You can find out more specifics per state at NIMJ's "State Codes."
A general review suggests many state UCMJs are out of date. There have been several major changes to the UCMJ over the last five years and the state legislatures haven't caught up.
Nevada National Guard members have fewer legal protections than civilians, most other states’ Guard members, and members of national military branches such as the Army and Air Force.
The right to demand a court-martial instead of accepting certain administrative punishments was taken out of state law in 2019 at the urging of the Nevada National Guard, just four years after it held the opposite position.. . .
"Currently, Nevada is one of only a few states where National Guard members lack the right to demand a court-martial," Wagar said. "This lack of due process undermines the principles of justice and erodes trust in the military justice system."
From the Reno Gazette Journal.
Most interesting is the cost estimate for adopting the right to refuse Article 15 punishment, which ranges from zero to $1.2 million for just three courts-martial.Gray said this shows that the Nevada National Guard’s official estimate to the Legislature of three court-martials a year costing about $1.2 million does not stand up to scrutiny because it’s extremely rare for a military service member to ever request one.
Gray shared a letter he received Wednesday from Maj. Gen. David Baldwin, who has led the California National Guard since 2011. Baldwin wrote that during his more than 40 years in the Guard, he’s been involved with hundreds and possibly thousands of cases where the accused had the option to turn down a nonjudicial punishment in favor of a court-martial — and only one ever did.
We suspect (partly on our own experiences advising servicemembers) that the number of Article 15 turndowns in the active duty force is similarly few.
While my heart is often with the defense in military cases, I have a few counterpoints as to why this Nevada bill is ill-advised.
ReplyDeleteFor one, the Guard's cost estimate is not unreasonable, and is almost certainly too low. If Nevada is forced to start a court-martial system from scratch, building a military courtroom and court infrastructure alone will be a huge undertaking.
Providing a turn-down right would force those State to pay those costs (of whatever amount). Because with the turn-down right, the command must be ready to convene a court-martial. All of the infrastructure would need to be in place -- facilities, personnel, processes -- or the command would lose face if it could not meet the accused's challenge. That is why the US Navy insisted upon a "vessel exception" to the turndown right in the UCMJ.
Nevada must also consider what it is giving up. Cases embarrassing to the military that might normally go to electorally accountable DAs may now find the military asserting greater criminal jurisdiction. Why spend those millions if not to flex.
It is helpful to appreciate the "right" at stake. NJP does not involve any serious punishment; there is no blemish that follows the military member after their service. No incarceration is permitted either. Contrasted with a court-martial, where the soldier can be branded a felon, endure stigmatizing discharge, and be confined, NJP punishments are minor. NJPs do not even remain permanently in the military member's personnel file.
The turn-down illogic is akin to "turning down" a speeding citation to demand a jury trial that can severely punish you. Nobody wins: the state is forced to go through the effort of convening a full court process for a matter it had already deemed to be minor, and the accused enjoys the "right" to be punished more severely.
True, NJP punishments can be arbitrary. But they are just as minor as consequences that can be arbitrarily doled out in other ways by commanders, such as performance evaluations, administrative separations, and reassignments. Military members enjoy other avenues of redress against commanders who abuse their NJP authority.