During today’s SASC Subcommittee on Personnel hearing, Senator Gillibrand (the subcommittee’s chair) mentioned Senator McCaskill’s bill to limit CAs’ post-trial powers.  Here’s a post from Senator McCaskill’s website about the bill, S. 538.  The bill isn’t yet available on Thomas, but according to the statement on Senator McCaskill’s website, unlike Representative Speier’s bill, it wouldn’t take away CAs’ power to reduce the sentence, though it would require the CA to provide an written justification when doing so.  Senator McCaskill’s bill would apparently take away CAs’ power to set aside findings.

27 Responses to “Senator McCaskill introduces legislation to trim CAs’ clemency powers”

  1. Tami says:

    I’m really OK with requiring an explanation in writing, and I think CA’s should be limited to reducing/disapproving findings for either legal error or part of a pretrial agreement, or as LTG Chipman pointed out, for the greater good of getting rid of a Soldier who got NJP at trial.  A post-trial Chapter 10 is a LOT faster than a post-trial Chapter 14.  But getting rid of ability to reduce/disapprove findings completely is not good.  Still, better than Speier’s bill.

  2. k fischer says:

    So, in the light of the Wilkerson dismissal, the Goulet murders where Panetta blamed the military’s failure to put Goulet in Leavenworth for two cops death, and the Senate hearings on sexual assault and military justice yesterday, the Fort Hood Sentinel published their weekly column entitled Justice Served:
    Court Martial results: At a General Court-Martial Feb. 27, Pvt. Justin Tea, 553rd Combat Sustainment Support Battalion, 4th Sustainment Brigade, 13th Sustainment Command (Expeditionary), pled guilty to Conspiracy, Larceny and Violation of a General Order for failing to register a privately owned weapon on post. A military judge sentenced him to confinement for 24 months, forfeiture of all pay and allowances and to be discharged from the service with a Bad-Conduct Discharge. March 1 at a General Court-Martial, Spc. Tristan Whitfield, 2nd Chemical Battalion, 48th Chemical Brigade, was found guilty of Wrongful Destruction of Property, Aggravated Sexual Assault, and Communicating a Threat. An enlisted panel sentenced him to perform 60 days hard labor without confinement, reduction to the grade of E-3 and to be discharged from the service with a Bad-Conduct Discharge. At a General Court-Martial March 4, Spc. Michael Martinez, Company B, 15th Military Intelligence Battalion, pled guilty to Aggravated Sexual Assault. A military judge sentenced him to confinement for seven months, reduction to the grade of E-1, forfeiture of all pay and allowances and to be discharged from the service with a Bad-Conduct Discharge.
    So, aggravated sexual assault brings 60 days and 7 months confinement, but Larceny and failure to register a weapon on post brings 24 months confinement?  Defense attorneys would argue those two boys got convicted on a bs aggravated sexual assault charge or Senator McCaskill would argue the military values its property and adherence to regulations over sexually assaulting a person.  
    The truth is that nobody will or ever know unless they read the trial transcripts on each of the courts-martial.  But, that would take a lot of work.  
    I’m with Tami.  This bill is much better than Speier’s, but I still think prohibiting  the CA from disapproving findings is a mistake.  But, at least blood wouldn’t shoot out of my eyes if these measures were passed.

  3. Ex TC says:

    If you are DC for the sex assault defendant, are you complaining?
    Yet, if only there were something that could be devised that would bring some level of uniformity to sentencing? Perhaps some form of guidelines to prevent such backwardness. Perhaps to educate people on sentencing, who have never performed that function before. I guess we can only dream.

