I have a question

I was in a discussion, yesterday, about restitution at courts-martial.

Restitution cannot be adjudged at court-martial. There are some recommendations and proposals for change. See, e.g., Report of the Judicial Proceedings Since Fiscal Year 2012 Amendments Panel.

Is it ethical to negotiate restitution for various offenses? The underlying question is whether it is ethical to bargain for restitution instead of a stiffer sentence or court-martial. I think it is so long as there is transparency. Transparency is achieved by working through the TC and if there is one, the SVC/VLC.

I'm licensed in VA. So, "At or before the time of sentencing, the court shall receive and consider any plan for making restitution submitted by the defendant." See § 19.2-305.1.C, Code of Virginia, and see R.C.M. 705(c)(2)(C).

So, my question is, why is this not done more frequently? I have used R.C.M. 705 with some occasional satisfaction to both parties. Let's try two situations unrelated to sexual assault.

1. A Sailor comes down to berthing from flight deck operations to find that various items are missing from his footlocker. A suspect is identified and during the investigation several other mysterious events are solved, but the thief trashed the computer so much it is unusable. Because a shipboard thief is bad for morale and good order and discipline, at least a SPCM is in order. Now what?

a. You might have the victim make a claim under Article 139, UCMJ. That's a form of restitution.

b. Let's assume the victim fails to make a timely claim and the appropriate office within TJAG properly denies the claim. And we are off to SPCM anyway.

• (1) The defense counsel comes to you and asks if the victim and convening authority will accept a pretrial with a restitution provision. See R.C.M. 705 (the existence of this Rule solves any potential ethical questions about buying off victims). Even better, the defense counsel gives you a copy of a check made out to the victim for the replacement value of the item stolen and not recovered or recovered damaged and unusable.
  • (2) There are several reasonable responses are there not.
    
    • (a) Make that a cashiers check and the CA will agree to suspend X days.
      
    • (b) If the check is given to the victim no later than the morning of trial and the check clears the CA will . . .
      
    • (c) Or, the CA will suspend forfeitures or a fine in an amount equal to the check. Now, remember timing and who benefits is an issue. Forfeitures come out of future pay and do not go to the victim and fines go to the Treasury not the victim.

2. A Soldier assaults a servicemember or a civilian off base, so there's no Article 139, UCMJ, claim. As we know, TriCare doesn't pay everything, there are deductibles and civilians may have a more significant personal cost depending on their medical insurance policy. Go back to 1.b.(1)(2).

3.  I think also you can negotiate an alternative disposition conditioned on completion of the restitution or else the case goes back to trial.

4. OK, now apply that to sexual offenses where there is a specific monetary loss to the victim.

For those not familiar with the concept, go to The Google and search "Restorative Justice." Or go here to the Canadian government website, or here, or how about the San Francisco DA Office, or here is someone's personal story.

I bring all this up because I've seen enough sexual assault cases where one of the issues adversely affecting a survivor is a specific financial cost from the crime. Perhaps she went to a private medical provider and there is a bill not covered by TriCare or other insurance. Or, perhaps he went to a private psychologist (does TriCare cover that?)

Cheers, Phil Cave