Two Commander Discretion Arguments to Unpack

3/26/2021

We should dwell a bit on the two major arguments that appeared at the hearing, and which appear to be somewhat new (at least in emphasis). I will charitably reconstruct each.

For Commander Prosecutorial Discretion: the "it's also bad out there" argument."

Sexual assault is a widespread problem in the civilian age cohort most analogous to that of the military: college campuses. Sexual assault defendants who are college students will be subject to the state criminal law where their campus sits, and therefore subject to prosecution at the discretion of a legal professional (the district attorney). If the DA's professional expertise as applied to the exercise of his/her discretion has not impacted the widespread problem of sexual assault on college campuses, then the transfer of prosecution discretion from a military commander to a legal expert should not be expected to impact the similarly widespread problem of sexual assault in the military.

Against Commander Prosecutorial Discretion: the "very few commanders can convene courts" argument.

Opponents of the transfer of prosecutorial discretion from commanders to lawyers claim that power over the initiation of a military justice case is an essential component of command. Command of humans in the military, including the power to command them to risk their lives in combat, requires that the same person that commands them to risk their lives also has the authority to decide whether they are prosecuted for criminal offenses. But this cannot possibly be true: only 3% of commanders have the authority to convene courts-martial at the "felony" level. If the 97% can get by without this authority (and they do), then prosecution authority is not inherent to command authority.

Are these good arguments? I leave it to you to discuss...

Brenner Fissell

EIC

6 Comments

Brian L. Cox link

3/27/2021 01:11:17 am

Regarding the "for" perspective, I support the general point that the inability of the civilian sector to alleviate the scourge of sexual crimes indicates that the "fix" to the issue - either in the civilian *or* military context - involves more than crimpro reform. Just like in American society in general (as in other parts of the globe), the military is in the midst of a profound shift in awareness and culture. That process will take time to play out - maybe even a generation or more - and that is true in both sectors. The comparison is apples to oranges in many ways since a DA's professional expertise (and judgment) is not informed by an institutional requirement to maintain good order and discipline, but what appears to many observers to be a lack of appreciable progress in either sector is not an indication of a broken justice system in either. Society as a whole is in the midst of a cultural reckoning - and until that plays out, both civilian *and* military justice systems are going to appear to be broken if the primary metric of "success" continues to be driven by statistical narratives.

As for the "against" perspective, I had never thought of command authority from that angle...but it does seem fairly reductive of the MJ system as a whole. If I'm a company commander I may not (read: don't) have the authority to refer a case to a general court-martial...but my boss's, boss's, boss does. It's a *chain* of command - so if I'm one of the 97% without GCMCA, I'm not actually "getting by" without that authority. My trooper knows that if s/he commits a felony-level offense, *our* CG may decide to convene a general court-martial to try that offense. That knowledge contributes to my endeavors to foster good order and discipline within my lower-level echelon of command, even if my trooper knows that it won’t be *me* who ultimately refers the allegation to general court-martial. As such, this perspective seems to reduce the entire MJ system to just the 3% of commanders with GCMCA - and this is something that doesn't resonate at all with my experience, at least.

Donald G Rehkopf

3/27/2021 01:00:07 pm

The "For" versus "Against" dichotomy simply is misplaced and overlooks a number of things, imho. First, any case that comes out of a civilian Grand Jury as an Indictment, would almost certainly go to a GCM in the military. But as military practitioners know, the reverse is simply not true, i.e., many (if not too many) cases that go to GCMs don't belong in court to begin with, as the acquittal rates in 120 offenses seems to be demonstrating.

What's missing from the discussion is what happens - at least in college cases - when a DA declines to prosecute or a Grand Jury "No Bills" a case. No one seems to be discussing the reality of Title IX disciplinary proceedings, where "preponderance of the evidence" is the standard of proof; the right to counsel virtually non-existent; "judicial officers" have no legal training other than their Title IX Manual, which strongly implies the fallacy that those who claim campus sexual assaults don't lie.

Unless one factors in the Title IX proceedings and results, the college campus vs. military comparison is both incomplete and inaccurate.

Lone Bear

3/27/2021 08:04:32 pm

Convening Authorities add nothing to the system, except inexperience, inconsistency, and difficulty for professionals to perform. There really isn’t a great argument for them. It would be like allowing them to decide what medical procedures their members get. Let those with training and experience make the decisions.

