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.

26 Responses to “Another Take On MilJus Sentencing Reform”

  1. USAFRjag says:

    I completely agree with you on TC lack of experience and overall “green-ness” of prosecutors in the military. But I really don’t agree with requiring unanimous verdicts. At least in the USAF, securing convictions (even with seasoned Senior Trial Counsel) is getting more and more difficult. (There are lots of reasons why, but I think it’s across the board in military and civilian systems alike.) If we required unanimous verdicts, military justice would become a joke among our troops. Already the perception (from hearing young enlisted gossip) is that you get in trouble, take your slap on the wrist and then nothing happens to you. If we allow our miltary members to commit crimes, whether serious or not, and then hide behind procedural technicalities or defense tactics to preclude a unanimous finding, we can kiss good order and discipline goodbye. I’m all for sentencing reform, but not at the expense of the MJ system.

  2. John O'Connor says:

    I am trying to think of an aspect of the military justice system I would be more against changing than the ability to convict or acquit on non-unanimous verdicts. (insert dramatic pause). I can’t think of one.

    Allowing hung juries would seriously undermine the interests of expedition and finality that are among the cornerstones of the military justice system. I also don’t think (as I said below) that there is all that strong a connection between unanimous verdicts and determinate sentencing such that they have to go hand in hand. FWIW, I am generally against the idea of determinate sentencing in the military justice system (one subset of which is mandatory minimums), as I think individualized sentencing is appropriate in the court-martial context. I do favor MJ sentencing so that this individualized sentencing can occur without the wild card of erratic sentences (both high and low) meted out by members.

  3. Anonymous says:

    I just have a very difficult time believing that any military panel would remain “hung” and not come back with a verdict.

    THIS would be where influence of rank and position would come into play (I don’t think it does in the current system, I truly believe E-6′s and O-6′s work well together in the deliberation room).

    We need 2/3rds over unanimous verdicts. I cannot imagine a group of 10 panel members spending 1-3 days out of their (often) valuable positions coming back to work without a verdict.

  4. 0-5 and die says:

    The PSRs that are available to USAOs and the equivalent to the state systems (and not all have it), is not a necessity in the MJ system as it is in the civilian. We have the 2A/2-1, ERB, ORB (Army) as well as the one on one with the servicemembers chain of command.

    What would equalize the sentences would be more relaxed rules of evidence and the ability to proffer information.

    More than anything, the lack of trigger time a TC gets is the biggest problem.

    Another change that would help is to give the judges to do the sentencing alone. Judges more than panels will know what a case is worth.

  5. Southern Defense Counsel says:

    Cully,

    Your point is well made, but one problem that you fail to address is that California’s sentencing has resulted in a prison system that is driving the state broke. I agree that the piece was a good starting point for a discussion(though I disagree with the thesis that sentences are too low – perhaps a product of my background vs. Colin’s).

    That said, I am hopeful that recent MILJUS reforms will result in more seasoned advocates on both sides, and a more robust sentencing case involved so that the right sentence is more often reached than not. The military justice system is designed to meet the needs of the military, and I guess I don’t have so little faith in our officers and senior enlisted to decide what a case is “worth” if given all the facts.

  6. Michael says:

    While judges absolutely know what a case is worth, military sentencing is about both the offense AND the offender. Panel members are better judges of the offender. And by ‘better’ I mean more valuable to the recently convicted Soldier.

    Again, this allows a prepared defense counsel to weigh the considerations before they decide judge vs. panel. If you want a reasonable sentence and your client has no redeeming value, judge alone is the way to go. If your client’s biggest desire is to remain employed by Uncle Sam, go panel or go home.

  7. Phil Cave says:

    Why do we assume that judges know what a case is worth and members don’t? Why do we assume that a judges valuation is right, fair, appropriate, etc.?

    If judges read the reporters and news they get some idea of what sentences in appellate cases are (but not those where the accused got a sub-jurisdictional sentence, or the case was negotiated away from court-martial). Thus judges themselves may have a biased and unscientific view of what the individual case is worth based solely on a comparison with appellate case reported sentences.

    It is true that after the first year, you have a fairly reliable idea of what the individual judge may do, but there are still variations. We are all aware of certain judges who have the reputation of being a thumb on the prosecution side of the scale, and others for whom not going MJA is often joked as being IAC. That means accuseds in one military circuit get treated differently than in others. And it can be the same with members too. Kevin Lovejoys article from some years ago about 82d Airborne members cases is as true today as it was when he wrote it (146 (?) MLR 1 (?).
    Dwight may remember the time when we noticed that all Marine drug cases on the East coast went to AdSep and all on the West coast to court — different CG’s different approach to enforcement.
    If there’s to be a change, let’s adopt one that’s been raised before and rejected by DoD before: the option by the accused to go MJ sentencing after a merits trial with members.

