Profs. Jenks & Corn: CAAFlog Exclusive re: MJIA

7/15/2020

Last month Sen. Kirsten Gillibrand (D-NY) introduced the Military Justice Improvement Act of 2020 (MJIA 2020) as an amendment to the National Defense Authorization Act (NDAA). Similar to multiple predecessor “MJIAs” Sen. Gillibrand has introduced over the last six years, MJIA 2020 would amend the Uniform Code of Military Justice (UMCJ) and transfer authority from the commander to a judge advocate (JA) to prefer, dispose of, and refer certain charges to trial by court-martial.

Because the core objective of MJIA 2020 - creating a system where the commander and a JA split prosecutorial discretion depending on the offense - represents fundamental change to our military justice system, its proponents bear the burden to justify why this is truly necessary and beneficial. That means providing persuasive evidence that 1) the current approach is significantly flawed and 2) that the proposed change would be a substantial improvement.

Fundamental change proponents have failed to carry their burden.... [Continued in PDF below].

Editor's Note: "Profs. Jenks and Corn have penned a contribution regarding the Military Justice Improvement Act that is intended especially for CAAFlog readers. It is longer than a normal blog post, and would be unwieldy to read on the blog, so I upload it as a PDF here."

caaflog_mjia.pdf
File Size:	232 kb
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Chris Jenks & Geoffrey S. Corn

Scott

7/15/2020 12:54:33 pm

Sen. Gillibrand: Under MJIA 2020, “when the commander wants to do non judicial punishment he gets to do it every time a [military] prosecutor says there is no case here”

So the O-6+ JAG declines prosecution on a 120 offense... then the Commander (who has no authority to prefer or refer charges) decides to do an Article 15 (which has the same BRD standard of proof as a court-martial) in lieu of prosecution... Then the TDS attorney tells the client to turn down the Article 15... Then it goes back to the O-6 JAG to re-decline prosecution....

Hint to defense attorneys under this system: when your client is offered NJP for rape/murder/etc it’s a good bet that was already declined for court-martial.... go ahead and turn it down. And if the gov then changes its mind and decides to prosecute there is an excellent vindictive prosecution motion (punishing your client for exercising his/her right to demand trial by court-martial).

Nathan Freeburg

7/16/2020 04:25:52 pm

Scott, the standard for an NJP (only the Army calls it an Article 15) is BRD in the Army -- and I think the Air Force. It is not BRD in the Department of the Navy.

I'd further say that it is informally true that in the Army or Air Force for all practical purposes the same person is already making the preferral and referral decisions -- the supervisor of the MJ shop or the SJA or the SVP -- depending on the size of the installation. Commanders are involved in name only (with the exception of some GOs at referral). The seagoing folks are more decentralized and more command-driven in reality.

7/16/2020 05:32:46 pm

Nathan, I did not know that re standard of proof at Naval NJP. I guess my point was just that it would be strange for a commander to use NJP for a serious offense after the JAG had already declined prosecution.

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Profs. Jenks & Corn: CAAFlog Exclusive re: MJIA

Chris Jenks & Geoffrey S. Corn

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