The December 2014 issue of the Federal Sentencing Reporter is titled Military Sentencing: Another Federal Sentencing System (Part 1). The full edition is not available for free online, but the table of contents (and previews of the articles) is available for free at this JSTOR link.

The issue includes an article by Chief Judge Baker of CAAF that is available for free online: James E. Baker, Is Military Justice Sentencing on the March? Should it be? And if so, Where should it Head? Court-Martial Sentencing Process, Practice, and Issues, 27 Fed. Sent’g Rep. 72-87 (2014-2015) (available here).

Noting that “military justice is an essential national security tool,” Chief Judge Baker’s article:

starts with a sketch of the military justice system to orient readers. Understanding that structure, the article then describes the sentencing process for special and general courts-martial. The article follows by identifying two core military sentencing questions: First, should commanders have authority to grant clemency? Second, should the military justice system adopt sentencing guidelines? With respect to each topic presented, the article does not attempt to answer the questions nor offer prescriptions. Rather, it seeks to identify the principal fault lines around which debate should, or will likely, fall. The article next presents ‘‘nutshell’’ introductions to additional sentencing matters that may warrant review as applied in the military context, including the handling of collateral matters, and the relationship between age and culpability.

Baker, supra, at 72.

The article is balanced, an interesting read, and worthy of your time this Saturday morning.

9 Responses to “Scholarship Saturday: The military sentencing issue of the Federal Sentencing Reporter”

  1. RKincaid3 (RK3PO) says:

    What bothers me most about all the tinkering with Military Justice over the last few years is that the focus has been on punishing.  Consider the question “should commanders have the authority to grant clemency?”  And consider that the issue of sentencing guidelines is being raised again.  Both issues are punishment driven and if established, they require the rejection of mercy as a necessary component of justice.  This is more true with sentencing guidelines—given that the federal sentencing guidelines have proven so disastrous since their only tangible benefit has been the encouragement of guilty pleas to minor offenses to avoid mandatory, over-the-top, ridiculous, major punishments.  They have also almost singlehandedly facilitated the rise of the private incarceration business model which benefits directly from the inevitability of confinement as a consequence of misconduct—indeed, in 21st Century American, penal systems are no longer penal—they are profit systems and where profits lay, injustice reigns supreme.
    As to the first question regarding clemency, the more appropriate question is why should commanders be prosecutors?  Assuming that we continue to answer that question in the affirmative, as we have historically, then the answer as to whether commanders should also be able to grant clemency is an obvious and inescapable “yes.”  One who can punish must necessarily be able to be merciful.  Punishment and clemency are flip sides of the same coin as there can be no justice without mercy and vice versa.
    The primary drive of late-especially in Congress, which reflects society’s similar demand for “accountability” and which has of late taken on a particularly virulent and nasty strain of “vendetta”–has been to increase the ability of government to punish via an inverse drive to limit the ability of the accused to avoid or reduce the punishment—always, of course, for the best of reasons like “national security” or “do it for the children,” etc.
    For justice to once again be primary in a justice system, there needs to be a return of balance to the debate.  But that will only come from the Courts given Congress’s complete lack of credibility in being able to actually pass laws that are not the result of popular outrage—the moral panic or outrage of the day.  Historically, it has been the courts which have stood athwart popular public self-righteousness and reigned-in Congress’s inability to “do the right” thing over the popular thing.  But given the increasing use of elected judges outside the federal level, the challenge for the country is recognizing that popular will is dual-edged sword.  It is great in matters of public policy debates—e.g., what should government do or not do–but is ludicrously vicious in matters of civil rights.  To a degree, some of this mindset is present in the military’s practice of giving military judges limited assignments that conveniently seem to end when a judge starts developing a subjective reputation at being too defense friendly.  That is a convenient euphemism for the judge, perhaps, “thinking to independently” and “failing to vindicate commander” who chose to prosecute a particular case—especially when that commander only prosecuted to maintain favor in the eyes of politicians responsible for their next promotion.  Indeed, such independence is more important and more necessary now that we have the all too present, seriously tangible effect of congressional UCI injected into a system where every officer must seek and obtain congressional approval for advancement.  So the pressure on officers to conform at every level of the chain of command is nearly insuperable except by a judiciary that is ready, willing and able to call ‘B.S.” on certain government efforts to criminalize human conduct.  On this point, it is worth noting that Judge Baker’s question about clemency is practically moot given that no G.O. will convene a court-martial in a toxic, congressional-UCI climate like we are currently experiencing, is going to consider granting substantive clemency after successfully prosecuting an accused, thereby risking their next promotion by irritating a Congress bent on punishing the cause du jour vice implementing justice.  Military clemency is largely a myth, in the current climate.
    The courts—all courts–must be independent in both their judgment and sentences.  So, too, should be commanders in matters of clemency—if they are to be allowed to continue to operate as prosecutors—an area well outside their technical and tactical expertise.  In other words, no more repeats of the General Franklin debacle—whose only offense was exercising the judgment given him by Congress in a way that Congress found politically unpalatable—and the Airman Wright case, where the matter just keeps going and going and going and going.  So long as a commander is going to exercise prosecutorial authority, their focus is or should be on justice; not discipline.  If they are to be charged with maintaining discipline, and they do NOT need to be prosecutors with the ability to impose a federal conviction.
    No.  The head-long lunge into the chasm of subjective justice via retributive processes that punish without mercy is fundamentally wrong and reduces public confidence in our justice systems—both military and civilian.
    The people in power need to quite grandstanding on pillorying the unpopular.  We need calm, cognitive, reflective and deliberate adjudication of criminal matters that result in objective justice.  That won’t happen as long as power-players set policy by eroding the few protections offered by the UCMJ while implementing reforms to make the UCMJ look more like a civilian justice system—albeit without all the protections of civilian justice system—like independent, professional prosecutors, indictment and unanimous verdicts.
    Until we as a society realize that public or moral outrage is itself outrageously unjust, reacting to it will completely undermine public confidence in the system and as a result, not only will a volunteer military cease to draw volunteers, but it will lead to a societal return to private reproaches, blood feuds and vendettas as individuals seek their version of “justice” elsewhere.  This is the only result when society teaches that justice doesn’t come from the courts simply because 50% of the parties emerging from a court room are unhappy.  Catering to the concept that “subjective justice” is the goal of a justice system is THE real danger as it teaches that one can achieve and is entitled to get one’s own way.   Our leaders should be standing up and fighting this headlong fall into anarchy—not leading it–by teaching that objective justice is NOT a particularly “just” outcome and any attempt to cater to that misplaced, unjust measure is to invite the collapse of a civilized society from within as individuals resort to popular incivility.  Give and take, folks.  That is justice.  Give and take.

