Comments on proposed changes to Manual for Courts-Martial

With enactment of the Military Justice Act of 2016, the Defense Department is finalizing corresponding changes to the Manual for Courts-Martial. A number of comments on the draft changes have been posted on the Regulations.gov and are available here. The comment period has closed.

One interesting comment came from a Navy JAG Corps officer, and concerns disposition guidance. It can be found here:

Article 33 requires the issuance of "non-binding guidance regarding factors that commanders, convening authorities, staff judge advocates, and judge advocates should take into account when exercising their duties with respect to disposition of charges and specifications in the interest of justice and discipline." The statute requires this disposition guidance to "take into account, with appropriate consideration of military requirements," the Principles of Federal Prosecution, Title 9-27 of the U.S. Attorney's Manual (USAM). The statute was designed to address a key vulnerability in the military justice system: the lack of meaningful decision-making guidance regarding the exercise of prosecutorial discretion by commanders, convening authorities, and judge advocates. In place of the "balance-of-considerations" approach to the disposition decision reflected in R.C.M. 306(b)which in effect make "probable cause" the sole referral criterion in many cases the statute's drafters envisioned structured, decision-making principles akin to those widely adopted in federal and state civilian practice. Such non-binding principles and standards have proven effective in promoting the reasoned exercise of prosecutorial discretion and the fair, evenhanded administration of criminal law. The [Joint Service Committee]'s proposed version of Appendix 2.1 makes a number of updates and improvements to the [Military Justice Review Group]'s original draft. But it eliminates key components of the Disposition Guidance that were designed to emulate the language and function of Sections 9-27.200 (Initiating and Declining ProsecutionProbable Cause Requirement), 9-27.220 (Grounds for Commencing or Declining Prosecution), and 9-27.230 (Substantial Federal Interest) of the USAM. Without these provisions, the JSC's version of the Disposition Guidance perpetuates the system vulnerability a lack of structured decision-making guidance beyond the minimum referral threshold of probable cause that Article 33 was enacted to address. The attached proposal builds off the JSC version of Appendix 2.1, while restoring and updating these key provisions intended by the statute's drafters. The following additional changes, highlighted in yellow, are proposed throughout the document: The Guidance is entitled "Principles of Military Prosecution" to emphasize its close connection to the Principles of Federal Prosecution. The structure and organization of the Guidance is modified to better align it with the Principles of Federal Prosecution and to reflect the distinct considerations at play in initiating and declining charges, selecting the appropriate charges and forum, and determining the appropriateness of plea agreements. Additional material from the Principles of Federal Prosecution is adapted throughout, where such material is appropriate in the military context. For example, Factor 1.2.e. is added to reflect that one of the core purposes of the Guidance: to "[p]romote confidence on the part of the public and individual service members that disposition decisions will be made rationally and objectively on the merits of the facts and circumstances of each case." The phrase "interest of justice and discipline" is restored throughout the Guidance in place of the proposed phrase, "[i]nterests of justice and good order and discipline." The former term has been a touchstone of military justice policy and practice since the 1920 Articles of War. It concisely captures "the dual-purpose of the American military justice system: to promote justice while maintaining discipline within the ranks." MJRG Report, Part I 293 (2015). It also speaks to the broad disposition authority granted to military commanders and convening authorities by Congress when the UCMJ was enacted in 1950. See United States v. Littrice, 13 C.M.R.43, 47 (C.M.A. 1953) ("It was generally recognized [by Congress] that military justice and military discipline were essentially interwoven. . . . [C]onfronted with the necessity of maintaining a delicate balance between justice and discipline, Congress liberalized the military judicial system but also permitted commanding officers to retain many of the powers held by them under prior laws."). In contrast, the phrase "interests of justice and good order and discipline" is without a clear, historical basis and is inconsistent with the UCMJ, which expressly connects the proper exercise of disposition discretion by commanders and convening authorities to "the interest of justice and discipline."