Another Reform Blindspot: The NJP

2/17/2021

Yesterday I was perusing Gene Fidell's Military Justice: A Very Short Introduction and noticed a startling figure: there are about 50x more NJPs than there are courts-martial. I also happened to be reading Criminal Municipal Courts by Alexandra Natapoff, wherein she concludes: "These hybrid institutions...pose thorny conceptual challenges: they are stand-alone judicial entities that are also arms of municipal government operating under reduced constitutional constraints as they mete out criminal convictions. As such, they create numerous tensions with modern norms of due process, judicial independence, and other traditional indicia of criminal court integrity." Could the same be said of NJPs? While they may not be technically "criminal," they certainly purport to be "punishing."

No one talks much about what happens in these institutions, but maybe we should start. Anecdotes welcome!

Brenner Fissell

EIC

11 Comments

Former CO

2/17/2021 12:21:53 pm

It always struck me as egregious that “Factual Error” wasn’t a ground to appeal NJP. If it’s not “Unjust” (read: Illegal Punishment) or “Excessive” (read: impossible to prove), COs have unlimited discretion to use NJP.

That discretion can be twisted in some truly abhorrent ways. As a DC, I saw COs manipulate the timing of NJP to maximize the punishment (e.g. wait for the end of a cruise, or rush so that restriction falls over the winter holidays).

I’ve also seen COs act personally offended when a sailor dares to refuse NJP (often because the Sailor spoke with a DC and was told the case is garbage). When that happens, it’s not uncommon to see the CO try to rain down hellfire on the accused... ostensibly to send a message that good order and discipline is paramount. It’s rough justice at best.

Nick Stewart

2/17/2021 01:25:58 pm

Former CO...

I have seen some of the same things that are too often the rule and not the exception...an adjutant's delivering notice of appointment as IO in a CI, garnishing the appointment letter with a verbal summary of what the command has already decided the facts to be. A battalion sergeant major's offering his unvarnished opinion of the one under investigation...in front of the investigating officer, mind you...and then is taken aback by another officer's audacity to challenge him on it. Company first sergeants acting as intimidators, jurors, and as extensions of an investigation, instead of as those who are charged to stay out of the way of the fact-finding effort. The overstepping seems to occur at more than one level of leadership and points to serious problems that need institutional-level attention.

Yours isn't the first time I have read something that reminds me of a critical lesson we as leaders have to remember:

Before we can legitimately enforce the rules that punish, we must first respect the rules that protect. If we do the former but fail the latter, then "good order and discipline" is a catch phrase.

Concerned Citizen

2/17/2021 01:59:18 pm

Another interesting of NJP is differing views between the services as to what constitutes the burden of proof. The Army requires proof beyond a reasonable doubt, which I have found s number of commanders to take seriously (not all, just a lot). whereas the Navy only requires a preponderance. Being able to turn it down (absent the vessel exception) is something if a safeguard.

Former CO

2/17/2021 03:01:17 pm

Ahh, the vessel exception. So that I (as a former vessel CO turned JAG) can tie a service member to the mast and break out the cat-o-nine tails to preserve good order and discipline while I’m out of contact with my chain of command. (/sarcasm)

But seriously, I can’t think of a practical example where the vessel exception serves its intended purpose anymore.

Charlie Gittins

2/17/2021 04:41:08 pm

I have seen the vessel exception abused regularly. Invoke the vessel exception and then have the NJP on shore. Fortunately, when clients have come to me in those circumstances I have nearly always won. And the one I lost at the BCNR, my client decided not to go to Court of Federal Claims where she surely would have won.

There is a strong need to make changes to both NJP, remove the vessel exception as an anachronism and require BCNR panelists be actual civilians, not active retired senior officers or enlisteds. They are company men to a man/women.

Cloudesley Shovell

2/18/2021 08:13:55 am

I humbly suggest to my fellow lawyers to go back a few decades and look at the military justice statistics. The numbers of courts-martial in the Vietnam and post Vietnam era, even up through the 1980s, is really incredible.

The drop off in courts-martial in the last 20-30 years is really incredible. There are a tiny fraction of courts today as opposed to past decades.

Why? I'm sure someone out there has the definitive answer. My humble and utterly amateur opinion is that it has to do with the shift from a draftee military to an all-volunteer military. Going from an organization where multitudes of people don't want to be there to one where everyone does want to be there is a very fundamental shift.

