As noted in Rep. Jackie Speier’s press release here, “Representatives Jackie Speier (D-San Francisco/San Mateo), Bruce Braley (D-IA), and Patrick Meehan (R-PA) today introduced the bipartisan Military Judicial Reform Act to strip military commanders of the unilateral power to overturn convictions or lessen sentences handed down by judges and juries at courts martial.”

The bill’s text is available here.  The bill would require the convening authority to “approve of the sentence in whole.”

The bill does away with the SJAR and the CA’s suspension power as well.  The legislation would preserve the CA’s authority to waive automatic forfeitures for up to six months — a power CAs often exercise for the benefit of the accused’s family.  In what might be a drafting error, however, the bill appears to eliminate the CA’s power to waive adjudged forfeitures for the benefit of the accused’s family.

If approved, among other effects, this legislation would likely vastly increase the number of contested court-martial cases, since a PTA couldn’t be negotiated with the CA, as in current military justice practice (a point LtCol Winklosky of the Army JAG School made in his comment to this 31(b)log post).

Here’s a link to video of the bill sponsors’ press conference.

29 Responses to “Rep. Speier introduces legislation to eliminate convening authorities’ clemency power.”

  1. JAE says:

    And tomorrow morning (3/13) at 10:00 AM, the Senate Armed Services Committee’s subcommittee on military personnel is holding a hearing on “sexual assaults in the military.”   The webcast can be viewed here:  http://www.armed-services.senate.gov/

  2. Brian Bouffard says:

    There’s no problem that can’t be fixed by an angry, self-righteous politician with about a 20% understanding of an issue, a half-baked law that sort of relates to that issue, and a complete lack of concern for unintended consequences.

  3. JAE says:

    Well, whether they understand the issue or not, they aren’t shooting blanks.   

  4. Christopher Mathews says:

    I once knew of a CA who used to grant clemency when he was feeling particularly chipper about events in his life: a particularly good round of golf, for example.  It was an odd foible, at worst an annoyance — until he cut the sentence of a serial child molester in half, for “any reason or no reason at all,” as the saying goes.  Then it was far worse.
     
    So … what’s the proper response to such a treatment of crime and punishment?  Is there any? 

  5. Tami says:

    I guess Jackie wants to keep all of us gainfully employed.  We all know that great law can be written in only 4 pages, without any concern about the impact these changes have on other laws (I’m being sarcastic).

  6. k fischer says:

    Like Dwight said, if the CA can only approve a sentence as a whole, then there are no more pretrial agreements and many more contested cases it appears, not just in sexual assault cases, but AWOL cases, adultery cases, disrespect of an officer case, and every other case that has a military specific offense.  And, as the wheels of military justice comes to a grinding halt, perhaps we will see many more discharges in lieu of court martial or PTA’s for referral to a summary court/OTH waiver, and we will see how well the civilians handle the prosecution of sexual assault in the military.  I wonder if Rep. Speier met with former judge advocates to analyze the consequences of this amendment on good order and discipline, or if she went to Nancy Parrish and asked her to draft an amendment of the UCMJ for her.  

  7. k fischer says:

    Rep. Speier also blames the death of two Santa Cruz cops on the military’s lax prosecution of sexual offenders:
     
    http://www.sfgate.com/crime/article/Speier-Lax-military-led-to-cops-deaths-4349858.php
     

  8. Tami says:

    Kimberly Hanks, the accuser, is interviewing on the Today Show right now.

  9. Biff says:

    It’s not just Rep. Speier that’s blaming the Santa Cruz cops’ murders on the military justice system: 
    http://www.montereyherald.com/local/ci_22776323/panetta-military-ought-be-transparent-cop-killer
     

  10. stewie says:

    while I dont think losing clemency is the end of the world, I do think if this law as written gets rid of the ability to negotiate pre-trial deals that is a big problem for both an accused and government.
     
    I do wonder though if we won’t see as much an increase in naked pleas as you would in contests from this, but still, guilty pleas fairly bargained for are a pretty big thing to get rid of.

  11. Anon12 says:

    I read the bill, and I must be missing something.  Why again does this do away with PTA’s?  The CA approves certain punishments all the time in PTAs, but agrees to suspend and remit certain punishments, etc.  For instance a CA could approve a BCD yet suspend and remit it.  A CA could approve 180 days of confinement and suspend all of it above 90 days, etc. The bill says nothing about the CA not being able to still enter into a PTA and provide the accused with certain benefits in the PTA. I do agree, however, that it removes the CAs ability to disapprove the findings and sentence as he did in the Wilkerson case.  

