In the federal and state criminal justice systems, “the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence.” Through the provisions of the Uniform Code of Military Justice (UCMJ), Congress has indicated that the military shares that goal. To achieve it, Congress has concluded that the military justice system, to the extent possible, should resemble its civilian counterparts. Recognizing the safeguards afforded a servicemember-defendant by that homologized structure, the Supreme Court of the United States has upheld the constitutionality of the military system against challenges that it fails to guarantee a servicemember fundamental fairness at trial and on appellate review of a court-martial’s judgment.
Nonetheless, in important respects, the military is and always will be a “specialized society separate from civilian society.” The armed forces have the ongoing duty to remain vigilant to protect the nation’s security. To carry out that mission, the military has a surpassing need for discipline and readiness, an urgent and unstinting demand without parallel in the civilian community. The military justice system plays a critical role in helping commanders ensure that their soldiers, sailors, airmen, and marines can fulfill their complementary assignments without sacrificing a servicemember’s right to a fair trial.
The Framers were well aware of those twin needs, having just fought a war to win their independence from a government that, among other things, had threatened to deprive the Colonists of their historic rights under the common law when charged with a crime. To maintain the nation’s newly won liberties, the Framers vested in Congress and the President not only the authority to raise and maintain land and naval forces that would be adequate to the nation’s defense, but also the power to ensure that the military justice system would serve the goals of accuracy and fundamental fairness, provided by the federal and state criminal justice systems to civilians, without sacrificing the military’s unique needs.
The Continental Congress wasted no time in completing its assignment and created the military justice system during the nation’s earliest days. Since then, Congress and the President of the United States have continued to review and revise the operation of that system as needed. For more than 235 years, in fact, Congress and the President have improved the military justice system to ensure that it can separate the guilty from the innocent while maintaining the discipline and readiness necessary for the armed forces to serve their fundamental role as the nation’s shield against foreign adversaries.
Three years ago, the Chairman of the Joint Chiefs of Staff recommended that the Secretary of Defense establish a working group to conduct a comprehensive review of the effectiveness of the military justice system and to recommend any necessary revisions. At the direction of the Secretary of Defense, the Department of Defense General Counsel established the Military Justice Review Group (MJRG) for that purpose. Late in December 2015, the MJRG submitted its report with recommendations for amendments to the Uniform Code of Military Justice (UCMJ), the Manual for Courts-Martial, and the implementing regulations adopted by the individual services. Those proposals would constitute the next series of upgrades in the continued professionalization of the military justice system. The suggested revisions would continue the trajectory that has been in place since the nation’s earliest days.
Development of the Military Justice System
The American military justice system traces its lineage to the American Articles of War of 1775. Enacted by the Continental Congress shortly after the battles at Lexington and Concord in April of that year, the articles were based on recommendations from then-Commander in Chief of the Army George Washington and focused on the peculiar needs of the armed forces.
The crimes for which servicemembers could be prosecuted focused on unique military offenses, such as desertion, cowardice before the enemy, displaying disrespect for a superior officer, and sleeping on post. The court-martial process was neither demanding nor extended. Formal pretrial proceedings were nonexistent. A commanding officer had complete discretion to impose some limited punishments on a servicemember without a court-martial. If the commanding officer instead chose to refer a case to a court-martial, he did not need to seek an indictment by a grand jury or a determination of probable cause by a magistrate. Trials were relatively informal, and there was no appellate review, although a convicted servicemember, depending on his penalty, could seek back pay, petition for habeas corpus relief, or ask the President for clemency.
Court-martial procedures began to change late in the 19th century. The first Manual for Courts-Martial was adopted in 1895, and Congress followed up with legislation in 1913, 1916, 1920, 1948, 1968, and 1983. That series of laws adopted new Articles of War, later revised to become the provisions of the Uniform Code of Military Justice, and created important structural reforms in the pre-trial, trial, and post-trial stages to guarantee a servicemember rights nearly identical to those enjoyed by defendants in civilian cases. The result is the system that is in place today.
