Schlueter & Schenck on Proposed Reforms

"This white paper recommends that Congress reject proposals that would remove a commander’s
prosecutorial discretion and instead place it in the hands of senior armed forces lawyers....

• Commanders play a critical and necessary role in the American military justice system (See Section III, infra);
• Transferring prosecutorial discretion from commanders to judge advocates will undermine commanders’ authority to maintain good order and discipline (See Section IV, infra);
• Transferring the decision to prosecute and refer charges to a court-martial will create unintended consequences (See Section V, infra);
• Changing the American military justice system to emulate the systems of other countries is  not warranted or advisable. Comparison of sexual assault prosecution rates of the United States military with four United States allies in 2013 (see Appendix) and with three allies more recently do not support adopting their systems of removal of command responsibility for prosecuting serious sex crimes (See Section VI, infra);
• The Proposed Amendments Will Adversely Affect the Delicate Balance Between Justice and Discipline (See Section VII, infra);
• Recent Studies of Command Decisions to Prosecute Sexual Assaults Demonstrate that the Current System is Working (See Section VIII, infra);
• Congress Should Await Implementation of the Reforms Outlined in the Military Justice Act of 2016 for Oversight and Accountability (See Section IX, infra); and
• Congress should reaffirm the role of the commander to enforce good order and discipline (See Section X, infra).

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Brenner Fissell

EIC