I was in a conversation yesterday about restitution at courts-martial. Restitution is not a formal "punishment" that can be imposed by the military judge. There are discussions to change that. But, for the moment; Is it ethical to negotiate for restitution to get either a lesser sentence or an alternate disposition even? I think yes, partly because I've done it and the Virginia Bar and state law seems au fait with that. 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. So, that seems to support the idea of negotiating restitution as an ethical practice. But, this is the military not the Commonwealth.
R.C.M. 705(c)(2)(C) anyone? So my question is not can you, rather, why don't you. It is doable, I have done it, as have some others. 1. Imagine a Sailor comes down to berthing from flight deck operations and finds his footlocker rifled as a piece of electronics missing. A suspect is identified and in the investigation we resolve some other mysterious property disappearances. Assume the Sailor's electronic device is recovered but it is unusable. A court-martial is in order because a shipboard thief is bad for morale and good order and discipline. The first step is to have the Sailor file an Article 139, UCMJ, claim against the offender. That's a form of restitution and the approved amount comes from the offender's paycheck. But back to court-martial. 2. How about assault cases. Imagine a Soldier assaults someone off base and a bill for the emergency room is delivered to the victim (and because of a TriCare deductible (or a not very good insurance policy) the victim is out some money. 3. How about sexual assault cases. The victim goes to an off-base provider for medical or mental health care which is not fully reimbursed through TriCare or medical insurance. Imagine that a defense counsel comes to you with an offer to provide restitution to the victim in exchange for some favorable PTA terms. You talk to the TC and between the three of you (and the SVC/VLC if there is one) you agree on terms which you will recommend to the CA. So far so good. And, the prepared DC says, here is a photocopy of the check already written out. The first response is, if we are going to do this, please provide a copy of a cashiers check or money orders. The DC's response is sure, once you tell me the deal is good to go, perhaps even signed. Or, the DC submits a written PTA with a term that says, if, within 30 days of the sentence being announced, the accused provides . . . , or, if on or before trial the accused provides . . ., the convening authority agrees to suspend some confinement, some forfeitures, or portion of a fine. I have been in court where the MJ witnessed the handing over of the check during the Green/King inquiry. [1] Over the years I think we have all seen that specific financial impacts from assaultive offense can be a barrier to the survivor dealing with the effects of the assault. If that one specific issue can be addressed then the survivor can focus on other efforts to deal with the assault. I come to this thought partly because of my own interest in the Restorative Justice practice of dealing with the accused and the victim in an offense. If you care to read more about the restorative justice philosophy and efforts to apply it, try this survivor's story, or the District Attorney for San Francisco (you will find plenty of civilian jurisdictions working with such programs), or here, or the Canadian government, or here, or here at Univ. Wisconsin Law, or here--to point out a few items. If you give some thought to these programs you will see that, while the offender may benefit, it is the survivor who likely can gain more. To go back to the start. Not every crime results in specific economic harm to a victim like the loss or destruction of property, the unreimbursed hospital bills, or the lost wages from time away from work. So to be clear, I'm not suggesting that restitution should be a factor in situations that might otherwise sound like punitive damages as if the court-martial were a civil tort case. [1] United States v. King, 3 M.J. 458 (C.M.A. 1977); United States v. Green, 24 C.M.A. 299, 1 M.J. 453, 456, 52 C.M.R. 10 (C.M.A. 1976).
Donald G Rehkopf, Jr.
10/29/2021 05:13:00 pm
I've done it too, and the then CMA didn't have any problem with it. See, U.S. v. Olson, 25 M.J. 293 (CMA 1987). They did however, have some issues with the government's post-trial conduct . . . .
Old Guy
10/29/2021 10:17:41 pm
Locker thieves on ships don’t go to court anymore, or within the last decade. They can’t refuse NJP on a ship and you adsep with a General discharge the day the finish their restriction. Caveat - only carriers do real restriction. Otherwise the locker thief gets dumped even quicker. That’s not the point of your post but it’s reality.
Contract Lawyer
10/30/2021 10:53:43 am
I advised a client to write a restitution check once. This was before trial and after we planned a guilty plea. I warned the client that no matter what he did that he better make sure the check doesn’t bounce, but the check did bounce. The victim was a Navy Sailor and he mailed the returned check to the trial counsel and the Navy lost it in the mail. The victim and saved a copy, but I objected on best evidence rule and even alleged the government still had possession of the document since the Postal Service is part of the government. Before knowing the extent of the facts the military judge said this was great for my client and wondered why I would object. I then explained that the check bounced and MJ overruled my objection, but stated that he understood the objection and agreed that he would also object also in that case if he were representing the accused. The accused was dumb. He also had his teeth decorated with gold that included one tooth with a star, another with a dollar sign, and another solid gold veneer. I advised him to get that removed before the court-martial and he flat out said that wasn’t gonna happen. When reflecting, I suppose the refusal to remove the gold out of his mouth should’ve been a sign that this accused client was not up to the task of mitigating his guilt And we still had some great defenses for some of the stuff and we also had great grounds to exclude some evidence and there was even some potential gain from a good cross examination of the victim in this case. The injustice here was that my client was really a petty thief who snatched $20 out of the hands of a Sailor on leave and then got railroaded with robbery and conspiracy to commit robbery. 10/30/2021 11:44:04 am
Great. So, this helps prove a point. That this type of approach is usually more helpful with clients who have rank and likely money. I agree with Old Guy that, except for the Art. 139 claim, there's not much can be squeezed from a junior Snuffy. Unless Snuffy is Snuffy, Jr. as you note.
Sua Sponte
10/31/2021 08:25:21 am
So, different spanks for different ranks? Tale as old as time...
Contract Lawyer
10/30/2021 12:19:56 pm
I suppose the full circumstances do matter and an accused needs to also show sincere remorse or due they will not be able to persuade MJ or members to a fine or restitution a satisfaction for the potential confinement and discharge/dismissal. Financial ability is just a prerequisite. My client could have afforded the $20, but he let the check bounce. Of course he is also the one who had to steal $20 on Saturday night before the liquor store closed. Despite the fact that restitution or fines have more potential benefit for the higher ranked or those with someone to help them, it would be dangerous to impose restrictions beyond what is necessary to be ethical because most reforms are slanted in favor of the government and there is too much imbalance with most recent reforms. Comments are closed.
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