That is the headline for a new piece in the Miltary Times papers.

Over the 10 years from 2004 to 2013, data from the service judge advocates show:

■ Courts-martial have dropped about 50 percent.

■ Nonjudicial punishments are down about 25 percent.

■ Bad-conduct discharges have fallen by more than 60 percent.

And according to the Justice Department, the number of troops convicted of crimes and incarcerated in military prisons has shrunk by 35 percent.

I would be interested to know if some comparison was/is made to the post Dosert Shield/Desert Storm period.

45 Responses to “Is military justice going soft? Why courts-martial, NJPs have hit historic lows”

  1. ResIpsaLoquitur says:

    Huh.  You think there’d at least have been an NJP spike from 2010 to 2012 when all the synthetic drugs were hitting the market.  I was at a base where we NJP’d something like 70 people in a year for Spice-type offenses alone.

  2. Tom Grieger says:

    In recent years I have seen an increase in Army Chapter 10 dispositions and administrative discharges from all services.  My data from attorneys who call about potential cases and then call back to tell me there was another disposition.  I would also be curious about the data prior to 2004.  Looking at the graph in the article it appears that there was an up-trend peaking in 2005.  Early in the war there was an increase in misconduct/drug pops in returning soldiers.  Initially these were handled through NPJ/SCM actions until Congress took an interest and put in requirements for greater scrutiny of punishment for those returning from combat  –  the concept being that the misconduct was a product of PTSD symptoms.  

  3. J says:

    Finally a chance to wear my SJA hat!
    I regularly recommend adseps, especially in cases where you don’t necessarily want to crush someone, you just want them gone. No chance to refuse, no board (if General discharge and under 6 years in), no GI bill benefits. Have a nice day and move along. Much easier to sell than a 6-12 month process that comes with a giant bill and a chance you’ll have to adsep afterwards anyway.
    Speaking to senior JA’s, they remember a time where a special court martial was different in practice: fast, MJ’s would sometimes schedule two a day, a chance to quickly roll through minor cases. Those days are certainly gone.

  4. stewie says:

    I remember being a DC and doing three in a day and a half. I don’t think it was great idea mind you, but the cases were very simple guilty pleas with I believe one maybe two offenses in each case, and yes times were different ten years ago..I had to walk uphill, in the snow, both ways, just to get to the court-room.
     
    I think it pretty clear all kidding aside that administrative actions take up a lot of the “slack” missing here.  One wonders if this is permanent, or if a period of “peace” with no deployments will bring a return to more trials.

  5. NavyDC says:

    I wish AdSep stats were included – that would give us a better picture of whether there’s less misconduct vs. misconduct handled at NJP/Adsep.
    Perhaps I’m putting the cart before the horse, but I wonder if more seasoned DCs isn’t also a factor.  Experienced DCs make things costlier/slower.  Why convene a SpCM that costs $40k+ (of OPTAR funds!) and takes 6-9 months for an NJP-refusal 112a?  Just adsep and move along.  I’m guessing in 2004 that wasn’t the case – but then again I wasn’t litigating in 2004.

  6. RKincaid3 (RK3PO) says:

     
    Very interesting….makes me wonder why there is all the clamoring for maintaining the integrity of a commander’s “disciplinary authority” when discipline is used so little and “judicial” or “criminal” authority is used more and more lately, thank-you Congress. Sort of puts a new perspective on the old Crowder/Ansell “discipline vs justice” debate, eh?  If Art 15s are declining, that is pretty good evidence that “discipline” is not a commander’s primary concern when the alternative are court-martial or adsep.  
     
    And given the fact that certain offenses are now no longer suitable for adseps (due to congressional oversight/pressure), thus leaving only courts-martial as the alternative, it does appear that commander’s are dealing more and more with “crimes” and not disciplinary matters. Thus begs the question yet again—what is or should be a commander’s role in the “justice” or “discipline” and are those two processes different or conjoined or should they be different or conjoined? There is an answer that is the pink elephant in the room, but the powers-that-be are loath to consider anything evolutionary, much less revolutionary—no matter how necessary.

