown to his penalty-phase counsel. Unlike the evidence
presented during Porter's penalty hearing, which left the jury knowing
hardly anything about him other than the facts of his crimes, the new
evidence described his abusive childhood, his heroic military service
and the trauma he suffered because of it, his long-term substance abuse,
and his impaired mental health and mental capacity.
The depositions of his brother and sister described the abuse Porter suffered
as a child. Porter routinely witnessed his father beat his mother, one
time so severely that she had to go to the hospital and lost a child.
Porter's father was violent every weekend, and by his siblings' account,
Porter was his father's favorite target, particularly when Porter tried
to protect his mother. On one occasion, Porter's father shot at him for
coming home late, but missed and just beat Porter instead. According
to his brother, Porter attended classes for slow learners and left school
when he was 12 or 13.
To escape his horrible family life, Porter enlisted in the Army at age
17 and fought in the Korean War. His company commander, Lieutenant Colonel
Sherman Pratt, testified at Porter's postconviction hearing. Porter was
with the 2d Division, which had advanced above the 38th parallel to Kunu-ri
when it was attacked by Chinese forces. Porter suffered a gunshot wound
to the leg during the advance but was with the unit for the battle at
Kunuri. While the Eighth Army was withdrawing, the 2d Division was ordered
to hold off the Chinese advance, enabling the bulk of the Eighth Army
to live to fight another day. As Colonel Pratt described it, the unit "went
into position there in bitter cold night, terribly worn out, terribly
weary, almost like zombies because we had been in constant — for five
days we had been in constant contact with the enemy fighting our way
to the rear, little or no sleep, little or no food, literally as I say
zombies." 1 Tr. 138 (Jan. 4, 1996). The next morning, the unit engaged
in a "fierce hand-to-hand fight with the Chinese" and later
that day received permission to withdraw, making Porter's regiment the
last unit of the Eighth Army to withdraw. Id., at 139-140.
Less than three months later, Porter fought in a second battle, at Chip'yong-ni.
His regiment was cut off from the rest of the Eighth Army and defended
itself for two days and two nights under constant fire. After the enemy
broke through the perimeter and overtook defensive positions on high
ground, Porter's company was charged with retaking those positions. In
the charge up the hill, the soldiers "were under direct open fire
of the enemy forces on top of the hill. They immediately came under mortar,
artillery, machine gun, and every other kind of fire you can imagine
and they were just dropping like flies as they went along." Id., at
150. Porter's company lost all three of its platoon sergeants, and almost
all of the officers were wounded. Porter was again wounded and his company
sustained the heaviest losses of any troops in the battle, with more
than 50% casualties. Colonel Pratt testified that these battles were "very
trying, horrifying experiences," particularly for Porter's company
at Chip'yong-ni. Id., at 152. Porter's unit was awarded the
Presidential Unit Citation for the engagement at Chip'yong-ni, and Porter
individually received two Purple Hearts and the Combat Infantryman Badge,
along with other decorations.
Colonel Pratt testified that Porter went absent without leave (AWOL) for
two periods while in Korea. He explained that this was not uncommon,
as soldiers sometimes became disoriented and separated from the unit,
and that the commander had decided not to impose any punishment for the
absences. In Colonel Pratt's experience, an "awful lot of [veterans]
come back nervous wrecks. Our [veterans'] hospitals today are filled
with people mentally trying to survive the perils and hardships [of]...
the Korean War," particularly those who fought in the battles he
described. Id., at 153.
When Porter returned to the United States, he went AWOL for an extended
period of time. [3] He was sentenced to six months'
imprisonment for that infraction, but he received an honorable discharge.
After his discharge, he suffered dreadful nightmares and would attempt
to climb his bedroom walls with knives at night. [4]
Porter's family eventually removed all of the knives from the house.
According to Porter's brother, Porter developed a serious drinking problem
and began drinking so heavily that he would get into fights and not remember
them at all.
In addition to this testimony regarding his life history, Porter presented
an expert in neuropsychology, Dr. Dee, who had examined Porter and administered
a number of psychological assessments. Dr. Dee concluded that Porter
suffered from brain damage that could manifest in impulsive, violent
behavior. At the time of the crime, Dr. Dee testified, Porter was substantially
impaired in his ability to conform his conduct to the law and suffered
from an extreme mental or emotional disturbance, two statutory mitigating
circumstances, Fla. Stat. § 921.141(6). Dr. Dee also testified that Porter
had substantial difficulties with reading, writing, and memory, and that
these cognitive defects were present when he was evaluated for competency
to stand trial. 2 Tr. 227-228 (Jan. 5, 1996); see also Record 904-906.