The Contemporary Military Justice System
The UCMJ defines the subject-matter jurisdiction of the military justice system and identifies offenders and offenses that can be tried in a court-martial. It applies to servicemembers who were members of the armed forces at the time of the alleged crime and later at the time of court-martial proceedings. The range of crimes that can be prosecuted before a court-martial is quite broad. Congress has effectively vested the military justice system with jurisdiction over every offense that could otherwise be prosecuted through the state criminal justice systems (such as murder, rape, and robbery), as well as certain unique military crimes (such as “conduct unbecoming an officer”). The result has been to create for the military a criminal code that is comparable to (but in some necessary respects broader than) the ones found in the states and the District of Columbia.
The architecture of the military justice system has also changed dramatically from its founding. There are now three tiers of military courts. At the trial level, courts-martial can be summary, special, or general, with general courts-martial being the most important, given the punishments that can be imposed. A general court-martial has jurisdiction over all offenses under the UCMJ, which includes crimes that could be prosecuted in state courts but not in federal court, such as assault on a civilian, and it may impose any lawful sentence, including the death penalty. Unless the accused requests a bench trial, a general court-martial consists of a military judge and at least five court-martial panel members.
The trial judge at a general court-martial must be a commissioned officer and a member in good standing of the bar of a federal court or a state’s highest court. The Judge Advocate General of each service certifies judges as qualified for that position and selects judges for individual cases. To avoid the risk of “command influence,” the judge is a subordinate of the Judge Advocate General, not the “convening authority” (the commander who referred the charge(s) to a court-martial), and neither the convening authority nor anyone on his staff may prepare or review a report about a judge’s fitness in the performance of his duties.
When not serving in that role, a certified trial judge may perform other duties as necessary with the approval of the Judge Advocate General, such as providing legal advice to a fleet commander. For that reason, military trial judges do not serve for fixed terms; they may perform judicial duties only when the Judge Advocate General specifically assigns them to a particular case.
Like a federal or state trial judge, a military trial judge resolves all evidentiary issues in accordance with the Military Rules of Evidence, which are identical to the Federal Rules of Evidence except where necessary to meet unique military concerns. Absent a bench trial, the trial judge instructs the court-martial panel members on the law that the panel must follow, and the members decide guilt or innocence and, if necessary, impose sentence. The case is then referred to the convening authority, who may approve the judgment or impose a lesser sentence. A sentence does not become final until the convening authority issues his final decision.
The first level of appellate review consists of the four courts of military review: one each for the Army, Air Force, Coast Guard, and Navy–Marine Corps. Those courts usually sit in three-judge panels like the federal circuit courts of appeals. They review all cases in which the sentence is for one or more years of confinement, involves the dismissal of a commissioned officer, or involves the punitive discharge of an enlisted servicemember. The courts may review de novo both factual and legal findings, and they may overturn convictions and sentences.
Appellate judges may be commissioned officers or civilians, but each must be a member of a bar of a federal court or of a state’s highest court. The appropriate Judge Advocate General selects appellate judges and assigns them to serve on the service court of military review. Like military trial judges, appellate judges do not serve for a fixed term.
At the top of the system is the Court of Appeals for the Armed Forces, formerly known as the Court of Military Appeals. It consists of five civilian judges appointed by the President, with the advice and consent of the Senate, for fixed terms of 15 years. That court must review the judgment in all capital cases and all cases certified to that court by the relevant Judge Advocate General. Otherwise, the court has discretion to select cases for review.
In 1969, Supreme Court Justice William O. Douglas criticized the military justice system in O’Callahan v. Parker on the ground that it did not adequately protect the rights of defendants. Those criticisms are no longer valid, as the Supreme Court has recognized in several decisions since then, particularly Solorio v. United States, which overruled O’Callahan. In fact, in several respects, the military justice system affords a defendant greater rights than any federal or state court system guarantees civilians. In their current iteration, the UCMJ, the Manual for Courts-Martial, and the services’ implementing regulations diligently protect the interests of the armed forces and the soldiers, sailors, airmen, and marines in each service.
The question, then, is whether the recommendations endorsed by the MJRG would further enhance the professionalization of the military justice system. As explained below, they would.