  7. J says:

    Completely agree. The system isn’t used for how it was designed. I’d love to see it completely overhauled.

  8. Advocaat says:

    Perhaps a “Freakonomics” approach is in order.  Just like Donohue & Levitt suggest Roe v. Wade precipitated the decline in US crime, isn’t it equally reasonable to postulate 9-11 resulted in a more patriotic and thus more law abiding force?  Regardless of the reason, isn’t this a desirable end state?  Can’t wait until DoD claims strong leadership and sound policies as the driving factors.

  9. stewie says:

    No, neither of those are remotely reasonable.

  10. Saul Goodman says:

    A few comments: 1) turn on the news – the zero defect mentality extends beyond the military – everyone is scared to make a decision these days without a working group, task force, or whatever other beltway jargon is used these days for a meeting where people drink coffee and accomplish nothing; 2) the judge advocate community shares responsibility at every level with commanders for the drop in courts-martials – we’ve made access to courts more difficult by reorganizations and prima donna military judges who don’t force counsel into the courtroom or cases through the system; TC/DC/MJs treat what is a minor misdemeanor like a capital case (ridiculous pre-trial preparation, discovery, motions practice, and delays) and drag it out for months, making commanders use the system only when necessary to appease politcal pressure; activist appellate courts with less cases nitpick even guilty pleas (which by the way should simply result in waiver of appellate review); 3) DC complain now when they have 15 cases – they should go ask the local PD how many cases they carry (and ask them how many motions they file for a theft under $500 case)  4) I have watched many a junior SJA screw up an adsep and have the process take months (not to mention DC saying they are unavailable for a 2 months to do the board), so I disagree that adseps are a good alternative; 5) member sentencing also fails to impose a”fair trial” tax that can create an incentive to go to trial and drag things out (see Colin Kisor’s law review article circa 2009).
    I’ll stop now – but my main point is that the JAG corps can reverse this trend by changing the way we run the system and provide legal services to the commanders and units.  A few minor changes to the UCMJ and RCMs to make the system more efficient (and yes, decrease some of the “rights” for the accused) may turn this trend.  Before you blast me – if we don’t change the way we run the system, the only cases that will be at courts-martial are sex assaults (and we are pretty close to that these days already).

  11. stewie says:

    What cases aren’t at court-martial now that you think should be at court-martial? I won’t deny the admin sep process has warts. And I won’t deny that case loads are lower, but the individual cases are much more complicated. So that DC or TC complaining about 10-15 cases has more of a point than you want to admit because each of those cases has multiple motions, and as you note the “zero defects” mentality makes each mistake more magnified than perhaps in the past. 
     
    I don’t think the answer is “fewer rights for Soldiers.” Part of the problem is paralegal distribution and quite frankly not having enough of them IMO. Paralegals are a critical part of the administrative process. We need more.

  12. mike says:

    I would just like to know what the acquittal rates are – esp. in the sexual assault arena.  Man, I would hate to be a TC nowadays.

  13. stewie says:

    My last look-see at the Army’s rates showed something in the low 50s for the year but it bounces around a little bit. It’s certainly not gotten better than pre-07.

  14. DCGoneGalt says:

    Saul Goodman:  Concur on your point that everyone is afraid to make a decision without diffusing responsibility as far as possible and taking all CYA measures imaginable.  I also agree that the court-martial process takes too long.  However, I think a lot of it is that it takes too long to get to preferral.  Investigation and pre-trial charging decisions, especially in sexual assault cases, seem to drag on forever.  DPs do whine about caseload, as do TCs, and it seems that such is life.  As for the member panels not imposing a “fair trial” tax that is something that I hope never bleeds into the military justice system from the civilian world, especially in cases such as sexual assaults where political pressure motivates the desire to send Art 120 cases to court where convictions for lesser charges are all that result (and really all that were justified by the evidence).  IMHO there should be no “fair trial” tax, if the system is overburdened the end goal should be to choose which cases go forward more wisely instead of imposing a tax on military members who exercise their right to demand a trial by refusing a gulity plea.

