Two recent law review notes published by the University of Virginia and the University of Illinois start from the same premise: that the military’s zealous sexual assault prevention and response efforts have compromised the military justice system’s ability to appropriately and reliably dispose of allegations.

In his note, Overcoming Overcorrection: Towards Holistic Military Sexual Assault Reform, 102 Va. L. Rev. 2027 (2016), Greg Rustico favors giving prosecutorial discretion for all crimes with civilian analogues to judge advocates, rather than vesting that power in commanders.  In contrast, a note by Heidi Brady argues for giving prosecutorial discretion in the military justice system to Department of Justice lawyers.  See Justice is No Longer Blind: How the Effort to Eradicate Sexual Assault in the Military Unbalanced the Military Justice System, 2016 U. Ill. L. Rev. Online 193.

In supporting their recommendations, Mr. Rustico and Ms. Brady point to relatively recent changes to the military justice system – such as the revision of Article 32 and the requirement that a commander’s performance/fitness appraisal consider how they handled allegations of sexual assault within their units.  Both also spend a good bit of time asserting that the military’s sexual assault prevention and response programs have tainted military court-martial panels.  Ms. Brady also argues that prosecutorial discretion needs to be taken from the Department of Defense in order to counterbalance certain aspects of the military justice system which she views as being inherently unfavorable to the accused, such as the fact that verdicts are not required to be unanimous, the lack of dedicated defense investigators, the lack of dedicated funding for the defense function, defense counsel’s inability to obtain equal access to documents and witnesses before referral, and the fact that the defense is not permitted to interview victims without having a government-appointed lawyer (either the prosecutor or a victim’s counsel) present.  Neither Mr. Rustico nor Ms. Brady address the sweeping changes which were recently signed into law through the Military Justice Act of 2016, which was this blog’s #1 Military Justice Story of 2016.

The question of whether commanders should retain their prosecutorial discretion, and if not, then where that responsibility should fall, has been a topic of discussion for several years now, on this blog and elsewhere:

• Spilman, Zachary D, Blame all the lawyers [Commentary], Baltimore Sun (March 31, 2014).
• Blog post: “Thinking Slow About Sexual Assault in the Military”
• Blog post: Opposing views on civilianizing military justice
• Blog post: Scholarship Saturday – Professor Schlueter responds to the siren songs for reform
• Blog post: Scholarship Saturday – The plight of the accused

7 Responses to “Scholarship Saturday: The ongoing discussion regarding the placement of military prosecutorial discretion”

  1. stewie says:

    I certainly don’t agree with giving it to the DOJ lawyers. I’d be fine with giving it to judge advocates although I’m not sure their decisions would be grossly different from commanders, but there would be a difference.
    I’m not sure giving it to the DOJ would remove the congressional SVC requirement.

