Reflections on Court-Martial Numbers

The Joint Service Committee has posted the court-martial numbers for last year. An initial analysis raises some important concerns and questions.

Overall, the DoD did 1361 general and specials in FY21, slightly increasing from 1323 in FY20. However, this is still at historic lows. GCMs were up from 720 to 827, but specials fell from 603 to 534. Conviction rates continue to fall, with the defense winning a not guilty verdict in 22% of all GCMs and 17% of all courts. The Air Force continues to lead the way with an extremely high acquittal rate. 
 
There were 1129 convictions of some offenses, down from 1140 last year. 57% of convictions resulted in some type of punitive discharge. Again, the vast majority of cases were tried before a judge alone, with only 299 total courts being before members or 22%. Last year 21% of courts were tried before members. 
 
By service:
 
The Air Force tried 199 GCMs and 143 SpCMS. The AF conviction rate for GCMs was only 55%, down from 69% last year. Its overall conviction rate was 67%. 45% of convictions resulted in a punitive discharge. Black airmen accounted for 21% of all GCMs and 31% of all specials. The Air Force has 85 ADCs, which works out to four courts per year per ADC and only one court per year with members. 
 
The Army tried 394 GCMs and 165 SpCMs. The Army conviction rate for GCMs was 81%, down from 83% last year. Its overall conviction rate was 85%. 60% of convictions resulted in a punitive discharge. Black soldiers accounted for 29% of GCMs and 36% of SpCMs. The Army has 26 AD judges and 23 reserve judges. That comes out to 20 courts per active-duty judge, less depending on how often reserves are used (it really makes one wonder why it took that Army judge 300 days to authenticate a record). There were only four member trials per active-duty Army judge in FY21. The Army has 150 TDS attorneys, less than four courts per year per defense counsel. The Army only had 111 courts with members, less than one per TDS attorney per year.
 
The Navy tried 110 GCMs and 84 SpCMs. The Navy won 72% of the GCMs, down from 83% in FY20. Its overall conviction rate was 79%, with 58% resulting in a punitive discharge. Blacks accounted for 24% of GCMs and 33% of SpCMS.
 
The Marines tried 124 GCMS and 142 SPCMs. The Marines won 85% of its GCMs, down from 92% in FY20. Their overall conviction rate was 86%, with 72% of convictions resulting in a punitive discharge. Blacks accounted for 19% of GCMS and 25% of SpCMs.  The Navy and Marines have 25 judges, which works out to 18 courts per year per judge. As with the other services, that includes only about four members court a year for a judge.
 
The data does not paint a picture of a healthy justice system. There are very few opportunities for counsel or judges to try cases, especially in front of members. In particular, the Air Force should be extremely concerned with a 55% conviction rate for GCMs.That should be raising all kinds of red flags. Are they prosecuting the wrong cases or not prosecuting the right ones well? Cultural issues? Something is not right.
 
And likely, the data is worse than it appears. How many of the 1129 convictions are guilty pleas? How many of the remaining convictions are for minor offenses, not the serious charge that led to a court-martial. The real unanswered question is, how does the military do in litigated cases? We simply don't know. 
 
Lastly, Blacks are still prosecuted at a much higher rate than whites. Another sign the system is not healthy. 

(Update 09032022)

Comments both to this post as well as others in the past posit that pressure from Congress to take sex assault and rape cases to court-martial are to blame for high acquittal rates. There have been those who claim that virtually all such allegations go to court because of undue pressure on commanders. This allegedly  results in the system being overwhelmed by "weak" cases that would never be prosecuted by civilian authorities. These claims can be examined in light of the actual data. Each year, the DoD releases extremely detailed reports on allegations of adult sexual assault and rape cases including a summary of literally every case that proceeded to a court-martial with a charged Article 120 offense. The reports allow us to examine these claims objectively. 

From FY13 to FY20 there were 39,857 unrestricted reports of sexual assault or rape made to military authorities. Of those almost 40,000 reports, 3303 or 8.3% proceeded to court-martial with 1242 being convicted of an Article 120 offense or 3% of all reports. In other words, during the time of Congressional scrutiny, almost 92% of allegations were not prosecuted. Moreover, the rate of prosecution has dropped steadily during this time from a high of 12.8% in FY13 to a low of 3.9% in FY20. In raw numbers, the services prosecuted the most Article 120 adult cases in FY14 with 588 cases proceeding to court-martial that fiscal year. That number declined to 225 in FY20.  Convictions for an Article 120 offense reached its height in FY15 when the military obtained 255 convictions. In FY20, the number of convictions dropped to 50. 

Some have also claimed the Air Force's low overall conviction rate is due to the Air Force being the most aggressive of the services when it comes to Article 120 cases. The data does not bear that out. In FY20, the Army prosecuted 5.1% of unrestricted reports, the Marines prosecuted 4.6%, the Air Force prosecuted 4.2% and the Navy prosecuted 3.9%. In other words the, Air Force is less likely, not more likely, to prosecute sexual assault cases than the military as a whole. 

Certainly, sex assault and rape are tough cases to try. However, the data simply doesn't support many assertions and beliefs people have about how often adult sexual assault allegations are prosecuted.  

Don Christensen