Monday, July 26, 2021
As urgent as these concerns [high levels of sexual assault, racial disparities] are, however, the central issue with the system for charging decisions under the Uniform Code of Military Justice both predates and transcends them. To put things in plain English, in 2021, in the United States, whether to charge any person with a serious criminal offense (which I would define as anything that could lead to more than a year in jail) is lawyers’ work—and virtually no military commanders currently exercising prosecutorial discretion are lawyers.
Could the training of nonlawyers paper over this flaw? Thanks to the Government Accountability Office, we now have at least a little information about just what UCMJ training military commanders receive. A recent report reveals that new Army brigadier generals receive one hour of training in military justice generally and an additional half-hour of training on the critical topic of unlawful command influence (UCI). UCI is rightly described as “the mortal enemy of military justice,” and these issues continue to reach the military appellate courts like clockwork.
The level of training disclosed by the GAO report is plainly inadequate. And it can’t be made adequate so long as military charging decisions are made by nonlawyers. Law school takes three years, not ninety minutes. Even if training were dramatically expanded, prosecution decisions need to be governed by enforceable ethical standards of the kind that apply to every attorney. There are no comparable standards for nonlawyers. What’s more, even if training could be drastically increased, do we really want our senior military commanders to be spending scarce time on these matters? For that matter, do they?
It also makes no sense to segregate sex cases and leave other major offenses to nonlawyer commanders. Should nonlawyers decide whether a potentially capital case should be tried, or whether the death penalty should be sought? What about some other charge that is likely to entail difficult and at times novel issues of law, evidence, or constitutional rights? How many commanders are in a position to decide whether a cybercrime or other complex fraud has occurred?
this informative profile of Meghan Tokash, an Assistant U.S. Attorney in Buffalo, N.Y., who served on this year's Independent Review Commission on Sexual Assault in the Military. The article correctly notes that the IRC did not address the broader all-major-crimes approach taken in the bill spearheaded by Senators Kirsten Gillibrand and Joni Ernst. Ms. Tokash said doing so would have taken another 90 days.
This empirical study explores the legal and non-legal factors influencing trial judges’ decisions to admit or exclude illegally obtained evidence under s. 24(2) of the Canadian Charter of Rights and Freedoms. Mining an original dataset of 1,472 reported decisions from 2013-2018, we found little evidence that they are affected by judges’ gender or partisan ideology. We did find, in contrast, that they are substantially influenced by judges’ previous professional background: former criminal defence lawyers are more likely to exclude than former non-criminal practitioners, who are in turn more likely to exclude than former prosecutors. We also found significant regional disparities, with judges in Quebec, British Columbia, Newfoundland, and Nova Scotia more likely to exclude than Alberta judges. The study also revealed that judges are more likely to admit evidence when trying more serious charges and less likely to do so when trying female defendants.
(This article was #1 in the Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal on last week's CrimProfblog.)