(U.S. Air Force)

A sweeping change to military sentencing proposed by the Pentagon earlier this year didn’t make the cut in the 2017 National Defense Authorization Act, leaving military juries and judges with broad discretion in deciding how to punish troops convicted of crimes.

A proposal to have military judges, not juries, sentence troops convicted at court-martial, with sentences based on guidelines like those used in federal courts was not included in the legislation this past week. As a result, sentences for most crimes will continue to carry a broad range of punishment. The same crime could yield a sentence of “no punishment” to one of lifetime imprisonment.

Lt. Col. Valerie Henderson, a Pentagon spokeswoman, said Congress had adopted many of the military justice reforms proposed by the Pentagon in January after a lengthy study. The sentencing reforms not adopted will undergo further study: Another review panel is to submit a findings and recommendations to the House and Senate Committees on Armed Services by October 31, 2020.

Critics of the unique military sentencing system have for decades said it results in punishment that is unpredictable, disparate and sometimes too light.

“It was 50 years overdue, and it was the only part of the proposed reform that would really have modernized the system,” said former Air Force top prosecutor Don Christensen. “So now it’s still the wild, Wild West. The process has all the rules of a knife fight.”

Victor Hansen, a professor at New England Law Boston, agreed. “It seemed to me to be a very thoughtful reform and one that is long overdue,” he said.

But defenders of the process say they prefer it to what they say are rigid federal and state sentencing schemes that allow little judicial discretion. “No two accused are the same. The variability of the sentences is actually evidence of the system working properly,” said Zachary Spilman, a military appellate defense lawyer and the lead writer of a military law blog.

Some changes to the military justice system were adopted in the law.

Defendants tried by juries, who have been required to also be sentenced by the jury, may now request that the judge sentence them. That change, said Christensen, president of the victims’ advocacy group Protect Our Defenders, could benefit sexual assault defendants and make trials rougher on accusers. Defense lawyers who previously had to weigh how harshly to attack an alleged victim’s credibility to avoid angering a jury now could be unrestrained, he said.

Another adopted provision in the law adds an article to the Uniform Code of Military Justice criminalizing sex between military recruits and their recruiters and trainers. The provision — introduced by Rep. Jackie Speier, D-Calif., in the wake of the 2012 Lackland Air Force Base scandal — is similar to laws in most states that ban sex between teachers and students.

Sex between recruits and trainers, such as drill sergeants, has been illegal for some time, but through a variety of regulations, policies and command instructions that complicated prosecution. For instance, a prosecutor might have to prove the misconduct constituted dereliction of duty.

Sex between recruits and trainers, such as drill sergeants, has been illegal for some time, but a variety of regulations and command instructions required that prosecutors to prove that the trainer’s actions constituted dereliction of duty.

“Now it’s clear what you’re charging them with; now you’re just proving sex between a trainer and a trainee,” Christensen said.

A further change was to tighten eligibility for automatic review by courts of criminal appeals. Instead of automatic review of sentences, including a punitive discharge and confinement for more than six months, the threshold was raised to confinement of at least two years. At the same time, those not entitled to automatic review may request it.

Eugene Fidell, a lawyer who specializes in military cases and teaches at Yale Law School, was not a fan of the appellate-rule changes or the process. “It is indefensible that this entire process was conducted without a single public hearing,” he said. “What they should have done was give everyone convicted at court-martial a right to appellate review.”

author picture
Nancy is an Italy-based reporter for Stars and Stripes who writes about military health, legal and social issues. An upstate New York native who served three years in the U.S. Army before graduating from the University of Arizona, she previously worked at The Anchorage Daily News and The Seattle Times. Over her nearly 40-year journalism career she’s won several regional and national awards for her stories and was part of a newsroom-wide team at the Anchorage Daily News that was awarded the 1989 Pulitzer Prize for Public Service.

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