  8. Anonymous says:

    Expedition may be a benefit of having a system that isn’t particularly over-burdened but not sure it is a “cornerstone” of military justice practice. Finality certainly isn’t any more a conerstone of military justice versus civilian justice.

    You could also have a means to deal with less than unanimous verdicts that don’t result in hung juries. Simply say that if there is not an unanimous verdict of guilty on the merits, then acquittal. And if there is not one on sentencing, then you do what we do now, start with the lightest sentence and vote until everyone can agree. Eventually, you will get folks to come to some sort of arrangement.

    As someone noted above, these aren’t your regular jurors we are talking about. These are professional Soldiers who take their role seriously and also have Soldiers to lead back at their units. They’ll come to a decision. So the concept of hung panels seems to me an over-stated one.

    I’d also say that I’m not sure that judges don’t also have extremes, nor has anyone provided anything other than anecdotal or assumption evidence that on average panels do give higher or lower sentences, or that the extreme highs/lows of panels are wider than judges.

    Stuff like that kind of needs to be quantized to have an appropriate discussion. How wild are the swings? A little wild then no big deal, a lot wild then maybe big deal.

    At least in the army, we don’t make criminal justice a big enough deal. We don’t allow career tracking in criminal justice. When the trial counsel (and often defense counsel) learn just enough to be adequate to good, we shuffle them off somewhere else. So I agree with the other point that a large portion of this has nothing to do with the panel or the judge, it has to do with the counsel. You want more accurate sentencing? You could go a long way to getting there with having more career criminal law litigators. Make COL Mulligan (and no real corrollary on the defense side) less of an exception to the rule than he is, and you will have a lot more accurate sentencing because both sides will more often be good.

  9. Cully Stimson says:

    A few comments are in order.

    As to USAFR’s comments, I am not suggesting a policy change from 2/3 to convict to unanimous verdicts. I started off that line of discussion with the following preface, “Although I am not proposing these changes…”

    John O’Connor’s point about the need for expedition and finality in the military justice system are well taken, and I concur with him. We have, for lack of a better term, a custom-made system for the services. However, determinate sentences are “individualized.” They are just not the broad brush no-punishment-to-max-punishment sentences (or anything in between) we have in our system right now.

    As to Anon (3:32pm) suggestion that military members won’t come back hung, I can only say he must not have tried many cases in the civilian sector, because they happen all the time, no matter where. If we required unanimous verdicts in the military, we would we see hung juries—-how many is anyone’s guess.

    Finally, as to Southern Defense Counsel’s comments: I am a big advocate (and have been for my entire career) of the newly established military justice litigation track. It is much-needed, long overdue, but will take a decade (or more) to take root. We will start to see the benefits of it over the next few years, but it will take an entire generation of JAGs going through the system, trying more cases their entire career, before we can reap all of its benefits. On a separate note: I too have faith in the officers and senior enlisted who act as members—often times they have a better feel for what is fair that does the inexperienced counsel.

  10. Mike "No Man" Navarre says:

    Doesn’t the military already have JO’Cian hung panels? It just takes more hangers now than it would with a unanimous verdict. I think there is another name for current “hung” panels . . . acquittals (RCM 921(c)(3))? Wouldn’t the same be true with a required unanimous verdict? And how much would the acquittal rate really increase? I think there is an equal probability that it would force the parties to bargain a little bit better and emphasize expediting cases that would otherwise allow the TC to avoid bargaining believing the government could get at least 4 votes. I am not sure it would let the defense roll the dice all that more often as whether one gets 1 member or 3 members to buy your story is virtually impossible to predict. The DC still must think they have a convincing story (or the government doesn’t have one).

    Look at the history of capital cases since the RCM 1004, U-12 requirement has been in place. Of those taken to trial, how many have resulted in hung panels (acquittals/no death sentence)? I don’t have the stats, but it can’t be that many. If it is, well then . . . I guess I am wrong :-(

  11. Anonymous says:

    none that I am aware of to answer your last point and it is a good one.

    No, Cully, I haven’t done civilian trials. But this isn’t a civilian system and it doesn’t have civilian juries. It has a military panel and there’s a whole lot of differences in the make-up of the two.

