|Chief Judge James E. Baker|
James E. Baker, Is Military Justice Sentencing on the March? Should it be? And if so, Where should it Head? Court-Martial Sentencing Process, Practice, and Issues, Fed. Sentencing Rep. Dec. 2014, at 72-87. Here is his own description of what he intends to say:
The article follows by identifying two core military sentencing questions: First, should commanders have authority to grant clemency? Second, should the military justice system adopt sentencing guidelines? With respect to each topic presented, the article does not attempt to answer the questions nor offer prescriptions. Rather, it seeks to identify the principal fault lines around which debate should, or will likely, fall. The article next presents ‘‘nutshell’’ introductions to additional sentencing matters that may warrant review as applied in the military context, including the handling of collateral matters, and the relationship between age and culpability. However, for the reasons stated, these issues are not presented in detail here.Whether or not a commander may grant post-trial clemency has not been a significant issue until the recent media and political furor over military sexual assaults, specifically when LtGen Franklin set aside a sexual assault conviction after trial. From then, the Congress has taken affirmative steps through legislation to scale back the power of the convening authority post-trial. (And generally, some in the legislature continue on the path to try and remove the convening authority commander from the court-martial process.)
Sentencing guidelines have been a topic of discussion for many years. They were addressed for example during the first Cox Commission on Military Justice in 2001. See Report at 14. and for a longer discussion see Major Steven M. Immel, Development, Adoption, and Implementation of Military Sentencing Guidelines, 165 MIL. L. REV. 169 (2000). Congress has taken a small step toward guidelines, by requiring a dishonorable discharge as a mandatory part of a sentence if convicted of a sexual assault.
Chief Judge Baker does get to newer ground in discussing collateral consequences of a court-martial.
Military justice sentencing raises a number of issues regarding the handling of the collateral consequences of court-martial conviction and sentencing not found in civilian practice.A reader could conveniently gloss over pages 72-80, and go right to this new and most interesting discussion of nutshells and collateral effects.