  2. RKincaid3 (RK3PO) says:

    The last line above should have read:

    Our leaders should be standing up and fighting this headlong fall into anarchy—not leading it–by teaching that subjective justice is NOT a particularly “just” outcome and any attempt to cater to that misplaced, unjust measure is to invite the collapse of a civilized society from within as individuals resort to popular incivility. 

  3. RKincaid3 (RK3PO) says:

    On the point I raised above about “justice” now being treated as a euphemism for institutionalized vengeance, consider this article on “Fixing Justice In America” from two days ago.  This is NOT just my humble and often incorrect opinion.  
    Sadly, the “emerging bipartisan consensus” that the justice system contains “too little justice, too much cost, and too many needlessly ruined lives” as referenced in the article has not yet emerged with respect to Military Justice.  In that realm, the only emerging issue has been how quickly can Congress enact a UCMJ with the premise that one is “presumed guilty until proven innocent”–similar to what has has been done on college campuses via Title IX, nationwide–except that for the moment, college administrators–the commanders of their particular ranches–can’t impose federal convictions.  Make no mistake though.  Despite the lack of a formal conviction power, they are indeed destroying lives on reduced burdens of proof as surely as do commanders in the military via GOMORs and other administrative, non-judicial remedies.  Justice is clearly an ideal that mankind–as a whole–clearly is better at moving away from instead of towards.

  4. Phil Cave says:

    Despite the well documented research into restorative justice (some sponsored by DOJ), it is unlikely that will be seen anytime soon in the military, a military geared to retribution and avengance.

