A quick reaction to Colin Kisor’s Naval Law Review article
As I noted in an earlier post, Colin Kisor has an article in Volume 58 of the Naval Law Review arguing for sentencing reform in the military justice system due to his perception that there’s a systemic problem with overly lenient sentences adjudged by members.
It strikes me that there’s a significant problem with part of Colin’s argument. The centerpiece of his analysis is a discussion of rape convictions that resulted in sentences adjudged by members including less than a year of confinement. See 58 Naval L. Rev. at 53-56. He argues, “A system of sentencing that permits such results embarrasses the military justice system. Sentencing reform of some sort is therefore necessary.” Id. at 55. But let’s analyze his argument. Colin posits:
[C]onvictions of sexual assault offenses, especially when the accused has raised either consent or mistake of fact as a defense, are especially liable to the imposition of light sentences because they are often the result of divided decisions. Members who vote for acquittal are unlikely to vote for a severe sentence, remaining unconvinced of the accused’s guilt. Thus, compromise verdicts and sentences can lead to puzzling results.
Id. at 54. But that argument counsels against moving more toward the federal sentencing model than toward it. In the federal system — as well as almost all state systems — there’s no such thing as a divided vote on a verdict. Unanimity is required. So if Colin’s analysis is correct, the rape cases that he highlights wouldn’t result in a more severe sentence in the federal system; they would result in NO sentence because the divided vote on guilt or innocence would result in a mistrial rather than a conviction.
Colin seems to want to subject the accused to the worst of both worlds — conviction of rape by a 2/3 vote of as few as 5 members, but a sentence commensurate with that given in the civilian system upon the unanimous vote of 12 jurors. It hardly seems fair to subject a servicemember to the penalty imposed only upon the unanimous vote of 12 jurors without providing the procedural protections that precede such a penalty.
In fact, in his conclusion, Colin expressly argues that “decreasing the number of differences between a court-martial and a federal criminal trial arguably only enhances a military accused’s due process and equal protection rights.” Id. at 59. But eliminating one difference between the military and federal civilian system to the accused’s detriment without eliminating a related difference that also works to the accused’s detriment doesn’t bring the two systems into greater balance; rather, it skews the military justice system toward far greater harshness.
A big thumbs up on this analysis, especially the pithy reference to unequal voting procedures compared to federal (and state) accused’s.
well said, and a critical hit to Mr. Kisor’s analysis.
I think you can even extend it to the 3 and 5 member threshold as being something else that doesn’t give the accused quite the same level of protection as a 12 member jury.
Regardless, you are absolutely right. The military system is different in a lot of ways…for a reason. Sometimes that works for the accused, but sometimes it works against him.
Is this really a problem? Beyond a few cases cited, I see no comparative assessment of sentencing ranges under the UCMJ versus Fed, nor have I seen commanders clamoring for mandatory minimums. I doubt Congress wants to mix mandatory appellate review with the litigation involved with the federal sentencing guidelines. Frankly, if we can’t trust our senior officers and enlisted to make deliberate and thoughtful decisions at a CM, they shouldn’t be in those leadership positions.
Taking his argument to it’s “logical” conclusion would require abolishing referral of any “serious crime” to a special court-martial.
This — http://www.stripes.com/article.asp?section=104&article=50828 is the type of case that the author is probably concerned about. The alternative: He and those like him should have been acquitted altogether.
The hypothesis: If they actually committed the sexual assault, and we all agree sexual assault is horrible, then the punishment for the guilty should be greater.
The problem: Sexual assaults are not all equal. Mandating x sentence for y act leads to absurd results too.
At least now a group of qualified soldiers gets to determine what is a fair punishment, not just for the particular act, but for the particular actor. Now what’s so wrong about that?
I favor a move to mandatory judge sentencing, but I don’t do so out of a peception that sentences by members are light but because they are erratic. Predictable sentencing allows for more intelligent plea bargaining. I don’t favor sentencing guidelines for the reasons noted above.
And what’s so wrong with “generally accepted sentencing philosophies”? (RCM 1001).
Should a panel ignore it when a victim testifies on behalf of the convicted servicemember? Or a commander says “I want this Soldier back in my unit”? Or a 1SG says “I feel he’s already been rehabilitated”? I don’t believe there’s a federal civilian court corrollary for evidence of this type.
