First of all, kudos to Colin for writing this thought-provoking piece.  Colin is a talented attorney, we should encourage more “out-of-the-box” thinking regarding reforms to our military justice system. 

One of the many reasons (in addition to those mentioned by others) sentences are low in the military justice system, compared to our civilian counterparts (including our state counterparts) is that many TC’s are ill prepared for a robust sentencing case.  They simply have so little actual trial experience that they put all their eggs into getting the conviction.  They don’t really know what cases are worth, as they have nothing to bounce the sentence off of.  To young and inexperienced counsel, they often times ask for the max in a case that is at best a serious mast case.  Furthermore, they have no idea what other similarly situated accused have received in the past, so they essentially wing it. 

They don’t have the luxury that state and federal prosecutors have in terms of experience, AND, they don’t have a pre-sentence report prepared by Parole/Probation between the time of the conviction and sentencing.  

Of course, these comparisons are strained, because many (if not most) civilian defendants have criminal records by the time they “graduate” to felonies (we all know of exceptions to that general observation).  Prior convictions generally jack up the final sentence. 

Although I am not proposing these changes, certainly an alternative to the current structure is to require unanimous verdicts AND establish a determinate sentencing scheme, much like they have in California.  The result would be a substantial increase in the number of hung juries, and, for those convicted, more uniformity across similar crimes.  

For example, in California a conviction for a petty theft with a prior (a prior conviction for misdemeanor petty theft) exposes the defendant to one of three possible sentences: 18 months (called “the low”), 2 years (called “the mid”) or 3 years (called “the high”).  In California, judges do the sentencing, but there is no reason you could not allow the members to make that decision vice the judge.  In many crimes, the judge has the option of awarding the convict probation in lieu of a jail sentence.  The judge would sentence the defendant to prison for a period of years, suspend the sentence, and place the defendant on probation for two or three years.  Successfully complete probation and you get out from under your sentence.  Violate probation, and you may go to jail at the conclusion of the probation violation hearing.  (Parole and probation is an entirely separate subject, and problematic in the military justice system.) 

So, in the military context for example, a conviction for assault with a deadly weapon (current statutory max is 3 years) could expose an accused to a jail sentence of:  no time; 1.5 years; 3 years.  

Policy makers would have to weigh the pros/cons of setting determinate sentencing schemes, if they went down that road in the first place. 

There is no perfect sentencing system, at the state, federal, or military level; however, there is much room for improvement in our military system.  We have a unique justice system for lots of good reasons, however, and should be wary about trying to civilianize it. 

BZ to Colin for starting this conversation.

Here’s a link to a Stars & Stripes article about the Cox Commission II report, concentrating on its proposal to repeal Article 125.

Here’s a link to an Air Force Times article on the Cox Commission II report, concentrating on the report’s discussion of the need to adopt a specific prohibition against animal abandonment.

The No Man previously posted a link to a National Law Journal article about the Cox Commission II’s report.  In case you weren’t able to navigate to the article from that link, here’s another one.

Here is a link to the National Law Journal article on the Cox Commission Report.   After a quick read, the only recommendation the article mentions is the repeal of Art. 125, UCMJ (Sodomy).

The one thing I must say before I get to the substance of this post, is that I am grateful for the service of the Cox Commission members who volunteered their time in this worthy pursuit.  They fielded numerous submissions and took time to engage in a thoughtful process.  Whether anyone likes, dislikes, agrees or disagrees with the product of that effort, the effort was worthy of all the accolades that I could heap upon the Commission.  Thank you.

That being said, with all the hype (admittedly much of it by us here at CAAFlog) and the intriguing topics that Cox Commission II was to address, the sequel to Judge Cox’s oft quoted first Commission Report was a very ordinary sequel.  I don’t know if it was the sophomore jinx or the problem with trying to top your first stellar effort, but whatever it was this report elicited few groans or exclamations.  While our comments are discussing the recommendation concerning government attacking its own expert (provided to the defense), even that recommendation is relatively tame compared to Cox I’s recommendations regarding CA reform and member selection. 

