First of all, kudos to Colin for writing this thought-provoking piece. Colin is a talented attorney, we should encourage more “out-of-the-box” thinking regarding reforms to our military justice system.
One of the many reasons (in addition to those mentioned by others) sentences are low in the military justice system, compared to our civilian counterparts (including our state counterparts) is that many TC’s are ill prepared for a robust sentencing case. They simply have so little actual trial experience that they put all their eggs into getting the conviction. They don’t really know what cases are worth, as they have nothing to bounce the sentence off of. To young and inexperienced counsel, they often times ask for the max in a case that is at best a serious mast case. Furthermore, they have no idea what other similarly situated accused have received in the past, so they essentially wing it.
They don’t have the luxury that state and federal prosecutors have in terms of experience, AND, they don’t have a pre-sentence report prepared by Parole/Probation between the time of the conviction and sentencing.
Of course, these comparisons are strained, because many (if not most) civilian defendants have criminal records by the time they “graduate” to felonies (we all know of exceptions to that general observation). Prior convictions generally jack up the final sentence.
Although I am not proposing these changes, certainly an alternative to the current structure is to require unanimous verdicts AND establish a determinate sentencing scheme, much like they have in California. The result would be a substantial increase in the number of hung juries, and, for those convicted, more uniformity across similar crimes.
For example, in California a conviction for a petty theft with a prior (a prior conviction for misdemeanor petty theft) exposes the defendant to one of three possible sentences: 18 months (called “the low”), 2 years (called “the mid”) or 3 years (called “the high”). In California, judges do the sentencing, but there is no reason you could not allow the members to make that decision vice the judge. In many crimes, the judge has the option of awarding the convict probation in lieu of a jail sentence. The judge would sentence the defendant to prison for a period of years, suspend the sentence, and place the defendant on probation for two or three years. Successfully complete probation and you get out from under your sentence. Violate probation, and you may go to jail at the conclusion of the probation violation hearing. (Parole and probation is an entirely separate subject, and problematic in the military justice system.)
So, in the military context for example, a conviction for assault with a deadly weapon (current statutory max is 3 years) could expose an accused to a jail sentence of: no time; 1.5 years; 3 years.
Policy makers would have to weigh the pros/cons of setting determinate sentencing schemes, if they went down that road in the first place.
There is no perfect sentencing system, at the state, federal, or military level; however, there is much room for improvement in our military system. We have a unique justice system for lots of good reasons, however, and should be wary about trying to civilianize it.
BZ to Colin for starting this conversation.