  4. ResIpsaLoquitur says:

    Ex TC–
    “Uniform sentencing” always makes me nervous given how no two cases have the same facts and circumstances.  Given a glance at the charges in k fischer’s post, yes, they look inappropriately disparate.  On the other hand, we don’t know what facts gave rise to the guilty findings.  “Larceny” could be anything from stealing a candy bar from the Exchange to stealing a neighbor’s firearm in part of a grander plan to commit armed robbery (which could be related to the conspiracy offense), and it could be that the private has a history of NJP and is on record saying he’s glad he did it.  “Aggravated sexual assault” could be a brutal gang rape, but it could also have been a somewhat intoxicated specialist who misread the singals of a more intoxicated woman at a party and who showed genuine remorse for what he did. 
    We don’t know.  As I’ve said elsewhere, our quick-read, soundbyte-happy society is all to ready to reach a conclusion without having the full facts in front of us.

  5. Atticus says:

    I think we are also inevitably headed toward some form of sentencing reform in the military justice system.  There have been an ever-increasing number of law review articles about it, and I for one believe it is sorely needed. We need to go to judge alone sentencing and implement ranges, if not actual guidelines like federal court.  Members have absolutely no idea of what a case is worth and have no concept of sentence disparity.  Judges see cases all the time and are more likely to award consistent sentences, at least as far as confinement goes.  When you tell a panel they can sentnce someone to a large term of years and then turn around and tell them they can sentnce someone to no punishment, it’s understandable that they come up with inexplicable results.

  6. Keith Hodges says:

    The best thing about UCMJ sentencing guidelines is that there are none and there should not be any. Ask those who practice with the feds; it is sentencing by numbers and does not generate or logical fair sentences, just ones that could be consistent.

    But consistent sentences are valuable only when the “common sentence” was correct to begin with and the facts of the cases, and the aggravation, extenuation, and mitigation, are the same – how often does that happen?

    Judges might be able to adjudge more consistent sentences but members might be better at what is appropriate. If we trust officers and NCOs to know what is best for the service, I think that trust extends to what will best maintain good order and discipline.

  7. Atticus says:

    Keith-Your comments about the sentencing guidelines are all Defense-oriented, which is okay, but it’s really just complaining rather than a substantive argument against sentencing guidelines.  “Those who practice with the feds” know an accused gets at least a 3-point downward departure – automatically – from pleading guilty, and that does result in a substantial decrease in most cases.  If he further agrees to cooperate, he also gets the “5k” letter from the government which further lowers his sentence.  This is all automatic and not open to a judge or panel’s subjective measurement of what it is all worth.  You call it sentencing by the numbers because neither you nor the prosecutor nor a federal judge can just sell a case away with unchecked discretion, and defense attorneys in federal court don’t like the lack of ability to “negotiate” a case down to nothing. And you overlook the fact that there is an added tool in that system which also serves to assist the court that does not exist in the MJ system, the pre-sentencing report from probation.  Even the states have mandatory minimums.  Military sentencing is archaic and needs reform.  

  8. Keith Hodges says:





    /* Style Definitions */
    {mso-style-name:”Table Normal”;
    mso-padding-alt:0in 5.4pt 0in 5.4pt;
    mso-fareast-font-family:”Times New Roman”;


    My perspective is a lot different than you might think, and it comes from more time on the prosecution/law enfocement side than the defense.

    I like the idea that if there is E&M or aggravation, put it on the witness stand. I don’t like automatic; I like the ability to decide what something is worth.  And, I am not enamored with the idea that bureaucrats in Washington know what a case is worth as opposed to a judge. If we trust a judge or jury with the subjective measurement of guilt, why not the sentence?

    What the parties present is not unchecked. In fact, it is better checked than a probation services report prepared by a federal agent. It is checked by the rules of evidence and confrontation.  If a case is worth no time, why not have the ability to do that? And, of course, getting around draconian sentencing guidelines  it is done all the time in federal court when a defendant is faced with 10 righteous counts and the parties have the defendant plead to one count because that is the only way to get the numbers to a just sentence. And then the conviction makes it look like the defendant only did “it” once instead of the ten times.

    I have seen pretrial reports and I would prefer having information that the parties stipulate to, and if they won’t, the evidence is put in front of a panel rather than a GS-7 saying in writing, “I spoke to Susie and she said ….. ”  A good aggravation or E&M case beats a one sided, un-confronted report any day.