  5. stewie says:

    I’ve done a bit of research into restorative justice.  Particularly the juvenile systems of Australia and New Zealand.  It’s certainly interesting and there is merit to it I think in some situations (particularly I think our juvenile system should be much more restorative, and much less a mini-version of our adult system), but it’s not simply a military issue about it not being introduced here, it’s a US issue.  And it’s not even that, as it’s not like the rest of the world is engaged fully in it, and we are the lone holdouts.
    And there are a lot of I think valid limitations to restorative justice in the adult criminal justice system.  I’m not suggesting the current system isn’t bereft with problems/issues, it most certainly is.  The way we incarcerate isn’t designed to do anything but remove people from society for some quasi-arbitrary period of time, then return them, unrehabilitated, trained in better criminal practices, and taught basically a law of the jungle philosophy that values strength and aggression and selfishness.  It also doesn’t address the socioeconomic, educational, and racial underpinnings to crime.  If we spent some of the money on the prison industrial complex on education, poverty reduction, and the like, we might see fewer criminals.  So I’m no apologist for the current system, but I don’t see restorative justice at the adult level as a wide-ranging panacea, simply a tool.
    RK3 when you talk about subjective justice, I have no idea what you mean.  Because that presupposes there is some objective justice out there.  That all justice isn’t subjective to a large degree.  And I don’t see that at all. 

  6. Phil Cave says:

    @Stewie.  As I often do, I find myself agreeing with your fundamental points.
    I agree with you that there are limitations.  As an SJA and DC the situations where I have been able to work it have involved restitution in the form of money where there has been some economic impact on victims.  The most recent one I did some years ago involved the client accepting Art. 15 and making restitution to the victim for some civilian counseling the victim had received, and which apparently (and inexplicably) TriCare would not pay.  That was the alternative to a SPCM.
    This is ancedotal of course, but it is an example of the difficulties you allude to:

  7. stewie says:

    I think you are right that there is room in the “negotiation” process for restorative principles.  Absolutely agree with that.  I’d hope more SJAs/CGs would look at that approach.  Alternate disposition should be about more than just a supercharged 14 vice a court-martial.  Some of these people could be saved, but I also understand that when you are drawing down, it’s really hard to keep the person who commits a crime, any crime, over the person who doesn’t barring extraordinary circumstances.

