Saturday, August 5, 2023

Geoff Corn on the new charging system

Texas Tech's Professor Geoff Corn has written this insightful op-ed on where the path leads now that President Joe Biden has issued an Executive Order promulgating the 2023 amendments to the Manual for Courts-Martial. Excerpt:

We should also expect that these Prosecutors will make their critically important decisions ethically and honorably, faithful to the law they each swear to uphold. All of this indicates a new era of more aggressive sexual assault prosecutions may be an unrealistic expectation; that the number of cases sent to trial may actually decline. Whatever the numbers turn out to be, this is by far the most laudable consequence of this change: a higher degree of confidence that the decision to send a case to trial – or decline to do so – is based on evidence and law and one we should respect. But from a policy perspective, this may actually contribute to the perception that the system is still flawed. That would be truly unfortunate.

For some who participated in the years-long effort that led to creation of the new Special Trial Counsel system, the goal was to drive up the number of prosecutions for sexual assault and similar offenses. For others (the Editor is one), the goal was to foster increased public confidence in the administration of military justice across the board, regardless of whether the number of prosecutions went up, down, or sideways. Prof. Corn's op-ed is spot on in noting that public confidence is the goal, "[w]hatever the numbers turn out to be."

The question on the Editor's mind now is whether and when Congress will focus on the obvious diseconomy of maintaining two parallel charging apparatuses -- one (STCs) for "covered," "related" and "known" offenses, and the other (command-centric) for everything else. The current "house divided" makes no sense as anything more than an interim state of affairs.

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