    And, I like to ask those who support sentencing guidelines – do you know what an appropriate sentence  looks like? You do? Good, then why do you need some book written in DC tell you otherwise.

  9. Ex TC says:

    Not all fed sentencing is by the numbers.  You can actually agree to a specific sentence under 11(c) and if the judge accepts the guilty plea, that is the sentence. The judge can accept it or reject it, but if they accept it, you get that sentence.  That is not possible in our system. Happens everyday in fed court.
    Fed sentencing is vastly different in many respects – repeat offenders with prior convictions, more violence and drug based than military crimes, limited sex crimes, older defendants usually – but there is no reason that servicemembers could not create reasonable guidelines or reform sentencing.
    The defense bar does not want to move to judge sentencing b/c judge’s generally hand out harsher confinement sentences than members.  I can’t back that with data, just with years of experience on both sides of the courtroom.  That is a fine position to take b/c it benefits your client, but to say that members know best about good order and discipline and then say members wrongly convict the innocent is, to me, trying to have your cake and eat it too.  It is just constantly taking a pro-defense position without discussing the merits of either side or the value of possible change.

  10. Govapgo says:

    11(c) sentences are more myth than reality in fed court – tried to do one many times, was always told heck no.  Considering the fed guidelines apply to fed judges who sentence all the time, it is scary the unbridled latitude we give panels to sentence.  It’s even scarier to consider what is NJP at one base is a federal conviction at another.  That isn’t justice.  

  11. Keith Hodges says:

    Enhancements that are part of the sentencing guidelines and not part of the statute itself are still at or less than the maximum sentence, right? I mean if the maximum is 10 years, all the guideline enhancements does not get one over ten years. Members and judges apply enhancements and departures all the time because part of what is running through their members’ mind are questions like did he plead G, did he save the govt time, is he a repeat offender, will he re-offend etc.  Every enhancement or departure under the federal guidelines are available to the trial advocates and unlike the sentencing guidelines, they can assign the weight they deserve not what Washington thinks it should be.

    Sentencing guidelines are just the nanny State for judges.

    But, I don’t see what the oppostion is to allow intelligent men and women to know what is best for good order and discipline. Will mistakes be made? Sure, but sentencing guidelines don’t always fit and AUSA’s spend a lot of time trying to game them or avoid them when they can’t get a defendant to plea.

    I don’t take a pro-defense position. I take a position that those who see the case, the facts, and the defendant are better at deciding a sentence than someone with a calculator in DC.  I have adjudged no punishment in a barracks larceny and many years on a similar larceny. The facts of the crime were very consistent. The defendants and who they were, what they had done service wise, and their value to the service were not and I don’t think there is a way one can quantify the value of that. I had the freedom to adjudge what I did, freedom the sentencing guidelines would not without jumping through manufactured hoops and justification through departures.

  12. Ex TC says:

      Not sure how familiar you are with fed guidelines, but it is not as simple as insert crime and sentence appears.  Judges can depart upward and downward from the guidelines and must factor in 3553 sentencing factors that deal with the individual before them.  Also, guidelines are driven in large part by a defendant’s criminal history category which is based on their criminal background.  (Few, if any, servicemembers have a court-martial or serious criminal history, they getting sep’d too quickly.) It is a complex calculation of the criminal history category, offense level, enhancements, departures, and individualized sentencing factors.  Fed judges have plenty of freedom under guidelines to formulate an individualized sentence for an offender and there is no reason a military judge would not either, or members.  Hardly a nanny state versus the often complex sentencing litigation that has evolved. 

