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.

15 Responses to “Harvard Law Review note praises military justice system”

  1. Late Bloomer says:

    I’ve seen anecdotal evidence that our system may appear superior, it is in fact the same if not worse. Although the miljus system may provide more protections in terms of procedure and “barriers to entry”, once an accused has entered the court-martial process, there is a certain perception or expectation that he/she has done something wrong, even if not the charged offense. Again, this is just from speaking with fellow TC/DC and even a few friends who happened to sit as members once or twice.

    I’ve even heard someone who described his philosophy as a member as, “Well, the command wouldn’t be wasting our time with this if the kid hadn’t done anything wrong. So he must’ve done something. We just need to figure out what it is.” Sadly, I fear that this sort of sentiment may be widespread.

    I’d be curious to see the empirical evidence. What % of military accused vs. civilian accused are fully acquitted?

  2. Larry says:

    Acquittal rates could have more to do with military commanders prosecuting every rape case they can shake a stick at. You’d almost have to look at non-120 cases to get a useful assessment. I’ve heard that civilian prosecutors won’t even take a case unless they’re 90% sure of a conviction.

  3. Anon says:

    As a former TDS counsel, and combining the two comments in my response, it is true that all but one of acquittals I’ve gotten have been of the date rape variety, and the other was a molestation case.

    Of course, I suspect the volume of not guilty pleas is much lower in the military than the civilian world (although they are low in both).

    I doubt the mentality of your average jury is much different. I also suspect the education levels are much more widely disparate leaving both sides much less confident of a predictable result.

    I think the real issue is that we have an American value of innocent until proven guilty but as a society (military and civilian) we don’t really believe in that value other than giving lip service to it.

    Most still think if you were arrested then you must have done something wrong.

  4. Cheap Seats says:

    I can’t agree more with Larry. The recent push by CJCS, DoD, and the Service Chiefs against sexual assault in the military (which is extremely important) has left the CAs even more in a pickle about referral. There is the looming spectre of UCI concerning referral in the air. We often take cases that the states have dumped because they are dogs. We have no problem parading everyone in, destroying more lives, and getting fast acquittals. Article 120 cases are terrible, but discretion is often the better part of valor.

  5. Ama Goste says:

    Don’t forget naked urinalysis cases when counting full acquittals.

  6. Some Army Guy says:

    The focus by DoD and the service chiefs was the result of intense Congressional, media, and outside interest groups.

  7. Anonymous says:

    I disagree with the premise that the CA system increases the “perceived” or even the “actual” legitimacy of the military justice system. Look at the arguments some congressmen have jumped on in the SEAL cases – they obviously do not perceive it as legitimate.

    Rather, I always took the CA as a necessary evil – one that keeps the potential for UCI a big problem we constantly have to battle. We accept this risk in the military because the military justice system has to accomplish different things than the civilian justice system does. That makes comparing the two systems hard – we have three different types of courts-martial, a nonjudicial disciplinary forum, and we almost always have the option of kicking someone out administratively if we think that, even though you’d never prove it at court-martial, it’s “more likely than not” the person did it. What would the civilian equivalents be? I don’t think they exist, and that makes any broad comparison of empirical evidence a tad superficial.

  8. John Harwood says:

    I agree that oftentimes it seems our court-martial panels come into court thinking “he must’ve done something, or we wouldn’t be here.” However, I think we frequently have members on our panels who think “I wonder why they’re trying to screw this guy.” Under our bright blue veneer, there’s often a deep streak of cynicism – especially among USAFA graduates.

    Compared with the yahoos you see in civilian criminal trials, I’ll take a court-martial panel full of pilots, engineers, logisticians, doctors and nurses any day.

  9. Some Army Guy says:

    In the SEALs case, the CA is a decorated special operator.

    Imagine the outrage if the charging decision was made instead by a bunch of JAGs.

  10. Some Navy Guy says:

    I think you must also look at our sheer numbers. If you took any DOD docket and compared it to most locket town dockets, we have a lot of time on our hands. We have our paternalistic system b/c we can. Three hours for a pretty simply guilty plea, no problem if you have one a day or three a week. If you have fifty cases one your desk, then it doesn’t work. Our system would collapse under such weight and the civilian system is designed to handle mass quantity, we simply aren’t, for better or worse. With miljus numbers going down, DC and TC have more time to work on cases. That probably also increases contested cases and acquitals. If you remember the days of UA dive after UA dive, you took low hanging fruit and worked on what you could, always knowing you didnt have enough time. Nowadays with the dockets often so light and not a UA dive in sight, you have lots of time.

  11. Socrates says:

    Some of the “old-timer” CAAFLog contributors may have a lot to say on whether the system could withstand the weight of such numbers. I believe these guys had such caseloads in the 1980s and perhaps early 1990s.

  12. Anonymous says:

    Yeah, I think the military justice system spends a lot of time worrying about perceived legitimacy because of the CA system, not vice versa.

  13. any mouse says:

    If they were really serious about it they would do away with coed barracks.

  14. Late Bloomer says:

    Some of the “old-timer” CAAFLog contributors may have a lot to say on whether the system could withstand the weight of such numbers. I believe these guys had such caseloads in the 1980s and perhaps early 1990s.

    Sgt Foster might likewise have something to say on that topic.

  15. Anon says:

    Should we do away with co-ed apartment buildings in civilian society?

    Most date rape situations I have seen involved someone invited in, so not sure anything would change if we had boys and girls barracks.