    I did not say there would be zero hung panels, but that the number would be so low that the concern exhibited about them here is being IMO “overstated.”

    You’d have a decision most of the time and I agree with No Man that sometimes it would be good for the accused and sometimes it would be bad for the accused. Again why I see no reason why it would impede plea bargains. You can’t predict a panel as far as what it will do in an individual case. It doesn’t become much more predictable if it went to unanimous versus what we have now.

  12. Bridget says:

    I would like to see some real data on the issue of “too lenient” sentences. I gather this is an issue raised in the context of sexual assault cases, and perhaps OIF related cases. But considering that we send service members to jail for not going to work, etc., I would be interested in where the “lenient” sentences appear. I keep hearing that accusation, just not a lot of information confirming that claim.

    BTW, don’t a large number of cases end up with a PTA?

  13. John O'Connor says:

    I think Phil Cave makes a good point in noting that there’s no reason to conclude that a case’s intrinsic “worth” is what the judges would award, as opposed to what the members would award. My point isn’t that sentences would be intrinsically “fairer,” only that they would be more predictable (and I suppose if you equate some degree of predictability with fairness, then it might move the needle a little bit in the fairness context).

    I will say this: if we are going to argue that the memebrs are better equipped to tailor a sentence to the particular offender, then let’s give them all of the information that is logically relevant in deciding how to best sentence a particular offender. Let’s stop using worthless euphemisms like rehabilitative potential (a concept that has been so disfigured by CAAF as to be incomprehensible). Let’s have the leadership tell the members what they really think of the accused, for good or for bad. I’m not necessarily advocating this, but if we’re going to kneel at the altar of members sentencing because of their better sense of what’s appropiate for individual offenders under specific circumstances, maybe they ought to get the sort of information a commander holding NJP would consider worthwhile in deciding what to do with an offender.

  14. anon says:

    I am a fairly experienced prosecutor. I’ve done it almost exclusively and am doing now. I’ve done it at the trial level, the appellate level and had several contested jury trials in District Court. I’ve also been a defense counsel for three years. And while I agree many TC are green, unfamiliar with sentencing requirements and rules I must say in my experience much of my angst comes from the MJ.

    MJs are very unfamiliar with sentencing rules. When they are in an unfamiliar area the common approach is to not allow the evidence in (I have been told by dozens of MJs, “You got the conviction why do you want to jeopardize it with this evidence”). I am not opposed to following the sentencing rules (which, IMO are slanted towards the accused) but I am frustrated with MJs who are more likely to “preserve the record” than actually do more than a 5 second analysis and deny the admission of the evidence.

    I’ve gone so far as having bench briefs ready when I wanted to admit something I knew the MJ would be concerned with and it was still denied (the funniest was when the MJ told me the CMO required written pleadings 5 days prior to the court and I was untimely).

    I give you the fact that many TC are new and uneducated on what is admissible but we need to factor in the MJ who is more concerned with appellate review than allowing the government to present relevant evidence.

  15. Anonymous says:

    The sentencing rules are not simply in your opinion slanted towards the accused, they are purposefully slanted towards the accused.

    And being concerned about appellate review is something military judges are tasked with doing particularly considering the appellate review process in the military.

    Sometimes they get it wrong, and some military judges, well, shouldn’t be. But that too goes back to the lack of a military justice track.

  16. Southern Defense Counsel says:

    Anon 0319,

    Thanks for your insight. I am curious, however, as to why you did not file your bench brief as a motion in limine? I think too many attorneys, DC and TC, fail to use MILs to shape a case. If you think exhibit X will add Y number of months to the value of a case, but you think the MJ might balk at letting it in, why not get his answer prior to trial? If he admits the document, DC knows what pain is coming in during sentencing. If he sustains the defense objection, the CA knows that as much as they want the sentencing authority to hear this evidence it aint going to happen.

    As TC, I think this would be good information to have, especially in a case where DC is contesting and holding out for a better deal. Waiting until you want to offer the evidence and dropping a bench brief on a judge’s lap is inviting him or her to say no, just because they are unprepared…

  17. Anonymous says:

    Agreed, it’s a bit unfair to expect a judge to have done the hours of legal research you’ve done, right after you drop something on them at sentencing.

    You wait until the last minute you are going to get last minute legal analysis.

  18. AF Lurker says:

    Small aside: It’s interesting to hear a debate about low sentences, in a system shaped by the backlash against sentences perceived as unreasonably high and frequent after WWI and WWII. I wonder what percentage of politicians share this viewpoint and whether/how this factored into the decision not to try detainees before traditional courts-martial. Also, concur with Bridget — hard data is sorely lacking and it’s hard to compare across different types of crimes. My friends from the local DA’s office are shocked, for instance, that we even get convictions on one-time drug use cases.