Although the State's experts reached different conclusions regarding
the statutory mitigators, [5] each expert testified
that he could not diagnose Porter or rule out a brain abnormality. 2
Tr. 345, 382 (Jan. 5, 1996); 3 id., at 405.
The trial judge who conducted the state postconviction hearing, without
determining counsel's deficiency, held that Porter had not been prejudiced
by the failure to introduce any of that evidence. Record 1203, 1206.
He found that Porter had failed to establish any statutory mitigating
circumstances, id., at 1207, and that the nonstatutory mitigating
evidence would not have made a difference in the outcome of the case, id., at
1210. He discounted the evidence of Porter's alcohol abuse because it
was inconsistent and discounted the evidence of Porter's abusive childhood
because he was 54 years old at the time of the trial. He also concluded
that Porter's periods of being AWOL would have reduced the impact of
Porter's military service to "inconsequential proportions." Id., at
1212. Finally, he held that even considering all three categories of
evidence together, the "trial judge and jury still would have imposed
death." Id., at 1214.
The Florida Supreme Court affirmed. It first accepted the trial court's
finding that Porter could not have established any statutory mitigating
circumstances, based on the trial court's acceptance of the State's experts'
conclusions in that regard. Porter v. State, 788 So.2d 917,
923 (2001) (per curiam). It then held the trial court was correct
to find "the additional nonstatutory mitigation to be lacking in
weight because of the specific facts presented." Id., at
925. Like the postconviction court, the Florida Supreme Court reserved
judgment regarding counsel's deficiency. Ibid. [6]
Two justices dissented, reasoning that counsel's failure to investigate
and present mitigating evidence was "especially harmful" because
of the divided vote affirming the sentence on direct appeal — "even
without the substantial mitigation that we now know existed"—and
because of the reversal of the heinous, atrocious, and cruel aggravating
factor. Id., at 937 (Anstead, J., concurring in part and dissenting
in part).
Porter thereafter filed his federal habeas petition. The District Court
held Porter's penalty-phase counsel had been ineffective. It first determined
that counsel's performance had been deficient because "penalty-phase
counsel did little, if any investigation ... and failed to effectively
advocate on behalf of his client before the jury." Porter v.
Crosby, No. 6:03-cv-1465-Orl-31KRS, 2007 WL 1747316, *23 (M.D.Fla.,
June 18, 2007). It then determined that counsel's deficient performance
was prejudicial, finding that the state court's decision was contrary
to clearly established law in part because the state court failed to
consider the entirety of the evidence when reweighing the evidence in
mitigation, including the trial evidence suggesting that "this was
a crime of passion, that [Porter] was drinking heavily just hours before
the murders, or that [Porter] had a good relationship with his son." Id., at
*30.
The Eleventh Circuit reversed. It held the District Court had failed to
appropriately defer to the state court's factual findings with respect
to Porter's alcohol abuse and his mental health. 552 F.3d 1260, 1274,
1275 (2008) (per curiam). The Court of Appeals then separately
considered each category of mitigating evidence and held it was not unreasonable
for the state court to discount each category as it did. Id., at
1274. Porter petitioned for a writ of certiorari. We grant the petition
and reverse with respect to the Court of Appeals' disposition of Porter's
ineffective-assistance claim.
II
To prevail under Strickland, Porter must show that his counsel's
deficient performance prejudiced him. To establish deficiency, Porter
must show his "counsel's representation fell below an objective
standard of reasonableness." 466 U.S., at 688, 104 S.Ct. 2052. To
establish prejudice, he "must show that there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the proceeding
would have been different." Id., at 694, 104 S.Ct. 2052.
Finally, Porter is entitled to relief only if the state court's rejection
of his claim of ineffective assistance of counsel was "contrary
to, or involved an unreasonable application of "Strickland, or
it rested "on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding." 28 U.S.C.
§ 2254(d).
Because the state court did not decide whether Porter's counsel was deficient,
we review this element of Porter's Strickland claim de novo.
