Appellate review by the Supreme Court -- still discriminatory

Once again, Congress has worked up a defense authorization bill that leaves intact the current discriminatory provision under which GIs have far worse access to direct review by the Supreme Court than criminal defendants in the Article III courts, state courts, territorial courts, the courts of the District of Columbia, and the Guantanamo military commissions. The only criminal defendants in the United States who are worse off from this perspective are those convicted by Native American tribal courts--whose judgments are not directly reviewable by any federal court. To put things in perspective, the Bureau of Justice Statistics estimates that there were 1,132,290 state felony convictions in 2006 (the latest year for which data are available online). The U.S. Sentencing Commission reports that it received information on 76,538 individual federal criminal defendants in FY19. A review of the services' most recent data on the Joint Service Committee on Military Justice website (FY19, ending September 30, 2019) yields a grand total of 1302 convictions by general and special courts-martial. A review of the cases decided in the most recent Term of the U.S. Court of Appeals for the Armed Forces (ending September 30, 2020) yields a grand total of 14 cases in which the court granted discretionary review for good cause shown and the appellant lost -- in other words, these were the only non-interlocutory cases (apart from capital and certified cases) that were eligible for Supreme Court review on writ of certiorari at the accused's request. The CAAF data relate to the year following the year for which we have conviction data. Since CAAF rarely if ever gets a case in the same fiscal year as the year of trial, the apparent mismatch actually may make for a more realistic comparison. That is, this year's trial may be next year's (or the year after's) CAAF case. At times, of course, variation between consecutive years may be be statistically significant, although that seems not to be so with the two years addressed here.

With these caveats, it seems that only a shade over 1% of general and special court-martial convictions are ever eligible for review on certiorari at the instance of the accused, as opposed to 100% of convictions in the other categories of criminal adjudication noted above for which direct appellate review by the Supreme Court is authorized.