To generalize, I would say military convicts have more redeeming value than the average federal convict and, additionally, the military has greater belief in rehabilitation as a tool of good order and discipline–a belief that is reinforced by many individual and unit success stories.
There seem to be some differences in prosecutorial discretion and the fact that punitive discharges are a serious component in punishment that are also unnaccounted for in his problem identification and recommendations.
If we accept that punishment is warranted, we are making the predicate assumption that the accused is, in fact, guilty of the crime in question.
If the accused is, in fact, guilty, why should the severity of his punishment hinge on how many people it took to find him so?
The point is, at the end of a court-martial, we may not know whether “in fact,” the accused is guilty. If we follow procedures which can have the effect of minimizing the effect of some members’ reasonable doubt concerning guilt compared to the federal system (which, of course, we do), then we follow a system that MAY carry a greater risk of convicting an innocent accused. Obviously it’s more difficult to convict if a unanimous verdict of 12 members is followed than it would be under either a system where a non-unanimous verdict of 12 members is allowed or where a unanimous verdict of fewer than 12 members is allowed. In our system, there can be a finding of guilty based on a non-unanimous finding of fewer than 12 members.
A system that requires the uanimous findings of 12 members would seem likely to result in more findings of guilty to LIOs. So, given the differences in the systems’ procedures, the military justice system might produce a conviction for the greater offense where the federal system would produce a conviction for only an LIO. Under the current system, as Colin points out, there’s often some discounting at the sentencing phase to result in a sentence more appropriate for an LIO than for the greater offense. But under his proposal, the military justice system would provide a sentence for teh greater offense comparable to that which would be imposed by the federal system only upon a unanimous finding of 12 members, which doesn’t actually result in comparable systems.
I tend to agree with Chris Mathews and not so much with Dwight on this one. Yes, the court-martial system will convict some who would have a hung jury in civilian court. But I’m not sure I agree that this structural fact necessarily means that lesser punishments ought to be the norm to take care of residual doubt. The quid pro quo is that the system acquits accuseds who in the civilian system might get a hung jury and a conviction on retrial. We don’t make provision for this by allowing the MJ or members to give some lesser punishment to those acquitted based on residual doubt as to innocence. Some accuseds get a bonus from the structure, some take it in the shorts. That, as they say, is life. (Indeed, remember that, in any event, the bloc of the panel that voted to convict can always approve a sentence up to ten years without needing help from a member who voted to acquit).
If Dwight’s point were limited to the notion that mandatory minimums are generally a bad idea where a conviction can occur on a non-unanimous vote, I’ll say that the existence of non-unanimous convictions gives some weight (maybe not dispositive, but weight nonetheless) on the side of scale against mandatory minimums. I’m not much of a fan of mandatory minimums anyway, so it probably wouldn’t matter to me, but if I were on the fence, this structural feature (non-unanimous convictions) could move the needle in my mind.
For the law review author, and those prosecutors who think the punishments aren’t severe enough: How about looking into making the case for it.
If your only strategy on sentencing is cross-examining defense witnesses with “Well, do good Soldiers commit (insert offense)?” then you need to stop being shocked at lenient sentencing. We have a great system. It benefits the prepared.
I agree that members are the X factor when it comes to sentencing. Sometimes it inures to the benefit of the accused, sometimes not (I recall a NJP refusal case for a bunch of nitnoid offenses – Defense strategy was to turn up the pain for the G by choosing enlisted members, calling witnesses from around the world with the hope that the command would cry uncle. The members awarded a year and a BCD. While it was a satisfying result for the G that had to devoted 100’s of hours to a BS case, the sentence was clearly motivated by animus toward the accused not the severity of the misconduct.)
At any rate, I think the system would be improved not by an outright ban on member sentencing and inflexible sentencing guidelines, but rather by allowing the accused to switch horse mid-stream and select MJ alone for sentencing if he has been convicted by members.
I personally don’t see a good reason why an accused choosing members can’t have MJ sentencing.
I remember a case I tried involving disrespect, disobedience, and assaulting a sentry at the School of Infantry. The judge read the instructions on findings and asked if there were any questions. One member raised his hand and asked what the maximum sentence was. The members left to deliberate and the judge looked at me and said, “Captain O’Connor, you’ve got at least one.”