The Military Justice Review Group’s Recommendations
The MJRG has recommended that Congress amend 68 existing UCMJ articles and add 37 new ones. Those 105 proposals fit into one of two categories:
- They would update substantive military criminal law by adding new crimes that the services should be able to prosecute in a court-martial; and
- They would modernize court-martial practice and enhance the integrity of the military justice system.
The MJRG’s proposals are salutary revisions of the UCMJ.
Modernizing Substantive Military Criminal Law
The MJRG proposes that Congress add the following crimes to the UCMJ:
- Escaping from correctional custody;
- Abusing a training or leadership position;
- Manifesting disrespect toward a sentinel or lookout;
- Falsifying public records;
- Using a false or unauthorized pass;
- Impersonating an officer, a noncommissioned officer, or a petty officer;
- Wearing an unauthorized insignia, decoration badge, ribbon, or device;
- Violating parole;
- Wrongfully taking or opening mail;
- Leaving the scene of a motor vehicle accident;
- Driving with a blood alcohol level of 0.08 g/dcl or higher;
- Endangering a child;
- Depositing obscene matter in the mail;
- Fraudulently using a credit card, debit card, or another access device;
- Obtaining services under false pretenses;
- Receiving stolen property;
- Unlawfully accessing or using government computers;
- Suborning perjury;
- Obstructing justice;
- Misprision of a serious offense;
- Wrongfully refusing to testify;
- Preventing the authorized seizure of property;
- Wrongfully interfering with an adverse administrative proceeding; and
- Retaliating against a servicemember.
The punitive articles of the UCMJ do not include those offenses, but the federal and state criminal codes already do. Accordingly, adding those offenses to the UCMJ would not come as a surprise to current members of the armed forces, and it would enable the services to police the conduct of their members and protect people in both the military and civilian communities more effectively.
The MJRG’s 105 recommendations would leave intact the overall structure of the military justice system, as they should. While the most important recommendations are discussed below, it is important to note one revision recently championed by some critics of military justice that the MJRG does not recommend Congress consider: The MJRG does not recommend any weakening of the ability of a convening authority to refer cases to a court-martial. The MJRG’s decision not to recommend any such revision is a sensible one.
The military exists as an institution for one reason: to defend the nation. That mission permeates every aspect of the armed forces, including the military justice system. To accomplish that mission, commanders must have servicemembers who are always combat-ready and combat-effective. To ensure that servicemembers will always be in that state, commanders must have the ability to maintain good order and discipline within their units. Stripping commanders of their legal authority to refer cases to court-martial not only would have an adverse effect on parties who are innocent of any crime, but also would eviscerate each commander’s ability to ensure that the servicemembers under his or her direct control are always ready and able to carry out their missions whenever the President so orders. Earlier working groups also concluded that because commanding officers play an integral role in enforcing and ensuring good order and discipline, they must retain the authority to refer to a court-martial the cases that they deem appropriate.
Modernizing Court-Martial Practice and Enhancing the Integrity of the Military Justice System
Judge Sentencing. One of the most important recommendations is to change the sentencer from the panel in a general or special court-martial to the military trial judge. Currently, court-martial panel members have the responsibility to decide the merit of any charges and, except in the case of a few mandatory minimum sentences, to impose an appropriate sentence within the limits fixed by the UCMJ on any defendant found guilty. Panel members base their sentencing judgment on the nature and circumstances of the crime, on any aggravating or mitigating evidence adduced during the sentencing proceeding, and on the offender’s military record. The trial judge, however, does not advise panel members as to what sentences other offenders usually receive when convicted of the same crimes. The result has been widely disparate sentences, even for offenders convicted of the same crimes.
The MJRG proposal would align sentencing in the military justice system with the practices followed in the federal civilian system and in the vast majority of state courts, where judge sentencing is the norm. The proposal also would take a big step toward the elimination of unjustified disparities in military sentencing.
Unlike court-martial panel members, who may impose sentence only once during their careers, military trial judges frequently have that responsibility. As a result, they acquire experience in evaluating the severity of a particular crime and the incorrigibility of a particular offender, teaching them what a specific case is “worth.” Moving from a member-sentencing system to a judge-sentencing process also should give victims greater confidence that the sentencer is both learned in the law and experienced in choosing the appropriate punishment. Finally, the revision would not unduly burden military trial judges because they already impose the sentence in the vast majority of proceedings, including cases involving a guilty plea or a bench trial.