  19. Ed White says:

    I haven’t yet had a chance to read Colin Kisor’s article, (though I am eager to do so), so perhaps he covers the below idea on court-martial sentencing reform and I am just now aware of it, but I have not seen it mentioned in the commentary here, so I will throw it out for consideration and dissection —

    If the military justice system is, essentially, about maintaining good order and discipline in the armed forces, why not put sentencing in the the hands of the Convening Authority? A service member can have a judge or jury impartially try the facts and determine his guilt or innocence — but once found guilty by a fair trial, why not let the commander most accountable for good order and discipline determine what the appropriate sentence is? After all, neither the military judge nor the members are accountable for the state of good order and discipline; the CA is. If necessary, maximum sentences under the MCM could be adjusted to channel CA discretion, and any excesses in CA sentencing could, perhaps, be ironed out by the CCAs in the exercise of their sentence appropriateness review.

    I haven’t given this idea much in-depth thought, but it strikes me as worth thinking about.

  20. Anonymous says:

    So you’d want to give the person who basically referred the case to trial the right to both sentence him AND determine his clemency?

    Seems like one of those two roles would be fairly meaningless and empty.

  21. Some Army Guy says:

    As noted or hinted above, it’s hard to compare civilian and military sentences. Most civilian criminals are repeat offenders with increasing crimes — the most we get for “routine offenders” in the military are a couple of Art 15s. Any serious offenders are discharged so never get a second crack in the MJ system.

    Also, the military self-selects so that, generally, the worst of society — those with extensive juvenile records — can’t even get into the military. Of course, we’ve been giving more waivers since 2004, but those are usually for DUIs or drug possession, not more serious offenses.

    Finally, at a time when military and wartime service are valued by our nation, our servicemembers get “credit” for volunteering and for their (often repeat) deployments; not many in the civilian system have that going for them.

  22. Cossio says:

    Just some quick points,

    I’m not sure were you get off the idea that CM’s are “lienient”, considering we jail people for “offenses” that would never and could never be offenses in the civilian world, I….Oh, I just read Bridget’s comment, she hit it on the head. Sex cases and some assult cases are the only charges were I see “lienancy” compared to the Civilian populous. Considering that most cases are drug related, and we all know how lienent the military is with 3-6 months for weed and 6-9 months for Coke (in the AF, the Army they get a few weeks, maybe a month and back to their unit), I don’t see your rational, if anything the Military Member is hammered, and most are first-time offenders requiring no pre-sentencing report, the Judge usually knows what a case “is worth”. However this idea is practical to a members panel. I do not support the idea od mandatory sentencing, our Judges are more competent and ethical then State Judges, they require no Guidelines.

    Regarding the majority finds you guilty system in the UCMJ, I believe this is one aspect in the military that the civilian system should emulate. And in some jurisdictions for Misdemeanors, they do.

    Maybe a unanimous requirement for more serious offenses, that would cut down Court-Martial for GCM happy bases (like Hurlburt)

    I agree that we should have more options, like suspending a sentence and/or discharge, and that we should have a type of probation.

  23. Anon says:

    You can’t compare drug use in the military to drug use in the civilian world. I don’t know about you, but if I were flying a plane/helicopter or on a ship that was being maintained by a drug user, that would cause me some great concern. If it’s an admin troop using drugs, there’s no difference. In an emergency situation (i.e. FT Hood, anyone?) and some idiot came to work with drugs in his system, do you want him having your six? I think not. Not a good comparison, Cossio. Crimes should be punished as crimes. We just need more consistency in our MILJUS system across service lines.

  24. Cossio says:

    Anon: You can’t compare drug use in the military to drug use in the civilian world. I don’t know about you, but if I were flying a plane/helicopter or on a ship that was being maintained by a drug user, that would cause me some great concern.

    Your premise that this doesn’t happen in the Civilian World is baffling. Think about that next time you board Delta.

  25. Anonymous says:

    Well, I would have great concern if my doctor, airline pilot, nurse, ambulance driver, bus driver, anyone driving a car, well you get the picture.

    I see the point that there are some military specialties where drug use is of more a concern, but most of the incidents don’t involve someone who is using it while covering someone’s six. It usually happens after a deployment, or before a deployment, or after a wild Saturday night and usually involves a Soldier with whom the worst concern is showing up to formation bleary eyed.