And what about the issue of appellate reform?  Cox II only scratches the surface, basically reiterating CAAFlog commenter JO’C’s recommendation for appellate review waiver (in fact citing JO’C), urging review of all contested courts-martial, and urging passage of the Equal Justice Act, see CAAFLog Cox II presentation here and JO’C article link here.  As the Cox Commission even admits, these changes are unlikely to cause many changes in actual workload or the system, save the waiver of appellate review.  What about eliminating the CCAs?  Ex writs and collateral review?   See other topics in CAAFlog’s post here (as revised here).

Aside from appellate issues, what about larger issues such as panel composition?  Independence of trial defense commands?  The role of military judges?  Capital case procedures? Codifying command responsibility as a punishment in cases of war crimes?  As for jurisdiction over civilians in times of contingency operations the report, well to continue the football metaphors, punts on the issue–devoting more time to abuse of non-public animals than any substantive issue with civilian court-martial jurisdiction based on the 2006 UCMJ Amendment.  Admittedly, civilian UCMJ jurisdiction has not been frequently used, but other philosophical issues in the Cox II topics list just didn’t make the cut.

In the end, IMHO, Cox II seems more like an effort to put the Commission’s weight behind some previous proposals, rather than blazing new ground–which is just not what I expected.  If that was the Commission’s goal, the Commission could have a lasting impact on the court-martial appellate review process.  And, also, maybe like a standout wide receiver coming into NFL form we’ll have a third installment that is a breakout year.

The conference room in which the Cox Commission II report was released today provided a breathtaking view of the Capitol.  That seemed an appropriate setting, since Congress is one of the report’s key targets.

Judge Cox and two other members of the commission were present — George Washington Law Professors Steve Saltzburg and Mary Cheh.  Gene Fidell, the President of commission co-sponsor NIMJ, also participated in the roll-out.

Judge Cox indicated that the commission concluded that the military justice system is structurally sound.  The commission decided against proposing any changes to the convening authority’s role in the system.  He specifically indicated that consideration was given to recommending that the charging function be reassigned to lawyers, but the idea was rejected in recognition of the military justice system’s dual role as not merely a criminal justice system but also a tool that commanders use to ensure good order and discipline and mission accomplishment.  The commission also chose not to reengage on issues that have been thoroughly debated, such as the oft-raised proposal to remove commanders from the member selection process.

What the commission delivered instead were suggested improvements within the system’s existing framework.  The commission’s report allocates its seven recommendations into three groups:  (1) proposals to make the appellate review process fairer; (2) improvements in the pre-trial, trial, and investigative processes; and (3) the elimination of “an archaic and redundant military crime.”

Two of the three proposals for a better appellate review system are designed to enhance servicemembers’ access to appellate review.  The first would give those who are convicted at contested SPCMs and GCMs a right to appellate review regardless of the sentence imposed.  In support of this proposal, the report notes the serious collateral consequences that usually arise from a criminal conviction regardless of the sentence adjudged.  To someone like LT House, who was convicted in part based on fraudulent DNA evidence, being denied access to the military’s appellate review system risks a lifetime of stigmatization based on inaccurate evidence.  The second proposal urges adoption of the Equal Justice for Our Military Act of 2009, which would allow a cert petition to be filed at the Supremes in any military justice case reviewed by a CCA, rather than only those cases in which CAAF grants review.  The third proposal recommends study of the desirability of allowing waivers of appellate review as a negotiated PTA term.  Judge Cox indicated that while the commission was favorably disposed toward the idea, it did not believe it had sufficient information concerning the potential downsides of the proposal to definitively conclude that the change should be made.

In the second group of proposals, the commission first recommended better defense access to expert assistance both before and during trial.  The report notes several possible means to achieve this goal and ultimately notes the commission’s belief that “the best way to resolve the inequity in expert assistance is to expand the authority of the military judge before the case is referred to trial.”  The military judge, after hearing an ex parte request from the defense, could provide a neutral recommendation to the convening authority concerning a defense request for expert assistance.  The commission also recommended that trial counsel be prohibited from attacking the credentials of substitute experts that the government provides to the defense as adequate substitutes for defense-requested experts.  Currently pending before CAAF is the case of United States v. Anderson, No. 08-0344/AR, which presents a challenge to just such an attack.  Audio of that oral argument is available here.  The final proposal in the second group was a recommendation that all military law enforcement agencies be required to take stationhouse interrogations.