  8. RKincaid3 (RK3PO) says:

    Stewie: What I mean by “subjective justice” is the phenomena where an individual who is pleased with the result of trial believes—subjectively (personally and without regard to the needs of society)—that either justice or injustice has been done them.  In short, their own satisfaction with the result is the measure of when justice has been achieved.  The converse is true, too–that an injustice has been done to them when they dislike the outcome of a trial.  Consider the media hyperbole around the Trayvon Martin shooting in FL; or the Ferguson, MO shooting, or the Staten Island asphyxiation case.  Each side declares—subjectively and from their personal perspective—that either justice or injustice resulted from those proceedings.
    When I say “objective justice,” I refer to Blind Lady Justice hearing evidence and argument under objective rules that apply fairly to both sides, with favor towards neither and which, if followed, result in an objectively “just” outcome—even though one or even both sides to the court proceeding are left personally and subjectively unsatisfied.  It is not perfect—nothing is—but it is better than kangaroo courts or ordeals by fire—both of which have been used to satiate subjective, personal perspectives regarding what is or is not a just result.
    Whatever one might think of the legitimacy of the shooting in Ferguson, MO, it is simply undisputed that the Ferguson prosecutor mishandled the grand jury proceedings.  It was a complete objective failure, historically speaking.  And as such, it failed society.  Read Scalia’s history of grand jury proceedings in U.S. v. Williams, 504 U.S. 36 (1992) for an idea about why the prosecutor screwed up. The same can be said with the Staten Island asphyxiation case.  Sure, all the facts came out at those grand jury proceedings—which is a good thing—but a Grand Jury is NOT where ALL the facts are supposed to come out.  When you and I face a Ferguson Grand Jury, will we get a chance to present favorable evidence and avoid trial on the merits?  NO!!  In the Ferguson and Staten Island cases, based upon my understanding of the evidence presented to the Grand Jury, a trial on the merits—using objective rules and procedures—would surely have resulted in acquittals.  But a trial on the merits did not occur because the Prosecutor—looking at the outcome subjectively (due to his friendly relationship with the police???) determined that he would NOT follow standard grand jury procedures.  In short, he chose to NOT indict a ham sandwich—the easiest of a prosecutor’s chores.  
    Sadly, by doing so, he denied a significant segment of society the opportunity to have faith in the system and instead showed society how a prosecutor can abuse the rules outside of court to obtain a subjectively satisfying result for one side at the expense of not only the other side—but also at the expense of societal confidence in the system.  Every citizen has a right to their day in court—but they don’t have a right to a particular subjectively satisfying outcome of the trial they get from their day in court.  Congress and far too many others simply just don’t get that.  And it is baffling that we in America are having this discussion simultaneously while we lecture other nations on the concept—nations wherein the societies have not accepted the idea that private vendettas—an eye for an eye—are not a civilized way to punish crimes.  It is almost as if some part of America has lost sight of the fact that an accusation alone does NOT warrant punishment.  It warrants only an inquiry from which punishment may or may not flow.  Getting into court can be based upon unfairness—but once in court, objective justice must occur lest the official proceedings simply ratify the unfair prior proceedings.  In short, it is the difference between a civilized society of laws and a primitive one based upon vendettas.
    Consider the latest NDAAs—they are clearly designed to change MJ into more of a civilian system—especially the rules curtailing the “truth seeking” function of the Article 32 hearing.  But they do so without the necessary, corollary burdens of the civilian justice systems (grand jury indictments and unanimous verdicts, for example) which are significant practical constraints upon government’s ability to criminalize the people) and which, when combined—make convicting servicemembers much easier than is considered “objectively just” in the civilian context. 
    The questions raised about whether mandatory minimums, sentencing guidelines and limitations on clemency should be adopted are, I submit, clearly steps towards further implementation of subjective justice—especially since they come at a time when the MJ system is clearly implementing congressionally-driven half-measures in the guise of improving justice—albeit only those measures which increase the ability to convict while necessarily increasing the difficulty of avoiding conviction (a “guilty until proven innocent” scenario).  It necessarily allows some who appear at the bar of justice—at the expense of others—to declare subjectively that “justice has been served (or denied) today.”  (Queue Al Sharpton chorus).  And such declarations are made without any regard whatsoever to whether the procedures used were objectively just.  Indeed, such declarations will be made no matter what—so shouldn’t we resort to and rely upon objective justice and let the petty feel slighted vice cultivating that misperception that justice is getting one’s way?
    That is what I mean when I write about “subjective” vice “objective” justice.  The latter is good for society as a whole.  The former is what we previously abandoned when we rejected the divine right of Kings to decide—subjectively—what are to be the limits on its own power.  Especially in the context of crime and punishment—the easiest way to rid one’s self of an irritant is to remove it from the body.  Without an impossibly high burden—a constitutionally high burden—on criminalizing citizen behavior—either in or out of the military—the country abandons its chief claim that we have a government that is limited by the people. Not vice versa.

  9. Monday monring QB says:

    RKincaid3:  This is going to be nowhere near the analysis you have above, but having worked in both the military and federal systems, I don’t buy into the oft-repeated and mantra-like complaints about the federal sentencing guidelines.  To be sure, there are some Draconian outcomes in some cases, most notably drug distribution cases.  But there are also ridiculously low sentence ranges in financial crimes cases.  Judges can get out from under the guideline range by departing or varying upward or downward, but when they go upward they really have to make a clear record and protect it for appeal.  A judge who fails to do that runs the risk of getting bounced.  But when they want to get to a low sentence by departing or varying downward from the applicable range, they are on much safer ground.  Yes, the “G” can appeal a low sentence, but that is practically impossible to do, because you have to get the green light from the SG’s office and the SG rep in your circuit, and they do not like appealing sentences.  I honestly liked working with the guidelines because it comes pretty close to ensuring uniformity and it takes all the discretion out of the prosecutor’s hands; the plea discussions are much less about time and much more about which offense the accused is going to plead to, because the offense drives the guideline. And I think we need to go to some form of sentencing guidelines in the military justice system.  If you’re a student of the guidelines, you know there are all kinds of enhancements and reductions; similar enhancements and reductions could be instituted in the military to ensure military accuseds continue to receive individualized sentencing.