Scholarship Saturday: The government’s coming requirement to show the accused’s recidivism risk during sentencing
The Military Justice Act of 2016 (MJA) was this blog’s #1 Military Justice Story of 2016, and will revolutionize the practice of military justice come January 2019. That revolution includes changes to the military justice system’s sentencing regime. One of the most aggressive changes is found in § 5301 of the MJA, which completely rewrites Article 56 to include language designed to temper a court-martial’s exercise of sentencing discretion.
First, § 5301 of the MJA establishes the uncontroversial general rule that:
A court-martial shall impose punishment that is sufficient, but not greater than necessary, to promote justice and to maintain good order and discipline in the armed forces.
When applying that general rule, MJA § 5301 unsurprisingly directs sentencing authorities to consider “the nature and circumstances of the offense and the history and characteristics of the accused” as well as the impact of the offense on victims.
But, § 5301 also codifies, and then expands, Rule for Court-Martial (RCM) 1001(g), which permitted military prosecutors to reference the “generally accepted sentencing philosophies” during their sentencing arguments. Under the MJA, those philosophies are no longer a mere permissible topic of counsel’s argument. They are mandatory considerations for the court-martial. Specifically, once MJA § 5301’s rewrite of Article 53 becomes effective, a court-martial deliberating on a sentence will be required to:
Tak[e] into consideration  the need for the sentence—
(i) to reflect the seriousness of the offense;
(ii) to promote respect for the law;
(iii) to provide just punishment for the offense;
(iv) to promote adequate deterrence of misconduct;
(v) to protect others from further crimes by the accused;
(vi) to rehabilitate the accused; and
(vii) to provide, in appropriate cases, the opportunity for retraining and return to duty to meet the needs of the service[.]
The codification of those required considerations is a big deal in and of itself, and should heavily shape how government counsel present their sentencing cases under the new UCMJ. But one of those required considerations in particular is worthy of further attention: Considering “the need for the sentence to protect others from further crimes by the accused” is functionally a requirement that the court assess the accused’s risk of recidivism. This is not something courts-martial as they currently exist regularly grapple with.
The idea of introducing evidence of risk of recidivism into courts-martial was discussed at length in a recent article published in the Military Law Review by Army Lieutenant Colonel Bradford Bigler. Colonel Bigler is an Associate Professor of Criminal Law at the Army Judge Advocate General’s Legal Center and School, located on the campus of the University of Virginia. His article is entitled Rebalancing Military Sentencing: An Argument to Restore Utilitarian Principles within the Courtroom, 225 Mil. L. Rev. 1 (2017).
Lieutenant Colonel Bigler’s article proposes:
[T]he government should be required to introduce an actuarial risk assessment into evidence where an actuarial tool exists, and seek to develop risk tools where none exist.
Similar to authorities governing the appointment of a sanity board, the convening authority or military judge will order a qualified psychologist to review the case file and provide a sentencing report which scores the offender according to validated actuarial risk models.
Rebalancing Military Sentencing at 26.
Elaborating further, Lieutenant Colonel Bigler notes that:
Although several statistically validated risk models exist, they currently do not cover a sufficiently broad range of offenses to encompass the spectrum of military offenses.
To remedy the problem of having offenses for which no actuarial tool presently exists, Lieutenant Colonel Bigler recommends:
[T]he military should authorize, encourage, and fund—if necessary—criminogenic research to develop new actuarial models for use in the military. New computer modeling techniques have produced significant advancement in actuarial modeling that would help identify which risk factors are most relevant to a specific population.
Id. at 27.
Lieutenant Colonel Bigler’s article calls into question whether the recently proposed amendments to the Manual for Court Martial, discussed on this blog, meet the demands of the new statute. The proposed language for the new RCM 1002 does require the court to consider the new statutory factors, including the need “to protect others from further crimes by the accused.” However, subparagraph (g) of the proposed rule limits the evidence that the court may use to conduct that analysis to the evidence admissible under RCM 1001. Lieutenant Colonel Bigler’s article, at 25-26, argues that this evidentiary barrier may prevent admission of the sort of actuarial evidence necessary to conduct a reliable assessment of the accused’s risk of recidivism.
I am not certain of this. CAAF has allowed the government to present actuarial evidence in sentencing hearings in the past. Specifically, in United States v. Ellis, 68 M.J. 341 (CAAF 2010) (CAAFlog case page), a government expert was permitted to testify in sentencing regarding the Static 99 methodology’s assessment of the accused’s risk of sexual re-offense. Accordingly, at least on first blush, Ellis appears to interpret RCM 1001 in a way that is favorable to Lieutenant Colonel Bigler’s suggestions.
However, it must be conceded that CAAF did take the time in its Ellis decision to express a certain amount of discomfort. The Court make clear that the ruling was confined to the unique facts of that case. Namely, the Court emphasized that Ellis elected to be tried by a military judge sitting alone, and his counsel did not object to the government expert’s testimony on grounds that it was constitutionally unreliable under Daubert. Ellis, 68 M.J. at 348, n. 8.
In all, the statutory requirement that future courts-martial consider an accused’s risk of recidivism tends to support Lieutenant Colonel Bigler’s recommendation that courts allow the introduction of actuarial evidence. At least on first review, so does CAAF’s 2010 decision in Ellis. But, the caveats CAAF wrote into its Ellis opinion do give cause to some concern. The Court carefully drafted its opinion in that case to leave open, for a future case, the question of whether such evidence is Constitutionally reliable. It seems likely that the MJA § 5301’s rewrite of Article 53 will force that question back into CAAF’s sights in the relatively near future.