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Tuesday, November 24, 2015

Another military justice oddity comes under attack -- this time, guilty pleas

The American military justice system has been under sustained, serious criticism for about a decade now.  The primary criticism is that commanders do not take sexual assault cases very seriously.  Congress and the President have already plucked the low-hanging fruit from the military justice tree: the rape statute has been rewritten (until 2007, the military used the common law definition); the pretrial investigation, where victims generally had to testify and be subject to cross examination, has become a limited hearing; the commander’s authority to reverse a court-martial’s finding of guilt or to reduce a sentence has been sharply reduced; and an exception to the character rules that allowed an accused to present good military character evidence during the merits has been restricted. 

The real remaining piece of fruit – or really, the trunk of the tree – is the commander’s authority to make the prosecutorial decision in each case.  That is where critics are currently focusing their attention.

So I was a bit surprised when I saw this recent AP article that criticizes a different feature of the military justice system – the guilty plea process.  The article highlights a case where an officer assaulted several prepubescent girls, recorded those assaults, and distributed those recordings to others.  The officer pleaded guilty and military judge sentenced him to 144 years in prison but through the terms of a pretrial agreement, the commander reduced that sentence to 20 years. 

This shocked the authors.  They point out that in many jurisdictions, the prosecutor might just make a recommendation that the trial judge can accept or reject.  The trial judge isn’t bound by the recommendation (think Jared Fogle).  Here, the authors suggest that the military judge should have the power to reject a plea agreement if the judge does not agree with the sentencing terms.

So how could that happen?  Why is it that in the military, the judge can sentence someone to 144 years and a commander can reduce it to 20?

First, a quick explanation of the process.  In the military, the military judge goes over the plea agreement with the accused but does not learn the agreed-upon sentence until after the military judge announces her decision on sentence (panels can do the sentencing, too, but that is uncommon in guilty pleas).  Both parties can put on a fully-contested presentencing case where the rules of evidence generally apply.  This is a contested mini-trial.  Both sides generally call witnesses and introduce documents.  This hearing can last from an hour to a day or more.

After this mini-trial, the military judge decides what she thinks is the appropriate sentence.  Only after announcing that decision in open court does the military judge read the agreed-upon sentence that the accused has with the commander.  Then, the accused gets whichever is lowest – the sentence announced by the military judge, or the sentence limitation he negotiated with the commander.  In the AP article, that sentence limitation was 20 years.

That is pretty odd and is the result of some quirks in the history of American military justice.  After World War II, Congress completely overhauled the military justice system.  Those first reformed courts-martial would look strange by today’s standards.  There were no military judges (the military didn’t get those until 1969).  Every court-martial went to a three or five-member panel (depending on the level of court).  And, there were no provisions for pretrial agreements.  If an accused wanted to plead guilty, he did not receive any benefit from pleading guilty other than whatever discount the panel might give him.

So, every case went to a panel, and most were contested.  This was really resource intensive.  The panel members were often subordinate commanders or senior officers and had other important tasks to do.  Commanders started to look for a work-around.  They were not allowed to influence the actual trial itself but commanders did control the case after the court-martial concluded: after trial, the commanders had plenary authority to grant clemency.  They tapped into that power to make deals.  If the accused pleaded guilty, then the commander would disapprove any sentence handed down by the court-martial that was over the agree-upon amount. 

That workaround was pretty effective and the military still operates under it.  The trial still goes on without any influence from the commander (that is why the military judge does not read the agreed-upon sentence until after announcing her sentence).  If the military judge’s sentence is below the agreed-upon amount, then the accused still benefits from that independent portion of the trial.  If the sentence is higher than the agreed-upon amount, then the deal provisions kick in.  When Congress recently stripped commanders of most of their post-trial clemency powers, Congress left them with the power to disapprove sentences in excess of that found in the pretrial agreement so that they could continue to make deals.

Returning to the AP story, the authors look at the reduction from 144 years to 20 years as evidence that commanders are taking it easy on child rapists.  To them, this would be just another example of commanders misusing the military justice system to take care of their own.

But there is another dynamic going on.  The military judge knew that there was a pretrial agreement with the accused and that that pretrial agreement had a sentencing cap.  I suspect that the military judge thought the sentencing cap was somewhere between twenty and forty years.  So, the military judge could come up with a huge sentence (144 years) knowing that there was no way that number would ever be used and the accused was just going to get what he had agreed upon with the commander.  The military judge gets to send a consequence-free social retribution message to the accused. 

In general, this system provides a lot of certainty to the accused and that makes deals more attractive to them.  Other ideas for reform have actually gone the other direction from the AP author’s suggestion.  Rather than giving the military judge more power to reject sentencing limitations, the idea has been to make the sentencing limitation binding on the court-martial.  That would end the inefficiency of holding these contested mini-trials and also provide more certainty to another group of participants in the system – the victims.  They might be more likely to support a plea agreement if they knew the accused would get the agreed upon sentence rather than risking the chance that the accused would beat the deal in the mini-trial.

Posted by Eric Carpenter on November 24, 2015 at 10:36 AM | Permalink


Two minor corrections (which are at the detail level and do not influence this analysis, which pretty well reflects the way things operated even prior to the 2007 amendments to the 1968 UCMJ; my own command tours were long before then... and before law school, for that matter).

(1) A single officer panel could sit as a summary court (prior to 1969, without a judge) under certain circumstances, especially outside the US, and for a limited range of offenses and potential sentences. For example, a summary court — largely under the individual service rules, not the UCMJ per se — could not impose a sentence of death, and so an offense for which that was a potential sentence was ordinarily not even heard by a summary court with a limit. Indeed, probably a majority of pre-1965 courts martial were summary courts martial, or at least close to it, especially among US forces in Europe.

(2) But point 1 was largely masked in practice by the system of nonjudicial punishment under Article 15 (which the Navy calls "Captain's Mast," but it's the same system). The practical limits of the summary court proceeding were not substantially greater than what was available under Article 15 of the 1968 UCMJ (a successor to service-unique implementations of a vague predecessor), which in turn meant that the commanding officer was the prosecutor, judge, jury, and executioner for what were considered minor offenses. And good commanders agonized over it because excessive use of Article 15 called one's competence as an inspiring commander into question. For purely legal purposes, Article 15 proceedings are discretionary choices to treat offenses against good order and discipline as misdemeanors, not felonies: Any conviction at court martial is a felony conviction, but no Article 15 proceeding is a felony (even if the Article 15 sentence were to exceed the equivalent court-martial finding).

Needless to say, there's plenty of room for abuse and mistakes. One must always remember, though, that the purpose of the military justice system is to encourage, and even enforce, good order and discipline through dealing with individual variances from good order and discipline; that deterrent element is just plain more important in the thought processes of everyone involved. Unlike in the civilian system, it seems to work better... or at least did/does among an all-volunteer force.

Posted by: C.E. Petit | Nov 24, 2015 12:12:10 PM

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