I've heard a lot of what I consider to be fairly disingenuous narratives to support the movement to divest commanders of disposition authority, but this has got to be among the most interesting. It certainly isn't consistent with my own experience, for what that's worth. Beyond that, though, this concern with personnel arrangements and availability was raised by the Service Secretaries after gathering input from the field.
Now, if Sen. Gillibrand presumes to be in a better position than the Secretaries and the practitioners in the field to assess the challenges that may be associated with implementing the transition of disposition authority, more power to her. If I were a member of Congress, I would be more inclined to consider the perspectives from the field.
One idea would be for members of Congress to make arrangements to talk to the folks in the Army OTJAG CrimLaw division or arrange for a visit to TJAGLCS in Charlottesville to talk to the CrimLaw section there. Since the Army has the most diverse law practice given the operational needs of the client, hearing directly from these practitioners may be the best way to assess the potential impact of implementing the change. No need to take Sen. Gillibrand's word for it - OTJAG CrimLaw is right there in DC, and Charlottesville's a short, scenic drive just beyond the Beltway.
Oh come on Brian. We have all been in offices where people go to "PT" for two hours a day and sit on the internet (perhaps on this site) for another two hours. What was your caseload when you litigated criminal cases?
I'm not familiar with the optempo you describe, but it sounds lovely (though incredibly boring)!
I know this is going to sound like one of those "back in my day" or "up hill both ways in the snow" stories, but I was absolutely crushed as a trial counsel (for 2BCT, 10MTN). I showed up to the office at 0530 every morning to brief my brigade commander along with my BJA - except on Thursday mornings when we had an "MJ deepdive" with the commander and we had to show up at 0430. After PT my days were absolutely slammed, and I was usually lucky to make it home by 8 at night - but most of the time I was just bringing files home to work there and my Bb never stopped ringing as leaders in my brigade needed time-now legal advice (although, that was rarely as urgent as it seemed to the caller on the other end). It was intense and exciting and fun, but it seriously made me think again about the life choices that led me to that point.
That was my experience as a TC - it will resonate with many of my friends and colleagues who were in the trenches with me, but I recognize it won't resonate for a good number of JAGs. Funny thing is, my time as a TC wasn't even my busiest time in the JAG Corps - but at least the busiest (OpLaw in Afghanistan) happened on a deployment. My wife and I joked that my time as a TC was basically like being deployed but at home. Pretty sure that doesn't qualify as underworked. :)
This is an unfortunately uninformed and misleading comparison. She mentioned only general courts-martial when talking about the military. What about special and summary-courts martial? What about Non-Judicial Punishment, like Article 15s? I feel confident those numbers would substantially close the supposed gap in workload she is alluding to, or even surpass the numbers in most civilian jurisdictions. When she spoke about the civilian DA’s office, she was very imprecise and used the word “cases.” It’s apples and oranges. Moreover, there is no standing court in the military. It’s easier and often more suitable to dispose of many criminal offenses (not serious felony-level misconduct) with non-judicial punishment, which can be used to impose fines, deprivation of liberty, and to impose significant and detrimental consequences to a servicemember’s career and military record.
To be clear, military attorneys are involved in all of those actions (Not to mention the inevitable follow on adverse and involuntary administrative discharges, which also take up much of the attorneys time— many of which involve a board proceeding which looks a lot like a trial). That is to say, the simple comparison in numbers misses the big picture. While I’m sure she is we’ll intentioned, I’m afraid she is not correct on the numbers or on how this change will impact a military attorney’s workload.
For some perspective on JAG numbers and workload, we can look at the annual reports that the services have filed since 1952.
In FY90, the Army had 1773 JAGs and tried 1451 GCMs and 921 SPCMs for a total of 2372 courts. That is 1.3 courts per JAG. In FY19, the Army had 1851 JAGs and tried 461 GCMs and 167 SPCMs for a total of 628 courts. That is .34 courts per JAG.
For the Air Force, in FY90 it had 1399 JAGs and tried 844 GCMs and 636 SPCMs for a total of 1480 courts. That is 1.05 courts per JAG. In FY19, the Air Force had 1304 JAGs and tried 217 GCMs and 198 SPCMs for total of 415. That is .32 courts per JAG.
The numbers are similar for the Navy and Marines.
There has been a similar reduction in nonjudicial punishments and administrative discharges over this time as well.
