May 13th, 2021

5/13/2021

The National Institute of Military Justice (NIMJ) has published a statement on PROSECUTORIAL DISCRETION UNDER THE UNIFORM CODE OF MILITARY JUSTICE. You will see recommendations beyond what is in the current Military Justice Improvement & Increasing Prevention Act (SB1525 of 29 April 2021).

NIMJ recommends transferring prosecutorial discretion not only for all sex offenses, but also for all serious offenses – those for which the authorized maximum punishment exceeds one year’s
confinement. This dividing line is a familiar feature of American criminal justice. Additionally, commanders should play no role in selecting court-martial members.

12 Comments

Philip D. Cave link

5/13/2021 08:19:31 pm

Sen. Gillibrand is reporting there is a key level of support for the MJI&IPA.

https://www.wsj.com/articles/military-justice-overhaul-gains-bipartisan-backing-in-senate-11620916200?mod=searchresults_pos1&page=1

Lone Bear

5/13/2021 11:21:05 pm

Totally agree with recommendation! Commanders should want independent prosecutors, it seems like it would be very valuable for good order and discipline.

Charlie Dunlap

5/14/2021 10:20:07 am

Hate to bother folks, but does anybody have a link to the current text of the bill (not sure what I have is current)? Also, would be interested in thoughts about the removal of command authority from serious cases beyond sexual assault. Thanks! Charlie

Philip D. Cave link

5/14/2021 10:27:15 am

Charlie, We like you do not have better copy. Checking for updates every day.

Charlie Dunlap

5/14/2021 10:34:51 am

Phil, Thanks! Kind of surprising the text is so hard to find. Candidly, I was not aware until I read some press comments that the removal of command authority extended to cases beyond sexual assault, so I'm interested in seeing that.

Also interested in any thoughts about a need (if any) for additional defense resources if there is a new prosecution edifice built, and also whether or not there are any "institutional" command influence issues that could be forthcoming (I can think of some, but I'd like to hear the thoughts of my betters!!! Thanks again!!!!

Philip D. Cave link

5/14/2021 10:43:53 am

The version we have does NOT extend beyond sex and hate crimes.

I think the press is picking up on suggestions to extend all to charges with one year or more confinement, as does NIMJ.

And, as i write this, a better version just came over my transom which I am told I may now publish. Standby.

DON CHRISTENSEN

5/14/2021 11:45:57 am

Phil, the laundry list of covered offenses is in section 2(b) and it includes most common crimes with a maximum sentence of more than 1 year confinement.

Charlie Dunlap

5/14/2021 10:53:45 am

Just FYI, Dave Schlueter and Lisa Schenk have two very recent law review articles on this topic (which I am not proud to say I’ve read yet!):

Taking Charge of Court-Martial Charges: The Important Role of the Commander in the American Military Justice System the Commander in the American Military Justice System https://commons.stmarytx.edu/cgi/viewcontent.cgi?article=1616&context=facarticles and

National, Military, and College Reports on Prosecution of Sexual Assaults and Victims' Rights: Is the Military Actually Safer Than Civilian Society
https://commons.stmarytx.edu/facarticles/615/

Philip D. Cave link

5/14/2021 11:31:28 am

The impact on Defense Counsel services will not be related to the MJI&IPA. The services are robbing DC offices to increase VLC/SVC counsel--IMHO.

Charlie Dunlap

5/14/2021 01:13:27 pm

Don (or anyone, really!), Is it possible to get a copy of the current text of MJI & IPA? I'm puzzled (but may be missing something!) why the current text is so hard to find.

Thanks!!! Charlie

J.M.

5/14/2021 02:38:44 pm

What protections would be in place to protect against 'soft' UCI, such we saw in the Chief Barry or Airman Wright cases?

Or would branch JAGs and/or members of congress have just as much influence over charging decisions, or negative career consequences for failure to charge, as they have in the past?

"I don't think you did it, but it's a rape case, we have to charge you"
LTC K, Baumholder 2011

"If you're accused of rape, you will be court martialed. I don't play around"
Commander, RSS, 11th ACR Denim Day 2014

Brenner M. Fissell

5/14/2021 04:54:46 pm

great point. Work must be done to ensure the prosecutors are truly independent. The same could also be said about defense counsel. One model is the way that the prosecution and defense have different reporting chains in the military commissions.

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CAAFlog

May 13th, 2021

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