  15. Anonymous Senior Defense Counsel with Initials NM says:

    Increased ops tempo seems to be a good explanation for reduced courts-martial numbers.  But reduced NJP surprises me.
    My general sense has always been that CC’s sometimes hesitate to serve NJP and even LORs because they genuinely want to rehabilitate the member.  With increased discharges and various force shapings, bad paperwork can often end an career.  Perhaps that could explain reduced NJP?
     

  16. DCGoneGalt says:

    Stewie:  It is hard to get numbers on the acquittal rates on Art 120 cases because last time I checked the rates included as convictions every case where there was a full acquittal on the Art 120 charges but a conviction on some lame adultery/underage drinking offense.  The Congressional goal was to re-define the law in order to get more convictions.  Like seemingly all things Congress does the legislative efforts have unintentionally had the exact opposite effect while creating a politicized bureaucracy and undermining respect for the institution it sought to “save”.  Someone on here once posited that Sen Gillibrand was a secret double agent for the defense community.  I am starting to force myself to that conclusion because it is so much more interesting, and less depressing, than the truth.

  17. k fischer says:

    I noticed a drastic decline in courts-martials in the Army beginning about 2008-09 time frame.   My first cynical thought was, “Didn’t COL Lyle Cayce retire in ’08?”  However, I think economics could explain the decrease and a downturn in the economy, high unemployment, and less tax revenues would create a decrease in the defense budget, combined with an uptick in sexual assault prosecutions because every case must go to an Article 32, now, and even if there is a recommendation to dismiss, must go to a court-martial, which is quite expensive.  You then see a downturn in those AWOL, drug, or theft prosecutions because all of the money is going to sexual assault prosecutions, SVP billets, TDY, Expert witnesses, per diem, hotels, rental car, etc.  All of a sudden, admin seps become very attractive for non-sex offense crimes.
     
    Of course, this doesn’t explain the decrease in Article 15’s because usually a Servicemember gets an Article 15 before s/he gets the admin sep, unless Commanders have finally realized that it is far more efficient and quicker to admin sep someone without going through the Article 15 process.

  18. Peter Gibbons says:

    TCs have eight different bosses right now, Bob. 
    You ever try to get a deal done, lately? People spend weeks haggling over one or two months on an OTP.
    Also, pre-Crawford UAs … how many of those or other paper cases were flying through in the good old days?

  19. Zachary D Spilman says:

    Saul Goodman says:

    the JAG corps can reverse this trend by changing the way we run the system and provide legal services to the commanders and units.  A few minor changes to the UCMJ and RCMs to make the system more efficient (and yes, decrease some of the “rights” for the accused) may turn this trend.

    He suggests this because he sees:

    • “everyone is scared to make a decision these days without a working group”

    • “we’ve made access to courts more difficult by reorganizations and prima donna military judges who don’t force counsel into the courtroom or cases through the system”

    • “DC complain now when they have 15 cases”

    • “many a junior SJA screw up an adsep and have the process take months”

    • “member sentencing also fails to impose a ”fair trial” tax that can create an incentive to go to trial and drag things out”

    These all seem to be practical problems, not structural problems. Put differently, these are all Failures of Military Legalship that require accountability, not change.

  20. Abe Froman says:

    NJPs are decreasing because their collateral effects have increased.  When a Sailor/Soldier/Marine goes to NJP nowadays it effectively ends their career.  It is not the rehabilitation tool that it may have once been and I would be surprised to hear stories in 5-10 years from seasoned Master Chiefs who will brag about having been to a SCM or NJP and survived to tell the tale. 
    Because of that, I have seen Mast reserved for cases that may have been SPCM or SCM worthy in 2004.  We are just moving the goal posts.
     
     

  21. DCGoneGalt says:

    Methinks the Sausage King of Chicago has just cut to the heart of the matter.

  22. stewie says:

    I know when I was COJ, cover sheets on TPS reports were critical.  I also had to come in on Saturdays.
     
