As Phil “My Liege” Cave noted, HASC’s blog includes this post with a copy of a letter that HASC’s leadership — both Republicans and Democrats — sent to Secretary Hagel about CAs’ clemency power.

The letter indicates that HASC’s leadership is concerned with the statutory authority of CAs to overturn a guilty verdict.  The letter also contemplates that the 2014 National Defense Authorization Act will include an amendment to Article 60(c).  The letter asks SecDef to provide HASC with certain information, including:  “An analysis of how other military justice systems address the role of the convening authority in courts-martial.” Given the ongoing debate about the appropriateness of American courts relying on decisions from other countries’ courts, this provides a useful reminder that the legislative branch is certainly free to review best practices from other countries when considering the optimal approach for the United States.

8 Responses to “HASC letter on reform to CAs’ clemency powers”

  1. Phil Cave says:

    An important point, I thought — They want some data!  
    A summary, by service, going back to 2008, of the cases and times when a convening authority in a general or special court-martial, exercised the authority under Article 60, UCMJ, to dismiss or disapprove either in full or in part the findings or sentence adjudged by the court-martial, or to change a finding of guilty in one charge to a finding of guilty to a lesser included offense, or to ordered a proceeding in revision or a rehearing on either the adjudged findings or sentence.
    I predict the data, if properly created and documented, will show that, except for action IAW with a PTA (and that ought to be clearly stated in the data/summary, that the post-trial authority is not that frequently used, especially if you are only going back to 2008 (not clear why they picked that year).  I note no request for sentence clemency data.
    If I am correct, the statistics will support those who want to keep the 800ib gorilla, but it will also support the others who argue the special optics of the Aviano sexual assault case.
     

  2. Biff says:

    I’m not sure how the data will help them determine whether or not to amend (or repeal) Article 60.  Imagine that there are numerous examples of CA’s granting clemency like was done in Wilkerson.  To some that might suggest there’s a widespread problem in need of fixing.  On the other hand, what if Wilkerson is the only case of its ilk?  That, too, might be bad for fans of Article 60 because it suggests a aberrant act of clemency, which, too, demands a legislative fix.

  3. JAE says:

    I noticed this interesting passage in the HASC letter:
    A summary, by service, going back to 2008, of the cases and times when a convening authority in a general or special court-martial, exercised the authority under Article 60, UCMJ, to dismiss or disapprove either in full or in part the findings or sentence adjudged by the court-martial, or to change a finding of guilty in one charge to a finding of guilty to a lesser included offense, or to ordered a proceeding in revision or a rehearing on either the adjudged findings or sentence.
    “disapprove a sentence in part?”   Um, every single guilty plea with a pretrial agreement (at least where the accused doesn’t “beat the deal” with the MJ) 
     

  4. Dwight Sullivan says:

    Those data were explored during the SASC hearing in an answer to Senator Graham’s question.  Article 60(c) authority to void a conviction had been used in only a handful of cases in each service.  As Lieutenant General Chipman pointed out, sometime it was used to substitute NJP for a conviction with NJP-type punishment in order to discharge the Soldier more quickly.

  5. Dwight Sullivan says:

    p.s. — I’m also familiar with Marine Corps cases in which CAs used the Article 60(c) authority to set aside convictions to LIOs where the case would never have been referred to a court-martial for the LIO alone and the CA agreed with the defense’s clemency petition that it was unjust to saddle the Marine with a federal conviction for an offense that would have been handled at NJP but for the allegation of the greater offense of which the Marine was acquitted.

  6. Zachary Spilman says:

    A summary, by service, going back to 2008, of the cases and times when a convening authority in a general or special court-martial, exercised the authority under Article 60

    Does this data exist, outside of the thousands of records of trial created over the past half-decade?

    Do we include summary courts-martial? If so, then make that “the tens of thousands of records of trial…”

  7. Christopher Mathews says:

    I read that to not include summary courts, Zach.

  8. Zachary Spilman says:

    when a convening authority in a general or special court-martial

    Wow. I really do need a vacation…