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Scholarship Saturday: The proposal to strip commanders of prosecutorial discretion in all serious cases will be part of the Senate’s version of the 2022 NDAA, but that’s not all

7/24/2021

 
​On Thursday (July 22, 2021) the Senate Armed Services Committee (SASC) announced that its members have voted 23-3 to advance the committe markup of the Fiscal Year 2022 National Defense Authorization Act (2022 NDAA) to the Senate Floor. The Committee’s executive summary of the legislation confirms that the bill will include all provisions of Senator Gillibrand’s Military Justice Improvement and Increasing Prevention Act (MJIA). The MJIA was added, whole cloth, to the Senate’s 2022 NDAA bill during a markup hearing held on Tuesday (July 20,201) in the SASC’s Subcommittee on Personnel.

SASC’s 23-3 decision to include the MJIA (which enjoys bi-partisan supermajority support) in the markup represents a rejection of the Department of Defense’s insistence that commanders should retain the power to determine whether military justice cases are prosecuted, at least as regards offenses that don’t involve sexual assault. That insistence was voiced most recently by the Deputy Secretary of Defense in testimony before the House Armed Services Committee (HASC).
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The fact that commanders are being drummed out of the military justice system is certainly dramatic, but, as this column noted back in early January (Scholarship Saturday: We hear drums, drums in the deep), it is hardly a surprise. This development is at least a decade in the making.

Indeed, the fact that commanders are being ousted from yet another part of the military justice process is, perhaps, not even the most interesting provision in the SASC markup of the 2022 NDAA. As the rest of this article discusses, the fact that SASC’s markup of the bill challenges nonunanimous verdicts could turn out to be far more interesting.

Early last month, this column (in Scholarship Saturday: A proposal to help Senator Gillibrand’s bill better improve military justice) recommended an amendment to Senator Gillibrand’s MJIA to add a provision abolishing nonunanimous verdicts in the military. This column has long argued that nonunanimous verdicts are anathema to the interests of justice. That’s true for two reasons: (1) Allowing a panel to be less than unanimous dilutes the voices of racial and ethnic minorities in the deliberation room. That dilution is especially concerning in a system, like the military justice system, where panel members are already primarily drawn from a pool (i.e., the commissioned officer corps) that lacks racial and ethnic diversity. (2) Nonunanimous verdicts increase the risk of wrongful convictions by allowing a finding of guilty even if a (presumptively reasonable) juror dissents. 

Senator Gillibrand’s MJIA is an apt vehicle to address the threats that nonunanimous verdicts pose to the interests of justice, and particularly to racial and ethnic justice. Indeed, Senator Gillibrand herself has, as recently as July 13, 2021, argued before the Senate (here, at timestamp 4:09:21) that the MJIA’s ultimate purpose is to promote racial justice:

It’s necessary because the military justice system is simply not delivering justice, especially not to service members of color. I’m proud that our legislation has recently won the endorsement of our colleagues in the Congressional Black Caucus, who have highlighted how this reform would address the systemic barriers to justice our servicemembers of color face.
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- U.S. Senate Session (July 13, 2021) (Statement of Senator Kirsten Gillibrand)
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Senator Gillibrand has pursued the argument that a purpose of the MJIA is to promote racial justice even though, as the New York Times reports, doing so “threatens to weaken her support” for the measure among some allies, “many of whom were brought along after years of courting.”

That being said, since a purpose of the MJIA is to promote racial justice, it is perhaps not surprising that on Tuesday, as the Chair of the SASC Personnel Subcommittee, Senator Gillibrand announced that the committee markup of the 2022 NDAA includes a provision that calls into question the continued viability of nonunanimous verdicts in the military. Specifically, Senator Gillibrand presented (watch here, at timestamp 22:37) the following provision as “a key highlight and matter of particular interest" in the bill:
[The markup] directs the Secretary of Defense to conduct a legal review of Article 52 of the UCMJ, to determine whether the Article is Constitutional in light of the Supreme Court decision in Ramos v. Louisiana, concerning the requirement for unanimous jury verdicts not currently required under the UCMJ in non-capital cases.

- Markup for Fiscal Year 2022, Hearing Before the Subcomm. on Personnel, 117th Cong. (July 20, 2021) (Statement of Senator Kirsten Gillibrand, Chair).

It is profound that, in a 23-3 vote, SASC has questioned the propriety of allowing non-unanimous verdicts in trials by court-martial. The implications of SASC raising that question extend well beyond the possibility that the DoD General Counsel may end up with another legal review on his “to do” list. A question that enjoyed 23-3 support in committee, and which will now be considered on the floor of the Senate, is a worthy question to be litigated before the military’s judicial officers.

