Congress just released the conference report on the National Defense Authorization Act for Fiscal Year 2020. The full report is available here. A summary is available here.
There are more than two dozen provisions in the legislation that will affect military justice. Three particularly notable ones are:
Section 531. Expansion of pre-referral matters reviewable by military judges and military magistrates in the interest of efficiency in military justice. The Military Justice Act of 2016 created a new Article 30a allowing military judges or military magistrates (a newly-created position under Article 26a) to conduct proceedings prior to referral of charges for the purpose of addressing investigative subpoenas, orders for electronic communications, and matters referred by an appellate court. Section 531 of the conference NDAA adds two additional categories of matters that may be addressed: (1) appointment of an individual to assume an alleged victim’s rights under Article 6b(c) and enforcement of an alleged victim’s rights under Article 6b(e); and (2) matters related to pretrial confinement of an accused, an accused’s mental capacity and responsibility, and an accused’s request for individual military counsel. The President may, however, limit the matters that may be addressed and the relief that may be granted in pre-referral proceedings.
Section 532. Command influence. Article 37 prohibits unlawfully influencing the action of a court, and influence was our #5 Military Justice Story of 2017. The conference NDAA significantly changes Article 37. If enacted, the new Article 37 will read:
[words in italics are new]
Unlawfully influencing action of courtCommand influence.
(1) No court-martial convening authority, nor any other commanding officer, may censure, reprimand, or admonish the court or any member, military judge, or counsel thereof, with respect to the findings or sentence adjudged by the court, or with respect to any other exercise of its or his functions in the conduct of the proceeding.
(2) No court-martial convening authority, nor any other commanding officer, may deter or attempt to deter a potential witness from participating in the investigatory process or testifying at a court-martial. The denial of a request to travel at government expense or refusal to make a witness available shall not by itself constitute unlawful command influence.
(3) No person subject to this chapter may attempt to coerce or, by any unauthorized means, attempt to influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority or preliminary hearing officer with respect to such acts taken pursuant to this chapter as prescribed by the President.
(4) Conduct that does not constitute a violation of paragraphs (1) through (3) may include, for example—
(A) general instructional or informational courses in military justice if such courses are designed solely for the purpose of instructing persons on the substantive and procedural aspects of courts-martial;
(B) statements regarding criminal activity or a particular criminal offense that do not advocate a particular disposition, or a particular court-martial finding or sentence, or do not relate to a particular accused; or
(C) statements and instructions given in open court by the military judge or counsel.
(A) Notwithstanding paragraphs (1) through (3), but subject to subparagraph (B)—
(i) a superior convening authority or officer may generally discuss matters to consider regarding the disposition of alleged violations of this chapter with a subordinate convening authority or officer;
(ii) a subordinate convening authority or officer may seek advice from a superior convening authority or officer regarding the disposition of an alleged offense under this chapter.
(B) No superior convening authority or officer may direct a subordinate convening authority or officer to make a particular disposition in a specific case or otherwise substitute the discretion of such authority or such officer for that of the subordinate convening authority or officer.
(b) In the preparation of an effectiveness, fitness, or efficiency report, or any other report or document used in whole or in part for the purpose of determining whether a member of the armed forces is qualified to be
advanced, in gradeadvanced in grade, or in determining the assignment or transfer of a member of the armed forces or in determining whether a member of the armed forces should be retained on active duty, no person subject to this chapter may, in preparing any such report (1) consider or evaluate the performance of duty of any such member as a member of a court-martial, or (2) give a less favorable rating or evaluation of any member of the armed forces because of the zeal with which such member, as counsel, represented any accused before a court-martialperson in a court-martial proceeding.
(c) No finding or sentence of a court-martial may be held incorrect on the ground of a violation of this section unless the violation materially prejudices the substantial rights of the accused.
(1) A superior convening authority or commanding officer may withhold the authority of a subordinate convening authority or officer to dispose of offenses in individual cases, types of cases, or generally.
(2) Except as provided in paragraph (1) or as otherwise authorized by this chapter, a superior convening authority or commanding officer may not limit the discretion of a subordinate convening authority or officer to act with respect to a case for which the subordinate convening authority or officer has authority to dispose of the offenses.
The new Article 37 would take effect on the date of enactment and apply only to offenses committed on or after that date.
Section 537. Guidelines on sentences for offenses committed under the Uniform Code of Military Justice. This section requires the Secretary of Defense to develop nonbinding sentencing guidelines that will “provide the sentencing authority with a suggested range of punishments, including suggested ranges of confinement, that will generally be appropriate for a violation of each offense under such chapter.”