FY90 is hardly the high water mark in the UCMJ era. In 1960, the DoD tried over 40,000 general and special courts and another 60,000 summary courts.
While JAGs do many jobs, the reality is the military justice workload has dropped significantly without a commensurate reduction in JAG authorizations. In fact, for the Army there are now more JAGs than it had in FY 90 despite doing a 1/3 of the cases.
I understand as someone who did my first court in 1991 that some cases are more complex, but many are not. When the service chiefs push back against reform by claiming the military doesn't have enough JAGs, it seems appropriate to look at the military's actual case load.
If JAGs could do significantly more cases in the early 90s, it is fair to ask why essentially the same number of JAGs couldn't now manage to free up a cadre of JAGs to staff independent prosecutor offices contemplated by Congress.
The number of serious felony-level cases has remained steady over the years. Show those stats if you're going to suggest that we aren't court-martialing as much as we once did.
Also, a large portion of a TC's time today is spent writing memos recommending against prosecuting the cases that once routinely ended up in the courtroom. These are often cases involving low-level offenses like drug use or urinalysis, or they are more serious allegations with very weak evidence. These were the cases that drove up the numbers in the 80s/90s.
So while the literal number of cases that end up in court is much lower today, we also end up devoting more time and resources to the cases that deserve it.
That, to me, is a sign of a healthier system.
I'm not sure what you mean by this:
"The number of serious felony-level cases has remained steady over the years. Show those stats if you're going to suggest that we aren't court-martialing as much as we once did."
The number of serious felony-level cases is anything but steady over the years. I included the number for general courts, and they have gone down dramatically since the 90s and even more dramatically before that. The military as a whole is now doing far fewer courts-martial then in the 80s and the early 90s. The Air Force is almost half the the size as it was in 1990, but the JAGC is virtually the same size.
If TCs are spending significant time writing memos of why a case shouldn't be prosecuted, that is another weakness of the current convening authority system. Even then, it does not take as much time to write a memo as it does to actually try a case.
I am also confused by the allegation that in 80s and 90s the numbers were higher because of "low-level offenses like drug use or urinalysis... or...serious allegations with very weak evidence." What do you base that on? Were you practicing in the 80s and 90s? Do you have a data to back up cases were going to court then "with very weak evidence?" In fact the conviction rate was much higher in the 90s.
Courts are down for a number of reasons, but the undeniable fact is that there are a fraction of the cases now from 90s. At the same time, the number of JAGs on active duty, at least in the Army and Air Force, is about the same as in FY90. Moreover, the active force is smaller than it was in 90. In FY90 end strength was 2.03 million. It is now 1.34 million. It is only logical that reduction in strength has resulted in fewer courts.
Having spent many weeks preparing and prosecuting murder and sex offenses, I understand the time it takes to do courts. As I said earlier, I know some cases are more complex, but many are not and many still end up as a plea. Very few courts are now before members (less than 300 last year). Whether someone likes it or not, the reality is there are simply very few cases being litigated in a system with a lot of JAGs.
(responding to Don but replying to Attorney's comment since we've reached the end of the comment tree)
I wanted to pick up on this point from your comment below:
"If TCs are spending significant time writing memos of why a case shouldn't be prosecuted, that is another weakness of the current convening authority system."
I definitely endorse this observation, but I think that I do for a reason that is completely different from your reasoning. Just like the long response below involving potential implementation challenges, I should preface these observations by saying that they just reflect my own experience - for whatever value that may bring to the discussion.
While I was a TC, I spent *a lot* of time writing each no-pros recommendation - and I agree that this is a weakness of the current state of the system. The weakness from my perspective, though, is the toxic condition involving sexual assault response that has been created by the current political climate.
Before we even make it to the no-pros recommendation, it is (or, was for me and my team) an absolute struggle just to have a finding of "no probable cause" stick for a SA allegation. If I intended to submit a no-PC to CID, first my senior TC, and then my CoJ, would have to concur. If they did and I submitted a no-PC to CID and the CID office didn't like it, they could appeal to my SJA. If my SJA concurred with my no-PC, CID could (and would) submit the file to their Group JA, who could overrule my determination and make the PC determination stick...which happened every single time we went through this process. None of these other actors advise the disposition authority, but they can all overturn my no-PC determination - and they routinely would because of the potential political sensitivities associated with submitting a no-PC determination.