  13. Tami says:

    Here’s why we shouldn’t have sentencing guidelines in the military:
    1.  Repeat offenders are rare–they’re usually kicked out the first time.
    2.  The military has punishments that the civilian sector doesn’t have, like reductions in rank and punitive discharges.  How can you create sentencing guidelines for those?  What crimes are worth a DD v. BCD, or no discharge?  What about officers, where it’s a dismissal or nothing?  What about fines?
    3.  There are people who are worth salvaging, those who are considered force multipliers for deployments or fill MOSs that the unit is short on, and those who stand to lose VA care for combat injuries for doing stupid stuff, if they get discharged.
    As far as going before a panel or a judge for sentencing, it’s a matter of knowing your judge and your panel members.  Some of my clients got fantastic sentences from judges.  I had an E-5 client who pled guilty to 2 1/2 year long AWOL, and COL Debra Boudreau (a/k/a “The Velvet Hammer”) sentenced him to 90 days hard labor without confinement and 1 grade reduction.  I saw COL Parrish sentence a PFC to 90 days confinement and reduction to E-1 for writing $18,000 worth of bad checks to AAFES (not my case).  People who know these two retired judges’ reputations should be shocked.  But these two cases had exceptional mitigating and extenuating circumstances.  Sentencing guidelines don’t account for exceptional cases like these.
    One change I would like to see in sentencing is adding restitution as an available sentence.  I have never understood why that is only available in a guilty plea.  Make it like a fine–if you don’t pay the victim, you go to jail for xx amount of time, and you get a hearing to determine if failure to pay is bad faith.  I think it’s better than a fine, since the money would go to the victim.

  14. Tami says:

    Ex TC, if civilian judges have the “freedom” to fashion sentences based on individual circumstances, then why bother having sentencing guidelines at all?  And with the complex calculations involved, if I was a judge under your system, I’m too tired after doing all that math to do more work to come up with a justification for departure and risk an appellate court chewing me out because I didn’t justify enough.  I think you just made Keith Hodges’ case for why the military shouldn’t have sentencing guidelines, ’cause in the military it’s really easy–the floor, the ceiling, or anything in between.

  15. Keith Hodges says:

    I was about to say exactly what Tami said above re: the freedom fed judges have but she beat me to it. If that is the case, why do the number drill? Lets get over the fact that sentencing isn’t subjective – it always is and working  the numbers denies reality.

  16. Ex TC says:

     Seriously. Too tired. Afraid of appellate courts chewing you out for a departure. I assume you have limited experience in the fed system. Guidelines provide a benchmark for all parties when discussing the resolution of a case.  It is a starting point but not the end all. People hear guidelines and simply say its all math. Hardly. 
    It’s certainly true that the systems’ defendants are very different, with different punishments, but it is hardly unimaginable that the military could not come up with some method to sentence defendants individually while taking into account overall guidelines.

  17. Keith Hodges says:

    So, what is the point of guidelines if there are departures and at the end of the day the judge could (as she should) give the sentence that is what she thinks is right?  Consistency?

    “A foolish consistency is the hobgoblin of little minds.”

  18. ResIpsaLoquitur says:

    Heh.  Coincidentally, I’m watching a “King of the Hill” episode where Hank is being kicked off the school grounds for bringing in a power tool which could conceivably be a weapon.  The principle’s reasoning: “If I show tolerance, then I don’t have ZERO tolerance!”
    Values like “zero tolerance” or “consistency” become jokes when they’re enforced for their own sake. 

  19. Tami says:

    Ex TC, yes seriously.  And I have no experience in the federal civilian justice system, but after the way you described it, I’m not sure I’d want any.
    “It is a complex calculation of the criminal history category, offense level, enhancements, departures, and individualized sentencing factors.”  Your words. 
    When you start talking about calculations, people naturally start thinking about math.  I didn’t become a lawyer because of my great math skills, but rather, lack thereof.  So is it hardly all math, or hardly simple?  You called it complex.  And if “criminal history category, offense level, enhancements, departures, and individualized sentencing factors” is only the start, then where’s the end, and how long does it take to get there?  Because stick a fork in me, I’m done.

  20. Tami says:

    That is the funniest thing I’ve read all day–THANK YOU!