Rompilla v. Beard, 545 U.S. 374, 390, 125 S.Ct. 2456, 162 L.Ed.2d
360 (2005). It is unquestioned that under the prevailing professional
norms at the time of Porter's trial, counsel had an "obligation
to conduct a thorough investigation of the defendant's background." Williams
v. Taylor, 529 U.S. 362, 396, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).
The investigation conducted by Porter's counsel clearly did not satisfy
those norms.
Although Porter had initially elected to represent himself, his standby
counsel became his counsel for the penalty phase a little over a month
prior to the sentencing proceeding before the jury. It was the first
time this lawyer had represented a defendant during a penalty-phase proceeding.
At the postconviction hearing, he testified that he had only one short
meeting with Porter regarding the penalty phase. He did not obtain any
of Porter's school, medical, or military service records or interview
any members of Porter's family. In Wiggins v. Smith, 539 U.S.
510, 524, 525, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), we held counsel "fell
short of ... professional standards" for not expanding their investigation
beyond the presentence investigation report and one set of records they
obtained, particularly "in light of what counsel actually discovered" in
the records. Here, counsel did not even take the first step of interviewing
witnesses or requesting records. Cf. Bobby v. Van Hook, ___
U.S. ___, ___, 130 S.Ct. 13, 18-19, ___ L.Ed.2d ___ (2009) (holding performance
not deficient when counsel gathered a substantial amount of information
and then made a reasonable decision not to pursue additional sources); Strickland, 466
U.S., at 699, 104 S.Ct. 2052 ("[Counsel's] decision not to seek
more character or psychological evidence than was already in hand was
... reasonable"). Beyond that, like the counsel in Wiggins, he
ignored pertinent avenues for investigation of which he should have been
aware. The court-ordered competency evaluations, for example, collectively
reported Porter's very few years of regular school, his military service
and wounds sustained in combat, and his father's "over-disciplin[e]." Record
902-906. As an explanation, counsel described Porter as fatalistic and
uncooperative. But he acknowledged that although Porter instructed him
not to speak with Porter's ex-wife or son, Porter did not give him any
other instructions limiting the witnesses he could interview.
Counsel thus failed to uncover and present any evidence of Porter's mental
health or mental impairment, his family background, or his military service.
The decision not to investigate did not reflect reasonable professional
judgment. Wiggins, supra, at 534, 123 S.Ct. 2527. Porter may
have been fatalistic or uncooperative, but that does not obviate the
need for defense counsel to conduct some sort of mitigation
investigation. See Rompilla, supra, at 381-382, 125 S.Ct. 2456.
III
Because we find Porter's counsel deficient, we must determine whether
the Florida Supreme Court unreasonably applied Strickland in
holding Porter was not prejudiced by that deficiency. Under Strickland, a
defendant is prejudiced by his counsel's deficient performance if "there
is a reasonable probability that, but for counsel's unprofessional errors,
the result of the proceeding would have been different." 466 U.S.,
at 694, 104 S.Ct. 2052. In Florida, the sentencing judge makes the determination
as to the existence and weight of aggravating and mitigating circumstances
and the punishment, Fla. Stat. § 921.141(3), but he must give the jury
verdict of life or death "great weight," Tedder v. State, 322
So.2d 908, 910 (Fla.1975) (per curiam). Porter must show that
but for his counsel's deficiency, there is a reasonable probability he
would have received a different sentence. To assess that probability,
we consider "the totality of the available mitigation evidence—both
that adduced at trial, and the evidence adduced in the habeas proceeding" —and "reweig[h]
it against the evidence in aggravation." Williams, supra, at
397-398, 120 S.Ct. 1495.