I guess that would b a case where an accused might take MJ sentencing.
I disagree with the thesis of the article. It is not uncommon to see cases, esp. sexual misconduct cases, go to trial in the military justice system when the same case would never even get charged in state or federal court. It is not surprising that such cases result in acquittals or low sentences. They’re usually crap cases.
If anything needs changed, it’s the systems where the jury is not involved in sentencing. Also, mandatory minimums need to go away. If the circumstances of a particular criminal act deserve severe punishment, then the prosecution should have no difficulty offering proof in support and persuading the jury to award a harsh punishment. Anon at 904pm is correct.
I agree w/J’OC to the extent that if any change is made, an accused should be able to choose members or MJ sentencing, even with members for findings. I disagree that all sentencing should be judge alone.
I don’t find the puff-piece article compelling at all.
The problem is not the perception of lenient sentences in the military justice system — the real problem are overly severe sentences in the federal system. If reform is needed it certainly is not in the mil jus system.
JO’C, your position is that the military justice system’s difference sometimes helps the accused and sometimes helps the government. Sure. And Congress has a specific goal mind by creating that difference — promoting efficiency by allowing for finality in some instances where a civilian trial would result in a retrial. But my point is that such differences do exist. Given that they exist, it seems a weak argument to make that some other related portion of the system should be changed for the purpose of making the system more like the federal system without also chaning this related provision.
This discussion made me think of two things, (1) the Cox Commission II Report and (2) the photo on the cover of the Cox Commission II Report.
As far as the Cox Commission this is one of a number of issues suggested by their list of issues that could have resulted in systemic reform. Their end product just didn’t go as far as the hype.
As far as the cover, like the manuals shown on the cover, this issue reminds me how outdated portions of the UCMJ can be. For example, the related issue of sentence disparity. What good does it do to have the CCAs as the gate keeprs of sentence disparity when it takes CAs years to just get the record of trial to CCA for docketing? With innovations like the internet, “This Court-Martial Setences You To,” and . . . CAAFlog, MJs, CAs, and SJAs not only know what panels in their Circuit are awarding for sentences, but generally what offenses are getting around the globe.
As far as Kisor’s suggestion, for MJ alone sentencing and mandatory sentences and ranges, that brings with it the perils of a little cited case from federal jurisprudence as well. But, I think JAs could figure out how to deal with that, though I am not sure I would only tweak the portion of the system Colin recommends.
^^ I completely agree above. Within 24 hours of every Special or General Court-Martial, the basic info (name, jurisdiction, charges, findings of guilty, sentence) should be on JAGCNET or its sister service equivalent. We could be monitoring trends in sentencing, panel v. judge, offenses, conviction %, Everything. Real-time.
2010 is coming.
Dwight:
To the extent you’re calling my argument weak, I just don’t think that member sentencing and non-unanimous convictions are so inextricably intertwined that you can’t get rid of member sentencing without also getting rid of non-unanimous convictions. The relationship is somewhat stronger (no a ton, but stronger nonetheless) between non-unanomous convictions and the trend not to have mandatory minimum sentences in the court-martial system.
And if you pray at the altar of court-martial expedition and finality (as some would say I do), then judge sentencing and non-unanimous findings both work toward a common purpose of minimizing the disruption courts-martial cause a command. Judge sentencing not only sends members back to their units instead of spending time on sentencing but in my mind a greater effect would be the tendency of judge-sentencing to promote plea bargains. My view is that uncertainty in member sentencing makes plea bargaining less likely.
Take the accused with two separate drug pops. If he’s dead set on not getting discharged, a Dc would probably say that (at least in the Marine Corps) the chances of that accused getting retained in MJ sentencing is quite low. That might cause the accused not to deal and either go contested the whole way or not cut a deal and go members sentencing on a plea. That might blwo up in the accused’s face if the members give him a year in confinement (what the MJ might give 90 days) but the uncertainty might cause the accused to take a lottery ticket of getting retained by members. I’d rather these kinds of cases (ones that really should plead out) get dealt, and more certainty in sentencing promotes that goal.