Anyway, in my view, much more discipline nowadays is handled administratively, just as it would be at any other large organization employing large numbers of people, especially large numbers of entry level workers. No matter what, any such organization is going to have its share of problem people.

Many JAGs see a client for the very first time when the client is in trouble, and facing some disciplinary process. The important thing to remember (something I had to re-learn myself as a new JAG) is that it is very very very very likely that an escalating series of events, none of them favorable to your client, has brought your client to your doorway. Various interventions have in all likelihood already been tried and failed. The command is most likely resorting to NJP as more of a last resort than a first.

In my personal, anecdotal experience, both as a line officer and later as a JAG, NJP was an effective tool for the maintenance of good order and discipline. I saw it very effectively used, including instances applying the vessel exception.

Can NJP and the notorious vessel exception be abused? Certainly. ANY system has its foibles and can be abused. Don't let perfection become the enemy of the good. Remember, no matter what, any military is going to have to have a system for maintaining its efficiency, good order and discipline, focus on its mission, whatever you want to call it. There will be people who will be a burden or a drag on the military due to performance or behavioral issues. That's just reality. There will be a system to get rid of those people, no matter what. Alleged reforms may be worse in the long run.

Kind regards,
CS

Brenner M. Fissell

2/18/2021 09:48:23 am

CS:

Thank you for this thoughtful response. I imagine these low level tribunals are very effective, and less cumbersome, than a full fledged trial.

Incremental reform of a system is not making "perfection" the enemy of the good. To point out a problem in a system is not to claim that the system is totally and irredeemably flawed. Any criminal justice system--any legal system--must constantly re-evaluate itself. There can never be a mentality of "if it ain't broke don't fix it" when we are dealing with people's liberty and livelihoods. We should always strive to do better.

Former CO

2/18/2021 01:33:14 pm

Thank you for the history lesson CS - it's certainly beyond my years.

I've seen NJP used effectively as well, probably a substantial majority of the time. I don't think that should end, but I'd also propose that the addition of some reasonable checks and balances wouldn't limit the valid use of NJP.

Nothing saps morale at a unit like an abuse of the NJP process - and effective checks and balances should help instill confidence in the system.

William Cassara

2/18/2021 12:37:53 pm

The problem, IMO, is that in years past an Article 15/NJP was a tool to instill good order and discipline. Nowadays, it is a ticket home in many cases. It is no longer a disciplinary tool but is used to kick people out.

Brenner M. Fissell

2/18/2021 12:42:42 pm

I'm glad you mention this. I have been wondering about the fact that almost all punishment comes with some sort of discharge. We cannot then call this 'discipline' in the sense of reforming or rehabilitating the specific offender (or even deterring the specific offender from recidivism). At most it is 'discipline' of the remaining observers--general deterrence.

Scott

2/18/2021 02:24:25 pm

Completely agree. I watched a military history lecture some years ago that made a similar point about relief from command.

The lecturer pointed out that relief from all levels of command used to be commonplace and was not career ending. In fact, he had many examples of general officers being relieved of command and almost immediately moved into another command position of similar or even greater authority. Many of these officers went on to accomplish great things for their services.

By contrast, he pointed out that in the modern military relief from command is all but ensured to end an officer’s career - or at least their career advancement.

The lecture’s hypothesis of sorts was that the prior system allowed for the relief of good officers who simply were not a good fit for their jobs for any number of reasons. He argued this greatly aided in getting the right commander in the right place at the right time.

By contrast, he argued that in the modern system superior commanders are hesitant to relieve a commander who is not getting the job done because they don’t want to sabotage a good officer’s career. Instead they leave commanders in place absent serious misconduct, even if effectiveness suffers.

Bottom-line, relief from command used to be a valuable tool, but the drastically increased consequences has largely stripped it from the toolbox of superior commanders.

I think it’s a similar situation with NJP - and, for that matter, for courts-martial. Commanders are unwilling to use these tools as corrective measures because they know they are almost always terminal to the subordinate’s career. So they are only used on subordinates who are past the point of rehabilitation.

Not to get off the MJ focus - but the same could be said of evaluations. You almost can’t even use a poor evaluation as a corrective tool anymore because it will often be terminal to the officer / NCO. All symptoms of the career profession system based largely on the absence of defects rather than the presence of merit.

I wish I could find the lecture because it was very good. Will post a link if I locate it.

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Another Reform Blindspot: The NJP

Brenner Fissell

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