Offense-Based Sentencing. Today, a court-martial panel returns one overall, consolidated sentence for an offender regardless of the number of counts of conviction. One proposal would work a major change in that procedure and align the military with federal and state sentencing practices.
After conviction today, the trial judge instructs the members of the maximum and (if applicable) minimum possible sentence that an offender can receive, and the panel must select a particular punishment within those boundaries. Current practice therefore makes it impossible to know what punishment the panel thought appropriate for any particular crime. Not surprisingly, there is no such creature as a consecutive or concurrent sentence in the military.
Proposed Section 801 would change all that and more. In announcing the sentence, the military trial judge would be required to specify the particular term of confinement and fine for each offense of conviction. If the judge imposed a sentence of confinement for more than one offense, the judge would need to specify whether those periods are to run consecutively or concurrently.
In addition, Section 801 would establish, for the first time in military practice, an upper and lower confinement range for each offense category, as well as criteria that the judge must consider when choosing a specific punishment for each offender. The judge may impose a sentence outside a sentencing range only if he finds present specific facts that warrant a departure. To define that range, proposed Section 801 would establish a Military Sentencing Parameters and Criteria Board within the Department of Defense to perform a role similar to the one played by the United States Sentencing Commission for federal civilian cases.
Finally, this section would establish certain minimum terms of imprisonment for certain sex offenses. In all cases where a servicemember is convicted for rape, sexual assault, rape of a child, or sexual assault of a child, he must also be dismissed or dishonorably discharged from the military.
Involving Trial Judges in Guilty Plea Negotiations. Federal district court judges and many state trial judges play a role in guilty plea proceedings. For example, some states allow trial judges to indicate a potential sentence they might impose after a guilty plea. Such a practice allows the parties to weigh the pros and cons of engaging in a contested trial and weigh all other options.
By contrast, military trial judges play no role in plea negotiations and have virtually no say in guilty plea agreements. Guilty plea negotiations are conducted between the defense counsel and convening authority. The agreements themselves are signed by the convening authority, defense counsel, the defendant, and the prosecutor. The judge has no knowledge of a plea agreement’s terms before a guilty plea proceeding. Even then, the judge merely takes the guilty plea, ensures that the defendant is in fact guilty, and sentences him.
Proposed Section 717 would bring military practice more in line with civilian practice. Under the new rule, a military judge still may not participate in discussions between the parties concerning the terms of a plea agreement and still must accept an agreement with a proposed sentence within the normal sentencing range. If, however, the proposed sentence exceeds that range, the judge may reject it if he finds it to be “plainly unreasonable.” Likewise, in the case of an offense with no sentencing range, the judge may reject a plea agreement that proposes a sentence that he determines is “plainly unreasonable.” The proposal would give military trial judges greater authority over the disposition of a case.
Additionally, if the offender provides substantial assistance to the government in another case and the prosecutor recommends a departure from a mandatory minimum sentence, the new rule would empower a military trial judge to impose a lesser sentence. That practice is common in federal criminal cases and represents sound policy.
Creating the Position of Magistrate Judge. In the federal judicial system, magistrate judges serve as judicial officers subordinate to U.S. District Courts. Magistrate judges may exercise jurisdiction delegated to them by federal law and assigned by the district court. Congress established the position of magistrate in 1968 to replace the position of commissioner, a position that had served the federal judiciary since the 1790s. The Federal Magistrates Act of 1968 created the new title and expanded the magistrates’ authority to conduct misdemeanor trials with the consent of defendants and to perform other duties.
There are, to date, no magistrate judges in the military justice system. Proposed Section 507 would create the office of military Magistrate Judge, thereby aligning military practice with practice in federal courts.
Getting Trial Judges Involved Earlier in Cases. Military trial judges are not involved in special or general courts-martial until after a convening authority has referred a case for trial. By then, the investigation is often well along, perhaps even completed, and the prosecution and defense have had ample opportunity to be involved in the case.
Before cases are referred to trial, the convening authority has virtually complete control of the case. But a convening authority—a non-lawyer military officer—is not a judge, and he does not have the same training or expertise at his disposal that a trial judge has.