Now that we've made it to the no-pros recommendation, the memo is typically 7-8 pages long since it has to provide a very explicit and detailed explanation of the recommendation not to move forward. Because of the potential political fall out, my brigade commander may well initiate charges and recommend a GCM anyway even if this case has no business going to trial - because that's the politically safe thing to do. My GCM is worried because any one of these could be a landmine that explodes in 5 years or so at a confirmation hearing. The best insurance against all of these potential negative consequences is a book-length no-pros memo - and even then, it might not be worth the risk to follow the no-pros advice.
You're right that the no-pros condition is a reflection of a broken system - but it's the prevailing toxic political climate that broke it. As a TC, I am all about recommending prosecution if the elements are there. Even when they're not, though, many of these cases are moving forward anyway. If we're not happy about the current rate of conviction for the cases that do make it to GCM, alleviating the toxicity of the current political climate could be a step in the right direction. As it currently stands, repeatedly pushing weak cases to GCM only to routinely end in acquittal is not justice for anyone concerned. The time-consuming no-pros memos are but one symptom of this toxic climate.
This is a reasonable question, but the point remains that it is those in the field who are in the best position to answer it. The Chiefs were presented with a recommendation and told to solicit feedback from the field. That's what they did, and that feedback is reflected in the Chiefs' responses to the RFI from SecDef. Neither you nor I nor Sen. Gillibrand are in the best position to assess the possible impact of implementing this change - and Sen. Gillibrand standing on the floor making this argument when she presumably hasn't solicited feedback from the field herself is of fairly limited probative value.
The whole argument, though, demonstrates the danger of building major qualitative policy recommendations on limited quantitative data. The numbers you've rather insightfully pulled together don't capture any of the important nuance behind the scenes. I didn't practice law back in the 90's, but my MJ instructors made the case that criminal trials are generally a lot more complex now than back then (a reflection of what those of our vintage would call the Matlock Effect, but as I understand is now referred to as the CSI Effect). I don't have extensive practice in the civilian sector, but from what I've seen as a SAUSA and from comparing my mil practice with my civilian counterparts, it appears to me that court-matial practice in general seems more involved (the providence inquiry for a guilty plea comes to mind as an example - I can't count how many times I started getting reeeaaaalllly nervous during providence). This could go on and on, but the point is that the quantitative data is informative - but it's flat, and it is difficult to account for all the underlying qualitative nuance without a much more in-depth study. That should resonate well with many folks who have tracked the disposition authority debate over the years, as this is how we've advanced as far in the debate as we have by now. That, of course, is a completely different discussion.
Bottom line for me for this discussion, though, is that the best source for informed input regarding potential implementation challenges is those who will be required to do the implementing. If we care at all, we should ask them and see what they've got to say about it. Not that this should necessarily be the final say - but it should certainly inform the way ahead, if any.
Brian, I was still on active duty when MJIA was first proposed. I saw the sloppy back of the envelop math the DoD used to claim they didn't have the manning to implement the proposal. The data push was clear to the field: tell HQ why the legislation couldn't work, not whether it could. But at least they did some math. The chiefs now provided no data point on manning, just a statement they don't have enough qualified JAGs.
That is hard to believe as I personally know enough highly qualified 0-6s and senior O-5s (about to meet their board) to implement this in the Air Force. Additionally, the same chiefs have in the past pushed back against reform because they claimed GCM convening authorities received advice from highly experienced senior SJAs. So does the military have highly experienced senior JAGs or not?
Moreover, JAG billets should be freed up at the GCM level as about 80 to 90% of GCMs likely will fall under MJI-IPA. Military leadership is looking for reasons to say no and that impacts the input they get from the field. Supporting reform is not career enhancing.
(responding to Don but replying to my note since we've reached the end of the comment tree)
It is intriguing to read your perspectives on this since you've been so actively involved in the MJIA debate for so long. I was toiling away at the unit level back in 2013, so the commander disposition authority debate was on my radar but pretty far away back then. It would be interesting to see the sloppy back of the envelope math that was done back then, as you characterize it (nice description, by the way) - but if this is how it was back then, it would make sense that you seem rather skeptical of the math (or, lack thereof) now.