And if no relief is forthcoming there, it is an issue worthy of litigation in the Article III courts.

Isaac Kennen

Military Justice Editor

Former DC
7/25/2021 08:50:35 am

Prediction: DOD says 'no, it is not unconstitutional, but we'll change to require unanimous verdicts for policy reasons.'

Philip D. Cave link
7/25/2021 09:00:01 am

Actually, could the President do this under Article 36, UCMJ?

There is CAAFlaw, I believe, that the President can put something in the RCM that gives a greater benefit to an accused so long as it does not conflict with the statute or the Constitution or is prohibited by statute---

I think Czeschin, 56 M.J. 346 or Davis, 47 M.J. 484, or Mance, 26 M.J. 244, might be the cases I am thinking of?

Brenner
7/25/2021 09:04:41 am

Phil is referring to the “hierarchy of rights doctrine.” Which appears to be good law, but the term cannot be found in an opinion for twenty years…

Lone Bear
7/25/2021 10:17:18 am

It’s not like the military rains convictions now, making it even harder in a vacuum isn’t the best way forward. If there were sentencing guidelines and judge alone sentencing to force more cases to pleas then the change makes sense. Ri

Former DC
7/25/2021 03:22:42 pm

Lone Bear - why would we want to force more cases to pleas?

If someone is guilty, prove it. If not, don't strong arm them into pleading with the threat of sentencing guidelines. I can't tell you how many of my clients were risk-averse and would have been happy to take a certain, but bad, deal to avoid the risk of an uncertain trial.

It's not like our system is overloaded with cases at the moment. At least not looking at the stats that show caseload over the years.

Anonymous
7/25/2021 03:40:32 pm

Good order and discipline maybe? The reason we have a military justice system...

Isaac Kennen
7/25/2021 04:35:26 pm

Nonunanimous verdicts serve to deny an equal voice in deliberations to already under-represented racial and ethnic minorities.

Nonunanimous verdicts also expose accused people, a disproportionate number of whom in the military are racial and ethnic minorities, to an increased risk of wrongful conviction.

Those concerns for racial and substantial justice should not be sacrificed on the alter of “good order and discipline,” whatever that means.

A practice that systematically disenfranchises racial and ethnic communities, and which exposes those disproportionately-targeted communities to an increased risk of conviction, is not operating in “good order.”

And, whatever “discipline” such a system dispenses is more harmful than helpful to unit cohesion and combat effectiveness.

We gain nothing on the battlefield by mistreating our own.

Lone Bear
7/25/2021 04:47:31 pm

Agree that our system doesn’t handle many cases anymore. A large part of that is that the Government has no leverage in plea negotiations, even in cases with strong evidence. The defense can force the government to expend a ton of resources prosecuting minor offenses knowing members will not hold the accused accountable in any significant way because they’ve seen the same type of offense get NJP. It’s really hard to get a decent sentence in a larceny or drug case, so defense will push it forward to a contested trial which gets an NJP sentence 6 months down the road and cost the Command several thousand dollars. As such, commands handle relatively significant offenses at NJP. Sentencing guidelines and judge alone sentencing could give credit to accused who take responsibility, bring consistency to the system, and create a lot of efficiency.

Lone Bear
7/25/2021 09:32:34 pm

Another point on unanimous verdicts is that it would also require unanimous acquittal. Otherwise the Government can retry.

Poster
7/26/2021 07:23:39 am

I don’t know that this is accurate, at least under the Oregon Supreme Court’s view. In State v. Ross, the Oregon Supreme Court-acting upon a petition for a writ of mandamus-considered whether the state's system which allowed for nonunanimous acquittals remained constitutional in light of Ramos. 367 Or. 560, 565 (2021). Concluding that nonunanimous acquittals were still constitutionally permissible, the Oregon Supreme Court rejected the trial court's understanding that Ramos "require[d] it to reject any application of Oregon's nonunanimous jury provisions, either for guilty or not-guilty verdicts." Id. at 570. Instead, the Court determined "Ramos does not imply that the Sixth Amendment prohibits acquittals based on nonunanimous verdicts or that any other constitutional provision bars Oregon courts from accepting such acquittals." Id. at 573.

Donald G Rehkopf, Jr.
7/26/2021 11:35:32 am

There are two cases pending at AFCCA where the unanimity argument was preserved at the trial level; Anderson and Martinez [DISCLAIMER: I authored an amicus curiae brief for NACDL in Martinez].


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