Proposed Section 602 would align the military with federal and state law practice by allowing the judge to become involved in a case before referral. A variety of legal issues that arise early in cases are best resolved by a trial judge, including the issuance of subpoenas for witnesses or evidence. Military trial judges may be detailed to such pre-referral proceedings under the new rule, and a military trial judge may designate a military magistrate to preside over the proceedings.
Giving Military Trial Judges Subpoena Power over Civilian Witnesses. In federal and state practice, when a prosecutor sends a subpoena to a witness to appear, that person must appear in court. Failure to appear can and often does result in a warrant for the witness’s arrest and a visit from a federal marshal or state trooper to enforce the warrant. Similarly, if a civilian judge issues an order for a witness to appear in court and the person has notice, failure to appear can result in compulsory process and a forced appearance in court.
The military justice system does not have a similarly muscular system of compulsory process over all people. Military prosecutors are responsible for arranging for all military witnesses at trial, including defense witnesses. For military witnesses who have been lawfully ordered to report to trial, failure to report to trial is a crime under the UCMJ, but the same is not true for civilian witnesses.
Currently, Rule for Court-Martial 703(e)(2) governs the process of issuing subpoenas to civilian witnesses. It is a laborious process and one that is used infrequently compared to the number of subpoenas used in the civilian world, mainly because most witnesses in courts-martial are military members and many civilians who appear as witnesses do so voluntarily. Civilian witnesses who fail to appear can be subject to a warrant of attachment if all other requirements of the rule are followed, but a civilian who fails to appear before a military court has little to fear and can reasonably assume that he will not be prosecuted for that failure.
Proposed Section 709 would make it a federal offense, triable in a civilian court, to neglect or refuse to appear in response to a subpoena, or to willfully refuse to qualify as a witness or to testify or to produce any evidence that person is required to produce.
Authorizing the Selection of Alternate Court-Martial Panel Members. Judges trying civilian cases routinely select alternate jurors, especially in lengthy trials, for obvious reasons. Courts-martial, however, have not followed that practice. If a court-martial panel member is dismissed for health or other reasons, the trial may continue if the panel still has the requisite number of members needed for a special or general court-martial. If the number of remaining panel members is below the minimum number set by law, however, the military judge must declare a mistrial, requiring an entirely new court-martial proceeding. The result can waste limited judicial and military resources.
Proposed Section 506(c) would authorize the military judge to impanel alternate members with the convening authority’s approval. That recommendation would undoubtedly become standard practice, especially in longer, more complex cases.
Setting a Uniform Number of Members for Courts-Martial. Proposed Section 401(b) would recommend that general courts-martial consist of eight panel members. Section 401(c) proposes that special courts-martial consist of four members. In all capital cases, under Section 503, the panel would consist of 12 members.
Those proposals establish uniformity across the services and within each one. They also would provide clarity for convening authorities, who are responsible for providing qualified panel members for courts-martial.
Eliminating the Punishment of Bread and Water or Diminished Rations. Short of sending someone to a court-martial, a military commander has a variety of administrative tools at his disposal to enforce good order and discipline in the ranks. The options range from an informal verbal counseling for mild infractions to administrative processing for more serious misconduct.
One frequently used tool is found under Article 15 of the UCMJ: non-judicial punishment. If a servicemember is found responsible at such an administrative proceeding, the commanding officer can punish that servicemember by, for example, restricting him to “quarters arrest” (comparable to civilian house arrest) for up to 30 days or by forfeiting that servicemember’s pay for a month. One available nonjudicial punishment is limiting a servicemember’s rations, perhaps even to the ancient “bread and water.”
The MJRG recommends eliminating that punishment as being outdated. Proposed Section 301 would accomplish that result.
Increasing the Integrity of the Court-Martial Process and System. Proposed Section 402 would amend current law so that only general courts-martial have jurisdiction over rape and sexual assault cases. That revision would make eminent sense in light of the gravity of those offenses.
