Does combat deserve clemency? Florida to execute fourth veteran this year

(NewsNation) — Florida is set to execute its fourth veteran on death row this year as the state leads the nation in the execution of former service members despite outcries from advocates that combat-related mental illness warrants clemency. 

More than 130 veterans have pleaded with Florida Gov. Ron DeSantis to halt the Tuesday execution of Kayle Bates, who is on death row for the 1982 murder of Janet White. 

Bates’ attorneys say he was mentally ill at the time of the murder and that his “organic brain damage” was not considered during the appeal process. Prosecutors said any mental health defenses were time-barred. 

He had served with the National Guard and never returned the same, they wrote in an appeal brief. His wife at the time said Bates had “nightmares” and was "distant” and “withdrawn” after his return from the 1980 Miami riots, saying he was “out of it,” court papers stated. 

In a statement to NewsNation, Gov. DeSantis’ office said, “Kayle Bates is being executed after receiving the death penalty for murder, sexual battery, kidnapping, and robbery. His sentence has nothing to do with his status as a veteran.”

The Florida inmate will be the sixth veteran to be put to death nationwide this year, according to the Death Penalty Information Center. Two more veterans are slated to be executed before the end of the year in Tennessee and Texas, the group said. 

Robin Maher of the Death Penalty Information Center told NewsNation that Bates is part of a larger issue of veterans being given the death penalty despite mitigating factors, including combat-related mental “scars” that can affect judgment and the ability to conform behavior to the law. 

Some advocates say there needs to be a categorical exclusion for veterans with combat-related mental injuries, similar to the existing ones that exempt minors and people with intellectual disabilities, for the death penalty. 

“It's not a ‘get out of jail free card’ in the case of capital convictions; it's life without parole,” Art Cody, a retired captain in the U.S. Navy and director of the Center for Veteran Criminal Advocacy, said. 

“Extreme punishment is supposed to be reserved for the worst of the worst, and these people are not the worst of the worst. In fact, for a significant portion of their time and in service, they were the best of the best.”

Veterans make up 10% of death row inmates: Report 

Three hundred people, or about 10% of all death row inmates in the nation, are veterans, according to a 2015 report by the Death Penalty Information Center. Maher noted that the number is higher based on preliminary data in a forthcoming updated report. 

Maher called the figure “alarming,” as veterans make up about 5% of the national population. 

Cody, who is also an attorney, said veterans are overrepresented on death row because they statistically have certain higher characteristics than the civilian population, such as combat-driven post-traumatic stress. 

“Not every single combat veteran is going to come back to commit violent crime; however, it's inescapable that their exposure to the kinetics is going to make the probability of them committing a violent crime greater because it makes the probability of them being affected by mental health issues greater,” Cody said.  

The vast majority of troops coming into service have no criminal records, Cody said, but what they undergo after their deployment makes them different. 

Veterans more likely to deal with mental health illnesses and brain injuries 

Military veterans are more likely to deal with mental health conditions like post-traumatic stress disorder, depression and traumatic brain injury than nonveterans, data shows. 

The gurney in the execution chamber at the Oklahoma State Penitentiary in McAlester, Okla., on Oct. 9, 2014. (AP Photo/Sue Ogrocki, File)

Twenty-three percent of veterans using Veterans’ Administration health care have had PTSD at some point in their lives, according to the VA. A 2014 study found that 1 in 4 veterans meet the diagnostic criteria for a mental health issue, with 1 in 10 struggling with multiple conditions.

But these numbers are likely underreported, Dr. Stephen Xenakis, a retired brigadier general and former senior adviser to the Department of Defense on neurobehavioral conditions and medical management, said. 

Veterans “really suffer a particular set of problems that all pile up on them as they are in action as well as when they return home. It’s this cumulative effect,” he said. “Their impulse control is impaired. They can't suppress their emotions. They're overwhelmed by emotions and tensions. Their lives are falling apart at times … and they just lose it, and sometimes they don't even know that they've done these acts.” 

Because of stigma regarding mental health, it’s likely many are untreated, he added. 

These soldiers have been told to be strong and not show weakness, so it's no surprise that lots of times they come back and don't tell us what their problems are, he said. 

“These men and women have suffered injuries to parts of the brain. It's much like we see with the football players and the athletes, and unfortunately, many times the evidence of that only comes after they've died and we're able to do autopsies on their brain,” Xenakis said.

Mental health has been a mitigating factor for veterans convicted of crimes 

Several vet­er­ans have gotten legal relief in death penal­ty cas­es or have had the death penal­ty tak­en off the table in part due to their mil­i­tary ser­vice. 

In 2009, the Supreme Court over­turned the death sen­tence of George Porter, a Korean War vet­er­an from Florida who had been con­vict­ed of mur­der in 1988. 

The court found that Porter’s tri­al lawyer failed to inves­ti­gate and present ample mit­i­gat­ing evi­dence, includ­ing the fact that Porter’s bat­tle ser­vice in the war left him severe­ly trau­ma­tized. 

They wrote in their ruling that ​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.”

It also 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 as Porter did.” 

Lance Corporal Brady Zipoy was found not guilty by rea­son of men­tal ill­ness in 2021 for break­ing into a home and fatal­ly shoot­ing a stranger dur­ing a psy­chot­ic episode, with the court con­sid­er­ing his mil­i­tary ser­vice in the decision, according to the Death Penalty Information Center.

In 2023, Vietnam veteran Frederick Hopkins was sen­tenced to life with­out parole after plead­ing guilty to the mur­der of two police offi­cers. Hopkins had received medals for marks­man­ship dur­ing his ser­vice before he was med­ical­ly dis­charged in 1977. He had seen doc­tors many times over the years with symp­toms of PTSD, and one said he showed ear­ly signs of demen­tia before the killings, according to the Death Penalty Information Center. Victims’ fam­i­lies and sur­vivors of the shoot­ing sup­port­ed a life sen­tence. 

Increased awareness around the veteran experience has helped attorneys present the full picture to juries, but it still isn’t widespread and rarely helps those who were convicted before, Maher said. 

“Many good lawyers work with military veterans who can help them tell that story in a way that is important to them that makes sense to a jury, but not all criminal defendants are lucky enough to get good lawyers so we see too many cases where this part of their life, this really important experience they had in the military, is really not adequately conveyed to the jury,” he said. 

Lawyers have gotten better at presenting these factors, Maher said, but there are people who were convicted and sentenced to death decades ago at a time when the standard of care and the quality of practice did not include that kind of skill.