    I concur DCGG that the “real” conviction rate is probably lower than the reported one, but I don’t know what was in the reported rates prior to all of this to properly compare. I know when I was COJ, we were just under 55% in two years for actual sex assault convictions. Nothing to brag about there, just shows that it’s tough to get a conviction in a lot of those cases and there are very few (understandably) guilty pleas.
     
     

  23. RKincaid3 (RK3PO) says:

    Sigh…how come all the smart people are on this site and not in the halls of leadership, both military and civilian?  Oh yeah.  I forgot.  One can’t have an opinion contrary to the groupthink and still be considered a leader.
     
    @Saul Goodman & DCGG & Abe Frohman:  Amen.
     
    @ Peter Gibbons:  Ah–yes.  The “car sales” approach to negotiating a deal in military justice.  Yep…utter BS.  Why isn’t the TC charged with the AUTHORITY, by written delegation from the CG, to get no lower than a certain sentence before the TC engages the DC in negotating a plea?  It can be done–it just isn’t.  So DCs end up negotiating with and through multiple layers of bureaucracy before they can get a “yay” or “nay” from “the man.”  No wonder it takes so long to try a case given that the CG only meets with his SJA at best weekly and those meetings are constantly reset at the last possible minute and with each reset, expect at least another week before it will occur–and of course that ultimate meeting will be cut short by an important phone call and reset again for at least another week later–and with each delay–the SJAs pile of case folders gets taller and taller.  When I was in private practice, even as junior associates (with partner supervision, of course), we negotatited multi-million dollar settlements with full AUTHORITY to bind the insurance company we represented.  If we didn’t have that authority, there was no settlement discussion.  Why are we so unprofessional in the Military Justice arena that we must emulate the car sales models with a powerless salesman (controled by a sales manager) instead of a professional model exercised by law firms world wide everyday?  Oh, yeah….I forgot…the commander must always be involved.  My bad.

  24. Phil Cave says:

    What they said.  Zero tolerance for defect where even a GOMR/LOR/NPLoC is a career killer.

  25. k fischer says:

    Zach, 
     
    I disagree with this point:
     

    These all seem to be practical problems, not structural problems. Put differently, these are all Failures of Military Legalship that require accountability, not change.
     

    The current structure of having a Command driven system that is in effect run by the attorneys has created a structure that is inconsistent.  You might have the a truly command driven system that I was a part of at Ft. Benning where COL Gary Brockington was the SJA, in which as a TC, I advised and the Commanders decided.  There were times when I advised that an adverse action not go forward, but the Command said, “Thanks for the advice, but I disagree and am making the call to move forward.”  Then, when it got to the GCMCA level, the “Brock”advised the CG and we had at least one degree of separation.  My Commanders didn’t meet with the SJA, and the SJA really didn’t tell us what the CG was thinking to prevent UCI.  We did about 30 Courts-martial per year.  COL Brockington emphasized to his young TC’s that jit was a Command driven system and justice did not mean getting convictions, it meant ensuring that the guilty were held accountable and the innocent were not prosecuted. 
     
    Then, COL Cayce came in, and he had a different approach with a different GCMCA.  His approach was a lawyer driven system in a Command driven shell structure.  The TC’s preferred charges at the OSJA office very quickly (which was funny when the accuser was a second chair TC who had to leave the courtroom when they got to the point of the script that says “we haven’t acted in any manner which might tend to disqualify us in this court martial”), would run it up the chain of command who pretty much did what the lawyers told them, and they were doing about 100 courts martial per year.  TDS was inundated with cases, we were carrying a caseload of about 25-30 cases per attorney.    But, we were getting a lot of acquittals and dismissals at the 32.  However, nobody could complain that the Command under Cayce’s watch swept sexual assaults under the carpet.  They were extremely aggressive, vindictive with other cases if you didn’t take the deal in a case, and thought they walked on water.
     
    So, if you ask me, which system was the fairest, I would say that COL Brockington’s was, but it was also the antithesis to what McCaskill and Gillibrand wanted.  But, if you asked me which system was the most efficient, I would say that COL Cayce’s was, and it was exactly what McCaskill and Gillibrand envision.  And, if you asked me, in which system could you hold the attorneys the most accountable, then I would say COL Cayce’s system because it was for all intents and purposes a lawyer driven system.  
     