While I haven't discussed with my former colleagues the staffing challenges that would come along with implementation of MJI-IPA as it is currently drafted, my practice at the unit level is recent enough that I can at least share my own perspectives on the topic. I should point out beforehand that I don't support the move to divest commanders of disposition authority, as I consider the measure to be unnecessary, counterproductive, and that it will ultimately be ineffective. Nonetheless, I understand and respect competing perspectives - and I feel confident that I can relate my own experience in a neutral and unbiased manner without letting my own perspectives influence my description.
I should also point out that my own experience as a TC (and later as a BJA) is drawn from an incredibly busy jurisdiction - a numbered division in the Army. This doesn't necessarily reflect ground truth at a sleepy installation, or even across different services given the unique character of the practice in each. However, it does make sense to assess the potential impact in a high optempo jurisdiction since the proposed change would apply across the board. If there is going to be pain in implementation, it will be felt most in these high optempo places.
So, as it stands right now, MJ practice in a numbered division is dispersed and delegated. Unless disposition authority has been withheld by a higher commander (like it is for penetrative SA allegations currently), lower-level commanders (company, battalion, and brigade) dispose of a vast majority of the criminal offenses that occur in the division. This includes NJP even for (common law) felony offenses and even administrative separations for serious offenses for which I couldn't prove the elements to a standard of BRD in court but that can be proved by a preponderance at a board. For all these "felonies" (since that's what we're really discussing) that currently get disposed of at a level lower than GCM -- administrative measures, NJP, summary and special courts-martial -- my division commander never needs to review the file or make a decision what to do with it (unless an appeal to an Article 15 or something like that makes it to that level later). That means my O-6 SJA never has to touch the file. Got a simple marijuana possession, first time offense, 2 years maximum confinement? Battalion commander takes care of it with an Article 15 and initiates AdSep. These are all relatively low-level offenses - even if the max punishment reaches up to a year or more. At present, my division commander would see none of these - nor would my SJA.
If the MJI-IPA as it is currently written were to be implemented, ALL of these offenses would have to be disposed of by my SJA since preferral *and* referral authority for all felony-level offenses would now be vested here. After all, a decision *not* to prefer charges is a decision nonetheless – the file has to be reviewed and considered before ultimately deciding to implement a lower-level disposition such as NJP or AdSep. This process would be neither dispersed nor delegated. It would create an enormous bottleneck in my chief of justice's office and at our SJA. Don, I can't get you any hard numbers to crunch, but I can tell you this - my SJA (back when I practiced, that is) is already swamped. The speedy trial clock is already a challenge to manage, and that's just with the files that are making it to GCM. Now my SJA has to make the decision whether to prefer - or not - on all these (relatively) petty offenses that happen to carry a max punishment of over a year? Believe me when I tell you I'm not just saying this because I don't support the change - but it is absolutely unimaginable that my senior TC, chief of justice, DSJA, and SJA could pull this off…not to mention that MJ is only a part of the practice for the DJSA and SJA.
Now let's add in the fact that in the military context a disposition decision involves two separate factors that are not bifurcated in the civilian context. For the civilian side, the ADA or whoever makes *both* the technical assessment (admissible evidence meets elements of crimes) *and* the "good of the community" assessment (prosecutorial discretion - I can initiate charges, but should I?). As it's currently set up in the US military system, I (channeling my former practi
(responding to Don still, but continuing the entry since the first take got cut off in the middle - sorry about that, CAAFlog team...it would seem that I inadvertently reached the max capacity for a comment)
... Now let's add in the fact that in the military context a disposition decision involves two separate factors that are not bifurcated in the civilian context. For the civilian side, the ADA or whoever makes *both* the technical assessment (admissible evidence meets elements of crimes) *and* the "good of the community" assessment (prosecutorial discretion - I can initiate charges, but should I?). As it's currently set up in the US military system, I (channeling my former practitioner) make the technical assessment and my commander exercises the prosecutorial discretion piece. I understand the distrust of this system, but I think a lot of the criticism tends to conflate these two aspects unnecessarily (that an "untrained" commander is making the technical assessment...but in practice they're really not). The virtue of this arrangement is that, certainly for these lower level offenses that would now get kicked up to my SJA, my company or battalion or brigade commander has a good sense of what needs to happen in her community and is well placed to exercise prosecutorial discretion. If we push all these decisions up to my SJA, she is completely detached from the community *and* she has no responsibility for what her unit does or fails to do since she's not the commander.