Preliminary hearings, which when first designed were meant to be probable cause hearings similar to civilian preliminary hearings, have devolved into mini-trials over the years. Proposed Section 603 would clarify that a preliminary hearing is required before a convening authority can refer a case to general court-martial. Moreover, proposed Section 603 would limit the scope of a preliminary hearing to whether (1) the specification alleges an offense, (2) there is probable cause to believe that the accused servicemember committed the offense(s), and (3) the convening authority has jurisdiction over the accused servicemember and the offense. That provision would align the military with federal practice and that of many states.
To increase transparency and confidence in the court-martial referral process, the MJRG would require the staff judge advocate to advise the convening authority in writing whether prosecution is legally justified. If the convening authority refers the case to trial by general court-martial, that written advice would accompany the referral.
Proposed Section 708 contains several amendments that pertain to the use of subpoenas and other process for courts-martial and investigative purposes. Proposed Article 708(d) would allow for the use of a subpoena or other process to compel the production of evidence. Article 708(e) would grant military trial judges the authority to modify, quash, or order compliance with a subpoena before and after referral of charges.
Victim-Friendly Provisions. There are numerous victim-friendly aspects to the MJRG’s proposals. The most noteworthy are the following.
Proposed Section 105 would expand the universe of people who may assume the rights of the victim of a military crime to include the “legal guardians of the victim or the representatives of the victim’s estate, family members, or any other person designated as suitable by the military judge.” Section 105(f)(1) would require the defendant’s lawyer to interview the victim through the Special Victim’s Counsel or other counsel for the victim, if applicable. That would provide military victims with an additional buffer of protection before being questioned by a military defense attorney.
Proposed Section 705 would increase the statute of limitations for child abuse offenses from five years to 10 years. That addition would comport with best practices in many states.
One of the major criticisms of the military justice system is that the convening authority could reduce, commute, or suspend an offender’s sentence. In response, Congress passed legislation limiting the power of a convening authority to reduce a sentence. Under current law, the convening authority cannot modify the findings of a court-martial and cannot reduce, commute, or suspend a death sentence, a sentence of more than six months’ confinement, or a punitive discharge. Proposed Section 902 would retain current limitations on the convening authority’s post-trial prerogatives in most general and special courts-martial and would create new provision for instances in which the offender substantially assists the government.
Defendant-Friendly Provisions. Proposed Section 503(3) would require, to the greatest extent practicable, that at least one defense lawyer in a capital case be learned in capital sentencing law. The proposal adds that if no knowledgeable military defense counsel is available, the Secretary of Defense can compensate a private lawyer to serve in that role. This amendment would align military practice with the one followed in federal civilian capital cases.
Proposed Sections 103 and 505 would ensure that no one who has served in a particular case as a preliminary hearing officer, court member, military judge, military magistrate, or appellate judge may later serve as a staff judge advocate or legal officer to any reviewing or convening authority in the same case or as trial counsel in that case. This would ensure that a prosecutor has no additional knowledge of the case, derived from having served in one of those other positions, that could influence his judgment or give him an unfair advantage. These provisions should also give victims, defendants, and the public additional confidence in the integrity of the system.
For more than two and a quarter centuries, the military justice system has evolved from an institution dedicated almost entirely to supporting the military’s need for good order, discipline, and readiness to one that not only pursues that goal, but also gives equal weight to the goal of any criminal justice system: to identify and exonerate the innocent and punish the guilty. Throughout that period, Congress has sought to homologize the military criminal justice system to its civilian counterparts. The transformation from a system that served purely military needs to one that displays equal concern for the rights of an accused servicemember may have occurred slowly, but its progress has moved apace with corresponding improvements in the federal and state criminal justice systems.
The 2015 Military Justice Review Group report identifies various reforms that could improve the operation of the military justice system. They would increase the protections afforded members of the armed forces without compromising the nation’s security. Congress and the President should give those proposals the weighty consideration they deserve.—Paul J. Larkin, Jr., is Senior Legal Research Fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation. Charles D. Stimson is Manager of the National Security Law Program and Senior Legal Fellow in the Kathryn and Shelby Cullom Davis Institute for National Security and Foreign Policy at The Heritage Foundation. He served as Deputy Assistant Secretary of Defense for Detainee Affairs (2006–2007) and was a local, state, federal, and military prosecutor, defense attorney, and military judge in the United States Navy Judge Advocate General (JAG) Corps.