    And if you have a lawyer driven system, then it ends the finger pointing between the lawyers and the Command and members of Congress.  You know who is at fault when there is an acquittal on a bad case or when a case gets dismissed after a 32.   And, there is not as great a chance for UCI during panel deliberations, so it is fairer for the accused if the case gets to a court-martial.  So, I would say that a change is in order.  You take away the “bogeyman” Commander who doesn’t  know the UCMJ and put it in the hands of the lawyers, so I don’t have to hear the clucking of Senator Gillibrand anymore.  You make it fairer for the accused.  You make the UCMJ a bit more consistent because the TJAG can monitor courts-martials by picking up the phone and calling an SJA’s, rather than calling the GCMCA, which could appear to be UCI. 

  26. stewie says:

    RK3, with all due respect to the really smart (certainly smarter than me) young TC out there, the vast majority are not remotely ready to have “full authority” to negotiate deals. Some don’t have the experience to know what a good deal is, and some are too aggressive. Have you been a COJ before? I’ve had really mature, really smart TC, fair, reasonable, but they would admit to you today that they weren’t ready from the start to have that responsibility.
     
    I think most DC know there is only one level of negotiation and that’s when they get it from the SJA (through COJ/STC/SVP/TC whomever is the conduit in that jurisdiction). I never wasted time as a DC negotiating directly with a TC or even a COJ because they don’t have the juice. (and I needs the juice!). That won’t change even if you took the CA out of the system.
     
    I agree with Mr. Cave, the fact that one GOMOR or A15 is a career killer is ridiculous, and it deprives the military of some really strong leaders.

  27. stewie says:

    kf, I think I’d rather have the fairest than the most efficient or the one with less finger-pointing.

  28. Zeke says:

    Maybe there are fewer courts and NJP actions because fewer people are getting caught doing bad acts.  There are any number of reasons to possibly account for that: changing demographics with a higher percentage of (generally law-abiding) females in uniform, and supervisors who are less interested in getting out and about and into their troops business (I.e. leading and mentoring and discovering divergence from the standard) and more into ensuring that the latest report of minute significance is properly staffed for the boss’ review.  Finally, perhaps years of having a justice system which offers no chance at rehabilitation, and thereby also eliminates the risk for re-offense, has also contributed to a reduction in overall disciplinary/judicial actions through the elimination of the possibility of recidivism.

  29. DCGoneGalt says:

    Zeke:  All valid points., esp. the supervisor inundation with pointless busy work and the lack of potential recidivism due to the lack of rehab opportunities.  I am not sure if even Stewie can disagree with you on those points, but I hope he does because it makes for entertaining reading.

  30. RKincaid3 (RK3PO) says:

    Stewie:  Here is the damndest thing about experience–one doesn’t get any until one does it.  Do you think I was ready to negotiate settlements in my insurance defense practice out of law school?  Hell no!  I had senior associates and partners who TRAINED me.  And they didn’t TRAIN me by holding my hand.  They sat there and watched how we did–pulled us aside–advised.  Before, during and after. 
     
    When will the young TC get that experience?  BY GIVING IT TO HIM!  Granted, in measure amounts through gradual exposure.  Not generally advisable to through them in the deep end without floaties.  But they have to get their feet wet.  They watch and learn and then do.  As it is, they watch everyone shuffle paperwork back and forth and say “I have no authority here, whatseover” and wait for an answer from the sales manager on whether the latest offer on that yellow and black piece of junk camaro (Bumblebee) is going to be approved or disapproved by some guy they never see or talk to.
     
    So.  I have rambled enough…back to scheming on my proposal to rewrite the UCMJ….

  31. RKincaid3 (RK3PO) says:

    Sorry for the misspelled words…sheesh!

  32. stewie says:

    OR, he or she gets it by being a TC, seeing how the process works, and then doing it more and more as they move up to STC/SVP/COJ/DSJA.
     