From my perspective as a former infantry BCT trial counsel and DIVARTY BJA, these are my concerns with implementing the move as it's currently drafted. I know this is anecdotal and not quantifiable, so you can take it for what it's worth. But since we haven't heard anything directly from the field on this issue (this time around), I get a sense that the concerns that were expressed to some of the Chiefs were something along these lines. Sorry for the rather long explanation, but I thought it might help inform the debate since we haven't heard directly from the field yet.
Don, you made a point about no-pros memos that I would also like to address, but I think this entry is already quite long enough (and then some). I'll address the no-pros observation in a separate comment.
For now, I would like to sincerely thank you for sharing your perspectives on what you describe as the "sloppy back of the envelope math" that you assess used to be offered to push back against the measure - very informative, indeed. For what it's worth, I get a sense that, if that was the attitude back then, it very likely has changed now. My sense is that more people are open to the idea, even if they think it's still not a good idea or a necessary change. They’re very likely giving this a fair shake even if they don’t personal support it. I know you and Sen. Gillibrand want to capitalize on the momentum that has been built this time around and you don't want to hear the word "study" - but I would encourage you to consider it. Many of you are absolutely dead set on making this change, but it would not "improve" justice for anyone if it ends up wrecking the MJ system in the process. Even if you're not going to like what you hear from the field, I submit to you that it's worth it to hear - and listen...whatever ends up happening in the end.
(responding to Don as a third comment in this thread)
Just as a follow up to my assessment of the bottleneck that would be created at the SJA level if MJI-IPA were to be implemented as currently drafted, I still think it would be unmanageably overwhelming - but not quite as catastrophic as I suggested in the earlier comment.
In the earlier comment, I suggested that all routine "felony" files that are now managed with lower level disposition (administrative measures, NJP, and SCM, SpCM) would need to be decided by the SJA since a decision *not* to prefer charges is still a decision on that file.
This description of disposition authority is accurate I think, but I missed the mark a bit when I suggested that all of these files would now need to be actioned by the SJA. After thinking about it further, I assess that only the files that lower level commanders want to send to SCM or SpCM would need to be actioned by the SJA - not those that the lower level command wants to dispose of using administrative measures or NJP. So the battalion commander (for SCM) or brigade commander (for SCM or SpCM) would need to submit a request to the SJA - who would have to act on the file at least twice, once to prefer charges then again to refer to trial.
I still object to the arrangement for the same reasons (it's not necessary and it detaches the "good of the community" aspect of the prosecution decision from the person who is responsible for what that community does or fails to do together) - but that is a personal perspective. The arrangement as I describe it here would still be, I think, unmanageable without a significant investment in personnel since all felonies that are now disposed of at SCM and SpCM would have to go through the SJA. However, upon further reflection, I don't think it would be as catastrophic as I described it in the previous comment.
As yet another follow up to the discussion about staffing considerations associated with the current draft of MJI-IPA, one unknown quantity in terms of workload for the SJA is the volume of NJP turndowns. If the battalion commander, for example, wants to impose NJP for an offense that qualifies as a felony, she is the one doing the calculation of the next move if the accused demands trial by court-martial. Part of that calculation is whether she wants to prefer charges if the accused does demand trial. If so, the file comes right back to the commander to prefer charges (or not).
Separating the first part of this calculation (whether to impose NJP) from the second part (how to proceed if there's a turn down) creates command authority and GOaD concerns - and that's what I've been focused on as part of my opposition to the MJIA. From a staffing perspective, though, it also creates a wild card because we have no way of knowing how many of these would end up on the SJA's desk instead of the commander's desk, as is the current state.
Apologies to the CAAFlog team and any interested readers for the seemingly incessant followups. I'm just now starting to think through the potential staffing challenges, and obviously my thoughts are evolving over time....for whatever value those thoughts may bring to the discussion.
Take a look at page 80 of this .PDF, which is an Annual Report of Military Justice from 1997: https://www.loc.gov/rr/frd/Military_Law/pdf/Annual-report-USCMA-FY1997.pdf
Also take a look at page 75 of this PDF: https://www.loc.gov/rr/frd/Military_Law/pdf/Annual-report-USCMA-FY1999.pdf
These are summaries of what was charged at GCMs in the Coast Guard in 1997 and 1999. I chose the years at random, and I couldn't find data like this for the other branches.
While it's admittedly a small sample, I think it gives you a sense of what we used to consider worthy of our time at a GCM. As you can see, some rape/sodomy, but a LOT more offenses that we would today consider lower level (larceny, false official statement, disobeying orders, general article 134).
