Disparate military sentencing faulted by federal judge

Hon. Frank D. Whitney

Federal district judge Frank D. Whitney of the Western District of North Carolina has spoken out about the fact that court-martial panels may adjudge widely disparate sentences for factually similar sex offenses. Judge Whitney has sat as a reserve military judge even after becoming a district judge. For a video interview with him, click here.

“In the federal system, because the Supreme Court has told us so in United States v. Booker, the sentencing guidelines are not only appropriate, but they must be used in the process of sentencing,” Judge Whitney said, explaining that the system of using guidelines in Article III courts “actually helps us avoid disparate sentencing.” 

“That simply is nowhere to be found in the sentencing process of the military,” Judge Whitney said. 

Instead, the military judicial process calls on expert panels of military officers to serve as the fact-finders and hand down sentences without the use of such guidelines, but panels face an “overwhelming amount of instructions” under the "Military Judges’ Benchbook." 

“It can be so many factors that it can just be daunting to them and they don’t have any baseline,” Judge Whitney said.

Judge Whitney's comments came in video teleconference testimony to the Pentagon's Judicial Proceedings Panel.