     

  33. RKincaid3 (RK3PO) says:

    OR, he or she gets it by being a TC, seeing how the process works, and then doing it more and more as they move up to STC/SVP/COJ/DSJA.

    Get’s what?  How to relay offers and have no authority whatsoever?  Oh yeah–they get to be the head person with “no authority whatseover.”  Now that is progress through training…right?
     
    Again, no insult is intended to anyone in the system who is doing the best they can with what they have or are allowed to do, but the system is pretty broken as far as “justice” systems go.  And it can–nay–it must be better. 

  34. stewie says:

    They see the process, they see what cases go for, they understand the multiple things that have to be considered. They get experience and seasoning, and perhaps they’ve even had time to later be defense counsels and thus see things from the other side.

  35. RKincaid3 (RK3PO) says:

    Stewie:  But that is also why many JAGs end up either starting their own law firms or working as civilian government attorneys or leaving the law altogether after retiring from the service–few law firms–especially big law–want an older attorney as an associate, is not willing to work nights and weekends to bill 2300 hrs per year and oh, by the way, who has TONS of management experience but little practical law experience–such as polished negotiating skills.
     
    That is just an observation and not a slight–it is what it is.  And it applies to me, too.  I have been out of private practice too long and will be largely “unmarketable” to most law firms upon my retirement from the military.  So, I hope to open my own firm after retiring.  Barring that, I will put all my experience to work, hopefully, as DA civilian attorney, or I will leave the law all together for other opportunities.  There is such a thing as being too generalized.

  36. stewie says:

    I assume JAGs end up doing those things (starting own firms/government atty) because:
    a. it pays more than the military
    b. the emphasis on “well-rounded” that limits those who want to do crim law (so start a firm, do it all the time)
    c. they’ve been in a long time (over 20) and are ready for something new
     
    I expect they don’t go work for civilian firms the same reason most of us are in the JAG Corps. Because we aren’t attracted to working our fingers to the bone, missing our families, etc solely for a lot of money. We can talk about the generalized v. specialists debate, and we would probably agree there, but I don’t think “not being able to do deals as a TC” has anything to do with anything you’ve said there. Nor do I think “lack of polished negotiating skills” is why they don’t go work for big firms.

  37. RKincaid3 (RK3PO) says:

    Stewie:  we are both correct–it is much of all the above factors that lead us to make those decisions.  They are all interconnected. 

  38. DCGoneGalt says:

    Stewie:  As a JAG, I worked myself to the bone, and missed my family (TDY/deployment) for less money.  The operations and litigation JAGs, in my experience, are the ones breaking their backs while the rest may be the ones staying in the JAG Corps for the reasons you give.  There are also a few, I was among them, who joined to be able to tell their grandchildren they helped to kill enemies of both freedom and all that Western Civilization has built.  I will admit that last one qualifies me as a sucker.

  39. stewie says:

    Well, that was my point though. They/you aren’t doing it for money. There are other reasons. Could be patriotism. Could be they prefer the environment to the civil firm world. Could be the retirement guarantee if you reach 20. Could be they like moving/deploying/working out (aka crazy people). What have you. You/they/I/Most are probably not going to be happy in a corporate firm where whatever kept/keeps us in is likely not present solely for more (probably double or triple) the money.
     
    If so, people would be leaving in droves as soon as their obligation was up.

