Amending the Uniform Code of Military Justice to Mirror Civilian Courts

After a nearly two-year long process, the Department of Defense has drafted a legislative proposal to reform the Uniform Code of Military Justice (UCMJ). At the end of December, the DoD forwarded its proposals to Congress in the form of the Military Justice Act of 2016. The DoD provided a summary of its major proposals. Here, I highlight some of the major changes proposed and the impact those changes could have on the military justice system.

For those readers looking for additional background, here is a brief 2013 primer on how courts-martial work, written by Congressional attorney R. Chuck Mason. It is perhaps most important to understand that the criminal conviction of a military service member in a court-martial is a federal criminal conviction. The military courts essentially function as federal courts, though they operate under their own rules, including their own Rules of Military Evidence.

Creating a uniform jury and a uniform requirement for convictions.

The proposed reforms would standardize the size of a jury for courts-martial to twelve members in capital general courts-martial (courts-martial where the potential penalty is death), eight members in non-capital general courts-martial, and four members in special courts-martial. As it currently stands, there no standard jury size for courts-martial; there is a standardized minimum membership (three members at a special court-martial, five at a general court-martial). Moreover, the current UCMJ mandates a minimum number of votes required for a conviction at a court-martial at two-thirds. A court can decide to impose a higher minimum of votes to reach a verdict, on a case-by-case basis. In courts-martial there is no “hung” jury: failure to reach the minimum required votes results in an acquittal. Consequently, the chance of a conviction can vary based on jury size and the vote required for that specific case.

The proposed amendments would standardize the amount of votes required for a conviction in all courts-martials at seventy-five percent, with the exception of capital cases, which would require a unanimous vote by the jury to convict. This would be a firm a standard – not simply a guideline – and could not change on a case-by-case basis

Major sentencing reforms: allowing for judicial sentencing and creating sentencing parameters and criteria.

Currently, sentencing for special and general courts-martial operates very differently from the civilian justice system. If a court-martial is adjudicated by jury – an accused, like a civilian, can waive his right to a jury – then the same jury that determined guilt will also set the sentence. As with convictions, unanimous agreement is only required in capital cases. Courts-martial punishments include more than just confinement; individuals who are convicted might face forfeitures, punitive discharge, reprimand, fines, restrictions, and, in capital cases, death. Sentences can combine any number of these punishments. According to the Manual for Courts-Martial (2012), for almost all offenses the sentence is a “matter within the discretion of the court-martial.” There is no discretion for convictions which carry mandatory minimum confinement sentences, however the sole offense in that category is murder – the mandatory sentence is life imprisonment without parole. Many offenses carry maximum punishments.

The proposed amendments would impose judicial – as opposed to jury – sentencing in all courts-martial, not just in the military equivalent of the bench trial. A section-by-section analysis of the amendments references the civilian model, noting that the change “would better align military sentencing practice with federal civilian sentencing practice, as well as the practice in the majority of state jurisdictions.” Shifting sentencing determinations to a judge would likely result in more uniformity across the several branches of the military, especially when coupled with the proposed “sentencing parameters and criteria.” These parameters would operate much like the federal mandatory minimum guidelines, by limiting a judge’s discretion regarding sentencing for each specific offense. The parameters would be determined by a specially appointed board and ultimately approved by the President.

Complete restructuring of plea agreements.

Military plea agreements contain two parts. The first part outlines the specific charges to which an accused has agreed to plead guilty. The second part outlines the sentence “caps” agreed upon by the accused and the trial counsel (the equivalent of the prosecutor). These caps are reached after often lengthy negotiations between the accused and the trial counsel, which are ultimately approved by a Convening Authority, and the agreed upon caps for the same alleged offences can vary widely from case-to-case. At the plea agreement hearing, a military judge receives only the first part, listing the admitted offenses, she does not receive information regarding the sentence caps. Instead, immediately following the guilty plea (which is a much lengthier process than in the civilian world, involving subtantial back-and-forth between the judge and the accused), the judge determines an appropriate sentence. If the judicially-determined sentence is lower or less punitive than the caps outlined in the plea agreement, then the accused receives the more lenient sentence. If however, the judge recommends a more punitive sentence then the accused will “max out” at the cap set by the agreement. For example, if the plea agreement lists a 120-day confinement cap but the judge determines that a two-year confinement period is appropriate, the accused will nevertheless receive a sentence of 120-days confinement.

The proposed amendments would allow judges to see the entirety of the plea agreement, including an agreed-upon sentence. The judge could then accept or reject the plea agreement as a whole. The judge would be empowered to override the plea agreement only where the negotiated sentence was “plainly unreasonable or otherwise unlawful.” This new structure would remove much of the opaqueness of the current plea agreement system. Furthermore, the new structure would give a more powerful voice to victims of sexual assault crimes – the current military docket is overrun with sexual assault cases – because the accused would no longer be able to “beat the agreement.” Under the current system, the lengthy exchange between the judge and accused during a plea agreement hearing permits the judge to establish the guilt of the accused and the accused’s recognition that he is guilty. Occasionally, the judge determines that an appropriate sentence is lower than the cap agreement, which allows the accused to “beat” the deal. But under the proposed regime, in most cases, the accused would not be able to receive a lower sentence than that negotiated by the parties – trial counsel, defense counsel, and, in cases of sexual assault, with input from the victim’s legal counsel. Therefore, the victim’s interest as expressed by the trial counsel or the victim’s own legal counsel has greater influence over the sentence that is ultimately imposed.

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Many of these proposed amendments shift the structure of the military justice system to mirror the civilian justice system more closely. Despite the obvious and compelling case for the military having its own code and system of justice, these proposed reforms would inject significant influences from the civilian model, perhaps in an attempt to better safeguard victims’ rights. Notably, borrowing from the civilian model is not necessarily a recent trend. In a 2013 article in the Michigan Law Review, Victor Hansen notes that an overarching theme of military justice reform over the past two decades is “conforming military justice to the prevailing civilian justice.” However, the military justice system has come under a heightened public and congressional scrutiny in recent years, particularly in the realm of sexual assault justice reform. That particular focus led to the implementation of victims’ legal counsel programs in every branch.

The Military Justice Review Group commissioned to conduct the most recent review certainly had this top priority in mind. Therefore, even the general review of the UCMJ should be understood within the context of criticism of the military handling of sexual assault cases. As such, it is unsurprising that some major proposed reforms helps to protect victims: uniformity across the military justice system – from jury size to judicial sentencing guidelines – helps ensure that victims of sex offenses will be entitled to and receive the same justice. Uniformity also protects the accused, by providing the same procedural protections to all accused, regardless of which branch or judge presides over a case. In this context, shifting the military justice system closer to the civilian criminal justice model may help the military overcome the perception that in military tribunals the deck is stacked against victims of sexual assault.