Thursday, December 10, 2020


Are there too many military judges? See what you think.
Step 1. How many courts-martial are there each year? This part of the analysis is easy. According to the FY2019 reports of the Judge Advocates General, there were 1556 general and special courts-martial in the year ended September 30, 2019.
Step 2. How many military judges are there? This is more complicated because (a) the data are not found in any single place and (b) some military judges are drilling reservists rather than full-time active duty officers. As far as I have been able to determine, there are 73 active duty military judges and ~23 reserve judges. If the reservists are treated as if they were on duty one-twelfth of the time, that means ~2 more full-time judges, for a total of 75.
Step 3. How many cases, on average, does a military judge try? Dividing 1556 by 75 yields a per-judge annual caseload of 20.75.
Step. 4. How does the military caseload per judge compare with that of a civilian jurisdiction of comparable size? This entails several questions:
(a) How many people are subject to the Uniform Code of Military Justice? The class of persons subject to the Code is diverse. Some parts are easy to pin down while others are difficult or impossible to pin down. Omitting discharged persons in military confinement, service academy cadets and midshipmen, and civilians serving with or accompanying an armed force in the field in time of declared war or a contingency operation, but including active duty personnel, retired regulars (n.b. the constitutionality of this part of Art. 2(a), UCMJ, is in litigation [full disclosure: I am counsel in such a case]), TDRL and PDRL personnel, retired reservists receiving hospitalization, Public Health Service commissioned corps personnel on duty with the Coast Guard, and selected reservists (counted, like the reserve judges, as 1/12 of an active duty member) yields a total of 3,004,053.
(b) Which states have roughly the same population? Several states and Puerto Rico have populations in the same general range. Kansas, for example, has an estimated population of 2,913,314.
(c) What is the per-trial-judge caseload in the comparison state? Kansas's 153 state district judges had a per-judge felony and misdemeanor caseload of 194.4 in the year ending June 30, 2019. In calculating this figure, deferred adjudications and diversions have been omitted.
(d) How different is the Kansas cases/judge rate from the UCMJ rate? The Kansas per-judge caseload is 9.37 times the court-martial per-judge caseload. Even if different premises are used, for example, as to the treatment of reserve judges, it is clear that the military caseload would remain very significantly lower than the Kansas per-judge caseload.
Step 5. What conclusions, if any, can be drawn from the foregoing?
I will be happy to respond to questions about methodology. If firmer figures become available for the number of military judges, I will recalculate the rate and the Kansas v. UCMJ comparison. Remember: you must use your real name in order to post a comment.

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