Commander-centric charging: the limits of data

Prof. Eric R. Carpenter

FIU College of Law (and former Army JAG Corps officer) Prof. Eric R. Carpenter has uploaded to SSRN a forthcoming law review article, An Empirical Look at Commander Bias in Sexual Assault Cases. His conclusion, based on a review of documents he obtained from the U.S. Army under the Freedom of Information Act:

"The public policy implication is that, at least for now, Congress does not need to remove commanders from the system. Any decision to remove commanders would instead have to be justified on normative grounds, based on evidence that commanders treat all cases (including sexual assault cases) either more leniently or more strictly compared to other jurisdictions for reasons having nothing to do with sexual assault context."

The fact that commanders are more or less lenient in sex cases (or particular kinds of sex cases) than they are in other kinds of cases would seem to be irrelevant, and therefore says nothing about whether "at least for now," Congress should "remove [them] from the system." The Army data, therefore, while interesting, do not advance the policy inquiry and Prof. Carpenter deserves credit for saying as much.

Prof. Carpenter is right to point out that whether commanders should continue to be responsible for charging decisions -- as has been the case in the U.S. since the 18th century -- extends beyond sex offenses. (Sen. Kirsten Gillibrand's proposed Military Justice Improvement Act is not confined to such offenses.) Should transfer of that power to prosecutors who are outside the chain of command turn on how its exercise by commanders compares with decisions made by civilian prosecutors (a determination that cannot be performed empirically given the sheer number of convening authorities (aggravated by frequent turnover among commanders), the even greater number of civilian jurisdictions, and the need to compare infinitely varied individual cases)? Or should it turn on other, non-empirically-testable, considerations such as whether charging decisions are inherently the work of legally-trained officials who are subject to professional standards of conduct and whether commanders' time is better spent on other matters for which they are better trained/suited? Is it an accident that so many other democratic countries, including the very one to which the U.S. system can be traced and a number that maintain effective fighting forces, have abandoned commander-centric charging?

And don't even start on the commander's power to pick the members. The charging power cannot be viewed in isolation.

Thanks to Don Rehkopf for the link to Prof. Carpenter's article, which will appear in the Berkeley Journal of Criminal Law next year.