Greetings from downee ocean,
The extensive commentary to the Military Justice Doldrums post includes a discussion of whether the convening authority’s action should be retained or thrown on the scrapheap of military justice history, along with branding irons and the convening authority’s power to return a case to the court-martial to enhance the sentence.
As usual, I agree with JO’C. Eliminating the CA’s action would strip the commander of his or her power to support mission accomplishment by, for example, commuting the sentence of a servicemember performing an operationally required function. It would also eliminate the CA’s ability to ameliorate unduly harsh sentences. There is a counterargument, of course: the CA’s action provides an opportunity for a commander to reduce sentences below what they should be in a case involving an unpopular or low-status victim. But when put on the balance against the CA action’s positive effects, I think the balance tips in its favor.
As many of you know, when I evaluate potential changes to the military justice system, I always ask: how would this change affect the military death penalty? The answer here is: not well. Since the current military death penalty system came into effect in 1984, there have been 15 known cases in which a death sentence was adjudged. In 2 of those 15, the CA commuted the adjudged death sentence to confinement for life. (Interestingly, both of those were Marine Corps cases — Turner and Gibbs.) Given the record of relative futility of death penalty cases on appeal (9 of the 11 death sentences that have completed appellate review reversed and 1 of the remaining 2 — Loving — on the DuBay trail to reversal), it makes sense to let a CA avoid committing the time and money that the United States would have to devote to what would probably ultimately be a failed attempt to execute the accused.
Let’s look at an interesting comparative law example. In Findlay v. United Kingdom, 24 Eur. Ct. H.R. 221 (1997), the European Court of Human Rights invalidated the old British court-martial system, largely because it failed to provide an independent tribunal due to the CA’s selection of the court-martial members. The decision was correct, in line with the Supreme Court of Canada’s decision in R. v. Genereaux, 1 S.C.R 259; 70 C.C.C. (3d) 1 (S.C.C.) (1992), and should be emulated by the U.S. judiciary. But in response to a preliminary Findlay ruling by the now-defunct European Commission on Human Rights, Report of the Commission on Human Rights, Application No. 22107/93, Alexander Findlay (1995), the U.K. eliminated the position of convening authority and the CA’s action with it. See Armed Forces Act 1996, ch. 46. So European human rights rulings designed to help military accused had the paradoxical effect of leading to the elimination of a court-martial procedure that could only help an accused by occasionally relieving a servicemember of a harsh sentence.
In my view, the Findlay changes were appropriate, but the collateral effect of killing the CA’s action was unfortunate. I vote for moving the power to select members to a neutral authority not connected with the same authority who decides whether to prosecute while retaining the command’s ability to commute sentences.