The Military Code of the United States “stands alone among our public statutes in its retaining many provisions and forms of expression dating back from two hundred to five hundred years[.]”  Winthrop, Military Law and Precedents, 24 (2d Ed., 1920). However, throughout our history, one of the constants of military law has been change. The more significant changes have often been accompanied by the publication of scholarly works designed to describe those reforms and to provide relevant context. For example, Winthrop published the tome cited above in 1920 – just as Congress finished its four-year long enterprise of completely revising the Articles of War.

In the same spirit, Volume 49 of the St. Mary’s Law Journal will include an article entitled “Reforming Military Justice: An Analysis of the Military Justice Act of 2016” by Professor David A. Schlueter.

Professor Schleuter’s article is a well-organized, concise compendium of the vast changes Congress recently enacted. He starts by placing this most recent reform effort into historical context. The new Code is the result of critical commentary concerning “virtually every aspect of the military justice system” offered from multiple sources over “the last several decades.” Reforming Military Justice at 13. The catalyst which brought the push for reform to a head at this particular time “was Congress’ deep concerns about the ability of the military to deal with sexual assault offenses.” Id. at 16.

After explaining the genesis of Congress’ interest in reforming the Uniform Code of Military Justice, Professor Schleuter dives headlong into the breadth of the reforms themselves. He starts with some of the changes to the Code’s general provisions – from jurisdiction over reservists to provisions regarding crime victims’ rights. Id. at 20-25. His article then delves into changes regarding apprehension and restraint of accused persons, as well as amended nonjudicial punishment procedures. Id. at 25-28.

The article then devotes its attention to the new law’s reformation of the institution of the court-martial itself, particularly the new requirement to empanel eight members on a general court-martial. According to Professor Schleuter:

Increasing the number of members [to eight] and requiring a set number [8] in each case is a welcome change and will bring the size of courts-martial panels in closer alignment with accepted civilian practice. Requiring a minimum of only five members for general courts-martial was a relic of the past and it was time for a change.

Id. at 31.  The creation of judge-alone special courts-martial also receives some coverage, id. at 32, as does Congress’ decision to require death-penalty qualified defense counsel in capital cases, id. at 40, 87.

Other topics of discussion include the method by which enlisted members will be detailed to courts-martial under the new Code, id. at 35, the creation of minimum tours for military judges, id. at 37, and the creation of the new office of military magistrate, id. at 38. Professor Schleuter notes that Congress enacted that last reform with the intent that “using military magistrates for pretrial proceedings will serve as a training ground to prepare those officers for possible certification as military judges.” Id. at 46. He also covers Congress’ decision to continue having commanders be the agents exercising military prosecutorial discretion “despite repeated and persistent calls for removing the commander from the court-martial process.” Id. at 45.

An entire section of the article, Part XI, is dedicated to the new Code’s reform of military sentencing, which is “a major change to military practice[.]” Id. at 65.  Professor Schleuter discusses the genesis of those changes, the advent of unitary sentencing, and Congress’ rejection of the argument that all sentencing should be done by a judge. He also discusses changes to the post-trial and appellate process, including the government’s new right to appeal sentences it deems inappropriate, and changes which would allow the Court of Criminal Appeals to review a Judge Advocate General’s decision to not grant an accused’s application for appellate review. Id. at 68, 86.

The compendium then offers a detailed discussion of each of the new Code’s punitive articles, id. at 89-107, and new requirements for “the government to facilitate the public’s access to all court-martial filings and records,” id. at 109. In closing, Professor Schleuter notes that the military justice system under the new Code will not necessarily be more efficient, though it may be more thorough. Id. at 111-113. The office of military judge will be more powerful than before, while at the same time commander discretion has been maintained. Id. at 113-114.

The system will also more closely reflect federal civilian practices, while simultaneously maintaining a uniquely military character and purpose. Id. at 115-116. At the end of the day, Professor Schleuter opines:

The most recent amendments reflect what has traditionally been a purpose of amendments in the past—[to] model military justice procedures on due process norms. That process has been referred to as an evolution of military justice and a civilianization of military justice. The labels are not important. What is important is that the procedures and protections in the UCMJ keep pace with emerging notions of due process in federal and state criminal justice systems.

Id. at 116-117.

4 Responses to “Scholarship Saturday: A compendium for our new Code”

  1. Dwight Sullivan says:

    [Standard Disclaimer:  I am making this comment solely in my personal capacity.  It should not be imputed to anyone or anything else.]  Thanks for this excellent ongoing feature, which I look forward to every Saturday.  I offer one addendum to this week’s post. 
    Colonel Winthrop published the original version of his famous treatise in 1886.  See William Winthrop, Military Law and Precedents 5 (2d ed. 1920).  Winthrop published an updated version of the treatise in 1896.  Id. at 8.  He died three years later.  See Joshua E. Kastenberg, The Blackstone of Military Law 312 (2009).  The 1920 publication with which military justice practitioners are so famliar was a reprint of the 1896 edition.  See Withrop, supra, at 2, 3, 7, 8.

  2. Isaac Kennen says:

    Mr. Sullivan,
    Thank you so much for that correction. Indeed I was wrong!  Great, and important, stuff.  
    Also, thank you to Mr. Don Rehkopf, Jr., for pointing me to this latest article.  Mr. Rehkopf gives me frequent leads on new articles as they get published.  Those tips have been invaluable, and I’m grateful for the aid.  Tips are especially helpful now during the duration of my deployment.  I welcome tips on column ideas from anyone inclined to lend a hand.

  3. DCGoneGalt says:

    The charts at the end of the article should be on every Chief of Justice and SJAs desk.

  4. stewie says:

    I don’t know, I think that comment was made in your professional capacity!