Today, the script has flipped and we spend 80%+ of our time investigatng and prosecuting sexual assault. I don't have to tell you that prosecuting an orders violation is not nearly as complex as prosecuting sex assault cases w/ DNA.
You are saying that our JAGs are underworked today. You are using the raw total of courts-martial. But we are also making them prosecute and defend more serious cases. Doesn't it make sense, then, to devote more time to cases that carry lifetime sex offender registration and considerable jail time?
Incidentally, this data seems to refute my point that the number of serious cases has gone down; the number of rape cases was far fewer back then. But this actually supports my view that JAGs today are not underworked; they are simply prosecuting more serious cases overall.
This Air Force JAGC posts the results of courts-martial on its website. I just looked at the last 27 courts going back to the end of March. Seven of the cases had assault and battery charges, eight were drug cases, 2 were drunk driving cases, one drunk and disorderly, seven were article 120 cases. There were three cases with Article 92 charges, and there were courts with a 121 charge, 121a and 123 charge. There are overlaps with some involving multiple charges, but this looks consistent with what I saw 10 years ago or twenty years ago. Thirty years go we would have seen more bad check cases, but those were actually fairly labor intensive.
As for rape cases, you can look at the Air Force results for the last four years. The Air Force is only prosecuting around 3 adult rape cases a year. Additionally, in all the services Article 120 prosecutions have dropped steadily from the highs in FY14 and FY15 are now about half as many with only 255 last year. There is simply no data point that shows we are prosecuting more serious cases now than in the past.
As for complexity, DNA has been used in courts-martial for almost three decades. Digital evidence has been common for at least 25 years although the amount of data is now much greater. The same goes for forensic psychologists. They have been common at courts-martial for at least 25 years. I have heard "the cases are more complex now argument' for the last 25 years at least. But the reality is DNA evidence is rarely used in courts and we have been prosecuting "complex" cases like child sex abuse, child pornography, shaken baby and homicide for a long time.
As I wrote earlier, the active duty force has shrunk by 700,000 service members since FY90, but the JAGC's have not significantly if at all. And JAGs have always had to review cases that never went to trial. That is not new. Additionally, the administrative workload is much less and Article 15s have have dropped from 146,000 in FY90 to 51,000 in FY15.
Contrary to your assertion, I never said JAGs are underworked. But the military justice workload is at its lowest point since the UCMJ went into effect, and it is absurd to argue the JAGCs cannot adequately staff a new system.
I have been informed that the Army is in the process of reducing the number of TDS billets by 32. Anyone know if this is correct? And if so, what does that mean?
The AF is prosecuting only 3 rape cases per year? The Navy prosecuted six sexual assault/child porn/child sex assault cases...in Jacksonville, FL...in March of 2021 alone:
I'm not saying your stats are wrong. But if you're right, there's a HUGE disparity between the services.
The numbers are even worse for the AF because those stats do not appear to take into account that as a Reserve JAG IMA, I was frequently brought on AD to investigate serious offenses, to try complex cases where there were no experienced counsel available, etc.
You definitely need to account for SVC/VLCs and more the expansion of adlaw, fiscal law, claims and doing retirees taxes.
This is an excellent point. Is there any way to quantitatively analyze that? It seems like a lot of things have been increased in the amount of procedure involved (I am thinking for instance of Army administrative investigations, which just since I have been in have gone from having one lawyer involved to two (requiring one lawyer to be a "legal adviser" and another to be a "legal reviewer" and sometimes yet a third to make a recommendation to a commander on it (though. It require by regulation), and have had procedures implemented to require referral to the subject of they are a field grade officer due to the investigations now being available to promotion boards (and now this has been expanded to the company grades)).
Operational law seems like more of a thing now than it used to be.
Seems disingenuous to talk about JAG Corp work load and only focus on courts-martial, or even only on criminal law.
That being said, it seems like, just based on personal anecdotal experience, there is a lot of fat that could be trimmed in administrative law and national security law sections at division and up and reallocated to criminal law if needed.
Perhaps we need to abolish domestic court martial proceedings given their apparent rarity. We can leave criminal prosecutions for offenses that occur stateside to the civilian justice system. We can satisfy the need for summary discipline with NJP that cannot be “turned down,” administrative demotions, and administrative discharge proceedings.
