Stars & Stripes on Member Sentencing

9/29/2021

‘Crapshoot’ sentencing by court martial juries likely to end, advocates for new legislation say

"Court-martial sentencing by juries may go the way of flogging, a change many military justice experts say is long overdue.
Military judges instead would hand down sentences based on federal guidelines as part of military justice system reforms proposed in the 2022 National Defense Authorization Act. The act isn’t expected to be signed into law until sometime after the new fiscal year starts Friday.
The proposal is supported by the Pentagon and is included in both the House and Senate versions of the legislation."

Lone Bear

9/30/2021 02:00:47 am

Totally agree with the article, time for some stability in sentencing. My only fear is that the guidelines will be too high. Service members usually commit lower level crimes and have no prior serious misconduct.

Concerned Citizen

9/30/2021 09:18:27 am

That would be unfortunate; the current way, where an accused can choose, seems about right. A panel is something of a safety valve. Seems like this is just in the interests if crushing people in a certain class of cases.

Scott

9/30/2021 02:07:28 pm

“Seems like this is just in the interests if crushing people in a certain class of cases.”

That is a concern.

If done right and in recognition of the unique dynamics in Mj cases, this could be a good idea. If done wrong could easily result in sentences disproportionate to the severity of the offense - likely disproportionately high.

Lone Bear

9/30/2021 10:51:27 am

Concerned,
Definitely a worry, but there is no stability now. It makes it hard to plead cases, or to value them. It is hard to trust the guideline makers to be fair and reasonable.
LB

Ryan Coward link

9/30/2021 12:49:49 pm

Certainly understand the desire for this, however, if these guidelines end up looking anything like the Federal Sentencing Guidelines, the average MJ practitioner will be far too inexperienced to sort through the complexities. The absence of a current need to do this in the military justice system makes it far less complex and eliminates potential errors. This could turn out to be one of those ideas that sounds good, but plays out very poorly.

Tami a/k/a Princess Leia

9/30/2021 03:18:34 pm

Yet another reason to just chuck the MJ system with respect to non-military offenses and send everything to federal court, where a military accused gets the full panoply of rights, including a right to a unanimous verdict, and right to a grand jury w/ a dismissal of charges if it's no-billed.

Burt

9/30/2021 04:32:47 pm

All the CP cases (with mandatory mins of receipt and distro) which occur all the time, beg to differ on the "it is all better in federal court" mantra. Sure you have no criminal history multiplier but the guidelines for possession alone, which will make your clients plead to avoid the Mando, are often higher than in court-martial guilty pleas or members sentences. Spoiler alert - CP cases fly through grand jury like a hot knife through butter.

Brenner M. Fissell

9/30/2021 06:24:12 pm

I worked a CP case in federal court and sentence was 8 years. Like you say every case seems to qualify for enhancements. An enhancement to use a computer? That’s every case.

Anonymous

9/30/2021 05:59:18 pm

Is this a joke? It would be malpractice for any defense counsel to want their client facing federal charges rather than a court-martial. The federal system drives pleas...the military justice system generates fully contested acquittals or low sentences if guilty.

Burt

9/30/2021 07:12:52 pm

Exactly. What is with the theological belief that the UCMJ sucks but oh thank heavens for the feds. Unanimous verdicts! Great. Welcome to federal sentencing. Grand juries and no true bills! You’ve obviously never done GJ work. Experts for defense? Unlikely. Having a jury sentence you way below a cases value Bc they have no context. Not happening. The worst thing in the world for the military defense bar is to lose members sentencing and have it replaced by judges and guidelines.

AnnoyingProle

9/30/2021 07:16:46 pm

No, I think Tami is serious, and she happens to be right! Congress has given pretty clear marching orders--more prosecutions and more convictions. Moving the cases into a system where the Defense doesn't have powerful discovery rights so we can't fully assess the case, where sentencing guidelines will terrify our clients into pleas in that uncertainty, where we have more limited appeal rights, and the judges are mostly ex-prosecutors happy to melt the faces off defense counsel--that might help meet the goal.

And don't forget, if it's a case they really care about, and even one juror votes for guilt, they get a whole 'nother schwack at the client.

And the ex parte grand jury may give the prosecutor a little more freedom to kill the cases they don't like!

Concerned Citizen

10/1/2021 07:16:50 am

@Burt, it's not the defense bar pushing this as others said. I think it might have sounded that way by the comparison to flogging, as if it were somehow old fashioned and cruel, when in fact it is just the opposite.

On a side note, the article referred to some study (might have read it wrong), that said that something like 66% of sex assault cases with members resulted in no confinement, which just from personal experience and reading summmarized reports of trial when they get posted in the FOIA reading room just doesn't seem accurate, unless they are including cases where the accused is acquitted of the sex assault and convicted of something like adultery or underage drinking.

Donald G Rehkopf, Jr.

10/1/2021 01:19:55 pm

For those who have never practiced in federal court, it is a very common fallacy to believe that the US Sentencing Guidelines [USSG] provide for relatively consistent sentencing.After SCOTUS ruled that the USSG were only "advisory" and not mandatory, with the exception of mandatory minimums, things are pretty much back to the "good old days." It just requires more work by Defense Counsel to justify downward departures.

The Transactional Records Access Clearinghouse (TRAC) - a non-legal entity at Syracuse University - is sort of a geek-house for judicial statisticians. Ironically, they released a report yesterday documenting the diversity in federal sentencing, entitled, "Equal Justice and Sentencing Practices Among Federal District Court Judges." It's available here: https://trac.syr.edu/tracreports/judge/663/

It's short and dissolves the myth that standardized "sentencing guidelines" eliminate the so-called "crapshoot" of member sentencing, which BTW, some States still utilize.

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