Obama administration sends major military justice reform package to Congress

Hon. Andrew S. Effron

Drop everything. The Pentagon this morning submitted to Congress the administration's proposal for comprehensive changes in the Uniform Code of Military Justice. The recommendations reflect extensive review within the Executive Branch, which led to a variety of changes from the initial recommendations of the Military Justice Review Group. The effort was led by former Chief Judge Andrew S. Effron of the U.S. Court of Appeals for the Armed Forces. The final text is now on the Review Group's website. Among the headlines (and not getting into the numerous weeds):

• The President will have the power to establish criteria and tour lengths for military judges (Editor's note: this a very big deal and long overdue; Navy, Marine Corps and Air Force will finally have to get in step.)
• The President will be authorized to identify legal issues that can be resolved by military judges prior to referral (Editor's note: this sounds like a standing judiciary -- but without standing courts.)
• The armed services will be authorized to establish a military magistrate program, with magistrates performing roles, pre-referral, that are roughly parallel to the role of U.S. Magistrate Judges
• There will be a new form of judge-alone Special Court-Martial to try petty offenses (as defined by the President), with confinement powers limited to six months and no punitive discharge. A magistrate will be permitted to preside with the parties' consent
• The President will be required to issue non-binding disposition criteria. Cf. U.S. Attorney's Manual
• Article 32 will be amended to remove the requirement for a disposition recommendation; the focus will instead be on gathering information. The parties and victim(s) will be afforded an opportunity to make written submissions
• Investigative subpoenas will be authorized in connection with preliminary hearings and even before then (with judicial oversight even prior to referral)
• Fixed panel size: 4 for Special Courts-Martial, 8 for non-capital General Courts-Martial, 12 for capital General Courts-Martial. For non-capital cases, 3/4 vote to convict; for capital cases, unanimous to make a case death-qualified and, if the vote is not unanimous, 3/4 (8) to convict (Editor's note: "numbers game" implications.)
• Judge-alone sentencing by offense, as in civilian courts, with the judge deciding on concurrent/consecutive sentences
• The President will promulgate sentencing parameters and criteria, on the recommendation of a Sentencing Board (compare Federal Sentencing Guidelines); written reasons will be required for going above or below applicable parameter
• Convening authority may suspend the sentence or part thereof only if recommended by the military judge (in addition to cases in which the convening authority can currently suspend or mitigate)
• Plea bargains as in federal district court
• All cases with confinement in excess of of 6 months or a punitive discharge will be subject to appeal as of right by the service Court of Criminal Appeals (CCA)
• Repeal of the CCAs' affirmative duty to review the full record of trial, find proof beyond a reasonable doubt, lawfulness, and sentence appropriateness; review will be limited to issues raised by the parties and for plain error
• For sub-jurisdictional cases, discretionary review by the CCA (without the need for referral by the Judge Advocate General) (Editor's query: what is the standard for granting review?)
• No change in U.S. Supreme Court review of decisions of the U.S. Court of Appeals for the Armed Forces. This issue is discussed in the accompanying report. (Editor's note: oy. Time to get busy with Congress.)
• Most listed offenses under Article 134 will become separate punitive articles
• There will be a new clause in Article 134 picking up offenses applicable in the special maritime and territorial jurisdiction à la the Military Extraterritorial Jurisdiction Act
• New Article 93A for sexual misconduct by persons in authority
• New punitive article for retaliation against persons who report offenses
• Real time availability of court-martial filings à la civilian federal practice (Editor's note: Hallelujah.)
• Detailed collection of case information across services à la data gathering and analysis by the Administrative Office of the U.S. Courts and the Federal Judicial Center
• Periodic review by a standing independent body of outsiders (with staff and resources)
• Bread and water will no longer be an authorized punishment

The Review Group's second report, on changes to the Manual for Courts-Martial, will be made public following the completion of review within the Executive Branch.

Congratulations to the Review Group on an important contribution to the development of American military justice. Opinions will inevitably differ on elements of the administration's proposal (and its omissions), but there are numerous changes in it that plainly improve on the current statute. One now must hope for open, meaningful, unhurried hearings before the House and Senate Armed Services Committees. The proposal unveiled today should be the beginning of the legislative process, not the end.