Commentators Call for More Resources

11/2/2021

The military justice system has problems. Here’s how to fix them.

Steven Arango and Brandon Essig

"The military justice system is underfunded and under-resourced, especially when compared to the federal justice system."

Comment: The authors, who practiced in the Marine Corps, prosecuted crimes in a jurisdiction with a population of ~180,000. The smallest federal USAO is likely that covering Wyoming--population ~580,000. Per DOJ, "The attorney staff in the criminal division [of the District of Wyoming] is comprised of a Criminal Chief and 13 Assistant United States Attorneys (AUSAs)." Does anyone know how many TCs there are in the Marine Corps?

former TC

11/2/2021 04:59:40 pm

Seems like your average AUSA's world of work is a lot different than your average TC's. Also, how many paralegals and support staff does the Wyoming criminal division have? How about the federal court's staff--how many people work there? Do AUSAs have to deal with making sure all the jurors show up and assemble records of trial?

Dan

11/2/2021 05:23:16 pm

The scarcity of resources described such as prosecutors needing to hand out pen and paper to panel members is a criticism of Marine Corps culture itself. As better explained by General Krulak in First to Fight, Marines are expected to do more with less and this is reflected every year in their annual budget. With budgets already stretched thin, senior leaders have no incentive or flexibility to divert resources away from actual operations to support a military justice system. This is never going to change.

Rather than continue the underfunded charade as described by the authors, my suggested alternative would be for Congress to entirely integrate Navy JAGs into Marine Corps units like they do chaplains and doctors. The Navy should be entirely in control of the USMC's legal affairs the same as they are with their healthcare and they should should administer their military justice system. While not a perfect solution in terms of budgeting, it's a more viable solution than expecting the Marine Corps to properly budget itself.

Nathan Freeburg

11/2/2021 09:29:53 pm

Definitely some truth to this. the Corps is a world to itself. they also have commanders doing really weird things in the MJ world that the lawyers are then expected to support. very very different culture from the other services.

1984

11/5/2021 12:14:23 am

I agree, and a step further.

Professional Officers such as Doctors, Lawyers, Investigators, should be placed in a separate branch.

Concerned Citizen

11/2/2021 09:07:42 pm

Shouldn't you include all the state/local prosecutors in Wyoming? Guessing the AUSA office doesn't prosecute DV, drug use, smarting off to your boss, etc.

Nathan Freeburg

11/2/2021 09:27:53 pm

yup. apples and oranges.

Brenner M. Fissell

11/2/2021 09:29:16 pm

Read the article. It is the authors who compare the system to the Feds.

Brian L. Cox link

11/2/2021 11:46:30 pm

"But even if Congress addresses some of these issues through policy changes, one looming problem will remain: The military justice system is underfunded and under-resourced, especially when compared to the federal justice system."

True, Brenner, but my understanding of the author's argument is: 1) MJ is under-resourced, and ALSO 2) especially when you compare it to civ system.

The editor's note (yours? doesn't specify) makes a point that compares MJ DIRECTLY with District of Wyoming.

I endorse the apples/oranges descriptions above and would add lots of points and examples...but I've probably more than worn out my welcome in comments sections on CAAFlog today. Just wanted to drop a little note here to say that I think the authors' point about underresourced MJ is independent of the civ comparison, while it seems that the editor's note instead makes a direct comparison.

Philip D. Cave link

11/3/2021 06:58:54 am

Perhaps if there was a court administrator and staff the TC wouldn't have to be doing administrativa and could focus on how to do a trial better.

IHTW!

Brian L. Cox link

11/3/2021 10:15:03 am

Phil,

Good point – they do say that the easiest solutions are often the best solutions.

Now, is this court administrator going to attend weekly OSJA LPD and MJ OPD for me while I'm a brigade TC? Is she going to answer that call or email from one of my 50 or so commanders (and their senior NCO's at times) with a question about a health and welfare inspection or a pre-trial confinement request? Is she going to the rifle range to qualify for me, or to the NBC chamber? Is she going out to the field for me while my brigade is the main effort for Mountain Peak? Is she going to give that training on ROE or command authorities or whatever to my units? Is she....you get the point.

