A recent DOJ press release indicates another somewhat odd exercise of federal jurisdiction over an active duty military member. "According to facts presented in the guilty plea hearings, Kemp Sr. was employed by the U.S. Army as an active duty member when he forcibly raped a minor victim. After an investigation into the sexual assault was underway, his wife, Shanynn Kemp, intentionally harassed and dissuaded a witness from disclosing to law enforcement information about the sexual offense." Kemp received a life sentence for this. What sentence do readers think he would've received in the military justice system? Brenner FissellEIC
Nathan Freeburg
7/13/2020 02:22:35 pm
In a plea deal? 15-25. In a contested case? 25-life. When we get sentencing guidelines it will be interesting. If we see a sharp increase in potential sentences that could have some interesting economic implications for the MJ practice.
Brenner M. Fissell
7/13/2020 08:47:52 pm
Scott--intrigued by your comments re: the effect on the private bar (I think). Do you mean that longer sentences will mean accused service members will see it as more worthwhile to pay for experienced civilian defense counsel?
Nathan Freeburg
7/13/2020 11:20:28 pm
Yes, precisely.
Scott
7/13/2020 11:15:02 pm
It’s a tough call to plead guilty and then still get life in prison.
Nathan Freeburg
7/13/2020 11:22:29 pm
I found that curious too. It’s possible that there were other factors or considerations not in the press release.
Scott
7/14/2020 08:50:03 am
Here’s a news story with some additional facts: https://www.google.com/amp/s/amp.newsobserver.com/news/state/north-carolina/article244108817.html
Brenner M. Fissell
7/14/2020 11:16:56 am
Scott--everything you say is probably right. Isn't it a bit depressing, though?
Scott
7/14/2020 02:20:00 pm
Yes. I think so. It is depressing.
Brenner M. Fissell
7/14/2020 03:35:00 pm
Scott-definitely right that there are multiple views on that. Unfortunately, some seem to dodge and weave between the two depending on the specific debate. What we should all agree on is that we can't have it both ways--a system that is empowered to (and does) impose serious punishments, but that demands an excuse for its lack of competence when criticized because it is a system made for something else.
Dwight Sullivan
7/15/2020 09:13:01 am
[Standard Disclaimer: This comment is offered in my individual capacity and shouldn't be imputed to anyone or anything else.] When assessing the performance of the military justice system, one key question is, "compared to what?" The federal civilian criminal system is the gold standard. But the bulk of criminal cases are tried in state systems. When I was practicing in Maryland state courts after 10 years on active duty as a Marine Corps judge advocate, I was struck that the military system offered far more protections reasonable likely to facilitate a just result than did the Maryland system. The most significant of these was providing a defense counsel to every accused. As I waited for my cases to be called, I would regularly see criminal defendants in Maryland courts tried without a defense counsel. As one explained, he made too much money to qualify for a public defender but not enough to hire a lawyer. So Gideon was an empty promise for many. The military justice system certainly faces significant challenges. For example, I've written about its comparatively high reversal rate in death penalty cases, which appears to result, in large measure, from the fact that most of the judges and counsel involved in those cases are capital novices. But there is also much in our system that is laudatory. Universal access to trial defense and appellate defense counsel without regard to means is a prime example.
Brenner M. Fissell
7/15/2020 10:05:00 am
DHS: great point. Especially true re: misdemeanor defendants in state courts. See, e.g., Natapoff, Punishment Without Crime. Interestingly, many of the criticisms from the Commentariat have been of the prosecutors. Scott's criticism can be coupled with another criticism of the prosecutors in the Hockenberry case. Comments are closed.
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