The third group consists of a single proposal:  the elimination of Article 125.  The report notes that the new Article 120 “incorporates and punishes acts of forcible sodomy, nonconsensual sodomy, and sodomy with an underage person.”  Accordingly, “there is no need for a separate provision making sodomy a military crime.”  (One commentator has argued that the maximum punishment for forcible sodomy is higher under Article 125 than under the new Article 120.  But that isn’t a function of either statute; rather, that’s the result of the President’s exercise of his Article 56 authority to set maximum punishments.  The President is free to increase the maximum punishment for forcible anal or oral sex under Article 120 whether Article 125 is repealed or not.) 

The report’s executive summary also noted additional “areas of concern.”  One was the recent amendment to Article 2(a)(10) extending court-martial jurisdiction over civilians accompanying the military in the field in contingency operations.  The report notes “the following issues which should be carefully considered”:

the constitutionality of exercising UCMJ jurisdiction over civilians; the need to have civilians serve on court-martial panels when a civilian is being tried; the kinds of crimes with which a civilian may be charged under the UCMJ; a civilian’s right to appellate review; and the potential criminal liability of a military commander for the misconduct of civilians.

Another area of concern is animal abuse and abandonment overseas.  The report noted “a large number of letters from people overseas on the issue of animal abuse and abandonment by service members of their domestic animals while stationed overseas.”  The commission observed that “[b]ecause this abuse and abandonment often takes place overseas and is beyond the reach of local civilian authorities, service members can go unpunished for the conduct.”  The commission has already sent a letter to DOD “asking that appropriate action be taken to address this problem.”

What next?  The commissioners indicated that they plan to present the recommendations to the American Bar Association to consider whether to adopt them as ABA policy.  Those recommendations that are endorsed by the ABA could then become the subject of an ABA lobbying effort.  (The ABA is already lobbying in support of the second recommendation:  enactment of the Equal Justice for Our Military Act of 2009.)

Shortly after the first Cox Commission report, Congress enacted one of its proposals.  Congress later enacted a second when it adopted the revised Article 120, though Judge Cox made clear today that it isn’t quite what the commission had in mind.  It will be interesting to see how many of this report’s proposals are adopted as either UCMJ or MCM amendments.

Click here.

I understand that the Cox Commission II report should be available online around 1400 to 1500.  I’ll write more about it tonight.  But for the time being, here are the report’s seven specific recommendations:

1.  Expand appeal to the Courts of Criminal Appeals and Court of Appeals for the Armed Forces (CAAF) to make appellate review a matter of right in every contested court-martial.

2.  Enact the Equal Justice for Our Military Act of 2009, now pending in the House of Representatives, to permit direct appeal to the Supreme Court by convicted servicemembers, regardless of whether CAAF grants certiorari.

3.  Consider permitting accused servicemembers to waive their right to appellate review in pre-trial agreements.

4.  Improve access to defense counsel to expert assistance during case investigation and trial.

5.  Prohibit trial counsel from attacking the credentials of an expert witness if the government provided that specific expert to the defense as an adequate substitute for an expert consultant requested by the defense.

6.  Require military law enforcement agencies to videotape the entirety of custodial interrogations of crime suspects at law enforcement offices, detention centers, or other places where suspects are held for questioning, or, where videotaping is not practicable, to audiotape the entirety of such custodial interrogations.

7.  Repeal Uniform Code of Military Justice, 10 U.S.C. § 925 (Article 125, sodomy).

The report also identifies two additional areas of concern:  (1) jurisdiction over civilians; and (b) animal abuse and abandonment overseas.  The report notes areas for further consideration regarding the former and suggests adoption of a specific prohibition against the latter.

The big news of the coming week is likely to be the release of the Cox Commission II’s report.  As announced here, the report will be issued Monday.  I expect to be there and will blog about it on Monday night.  I presume that NIMJ will post an electronic version of the report, so on Monday you’ll probably want to compulsively refresh the NIMJ web site here and its Cox Commission page here until the report is uploaded.