For anyone who is still monitoring this discussion who reads this post and thinks to yourself, "Dude, we should just insulate our TC's from all that extra bullshit and let them focus on trial practice," by my assessment your perspective is part of the problem. My client doesn't need me to JUST be a great trial lawyer. My client - the Army - needs me to be a professional soldier, too. Given the current platform, I'll spare the long-winded explanation for why that is.

Bottom line, though, is that attempting to directly compare the resourcing requirements of MJ practitioners with those of civilian justice practitioners is misguided if the differences in their practices aren't going to be adequately addressed and accounted for. If there is a perceived resourcing shortfall, the solution is not to make the military practice more closely resemble civilian practice (which, incidentally, is the stated goal of the DoD IRC recommendations related to the accountability LOE) such that fewer resources are needed. The solution is to resource MJ adequately so that practitioners can perform their dual roles - only one of which is expected from their civilian counterparts.

Cheers!

RLTW

Scott

11/3/2021 08:33:46 am

The author makes some good points.

As far as TCs go, my experience is that some are very busy and some are not. There are many TCs in the Army that will go a whole tour without trying a court-martial. It’s quite dependent on location, jurisdiction, and often - to some extent - initiative to move cases along.

The disparity in case loads is less pronounced with defense counsel and military judges because they tend to be spread across wider jurisdictions - and there seems to be more “sharing” of personnel between jurisdictions amongst these billets.

It’s very unusual for a TC from a slow jurisdiction to be tasked to a case from a busy one, even if they are geographically close.

Brenner M. Fissell

11/3/2021 11:10:53 am

Brian: You have not yet worn out your welcome, but you are monopolizing the conversation, and should adjust course accordingly.

Brian L. Cox

11/3/2021 12:07:43 pm

Brenner,

K. :)

Rory Fowler link

11/3/2021 12:33:04 pm

Well, since Brian isn't wearing out his welcome, I'll chime in with a Canadian perspective. The Canadian Forces (Regular and Reserve) is a little smaller than the USMC (Active Duty). The CF experiences, on average, around 70 courts martial per year. That has varied significantly over the past few years due to both the COVID-19 pandemic, and various 'interruptions' due to what can be characterized, generally, as jurisdictional challenges. But 70/annum is a reasonable figure.

For that, there are about 18 Regular Force prosecutors with the Director of Military Prosecutions (which includes officers who perform supervisory, rather than trial, duties) and 6 to 8 Regular Force Defence Counsel. Both 'teams' are augmented by Reserve Force prosecutors and defence counsel (who tend to be civilian prosecutors and have civilian defence practices, respectively). Plus, there can be the odd civilian 'conflict counsel' thrown into the mix (emphasis on 'odd'). There are four Regular Force Military Judges (and, after more than 19 months, still no Chief Military Judge designated by the Governor in Council). And many of the courts martial are concluded with Guilty Plea resolution, some of which are Joint Submissions. Frankly, Charter applications are at least as frequent as contested trials.

So, I would contend that the CF has a resource-rich context. If there are about a dozen prosecutors for 70 cases/annum, you can do the maths. We have a 'Cadillac system' - prosecutors do not face the same heavy case-load as their civilian counterparts, and defence counsel are not constrained by their clients' financial resources.

And I suggest that this alters the dynamic that we see in the civilian criminal justice system. That is one of the dangers about the apple-orange comparison when it comes to interpreting Charter rights (the application of Bill of Rights protections, for my American cousins). One must be cautious when incorporating judgments from civilian systems in terms of what constitutes an abuse or process, timeliness, or conduct by Crown actors. The coercive dynamic is markedly different.

Perhaps as a comparator, they might look to similar Common Law military jurisdictions, rather than US state-based jurisdictions.

