Restoring Faith in Military Justice

Professors Eleanor T. Morales (Wake Forest) and John W. Brooker (University of North Carolina) have written an article titled Restoring Faith in Military Justice, 55 Conn. L. Rev. 77 (2022). Abstract:

The military justice system was designed to maintain good order and discipline, strengthen national security, and achieve justice. After military leaders failed to effectively address the sexual assault crisis within the armed forces, Congress lost faith in this system. In response, Congress enacted sweeping legislative reform, transferring prosecutorial discretion for the most serious offenses from commanders to military lawyers. Unlike civilian prosecutions, most decisions within the military justice system have overwhelmingly favored one consideration: maintaining good order and discipline in the unit. While Congress’s reforms change who makes the decisions in many cases, they will have little effect unless military leaders also broaden the underlying criteria upon which their recommendations and decisions are made.

This Article proposes an innovative framework to assist military leaders in implementing a holistic approach to decision-making. Borrowing from the law of armed conflict, we propose a test that empowers decision makers to consider all the federal principles of prosecution and sentencing that Congress has repeatedly indicated should serve as touchstones for reform. When employing this framework, military justice decision makers will better account for the long-term impact on accused service members, society, and victims rather than solely focus on short-term deterrence within the unit. This proposal attempts to bring military prosecutions more in line with the criteria applied by civilian federal prosecutors and restore credibility in the military justice system, thereby enabling it to continue to do what it was designed to do.