This is not a case in which the new evidence "would barely have altered
the sentencing profile presented to the sentencing judge." Strickland,
supra, at 700, 104 S.Ct. 2052. The judge and jury at Porter's original
sentencing heard almost nothing that would humanize Porter or allow them
to accurately gauge his moral culpability. They learned about Porter's
turbulent relationship with Williams, his crimes, and almost nothing
else. Had Porter's counsel been effective, the judge and jury would have
learned of the "kind of troubled history we have declared relevant
to assessing a defendant's moral culpability." Wiggins, supra, at
535, 123 S.Ct. 2527. They would have heard about (1) Porter's heroic
military service in two of the most critical—and horrific—battles of
the Korean War, (2) his struggles to regain normality upon his return
from war, (3) his childhood history of physical abuse, and (4) his brain
abnormality, difficulty reading and writing, and limited schooling. See Penry
v. Lynaugh, 492 U.S. 302, 319, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989)
("`[E]vidence about the defendant's background and character is
relevant because of the belief, long held by this society, that defendants
who commit criminal acts that are attributable to a disadvantaged background
... may be less culpable'"). Instead, they heard absolutely none
of that evidence, evidence which "might well have influenced the
jury's appraisal of [Porter's] moral culpability." Williams, 529
U.S., at 398, 120 S.Ct. 1495.
On the other side of the ledger, the weight of evidence in aggravation
is not as substantial as the sentencing judge thought. As noted, the
sentencing judge accepted the jury's recommendation of a death sentence
for the murder of Williams but rejected the jury's death-sentence recommendation
for the murder of Burrows. The sentencing judge believed that there were
four aggravating circumstances related to the Williams murder but only
two for the Burrows murder. Accordingly, the judge must have reasoned
that the two aggravating circumstances that were present in both cases
were insufficient to warrant a death sentence but that the two additional
aggravating circumstances present with respect to the Williams murder
were sufficient to tip the balance in favor of a death sentence. But
the Florida Supreme Court rejected one of these additional aggravating
circumstances, i.e., that Williams' murder was especially heinous,
atrocious, or cruel, finding the murder "consistent with ... a crime
of passion" even though premeditated to a heightened degree. 564
So.2d, at 1063-1064. Had the judge and jury been able to place Porter's
life history "on the mitigating side of the scale," and appropriately
reduced the ballast on the aggravating side of the scale, there is clearly
a reasonable probability that the advisory jury—and the sentencing judge—"would
have struck a different balance," Wiggins, 539 U.S., at
537, 123 S.Ct. 2527, and it is unreasonable to conclude otherwise.
The Florida Supreme Court's decision that Porter was not prejudiced by
his counsel's failure to conduct a thorough—or even cursory—investigation
is unreasonable. The Florida Supreme Court either did not consider or
unreasonably discounted the mitigation evidence adduced in the postconviction
hearing. Under Florida law, mental health evidence that does not rise
to the level of establishing a statutory mitigating circumstance may
nonetheless be considered by the sentencing judge and jury as mitigating.
See, e.g., Hoskins v. State, 965 So.2d 1, 17-18 (Fla.2007) (per
curiam). Indeed, the Constitution requires that "the sentencer
in capital cases must be permitted to consider any relevant mitigating
factor." Eddings v. Oklahoma, 455 U.S. 104, 112, 102 S.Ct.
869, 71 L.Ed.2d 1 (1982). Yet neither the postconviction trial court
nor the Florida Supreme Court gave any consideration for the purpose
of nonstatutory mitigation to Dr. Dee's testimony regarding the existence
of a brain abnormality and cognitive defects. [7] While
the State's experts identified perceived problems with the tests that
Dr. Dee used and the conclusions that he drew from them, it was not reasonable
to discount entirely the effect that his testimony might have had on
the jury or the sentencing judge.
Furthermore, the Florida Supreme Court, following the state postconviction
court, unreasonably discounted the evidence of Porter's childhood abuse
and military service. It is unreasonable to discount to irrelevance the
evidence of Porter's abusive childhood, especially when that kind of
history may have particular salience for a jury evaluating Porter's behavior
in his relationship with Williams. It is also unreasonable to conclude
that Porter's military service would be reduced to "inconsequential
proportions," 788 So.2d, at 925, simply because the jury would also
have learned that Porter went AWOL on more than one occasion. 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
as Porter did. [8] Moreover, the relevance of Porter's
extensive combat experience is not only that he served honorably under
extreme hardship and gruesome conditions, but also that the jury might
find mitigating the intense stress and mental and emotional toll that
combat took on Porter. [9] The evidence that he was
AWOL is consistent with this theory of mitigation and does not impeach
or diminish the evidence of his service. To conclude otherwise reflects
a failure to engage with what Porter actually went through in Korea.