  2. Joseph Wilkinson says:

    Rustico’s article is a thoughtful one and well worth the read.   As a “note” it’s a student work but it’s well above the norm, and I hope as a UVA student he took time to walk next door to TJAGLCS and discuss matters with the JA’s over there. 
    He gives more credence than I do to the idea of pervasive sexual assault in the military, but he has a clear-eyed view of the problem of using military justice in sex cases during a moral panic.  “The same discretion that allowed commanders to disregard victims and ignore this issue can be used to railroad defendants and risks miscarriages of justice.  Public statements by high-ranking officials, such as the President and the Commandant of the Marine Corps, serve not only to bring attention to this important issue, but also to influence court-martial members and undermine the presumption of innocence.”
    I give him credit for recognizing the twofold nature of military justice as it currently exists: “On the one hand, the military justice system functions as the military’s criminal justice system.  On the other hand, the military justice system also serves to assist in maintaining good order and discipline in the armed forces, to promote efficiency and effectiveness in the military establishment.” 
    He opposes the idea of giving sex cases to civilians, partly because of jurisdictional issues, with the military being spread across the globe.   But he makes no mention of MEJA, which suggests to me that kind of thing can be made to work (in fact, he makes no mention of MEJA in the article at all).  Under the Articles of War, rape and murder cases were handled by civilians (unless the event happened overseas or in wartime, where civilian prosecutors and juries were unavailable); and the “strange dichotomy” he complains about doesn’t seem to have done any harm.  
    A while ago I read this account of the old debate on military justice…it focuses on the WWI era but it gives historical background back to the Civil War.  There were plenty of complaints about military justice, but as far as I remember no one complained about civilians trying the rape and murder cases; if that had really been an issue I would’ve expected it to surface then.
    My own view remains the same as I expressed it here and here.   Cases about discipline, such as misdemeanors and “military felonies” like desertion, ought to be handled by military justice with discretion lying in the commanders, who are responsible for discipline.   Cases about protecting the community, such as sex assault, child molesting, and murder, ought to be handled by civilian justice with discretion lying in civilian prosecutors, who are responsible for protecting the community from predators.   
    Rustico’s proposed has some similarities, except he’d give judge advocates rather than civilian prosecutors discretion over “non-military” crimes (apparently to include misdemeanors; I think parsing out the misdemeanors between military and civilian is too tricky a job…a fistfight, typically is a discipline issue even though it’s also a traditional civilian crime).  
    He takes the idea that JA’s with this discretion would be in a good position to resist UCI on the subject, and thinks UCI on the members could be addressed with “a set of uniform jury instructions.”   For my own part I am skeptical about both, especially the latter…if your command is hammering you with presumption of guilt propaganda, I have a hard time accepting that a set of instructions will undo the effects.
    I absolutely approve his idea of having senior JA’s review SAPR training before it’s sent out…and I think senior defense counsel (like, say, the chief of TDS) should be part of that review. (It should also as a matter of policy be  made transparent, i.e. videos and lectures can be downloaded by anyone who wants to see and critique them, not shielded behind intellectual property rights.)
    In short, a very good article though I disagree with some aspects of it.

  3. Joseph Wilkinson says:

    (I haven’t finished Brady’s article and will have to wait ’til tonight to do so.  But so far it seems to me these articles are debating on an excellent level, and I am glad to see recent law graduates are arguing on this level.)

  4. Vulture says:

    Thank you for bringing back Scholarship Saturday Zeke Kennen.

  5. John O'Connor says:

    Those who want to take prosecutorial discretion away from commanders likely believe that this would result in more prosecutions, on the theory that commanders are more likely to want to sweep certain types of charges under the rug.  I am firmly convinced that giving prosecutorial discretion to the JAs would result in fewer prosecutions because the JAs would be considerably more likely to decline prosecution on a case that experience tells them is unlikely to result in a conviction.
    Then there are those who want to take prosecutorial discretion away from commanders as part of the long game of getting rid of courts-martial (or bringing back a service-connection test) by taking the “good order and discipline” rationale out of courts-martial.  

  6. stewie says:

    I agree with you JOC that there would be fewer prosecutions overall, but not sure I agree the decline would be “considerable.”
    They are still staff officers who are looking out for the institution, and so I’d guess close calls would favor the government. I’m not suggesting that’s right or wrong, one can have that debate, just that I think we’d only mostly see the egregious cases not go forward, and even then, just like anything else involve humans and attorneys, it will depend on the vagaries of who the individual SJA is as to what does and does not go forward to trial.
    JW, I just don’t see any real argument as to why cases should be handled by civilians vice military. Why would they do a better job for an accused? or an alleged victim? Why isn’t sex assault about GO&D?
    I’m going to guess that no one complained about civilians trying rape and other cases back then because the alternative was non-lawyers for the most part doing it in a military without much in the way of procedural protections.  There simply wasn’t another option.  Now there is.
    And we aren’t talking big city prosecutors, I assume we are either talking small town folks (because that is where most military folks are) or we are talking about the feds who are already over-worked and under-staffed to start doing military cases.  Juries, judges and counsel that have no experience in military issues by the way.
    Better to just FIX the current problems in the system whether it be how panels are selected or how convictions are obtained or whatnot.

  7. John O'Connor says:

    i think you’ve misread my post.  I didn’t say there would be considerably fewer prosecutions if JAs had prosecutorial discretion.  I said JAs would be considerably less likely to take clear loser cases to trial.  Assuming that the number of obvious loser cases is relatively small, even a substantial reduction in that subset of cases wouldn’t constitute a considerable reduction in prosecutions.