  40. Saul Goodman says:

    @Stewie: Where you would you like me to begin?  We now don’t just adsep drug pops, the mindset has leached into drug possession.  How about larceny?  When I first signed up to support and defend, a barracks thief was an automatic SPCM.  Now? Hopefully an OTH.  BAH theft?  That was an automatic SPCM, sometimes a GCM if you crossed the $10k mark.  Now – maybe they have to just pay it back and get a NJP + adsep (GEN).
    Zach: the failures of military legalship have contributed to the decrease in CMs.  I have convinced many a SJA to convince the commander to refer non-120 cases.  We as a community have contributed to the decline by our advice to commanders and the system which we operate.  The defense bar prides itself on making it as difficult as possible for the government to prosecute a case (as is their duty) while at the same time leaving a bad taste in a commander’s mouth the next time he has to make a disposition decision under RCM 300s.  Trial Counsel fancy themselves as “federal prosecutors”.  News flash, there is a fundamental difference between a prosecutor with discretion and a military trial counsel, who doesn’t even have to be a lawyer.  Trial counsel should fancy themselves more as state’s attorneys than U.S. attorneys.  I agree DCGG, the pre-preferral process is ridiculous.  Do you really think a state’s attorney re-interviews witnesses or conducts an independent investigation before charging a misdemeanor case?  No.  Then why does it take some legal shops months to get the charge sheet out?  This is, to me, a matter of self-preservation.  I enjoy courts-martial, especially a non-120 trial every now and then.
    Enough criticizing about my office-mates.  There is more necessary to take the system of life-support than inspiring JAGs. We need UCMJ/RCM changes.  For example, the Article 32 should go away and be replaced by a probable cause hearing in front of a MJ.  The Art 32 is a relic before comprehensive ROIs, statements, bates numbered discovery packages, forensic laboratory reports, NCIC… and every other investigative tool that is turned over to the defense, normally upon preferral.  The Art 32 slows down the process and is no longer necessary to determine if it is a baseless case.  Moreover, charges shouldn’t be preferred against a member so they can be killed at the 32 (see the oath that must be sworn to by the accuser).  Discovery/production rules should be re-written; for example witness requests should have to be supported by more than a proffer since this normally results in wasteful litigation.  Mandatory minimums.  No contested sentencing.  I could go on….
     
     

  41. stewie says:

    Not my experience. Depends on the barracks thief. The lower level ones yeah we did admin seps. The more serious ones we did SPCM. BAH Theft, some of those went to C-M.  I don’t think my jurisdiction was uber-harsh, so it feels like perhaps what you suggest is the norm may not be.
     
    I rarely thought drug possession of marijuana or spice should go to trial. Other drugs still go to trial, again they did in my jurisdiction, and we weren’t special.

  42. TV says:

    I would guess, without any supporting empirical data (which never stops a member of blogosphere commentariat from tendering an opinion), that CM numbers declined in part due to the closing of local brigs.  SPCM used to be easy – deserter got picked up on a DD553, chasers brought him back to base where he was promptly ordered into PTC, DC took a quick drive to the brig and had a UA terminated by apprehension deal signed within days.   All new TC and DC got to cut their teeth on easy cases.   Now confinement cases involve the expense and manpower of getting the accused to and from a consolidated facility often several states away which is a disincentive to take less serious criminal cases to trial.  
    That, and we have a generation of commanders and JAs who were raised on the Lost Battalion article.  

  43. Just Sayin' says:

    “Trial Counsel fancy themselves as “federal prosecutors”.  News flash, there is a fundamental difference between a prosecutor with discretion and a military trial counsel, who doesn’t even have to be a lawyer.  Trial counsel should fancy themselves more as state’s attorneys than U.S. attorneys.”
    I don’t know what state you’re from, but here the state’s attorneys do more than the feds re: major cases, and are more empowered to handle their own cases.

  44. Phil Cave says:

    I think RCM 502(d) says something somewhat more limited as to TC being a lawyer, at least as to GCM’s.

  45. SeaLawyer (the original, with no space) says:

    I agree with TV. 
    That, and aggressive defense counsel who have demonstrated the wisdom of Col Miller’s article.  NJP’s are down for the same reason.  In my experience, refusing Article 15 is almost always the right answer.  For low-level, NJP-type conduct, almost no command is going to be willing to spend tens of thousands of dollars from operational funds to court-martial, when they can just skip straight to ADSEP.  And if it’s not something likely to result in separation, usually they just transfer the guy and/or just tank his Eval.  Alternatively, I’ve negotiated back to Article 15 with protections (guarantee of suspended reduction, e.g.) dozens of times following NJP initial refusal.  I’ve had many, many TC threaten CM in response to NJP refusal, but calling their bluff never once backfired for my client in nearly 7 years as a DC.