The Joint Service Committee recently posted the Code 146a reports of the four services on FY20 courts-martial data. Consistent with the decades long trend, the number of general and special courts-martial tried was down from the previous year to a record low since the adoption of the UCMJ. In total, the four services tried a total of 1,323 generals and specials compared with 1542 in FY19. What isn’t clear is whether the reduction is a result of the pandemic occurring during the last six months of the fiscal year or merely consistent with the well-established pattern of ever fewer courts-martial being convened.
For example in FY60, the services tried 40,810 general and special courts. Even if adjusted for the smaller total force in FY20 that would still be the equivalent of 21,200 courts today. Obviously, this represents a significant reduction in the rate in which commanders use courts-martial, but I am not aware of any studies into why courts-martial use has seen such a dramatic reduction. I believe it is in part driven by the court-martial now being viewed almost exclusively as a criminal justice process rather than a discipline tool. Consequently, pure discipline issues predominately seem to be handled by administrative actions.
The reports have two other interesting data points worth examining. The first has to do with conviction rates in general courts and the second is the paucity of trials before members. The Marines led the services with a 92% conviction rate while the Air Force again had the worst conviction rate at 69%. The Navy and Army both had a conviction rate of 83%. Of the 720 general courts tried in the four services, the defense won 131 cases, or 18%. In reality though, the defense success rate in litigated cases is certainly much higher as the 720 general courts would include a significant number of guilty plea cases.
Additionally, the numbers also doubtlessly include many cases counted as a conviction by the military where the accused was acquitted of the most serious charges, but found guilty of a lesser charge like underage drinking. It would certainly be helpful to know these numbers as well as the acquittal rates for fully litigated cases. But much to their credit, the defense community is winning at unprecedented rates for their clients, especially in Air Force courts.
One number that I believe might be surprising is how few cases were tried before members. Of the 1323 general and special courts, only 273 were before members or 21%. This is actually quite startling and not entirely attributable to Covid as only 25% were tried before members in the prior fiscal year. Considering that there are several thousand O-3 JAGs in the various JAG Corps, it raises the question of how experienced is the average JAG when it comes to litigated cases before members? This is especially true, as many of these 273 cases would have included sentencing only courts.
Purely for perspective, of the 1,340,000 active duty members, only 1140 were convicted at a general or special court last year. We have thousands of JAGs assigned as trial counsel, defense counsel, appellate counsel, trial judges and appellate judges to achieve these results. Of course this doesn’t count all the paralegals, commanders or convening authorities also involved in the process. Not saying there should be more or less convictions, but that is a lot of manpower for so few.