  21. Peter E. Brownback III says:

      Going way back to the first comment.  “I’m really OK with requiring an explanation in writing, and I think CA’s should be limited to reducing/disapproving findings for either legal error or part of a pretrial agreement, or as LTG Chipman pointed out, for the greater good of getting rid of a Soldier who got NJP at trial.”
      No problem with the explanation in writing.  However, I do not agree with limiting the CA’s power to disapprove findings.  Two examples of how/why this would be detrimental to the soldier, the unit, and the Army (Sorry, I can’t help it.).
        a.  Soldier tried at a BCD SPCM, GP, no deal, JA. D had hit another troop with a pool cue in the dayroom at 0300 – tearing V’s ear off.  MJ (Well-known as LD on sentencing.) gave three months and a BCD.  CA grabs MJ later.  “WTF! D is the best 11H in the brigade and I really need him at Graf!  Now what do I do?”  MJ “Let him sit in Mannheim for a month, send your CSM up there to really ream him out, then disapprove the findings.”  Done and D went on to a fine career.
       b.  Soldier tried at a GM.  GP, no deal, JA.  D had hit another troop with a 2×4.  There had been various racial and ethnic epithets, none sufficient to serve as a defense.  MJ (Well-known as LD on sentencing.) gave one month and a BCD.  CG let D be returned to home station (Unit was to redeploy in three months.), at which point CG disapproved findings.  No idea of what happened to D in later life.
    I think both of these served the interest of maintaining good order and discipline in the Army. A CA should have the authority to disapprove findings – it’s her/his unit and s/he’s responsible for good order and discipline.

  22. Phil Cave says:

    Agree about restitution. As mentioned I’ve used that from time to time. Seems better the money goes to a victim than the general treasury. Forfs don’t go into the DoD budget. 

  23. Lieber says:

    I disagree with your anecdotes.  Those Soldiers should have been kicked.  We don’t need them.  Disapproving those findings was not justice.  This is the Army.  There are no special snowflakes.  In that direction lies madness.  I’ve seen exactly what happens when a serious allegation is made against a senior NCO in a high-demand, low-density MOS, no one wants to believe it.  Your logic is exactly what gives rise to the stereotypes about military commanders and serious offenses.  That we protect our own if we think they’re too important to the “mission”…and too often that’s still actually the case.  If it’s 2005 and we need cannon fodder, we simply do NJP on the two Soldiers you discussed.  In 2013 we’re trying to cut people so it’s not a problem at all (and no CA is disapproving discharges right now other than pursuant to a deal).

  24. stewie says:

    I respectfully concur that anecdotes of this one or that one Soldier who was redeemed by disapproved findings do not really compel the argument that CAs must have the power to disapprove findings.

  25. k fischer says:

    Judge Brownback, 
    I liked your anecdotes, and I respectfully disagree with Stewie in that the one anecdote about  the court martial in which a pilot in Aviano had the findings dismissed compels the argument that CAs must have the power to disapprove findings revoked.
    And, I disagree with Lieber, as well.  I think he’s a very, very special snowflake……..In fact, no two snowflakes are alike, so wouldn’t they all be special?  So, his statement “there are no special snowflakes” is completely false in that every snowflake is special.  And, if you are still reading this diatribe, an eye for eye does not leave the whole world blind because there is always going to be a guy left with one eye.  How is the blind guy going to gouge out the eye of the guy with the one good eye who can see him coming and run away? 

  26. k fischer says:

    ***does not compel the argument that CAs must have the power to disapprove findings revoked.

  27. David Bargatze says:

    It’s appalling that one Soldier can violently tear off another’s ear and have the result be a disapproved conviction. The CA seemed to be more concerned with doing well in a bit of training at Grafenwoeher than with good order and discipline, justice, or his victimized troop. A month in confinement, a butt-chewing, and then it’s back to work with the convening authority saying the other guy’s ear wasn’t worth even a stripe?