One good example arises with stays of prosecution due to delay. The CF sees a great deal of pre-charge delay because the Military Police take an extremely long time to conclude their investigations and lay charges only when the investigation is complete, as opposed to when they have sufficient evidence to lay a charge.
Moreover, charges need not be laid to arrest a CF member and impose significant release conditions. In the civilian system arrest without charge followed by release on conditions is exceedingly rare. Yet, pre-charge delay is not factored into applications for remedy for delay under para 11(b) of the Charter. Para 11(b) is triggered only when a person is "...charged with a criminal offence ...". There has been sporadic case law that addresses circumstances where pre-charge delay significantly impacts liberty, but it is rare for it to be considered under para 11(b). It tens to be relevant only under abuse of process applications under s 7 of the Charter. But that is because significant pre-charge delay that impacts an accused's liberty is pretty much unheard of in the civilian system, and that jurisprudence has largely been incorporated by military judges.

Brenner M. Fissell

11/3/2021 06:16:18 pm

has anyone been able to track down data on number of prosecutors?

DON CHRISTENSEN

11/3/2021 07:09:37 pm

According to the Marines, they have 69 defense counsel and 71 trial counsel in addition to 41 military justice chiefs. In FY20 they tried 123 GCMs, 135 SPCMs and 56 summary courts. Thats about 4.5 courts per trial counsel per year counting summary courts. No idea how many of those 4.5 courts per year were litigated.

Data can be found here:

https://jsc.defense.gov/Annual-Reports/

And here:

https://www.everycrsreport.com/files/2021-10-18_R46940_bde99fe49163a0c2a0aaff0916d5a305462bebc5.pdf

Brenner

11/4/2021 08:19:56 am

Thanks Don. Now, if someone could find the number of prosecutors working in the City of Providence RI, we could have a nice comparative analysis with the marine corps.

Philip D. Cave link

11/4/2021 10:26:42 am

Upon information and belief, we can say,

"The Rhode Island Public Defender is the statewide indigent defense services for RI. Not counting 2 administrative attorney positions, we have 52 frontline assistant public defenders. The breakdown of courts and case types is listed below. . . Please note that the RI Attorney General is not the prosecuting authority for most misdemeanor prosecutions in the District Court. Those prosecutorial responsibilities generally lay with the cities and towns, who prosecute misdemeanors through each city and town’s solicitors office. So for comparison to the RIAG adult criminal lawyers you should reduce the RIPD adult criminal lawyers by roughly 10-12 lawyers in order to make like comparisons."

For Adult Criminal in RI Superior and District Courts; including specialty courts (Diversion, Drug and Veterans)--39.5 lawyers are assigned to the cases.

The RI judicial report for 2020 is at this link:

https://www.courts.ri.gov/PublicResources/annualreports/PDF/2020.pdf

The Supreme Court had 26 criminal appeals filed.
The Superior Courts disposed of 3457 felonies.
The District Courts disposed of 5214.

(State AG numbers and caseloads pending.)

Roger Clarvin

11/4/2021 08:14:03 pm

On some level, this is just so much whining. Everyone, everywhere has too much to do and not enough time to do it. The caseloads as a military prosecutor are really not that bad. (No! Yours wasn't. I'm telling you, it really wasn't!)

If there's a problem, I believe it's that most TCs have little prosecutorial experience and are trying to manage the caseload while simultaneously learning the rudiments of a complex job. In a DA's office you get to hide in misdemeanor court for a few years while you do this. You get faster as you get better. There's no substitute for experience, and I don't know how you fix that innate reality of military justice--the fact that most of the people are just pretty green.

Perhaps the Marine Corps' new "talent management" approach (versus "manpower" approach) provides a clue--mature the force by focusing on retention, and create avenues for experienced laterals to enter at rank commensurate with ability and maturity. We'll see.

Also, the comparison to USAOs is inapt for manifold reasons others have touched on.

Philip D. Cave link

11/5/2021 08:29:15 am

Roger, Roger.

"On some level, this is just so much whining."

"If there's a problem, I believe it's that most TCs have little prosecutorial experience and are trying to manage the caseload while simultaneously learning the rudiments of a complex job."

Heh, heh, wait until they get out and have to do cases and run a business both at the same time. They will realize they learned some things of use--including, but not limited to organizing, triaging, etc., etc., etc.

In all seriousness, I do think that many of the recommendations for reorganizing the doing of business side of courts needs to be given much more attention and action.

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