  12. k fischer says:

    Anon12, 
     
    The amendment deletes subparagraphs (c) through (e) of Article 60 and replaces it with subsection (c) part of which reads:
    Except as provided in section 858b(b) of this title (article 58b(b) [dealing with forfeitures]), the convening authority shall have no authority whatsoever to modify the findings or sentence of the court-martial. (lines 13 -16)
     
    So, if the CA has no authority whatsoever to modify the sentence of the court martial, then he cannot approve only so much of the sentence that is in the quantum portion of the PTA.  He would be modifying the sentence unless he approved the sentence in whole.  Oh yeah, “the Convening Authority shall approve of the sentence in whole.” (lines 12-13)

  13. Phil Cave says:

    Kf,
    But the effect is he can’t even engage in a PTA.  The language takes away his ability to implement any PTA terms.  Isn’t that the real problem?
    So, let’s say I want to negotiate, as I have done, a PTA that says in exchange for making direct restitution of $x to victim, the CA will suspend x, I can’t even do that as a better way to make a victim whole.  As a specific example, paying a victim for all the costs in having to change ISP, email accounts, and several other accounts, and a couple of doctor visits.

  14. Anon12 says:

    I just do not read it that way.  He’s not modifying it if he suspends as I stated. The “only so much of the sentence….” language is boilerplate from what somebody at a JAG School or a place like Code 20 came up with years ago and sold to the Code Committee for inclusion in books that recommend that language be used in CAs actions.  There is no legal requirement this language be used in an action.  The question is, how does the proposed bill prevent a CA from saying in his action something to the effect of, “The sentnce is approved, however all confinement above 90 days is suspened for aperiod of one year, after which it will be remitted,” or words that effect?  It doesn’t in my mind.      

  15. Dwight Sullivan says:

    Anon12, the portion of the bill repealing Article 71(d) does away with the CA’s power to suspend execution of a portion of the sentence.

  16. k fischer says:

    Anon12, 
     
    I don’t see how the legislature could be any clearer with the words “the Convening authority shall approve the sentence in whole” and “shall have no authority whatsoever to modify the sentence.”  In fact the CA’s authority to suspend a sentence appears in Article 60(c)(2).  The proposed amendment deletes that and replaces it with the very clear language that I have bolded.  
     
    Phil, we completely agree on this.  The CA could enter into a PTA, but the only thing he can order is a suspension of forfeitures.  So, if he agreed to approve only so much of the sentence that called for 90 days confinement, and the judge sentences him to one year, then he goes to jail for a year because the convening authority shall approve of the sentence as a whole and shall have no authority whatsoever to modify the sentence of the court-martial, which in this hypo is one year.  
     
    I cannot fathom how anybody could read this any other way, unless Phil, Dwight, Lt Col Winklosky, and I are wrong.

  17. Tami says:

    Anon,
     
    This completely does away with bargaining power.  Right now, the accused gets the benefit of every part of a sentence that is lower–the sentence from the judge, or the sentence from the PTA signed by the CA.  So following k fischer’s example, if the judge also sentenced an accused to a dishonorable discharge, but the PTA calls for a BCD, then the CA has no choice but to approve the DD.
     
    The CA would have no authority to suspend or defer confinement or reduction in rank, no authority to suspend the discharge, nothing.  And there would be no point in a judge or jury recommending clemency, which does happen occasionally, because the CA wouldn’t have any authority to grant it.

  18. anon81 says:

    Won’t this potentially just require a modification for how we do guilty pleas? To make it more in line with the civilian process, where the judge knows the approved sentence?

  19. stewie says:

    Let’s assume this law goes forward.  Would one partial solution be to allow the MJ to know what the deal is?  He wouldn’t be bound by it, but he’d know that the government and defense both agreed this was the proper result.  He could come in lower if he wanted to, and higher as well, but one would think most would try not to do the latter in most cases.
     
    It’s not a full solution, I would prefer if we take away clemency to still retain the power to do an OTPG with heft behind it. 

  20. k fischer says:

    Stewie, 
     
    You could do that, kind of like our state system in Georgia.  You make an agreement with the DA and 99 times out of 100, the judge will accept it. But, the Judge can not approve the deal, in which case he advises the accused that the deal they made would not be accepted and asks if he would still like to plead guilty.
     
     I don’t know how you make this work in the military because it seems that the Judge could only override the deal after the providence hearing, which case the accused would have incriminated himself under oath, so I guess the TC would be able to use that against him at trial if the accused elected to contest the charges.  Maybe the TC submits the facts of the case as he sees them to the Military Judge who then determines whether the sentence is appropriate and advises the accused before providence.

  21. Phil Cave says:

    “I cannot fathom how anybody could read this any other way”
    Nancy Parrish?

