Here’s a link to Secretary of Defense Hagel’s statement issued today announcing his proposal to amend Article 60.  He recommends “eliminating the discretion for a convening authority to change the findings of a court-martial, except for certain minor offenses that would not ordinarily warrant trial by court-martial.”  And his proposed change would require “the convening authority to explain in writing any changes made to court-martial sentences, as well as any changes to findings involving minor offenses.”

That strikes me as the most modest revision to Article 60 possible in the current political environment.

Secretary Hagel’s statement repeats the now-familiar trope that “[w]hile convening authorities would no longer have the ability to dismiss charges for serious offenses like sexual assault, defendants would continue to have access to a robust system of appeal rights.”  As we know, that’s not true for some servicemembers convicted by court-martial, who — baased on their sentence — may suffer a lifetime of sex offender registration, forfeiture of the right to own firearms, stigmatization by a federal criminal conviction, or other onerous collateral consequences without ever having a right to appeal their conviction to a higher military court.

16 Responses to “SECDEF proposes Article 60 amendments”

  1. Tami says:

    I am on the fence whether this is a good thing.  On the one hand, it’s good for us to take control and make changes that will appease Congress while making sure our system doesn’t get completely thrown out of wack.  On the other hand, it does a disservice to those who get sub-jurisdictional sentences for major offenses.

  2. Mike "No Man" Navarre says:

    As for the incantation of a “robust” appellate process, I really think we’ve become a society of, “If you say it enough times it must be true.”

  3. ResIpsaLoquitur says:

    I hope there’s an enumerated list of what constitutes a “minor offense.”  Even then, making a non-discretionary list of “minor” offenses could be frustrating in the long run.  Does smoking pot constitute a minor offense?  Probably not, if the offender is smoking it every day, on duty, while working on aircraft engines.  If there is an enumerated list, I hope it’s a non-exhaustive list that opens the door for offenses where reasonable minds could disagree on whether it should go to court.
    And of course, we all know that for better or worse, some offenses might warrant a court for an enlisted person, but NJP for an officer.  That’ll be an interesting thing to consider as well.

  4. Bean says:

    It seems to me that clemency was built as a sort of escape valve recognizing that the military justice system is unlike the civilian one.  If clemency is done away with, will appeal rights be granted in all cases and will convictions now require a unanimous verdict?  Will members still be selected by CAs?  After all, wasn’t all this triggered by the idea that a “jury” verdict was sacrosanct?

  5. Matt says:

    If the CA no longer needs clemency authority, how about we also remove his authority to refer charges which a 32 IO reccomends dismissing? If we can’t trust the CA with clemency powers, why does he get to pick the court-martial panel, order investigations, refer charges, etc.?

  6. Paul says:

    One other interesting consequences to this proposal (if adopted) is the fact that this could well eliminate the use of post-trial discharges in-lieu-of-courts martial which nullify the result of a court-martial conviction. This is sometimes a worthwhile and useful in the cases of when an accused renders extraordinary assistance to the government post-conviction (often after a guilty plea).

  7. stewie says:

    Well, if I read this right, it does not do away with all clemency powers, just some clemency powers.  So I don’t think it accurate to say the CA no longer has or needs clemency authority.  He can still disapprove the sentence so long as he provides a reason in writing.  He can still disapprove some findings.  He can still do guilty plea bargains.
     
    I don’t think this is the end of the world.  I also doubt this is what ends up being passed.

  8. Tami says:

    It will depend on how they define “minor offenses,” will the definition be consistent with Article 15, or will it be defined as offenses for which the sentence results in “not qualified for Article 66 review.”  Will this result in more pretrial Chapter 10s?  Will it result in more administrative separation boards for misconduct?

  9. Christian Deichert says:

    The Article 60 dismissal power smacks of anachronism, a leftover from the days when a panel president ran the show and the service CCAs were boards of review.  Article 60 could have been so amended during the sea change to the UCMJ in 1968, or even the 1983 revisions.  Perhaps the only reason it took until now is that this power was so rarely used.

  10. Christian Deichert says:

    And the way I read this, the dismissal power will still exist for cases not covered by Article 66.  I overheard discussion on the potential change a few weeks ago, that was the way it was leaning.

  11. stewie says:

    I suspect that they will determine what a minor offense is more by what the maximum punishment is then by what punishment they actually receive. To do otherwise would be to allow low-level sexual assault convictions to be overturned, which is the whole point of their doing this.

  12. Paul says:

    I think my concerns still remain the same. With post-trial discharges in-lieu-of courts-martial, disapproval of both the sentence and the findings are important (esp. if the SM’s post-trial has been more helpful than was originally envisioned by at PTA). If the number of offenses that CAs will still have the power to disapprove findings are limited to offenses which say carry only a year or less of confinement, then that will leave nearly 95% or better of the punitive articles off limits for disapproving findings. That to me seems unduly harsh. I agree, PTAs will still exist.

  13. Bean says:

    It is same standard of proof for minor a offenses and others, so why treat them differently?  The power to set aside findings is rarely used, and I’ve only seen it done where pretty much everyone agrees, including the SJA, that it was justified.

  14. stewie says:

    Post-trial 10s happen pretty rarely in comparison.  Seems like something that again even if we lose won’t destroy the integrity of the system.  Could as easily write a rule that says no administrative discharges post-conviction, and it wouldn’t undermine the foundation of justice and fairness.
     
    Again, I could see ways in which Article 60 could be changed that would much more fundamentally shake the foundations, but this proposal ain’t it.

  15. Cap'n Crunch says:

    It seems to me that doing away with the power in cases where Article 66 applies is a nice, clean way to do it.  “Sub jurisdictional” sentences get CA review and ability to set aside.  Otherwise, you go to the CCA’s where there is review by Judge Advocates, and, ultimately, by CAAF.  Plea bargaining is not effected, because charges can be dismissed in exchange for a plea.  As for deals for cooperation… I suspect there is a way to take care of that — maybe charge someone, hold the trial in abeyance on agreement of the parties, and then dismiss specifications, etc, pending cooperation outcome?  I don’t think this is the end of the world.  I do wonder how it will fare in the House.

  16. Phil Cave says:

    Anybody serious think, or claim that 69(a) reviews or 69(b) petitions succeed; I mean, are an effective way for a wrongly convicted to get relief?