WWAY INVESTIGATION: How military service affects criminal sentencing

WILMINGTON, NC (WWAY) — They serve our country honorably and you’ll probably agree that veterans deserve some special treatment when they come home. But should that extend to the judicial system?

Turns out North Carolina law gives veterans a break if they’re convicted of a crime.

We started looking into the issue back in November when a 70-year-old used his time spent in the service as a mitigating factor for a more lenient sentence. That man, Clyde Way, was sentenced to just 58 days in jail, but he did not have to serve it all at once.

That case was not an anomaly. So we set out to look at how our veterans are treated in court.

If you’ve seen the video it’s hard to forget, Marine Sergeant Adam Kinosh brutally attacking a Surf City cab driver back in 2013. After pleading guilty to assault inflicting serious injury, Kinosh was sentenced to five years probation. His military service and subsequent post traumatic stress disorder were used as a mitigating factor.

North Carolina General Statute 15A-1340.16 is the law that allows the defense to consider a veteran’s honorable discharge when discussing sentencing in open court.

“If someone has some traumatic experience or catastrophic stress that would lead to a symptom such as PTSD, it would be helpful to a judge in sentencing in terms of what treatment might be available or in terms of the length of an active sentence,” Brunswick County Resident Superior Court Judge Ola Lewis said.

But when should service come into play in a court of law?

“I think it’s appropriate in any charge where a person accused of a crime has served honorably in our armed services,” Lewis said.

That could mean anything from traffic violations to violent crimes.

For District Attorney Ben David, it has to have relevance.

“I think in terms of which cases you primarily see, if in a couple of really big contexts. One is drug offenses. You know, possession cases. It usually starts out with prescription drugs for things like pain, and then it graduates into other harder substances, for instance heroin, cocaine, things like that. The other thing that we see is sometimes because of the post traumatic stress, it shows up with domestic violence situations with issues involving their spouses, their girlfriends, things like that,” David said.

But as Judge Lewis explained, military service does not single-handedly influence a ruling.

“Both the aggravating factors and mitigating factors are merely tools of the trade,” Lewis said.

Things like the severity of the crime and prior criminal records also influence a sentence.

“I think there is an increased awareness that we have more veterans coming through the system,” Lewis said.

But the question remains, should honorable military service have any influence on criminal punishments?

David said veterans are not the only people who sometimes receive consideration based on factors not involved with a crime.

“We do that with young children committing offenses. We do that with older folks who might be experiencing a whole different type of challenge because of, for instance, dementia or senility,” David said.

He said it’s not special treatment.

“Along the whole continuum of people coming through the criminal justice system, it’s important to treat everyone consistently. That is with equal protection and fairness, but you also have to look at the unique facts of each case,” David said.

Judge Lewis insists this is not a free pass for service men and women to break the law.

“It is certainly not a get out of jail free card for members who served honorably in our armed services, protecting our freedoms,” said Lewis.

So how do veterans feel about this defense. We sat down with John Byrnes. Byrnes served in Somalia with the Marine Corps., in Afghanistan and Iraq with the Army National Guard, and was even deployed to Ground Zero on September 11, 2001.

“Well, you know, I don’t think veterans deserve because they have the ‘V’ after their name any particular treatment,” Byrnes said.

Byrnes remains active in the military community today through organizations like the American Legion, VFW, and Concerned Veterans for America to name a few.

He said military service as a mitigating factor is really a symptom of a much larger problem.

“I personally see the whole veterans leniency issue in light of a major need for criminal justice reform in our country and our state overall,” Byrnes said.

Byrnes is not denying that veterans can have circumstances that are different from someone who has not served, but being a veteran and PTSD are not mutually exclusive.

“Every rape victim, every victim of sexual abuse or child abuse, many law enforcement officers all have post traumatic stress,” Byrnes said.

Byrnes said veteran’s courts are a possible way to start to reform the entire criminal justice system, but he said vets should not be singled out for long term special treatment. He said there are plenty of people, veterans and civilians alike, who would benefit from therapy rather than incarceration.

Byrnes, David and Lewis agree that the goal of any legal punishment is to prevent the criminal from repeating the offense.

What do you think? Leave your comments below.