  22. Anon12 says:

     Dwight/KF-after reading the Article 71 amendment I agree with your analysis.  In any event, I don’t think this bill has a chance of passing, but if it does it will create quite an irony; in exercising the authority vested in a CA to modify findings and sentence for the benefit of an accused, this particular case may very well result in removal of that authority to the detriment of all future accuseds, and it may not end there.  Depending on how deep Congress goes on the issue, you could see that portion of Article 66(c) dealing with factual sufficiency go away too.   

  23. Tami says:

    Thank God for Senator Graham!

  24. k fischer says:

    Anon12, 
     
    http://tv.msnbc.com/2013/03/13/bill-to-help-victims-of-military-sex-assaults-has-good-chance/
     
    Tami, I concur.  I’m impressed with the Services Judge Advocates General.
     
    Why can’t we move the accused?  Article 13 ring a bell? And, the accused has not been convicted by the way.  I suppose once the Article 32 goes down, and the case is recommended for referral, then you can at least move the accused.  When McCaskill was McCackling, “The clemency process occurs after the appeals are up!  Can you explain why on Earth the clemency process occurs before the appeals begins?”
    Cause its the system you dip$%its came up with? 

  25. k fischer says:

    I sure would like to see the facts surrounding the Aviano case they keep talking about!  At least McCaskill is not saying that it was a pilot taking care of another pilot.

  26. JAE says:

    So, I just returned from the Senate Armed Services Committee (subcommittee on military personnel) hearing on sex assault in the military.  Sen. Gilibrand (D-NY) chaired the hearing, where the TJAG’s from all the services, Mr. Taylor from DOD OGC, and MG Patton of DOD’s sex assault office testified.  Actually, the hearing is still going on (I had to get back to work), and can be seen at http://www.senate.gov/isvp/?type=live&comm=armed&filename=armed031313p
    The Wilkerson case was a hot topic, as was the legislative history of Article 60.   Senator Levin (D-MI and the chairman of the entire SASC) came in and asked one very telling question.  In questioning Mr. Taylor about the legislative history of Article 60 (which, of course, dates to 1775), Sen. Levin asked whether, at Article 60’s birth, accuseds could appeal their convictions to military appellate courts and, ultimately, to SCOTUS.  The answer, naturally, was “no.”    Levin followed up with the obvious question — well, if military members have these robust appellate rights, does it still make sense to vest convening authorities with the power to overturn cases for legal reasons (i.e. insufficient evidence)?   No straight answer on that one from anyone, but I thought it was interesting. 
    The media event of the day happened when Sen Gilibrand angrily responded to testimony (in response to one of Senator Graham’s questions) that CA’s need Articlt 60 to “maintain good order and discipline.”   Sen Gilibrand said she was “very troubled” by the responses, citing to all of the gory sex assault statistics about assaults not reported, not acted on, etc., to make the point that, in this area at least, the CA’s are NOT maintaining GOD.      
    I’m an Army guy, so I’m sure I’m biased, but I thought that MG Patton and LTG Chipman both did well.   MG Patton particularly spoke eloquently about the need to work on the broader “culture” issues involved, whcih I think we as JA’s sometimes miss.   
    Whatever the outcome, it is incorrect to write congressional (or, at least Senatorial), efforts in this regard as uninformed politicking.
     

  27. Tami says:

    All the TJAGs did WAY better than Mr. Taylor–he seems like he’s throwing the post-trial process under the bus.  And Gillibrand unloaded on them.

  28. k fischer says:

    JAE, 
     
    I was taken aback by that information from Senator Levin.  I was not aware that was the case, although I should have known since there aren’t any reported cases from the 1800’s.  That point really made me  think about whether clemency is really even required beyond a PTA, since there technically is an appellate process now.  
     
    I tend to disagree with your analysis regarding uninformed politicking regarding Senator Gillibrand.  She was clearly annoyed with Senator Graham’s statement that there is no reason to change the whole system of military justice because of one of two cases of sexual assault that were thrown out in the past four years Service-wide. That was a kidney shot and clearly not in line with the agenda that Senator Gilibrand wanted to put forth.  The diatribe that followed was what I would expect, as they say down in Georgia, “A stuck pig squeals the loudest.”

  29. OPLAW-LCDR says:

    RE: the idea of letting the MJ know the sentence.
    I come from a state that has that and it is a disaster. We have pleas that are “non binding” on the judge. The problem is, everyone knows what judges will change the sentence and which ones will not. If you draw a judge that won’t respect a plea, no one will plead. It makes a mess for everyone. It creates a situation where it is essentially malpractice to plead.