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?

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.

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.

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.

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).

2010 is coming.

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.

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 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.

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.

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.

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.

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.

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.

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 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 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.