With that workload eliminated, we can reduce the size of our judge advocate corps to no more than the size necessary to advise on operations law, handle overseas courts-martial, and handle NJP, demotions, and discharges.
The entire civil law portfolio could be turned over the Offices of General Counsel which could receive some of the manpower funds that once resided with the JAG Corps to hire civilian attorneys to provide support to the field, as necessary. Or, better yet, the services could just hire civilian law firms to handle their civil law business.
In the Navy the litigation billets require the most hours. The cases that don’t go forward eat a lot of time, not to mention the data entry required now. A lot of the work happens outside the courtroom, and the courtroom litigation is very time consuming .
Several weeks ago an article in The Hill proported numbers to convince us that the UCMJ is beyond broken. That is, D. Christensen proposed statistics that are meant to convince us a quantifiable proof exists that we are supposed to act upon. Now he says that those numbers are statistically suitable to show they can't be acted upon.
Does an adequate sample space exist or not?
1. When looking at workload per attorney, does it matter that the workload of the defense counsel will almost always be the same regardless of who convenes courts?
2. Could NJP counseling be removed from the DC load? The current practice is an outgrowth of United States v. Booker: Commanders/SJA/TC wanted to use a prior NJP for later aggravation evidence. Back in 1980 we had a very competent paralegal who did the counseling and we prepared a video presentation for the person to review before seeing the paralegal. As a DC we saw very few of these people--the ones who still wanted to talk with a lawyer or when the paralegal thought having a lawyer involved would help the "client." That gave us time to focus on the 40-50 cases a month on our individual dockets. Just a thought.
Booker is somewhere in 5 MJ.
I honestly don’t care if it is commanders or JAGs who hold disposition authority. I’m fairly confident the sky will not fall either way. What does concern me is splitting the baby. My gut tells me it should be all or nothing. It’s completely unclear what the procedure will look like when cases require involvement from two different disposition authorities. (Not to mention how it may impact military law enforcement coordination with MJAs/TCs).
The proposal from SecDef is very narrow, and focused only on offenses related to sexual assault (and some other sex crimes). What happens if there is also allegations of BAH fraud, larceny or some other crime? Must there now be two separate trials, or is there a provision what would move all disposition authority to the JAGs if a sex-offense is contemplated? This arrangement will significantly impact charging decisions and potentially limit litigation strategies and options. The current Senate proposal seems more reasonable (if we we insist on moving disposition authority) but it still suffers from the same problem, just to a lesser degree.
Brian: since you suggest that Congress members should take a scenic drive to TJAG School for advice on reforms, please let us know of a single proposed change in the MJ system that that institution has vocally supported in the last ten years.
Deference to civilian control can, should, and does keep TJAGLCS and OTJAG and similar institutions from coming out publicly for or against any suggested reform. That arrangement is valuable for everyone concerned - including we the People. But before members of Congress exercise their Art. I, Sec. 8 responsibility, they have a duty to the military and, by extension, to the People, to inform themselves on the matters about which they are legislating. OTJAG CrimLaw isn't going to come to them, but both OTJAG and TJAGLCS are a short drive away.
Brian, Congress represents the people. OTJAG and Cville JAG instructors do not. Your demand of Congressional deference to the institutional military is dangerous and anti-democratic. Also please try talking less.
Fair point, but you may notice that I suggested that input from the field shouldn't be the final say on the matter. Congress is going to do what they do, and the military is going to do what they're told. No one is seriously questioning that.
Still, how many military justice experts do we currently have serving in Congress? This is just basic common sense, friend. I'm not an expert on baking a cake. If I decide to give it a go, I'm going to ask a friend for advice or follow directions from an expert who wrote a recipe book or look on YouTube or do *something* to get smart on it before I go and mess with baking a cake. And my cake isn't going to have a profound effect on the way military justice is administered in the US military. I'm not saying defer to the experts...but at least go ask them for advice first.
As far as the suggestion to write less - look, this is a public forum that is so graciously provided and maintained by the CAAFlog editorial team. Reading comments isn't compulsory. If you don't like reading so much, you might consider skipping over any comment with my name on it. Problem solved, my good friend.
There are few military JUSTICE experts in the military. Two years litigating misdemeanors in the arc of a 20 year career does not an expert make. Would you consider an assistant DA an expert in criminal law after two years doing misdemeanor guilty pleas?
Yep. Those who focus on criminal law are less likely to get promoted.
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