Accused Sentenced in Mali Hazing Death

7/13/2021

Phil previously mentioned the verdicts last week. Here is the sentence: "6 months of confinement, a reduction in rank, and an additional 90 days of hard labor." Maximum punishment was 27.5 years. Prof. VanLandingham calls this sentence an "abomination" that indicates a problem with member sentencing. But this is a case of unintentional killing, and one should also note that the accused was not the actual killer (he did not place the victim in the chokehold). His culpability is therefore substantially reduced. The infamous Penn State hazing case is a civilian comparator. There, the most culpable defendant received nine months from a state judge (he pled guilty).

Brenner Fissell

EIC

Lone Bear

7/13/2021 08:00:20 am

It’s a pretty low sentence, and no discharge. Members sentencing is pretty unreliable. Judge alone sentencing with guidelines makes a lot more sense, but apparently stripped from NDAA reforms because Army opposed.

Tami a/k/a Princess Leia

7/13/2021 10:59:34 am

Why is member sentencing "unreliable?" We trust them enough to render "reliable" verdicts, why not trust them to craft a sentence that fits not only the crime, but also the individual being sentenced?

Lone Bear

7/13/2021 02:00:42 pm

Members have no context or system wide awareness. A crime in one place can get something totally different than in another place. A verdict is a pretty straight forward proposition, but understanding the value of misconduct is totally different. A lack of uniformity in the system is problematic on a lot of fronts. I generally don’t like sentencing guidelines, because I think they are too harsh, but it is really difficult to explain the value of a crime to a client or convening authority with no clear guidelines and the arbitrary outcomes that members sentencing produces.

Tami a/k/a Princess Leia

7/13/2021 07:58:31 pm

@Lone Bear, I totally disagree with your proposition that panel members have no context or system-wide awareness of their sentencing decision. My experience has been quite the opposite--panel members are much more likely to understand the value of misconduct. They don't need guidelines. Chances are the panel members have a lot more experience in various locations than military judges. That being said, there are some crimes that may be more beneficial for an accused to be sentenced by a military judge than panel members (i.e. child porn, sexual assault, etc.). But this case, a conviction for a minor role in an unintentional death, in a deployed location, in all likelihood considering THIS accused's history, I am not offended by this sentence. For me, people with zero or minimal experience with military justice (including a majority of Congressional folks) may be offended by this sentence, but for those with moderate or a lot of experience (including me), this sentence seems to be within an acceptable range.

Pepe

7/14/2021 11:39:48 pm

Because Lone Bear disagrees with the sentence.

I wonder what they would think about a JAG lawyer getting 5 years for cocaine use?

At any rate, the Bench Trial system under civilian law can be just as extreme from one point to another. Like the pardon issue, it's about one's perspective.

Scott

7/13/2021 10:04:10 am

Perhaps a bit on the light side, but this sentence does not seem outside the realm of reasonable.

Nathan Freeburg

7/13/2021 01:58:00 pm

Agreed. Not when considering his presumed good service and valor combined with this being an unintentional death. The UCMJ tends to be a bright spot in a vastly overly-carceral country (which latter sentiment I’m sure Prof. VanLandingham would agree with in other contexts).

Brenner Fissell

7/13/2021 02:12:38 pm

Well said.

Donald G Rehkopf, Jr.

7/13/2021 11:24:06 am

With the exception of "mandatory minimums," the UCMJ's sentencing procedure beats federal "Guideline" sentencing, and is far superior to most State court procedures. And, from a Sixth Amendment perspective, in the 21 years since SCOTUS decided Apprendi, more in line with what the Constitution seems to command.

Prof. Carrisa Hessick, UNC Law, just published an informative (and interesting" article in this area entitled, "The Sixth Amendment Sentencing Right and Its Remedy," which for anyone interested in the topic, I commend. Here's the link:

https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=6827&context=nclr

Tami a/k/a Princess Leia

7/13/2021 08:09:46 pm

Let's pretend the officer who shot MAJ Hasan was subject to the UCMJ. If convicted of aggravated assault, who would disagree with a panel member's decision to sentence that person to no punishment? Taking an additional step, let's assume someone subject to the UCMJ decided to save the government millions of dollars and decades of litigation by shooting MAJ Hasan in the head? At the very least, this person would be convicted of voluntary manslaughter. If this person was sentenced to "no punishment" as a sentence, how many people would complain? Probably few to none. Some people I've questioned on this proposition would say not only "no punishment," but give this person a medal. To me, this shows the value of sentencing under the UCMJ--it's not just the crime at issue, but also the character of the accused, and the circumstances under which the crime was committed. I don't know of any other US system, federal or state, that permits such individualized circumstances for sentencing.

Brenner M. Fissell

7/13/2021 08:14:41 pm

Tammi--the shooting of Hasan was justified and therefore not criminal. Not a useful thought experiment. You're speculating about how different jury-types would sentence non-criminal conduct.

Tami a/k/a Princess Leia

7/14/2021 04:12:03 pm

@Brenner, to clarify, my hypothetical involves AFTER MAJ Hasan was shot and on the ground, the officer walks up to him, sees MAJ Hasan is injured but still alive, but then decides to shoot him again, this time killing him. I intended to say "voluntary manslaughter" instead of "aggravated assault."

With this clarification, would you agree the second shooting would be unlawful?

Brenner M. Fissell

7/14/2021 04:14:05 pm

@tammi, ah oh. That would be premeditated murder. Yes, unlawful!

Tami a/k/a Princess Leia

7/14/2021 09:12:28 pm

@Brenner, well, the officer realizes in the moment that Hasan is alive but deserves to die, so I think "premeditated" murder might be a stretch. "Unpremeditated" murder is more likely, but giving the officer the benefit of the doubt that he was acting in the heat of the moment, voluntary manslaughter is the best this officer could do.

Regardless, the point I'm trying to make with this hypothetical is that there are cases in the system that are unique enough, both the circumstances of the crime and of the individual, to warrant an objectively lenient sentence that is subjectively objectionable. And that's the way it should stay.

AnnoyingProle

7/22/2021 10:35:35 pm

Tami,

What I find interesting is that your example seems to demonstrate (to me at least) the exact opposite of what you're trying to establish.

"Members believe the victim is awful, so Accused who commits murder is sentenced to no punishment" is a completely believable result. And whether they hate the victim because the victim has done horrible things (perhaps even to their group or community), or because of some other animus (say, racial or political), this sort of emotional sentencing can lead to wildly disparate and unjust results.

Moreover, that sort of emotional response seems to ignore the systemic importance of the case outcome. We may emotionally sympathize with someone executing a criminal--but greenlighting extra-judicial killings whenever a jury agrees with them is likely to be a destabilizing and dangerous force in society.

Point being, both consistency and broader rule-utilitarian judgments are important to justice and the appearance of justice in our system, and neither are well served by members sentencing (or at least in your give-a-medal-for-murder example).

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Accused Sentenced in Mali Hazing Death

Brenner Fissell

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