The February 2010 issue of the Harvard Law Review includes this note offering a highly favorable view of the military justice system.
The note contrasts the civilian and military charging models and finds the military system superior. The note attributes the military’s favorable model, in large part, to the fact that the system was designed for the purpose of promoting the perception of legitimacy and fairness while the civilian system grew into its current condition without any overarching plan.
The note favorably compares the Article 32 investigation to the civilian grand jury, observing that the former is not only fairer, but reduces the information disparity between the prosecution and the defense, thereby promoting accuracy.
It’s somewhat amusing that I read this note the same day I read CAAF’s Ferguson opinion, discussed below, since the note also argues that the care with which the military justice system handles guilty pleas promotes accuracy and perceived legitimacy. While the note cites an article by John O’Connor, he will likely be displeased that the note lauds the military justice system’s refusal to allow an accused to waive appellate review as part of a plea bargain.
The note also argues that resting prosecutorial discretion in commanding officers rather than in prosecutors enhances the system’s fairness and reduces the temptation to use charging decisions as a bludgeon to force guilty pleas. The note refers to some statistics suggesting a much higher rate of contested cases in the military system than in civilian criminal justice system. But the note misses the boat on one explanation it offers for this phenomenon. The note contends: “Most starkly, in the limited number of military capital cases, plea bargaining is not even a possibility, which removes one major issue that plagues the civilian system: the fear that the threat of the death penalty is so coercive that it can induce even an innocent defendant to plead guilty.” Note, Prosecutorial Power and the Legitimacy of the Military Justice System, 123 Harv. L. Rev. 937, 955 (2010) (footnote omitted). As we know, that’s wrong. The UCMJ prohibits a plea of guilty to an offense that has been referred capitally. But the UCMJ allows — and it happens all the time — an accused to cut a deal for a non-capital referral. So the very thing that the note contends the military justice system protects against is actually a common event in military premeditated murder and felony murder cases.
Military justice reform proposals from time to time suggest moving the system’s prosecutorial discretion from commanding officers to lawyers. It’s interesting to see an analysis that treats command control of prosecutorial discretion as one of the system’s strengths rather than a weakness.