JAG CENTRALThe world's first weblog devoted to military justice and military law issues.
Sunday, June 06, 2004
CLEARING UP THE INACCURACIES IN TODAY'S NY TIMES ARTICLE
ANALYSIS: While running the risk of preaching to the choir, today's NY Times article on Military Justice just begs for some corrections and balancing commentary (I'll be writing a similar editor to the editor today).
Also, the statement that commanders "decid[e]...what punishment best fits them" is misleading. In court martial trials, the convening authority can cut down the punishment from what the panel (jury) recommends, but can never add to it.
Secondly, there is something inconsistent with the author's argument. The same liberal members of the legal academy and the media who decry the fact that the military justice system is too soft and inconsistent on soldiers are the same people who decry that federal sentencing minimums are too harsh and uncaring on civilian defendants and give judges too little discretion. How can one argue for discretion with civilian judges for criminals who do nothing to protect our freedom, and then take away that discretion for commanders who deal with the misdeeds of those who put their lives on the line every day for this country?
The author does make some very good points: mainly the ones dealing with the fact that general officers almost never get sent to trial, but rather are allowed to retire or otherwise leave the service without a conviction. That is an issue that we as military justice professionals will need to grapple with in the future. However, the media and the legal academy should be quick not to uniformly malign a system of justice that Supreme Court Justice Ruth Bader Ginsberg, hardly the most conservative member of the Court, described as "a system of military justice notably more sensitive to due process concerns than the one prevailing through most of our country's history." Weiss v. United States, 510 U.S. 163, 195 (1994) (Ginsburg, J., concurring).
Commanders at every level serve not only as judge and jury, but as prosecutor too, deciding whether charges should be filed and what punishment best fits them.
That statement is only half correct: commanders do serve a prosecutorial function in referring which charges will be tried. However, they never serve as "judge and jury" over their own soldiers. A disinterested officer must serve in all summary and special (non-bad conduct discharge) cases, and a military judge (outside the commander's chain of command) plus a disinterested panel must serve in all general and special (bad conduct discharge) court martials. Sometimes, commanders may serve on court martial panels (our version of juries), but they can't be in the accused soldier's chain of command, and they are almost ALWAYS booted out on peremptory challenges or for cause during voir dire. Just like a defense attorney never wants a prosecutor to serve on a jury, a military defense attorney never wants a field-grade commander to serve on a panel. I've observed many, many trials and have never seen even a junior company commander make it past voir dire.Also, the statement that commanders "decid[e]...what punishment best fits them" is misleading. In court martial trials, the convening authority can cut down the punishment from what the panel (jury) recommends, but can never add to it.
As a result, justice in the military ultimately depends almost entirely on the judgment of commanders. An offense that sends one soldier to Leavenworth after a public court-martial can end for another soldier in a quiet discharge or retirement, with the exact nature of his or her punishment protected by privacy laws.
The author obviously did not write this with neutrality, but disagreed with the implications of this statement, as the rest of the article tells us. There are several problems with this statement. First, there is no reason to believe that this problem is any different than what happens in the civilian justice system. Civilian district attorneys are even more susceptible to uneven treatment of cases because they are subject to the whims of the electoral process. Every case has the implication of bringing defeat at the polls if it is handed badly; one need only look to Gil Garcetti's resounding defeat after the OJ Simpson not guilty verdict for an example. If this is a problem in the military justice system, it is a problem in ALL justice systems.Secondly, there is something inconsistent with the author's argument. The same liberal members of the legal academy and the media who decry the fact that the military justice system is too soft and inconsistent on soldiers are the same people who decry that federal sentencing minimums are too harsh and uncaring on civilian defendants and give judges too little discretion. How can one argue for discretion with civilian judges for criminals who do nothing to protect our freedom, and then take away that discretion for commanders who deal with the misdeeds of those who put their lives on the line every day for this country?
The author does make some very good points: mainly the ones dealing with the fact that general officers almost never get sent to trial, but rather are allowed to retire or otherwise leave the service without a conviction. That is an issue that we as military justice professionals will need to grapple with in the future. However, the media and the legal academy should be quick not to uniformly malign a system of justice that Supreme Court Justice Ruth Bader Ginsberg, hardly the most conservative member of the Court, described as "a system of military justice notably more sensitive to due process concerns than the one prevailing through most of our country's history." Weiss v. United States, 510 U.S. 163, 195 (1994) (Ginsburg, J., concurring).