AnnoyingProle

3/27/2021 10:30:02 pm

Throughout my time in the military practice, I keep hearing this notion that the power to prosecute someone at a GCM is essential to command--in a broad airy sense, without grappling with the ugly pragmatic details. I certainly agree it would be exercising authority if they were committing UCI--if they were picking a a judge and a panel who understood the CG desired a particular outcome. But it seems like in the majority of cases (perhaps outside the USMC), a CA starts a case and then has no control.

The only times I've ever seen a command okay with having the Accused hang around, pending trial for 12-18 months, are the commands that think a trial *had* to happen, but actually support the Accused. For the vast majority, once they start the court-martial process, they are frustrated by the speed (or lack thereof), the cost, the inconvenience, their lack of control--and finally, the uncertainty of the result.

Because pragmatically, there isn't a brigade, wing or carrier where a GCM for sexual assault helps Good Order and Discipline--at least with respect to that particular case. It's almost always an expensive, time-consuming prospect for the command, which they do because of their larger obligations. If you gave them the option to simply send Accused to the "Lost Battalion"--or ADSEP them and let the feds take care of them, most would do it in a pen stroke.

But perhaps courts-martial have a role in shaping the values of the military community, communicating the standards and expectations in the military environment, and otherwise drawing the line on what's acceptable in the unique military environment. To that extent, you could certainly argue senior leaders can and should have a role in shaping that culture. However, if that's the "command authority" aspect of a court-martial that's relevant, most CGs aren't well positioned for that *either*--because they're moving through the posts quickly enough, most of them won't see half the court-martials they refer through to completion.

As to the number of cases that shouldn't even be in court, certainly some of the examples that pop up in the AFCCA and CAAF are troubling, in the "how did anyone feel comfortable sending this case to trial?" But I think it's hardly an answer to say that just because a case wouldn't be sent to a grand jury in the average civilian jurisdiction, it shouldn't be prosecuted.

Mainly, because we don't have any agreed upon standard for when we should be prosecuting a case. Let's say you generally believe a victim, and think you have a 50% chance of conviction at trial. Should you prosecute? I know some folk that say No, but most who'd say yes. What about a victim you absolutely believe, who wants very much to go to trial, but where you'd guess there's only a 20-25% chance of conviction?

I've seen plenty of cases that shouldn't have been moved forward to even an Article 32 hearing--but the Command felt it was "right" thing to do (perhaps because they believe all victims should have their day in court, perhaps because they were scared of an IG complaint). But I've seen O-6 JAGs with the same attitude, who are afraid to contravene a victim, even if a PHO or a TC says there's no PC.

Which is an extraordinarily long way of saying, I don't think having the "Chain of Command" handle the authority adds significant value, but then, others will hose it up too. Maybe at least the lawyers can be held to account when they jack up the legal processing.

Richard Stevens link

3/29/2021 09:04:23 am

Prole's concluding statement is likely true, at least in the eyes of those who are invested in arguing about this issue - i.e. politicians. Let's be honest, politicians do not truly care who makes the decisions, they care what those decisions are. If lawyers were given this authority, but then were seen not to rubber stamp these cases the way the politicians want, lawyers would then be seen as the problem and their authority would need to be changed...still more changes to the system. And, how often do convening authorities act contrary to the legal advice they are receiving from the JAG? While convening authorities "sign the check," it is quite rare that convening authorities are doing that contrary to the advice of their JAG. This debate all really centers around the narrative that the "military justice system is failing." How is it "failing?" In the eyes of those making that argument, it is failing because they want to see more cases go to trial, and they want more outcomes in favor of the complainants. Until that happens, they will argue against anything that does not align with their expectations and goals and they will continue to seek change in the system. Just my two cents.

3/31/2021 01:15:02 am

Mr. Stevens,
I don’t think lawyers would be viewed as a systematic problem, just a problem on certain cases. The way it is now an accused (and often victims) boss decides what goes to trial. Commanders tend to give their Soldiers the benefit of the doubt, and have to deal with the impact that losing someone has to the unit. For a Commander there is at least the appearance that they don’t want to take tough cases, particularly for sexual assault.

It’s a broken system for all, rather than a bad decision for any single case, that is causing the current criticism.

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Two Commander Discretion Arguments to Unpack

Brenner Fissell

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