(U.S. Air Force)

The Pentagon has proposed significant changes to how troops are tried and sentenced, two years after a comprehensive review of the military justice system was ordered by then-Defense Secretary Chuck Hagel in the wake of persistent sexual assault controversies.

The changes to the Uniform Code of Military Justice are the first proposed by the Pentagon in 30 years, after years of Congress mandating change, and would also make the system more transparent to public view.

The Senate Armed Services Committee is expected to be briefed on the proposed guidelines in the next few weeks.

For decades, the military’s unique sentencing procedures have required untrained military jurors to decide guilt or innocence as well as impose sentences upon conviction. In most military crimes, there were no minimum sentences, and legally allowed maximum punishment could include life in prison. Under the Pentagon proposal, military judges in all cases would decide sentences based on U.S. Department of Justice guidelines.

Judges have always decided sentences in bench trials. Moreover, a number of crimes that have been tried under the catch-all Article 134 would be set out independently, perhaps with articles being added to the UCMJ. That means that prosecutors would no longer have to prove that a crime such as kidnapping was service-discrediting.

All convicted servicemembers also would have the right to appeal, under the changes, and military court documents such as judicial rulings — now accessible to the public only through Freedom of Information Act requests — would be filed in a public system as they are in federal courts.

“In Federal Court, anybody may look up a case and view pleadings in current cases. The military trial courts should have a similar system where the public could view motions,” said Kyle Fischer, a former Army lawyer now in private practice.

Fischer said the move would benefit not just the public but also people he says are falsely accused.

“Nobody knows about those frivolous cases except for the client, the panel, the attorneys in the case, and the military judge,” he said. “If we are going to raise awareness of problem of the falsely accused being tried on frivolous charges, then allowing the press access to these proceedings should be a concern.”

The changes make sense and are long overdue, experts said.

“There’s a lot of good stuff in this bill,” said retired Air Force former top prosecutor Don Christensen, now president of Protect Our Defenders, the sexual-assault victim advocacy group. “But the fact is that we lived with this insane sentencing process for so many years and the generals never said it made no sense.”

Christensen said that the proposal was an effort to abort even more sweeping changes, in particular stripping the chain of command from its prosecutorial and judicial role in the military justice system.

The proposed legislation would leave military commanders to still determine which cases go to court-martial, what charges will be brought against a defendant, whether to cut a deal, and whether to grant clemency after conviction.

“DOD didn’t want this,” Christensen said of the proposed legislation. “It’s a smoke screen, forced on them by Hagel.”Sen. Kirsten Gillibrand, D-N.Y., has been a vocal opponent of the current system. She has criticized the Pentagon review for not considering whether trained military prosecutors should replace commanders in deciding how to dispose of cases. Prosecutors have more expertise and less bias than commanders, according to her and other critics of the current system.

Military sentencing reform has been proposed for decades, in part because the current system allows for widely varying sentences.

“A panel can come in very high or very low,” said Army Reserve lawyer Maj. Joseph Wilkerson, a former editor of the Army Lawyer and the Military Law Review who currently serves on the defense team of one of the Guantanamo detainees.

Sgt. Bowe Bergdahl, for instance, is facing a misconduct-before-the-enemy charge that carries a maximum life sentence. But, he could also go unpunished.

The only crimes that carried minimum sentences were murder, death of an unborn baby and spying. In addition, Congress in 2014 mandated punitive discharge as a minimum sentence for penetrative sexual assault.

Lack of sentencing guidelines can create chaos, critics say. Military juries have felt burdened by the lack of sentencing guidelines, Christensen said, and sometimes asked for guidance. But none could be given.

“You’d have three guys get together and go shoplifting or abuse cough medicine — exactly the same history,” Christensen said. “One gets two years, one gets a month and the other guy gets restricted to base.”

Disparate sentences aren’t solely due to military jury sentencing: Commanders’ decisions also play a role. In a 2011 case in which a soldier was sexually assaulted, three defendants — two soldiers and a Navy petty officer — were tried on a variety of charges stemming from the assault, and each received significantly different sentences. One soldier, tried at general court-martial, received a sentence of 11 months and a bad-conduct discharge. The other got a three-year sentence and a dishonorable discharge.

The petty officer, though equally culpable according to the facts of the case, was tried at a lesser, summary court-martial. In part because the victim had already gone through two courts-martial and declined to participate in a third. His sentence was 30 days’ restriction.

The Army Court of Criminal Appeals in 2013 declined to reduce the sentence of the first soldier, who had argued it was unfair his sentence was higher than the petty officer’s. “Simply put, (the petty officer) was able to negotiate a more favorable pretrial agreement with his convening authority than appellant was able to with his,” the court opinion said, and there had been no “miscarriage of justice or an abuse of discretion.”

Other military sentencing deficiencies are not addressed in the Pentagon’s proposal, Christensen said.

Unlike in the civilian system, in which sentencing comes after a pause, along with a pre-sentencing report giving a full picture of a guilty defendant, military sentences are handed down immediately after guilty verdicts. “There’s such a rush to get it done,” he said. “The leadership would rather have a case done quickly than done right.”

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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