If your point is that Kisor’s argument is weak that court-martial sentences should mirror federal civilian sentences, I more or less agree with you (though I’m not in a position to critique the author because I haven’t read his article).
I’m not sure I agree that encouraging more plea bargaining is necessarily a valid consideration when balanced with determining what rights we grant an accused (do you get a choice on sentencing or no?).
And one could easily argue that the presence/possibility of the government having to put together a panel is a positive motivator for the government to plea bargain. I’m not sure that pain changes merely because you only have to put the panel together for merits but not sentencing for obvious reasons.
So in short the pain doesn’t change, so why would going to judge alone sentencing increase necessarily plea bargains? Especially since there isn’t even a guarantee that the same judge will hear every case in a judicial circuit, at least in my experience.
I think having judge sentencing would increase the frequency of plea bargains because everybody will know roughly the range of punishments likely on a conviction. Then, the accused can make an intelligent decision between cutting his losses and taking a sure deal (subject to his right to try to beat the deal) versus taking his chances if he is willing to live with the likely sentence if convicted without a deal.
While it’s true that there can be variations in sentencing among judges, my experience (which I admit is narrow and dated) is that this variation is still considerably narrower than what you have when you inject members into the sentencing equation.
What I found was most disturbing was Mr. Kisor’s unabashed desire to “civilianize” the military justice system. The military is different from civilians, and for good reason. Ours is a system whereby a member may be punished for military specific offenses that carry no civilian connection, and is intended for different purposes than civilian courts serve. As a previous poster said, if a case is so horrible as to require a lengthy sentence, the government has a method of producing such a sentence: RCM 1001(b)(4). The failure of the government to secure a lengthy sentence should not be seen as a failure of the system, but a byproduct of an adversarial sentencing scheme that takes everything into account (a dramatic failing of mandatory minima which sentence in a vacuum based on a politician’s view of what a case is “worth”).
sometimes they will and sometimes they won’t. Judges move around all the time, so every two to three years, you’d have to learn the new judge all over again. You’d have maybe a one year window every three years where you had a good idea of the range of punishments.
I think the slight IMO increase in certainty with a military judge would be not enough to significantly increase guilty plea deals.
And considering the vast majority of C-Ms are guilty pleas already, is this a number that we are concerned with anyways?
We don’t exactly have a ton of contested cases in the military. So it does again beg the question of the utility of seeking to increase guilty pleas by removing C-M panels from doing sentencing.
Seems like a cure in search of a problem.
The piece ignores that the federal sentence guidelines are themselves rife with problems, there is significant push-back (including from judges — some think them too severe and other not severe enough), a great deal of litigation is involved dealing with down and up departures, and they are constantly being meddled with.
Recently the Federal Sentencing Guidelines Commission addressed a number of topics.
“Morphed images” Offenses. The Commission rejected DOJ’s attempt to ensure that child pornography cases involving “morphed images”– that is, a picture of an identifiable minor that has been adapted or modified to make it appear as though the minor were engaging in sexual conduct – are punished higher than straight possession cases. Instead, the Commission agreed with the Defenders that the lower penalty structure for these offenses (no mandatory minimum and a 15-year statutory maximum) and the fact that they do not involve the actual sexual abuse of a minor render them less serious. All morphed images offenses, including production, are referred to § 2G2.2(a)(1).
I believe they are currently viewed the same in the military? And I note this doesn’t deal with anime and similar cartoon CP.
Here’s another one that could be applicable in court-martial cases.
Undue Influence of a Minor
Application Note 3(B) to § 2A3.2 and Application Note 3(B) to § 2G1.3 have been amended to explicitly state that the enhancement for unduly influencing a minor to engage in prohibited sexual conduct “does not apply in a case in which the only ‘minor’ (as defined in Application Note 1) involved in the offense is an undercover law enforcement officer.” In other words, “sting” cases are no longer eligible for the enhancement. This changes the law in the Eleventh Circuit, and also changes what many district courts have done in other circuits. The Commission said the enhancement “should not apply in a case involving only an undercover law enforcement officer because, unlike other enhancements in the sex offense guidelines, the undue influence enhancement is properly focused on the effect of the defendant’s actions on the minor’s behavior.”
Again, is this a situation where at court-martial there’d by no distinction made?