As the two dissenting justices in the Florida Supreme Court reasoned, "there
exists too much mitigating evidence that was not presented to now be
ignored." Id., at 937 (Anstead, J., concurring in part
and dissenting in part). Although the burden is on petitioner to show
he was prejudiced by his counsel's deficiency, the Florida Supreme Court's
conclusion that Porter failed to meet this burden was an unreasonable
application of our clearly established law. We do not require a defendant
to show "that counsel's deficient conduct more likely than not altered
the outcome" of his penalty proceeding, but rather that he establish "a
probability sufficient to undermine confidence in [that] outcome." Strickland, 466
U.S., at 693-694, 104 S.Ct. 2052. This Porter has done.
The petition for certiorari is granted in part, and the motion for leave
to proceed in forma pauperis is granted. The judgment of the
Court of Appeals is reversed, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
-
We deny the petition insofar as it challenges
his conviction.
-
It is an aggravating factor under Florida
law that "[t]he defendant was previously convicted of another
capital felony or of a felony involving the use or threat of violence
to the person." Fla. Stat. § 921.141(5)(b) (1987). In Porter's
case, the State established that factor by reference to Porter's
contemporaneous convictions stemming from the same episode: two counts
of murder and one count of aggravated assault. Tr. 5 (Mar. 4, 1988).
-
Porter explained to one of the doctors who
examined him for competency to stand trial that he went AWOL in order
to spend time with his son. Record 904.
-
Porter's expert testified that these symptoms
would "easily" warrant a diagnosis of posttraumatic stress
disorder (PTSD). 2 Tr. 233 (Jan. 5, 1996). PTSD is not uncommon among
veterans returning from combat. See Hearing on Fiscal Year 2010 Budget
for Veterans' Programs before the Senate Committee on Veterans' Affairs,
111th Cong., 1st Sess., 63 (2009) (uncorrected copy) (testimony of
Eric K. Shinseki, Secretary of Veterans Affairs (VA), reporting that
approximately 23 percent of the Iraq and Afghanistan war veterans
seeking treatment at a VA medical facility had been preliminarily
diagnosed with PTSD).
-
The State presented two experts, Dr. Riebsame
and Dr. Kirkland. Neither of the State's experts had examined Porter,
but each testified that based upon their review of the record, Porter
met neither statutory mitigating circumstance.
-
The postconviction court stated defense counsel "was
not ineffective for failing to pursue mental health evaluations and
... [Porter] has thus failed to show sufficient evidence that any
statutory mitigators could have been presented." Record 1210.
It is not at all clear whether this stray comment addressed counsel's
deficiency. If it did, then it was at most dicta, because the court
expressly "decline[d] to make a determination regarding whether
or not Defense Counsel was in fact deficient here." Id., at
1206. The Florida Supreme Court simply paraphrased the postconviction
court when it stated "trial counsel's decision not to pursue
mental evaluations did not exceed the bounds for competent counsel." Porter
v. State, 788 So.2d 917, 923-924 (2001) (per curiam). But
that court also expressly declined to answer the question of deficiency. Id., at
925.
-
The Florida Supreme Court acknowledged that
Porter had presented evidence of "statutory and nonstatutory
mental mitigation," 788 So.2d, at 921, but it did not consider
Porter's mental health evidence in its discussion of nonstatutory
mitigating evidence, id., at 924.
-
See Abbott, The Civil War and the Crime Wave
of 1865-70, 1 Soc. Serv. Rev. 212, 232-234 (1927) (discussing the
movement to pardon or parole prisoners who were veterans of the Civil
War); Rosenbaum, The Relationship Between War and Crime in the United
States, 30 J.Crim. L. & C. 722, 733-734 (1940) (describing a
1922 study by the Wisconsin Board of Control that discussed the number
of veterans imprisoned in the State and considered "the greater
leniency that may be shown to ex-service men in court").
-
Cf. Cal.Penal Code Ann. § 1170.9(a) (West
Supp.2009) (providing a special hearing for a person convicted of
a crime "who alleges that he or she committed the offense as
a result of post-traumatic stress disorder, substance abuse, or psychological
problems stemming from service in a combat theater in the United
States military"); Minn.Stat. § 609.115, Subd. 10 (2008) (providing
for a special process at sentencing if the defendant is a veteran
and has been diagnosed as having a mental illness by a qualified
psychiatrist).