Military Law

ABA expresses concerns about some proposed changes to the military justice system

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Legislative proposals for sweeping changes to the Uniform Code of Military Justice, while many agree are much needed, contain some elements that prompted the American Bar Association to ask Congress to carefully consider some possible consequences, as detailed in letters sent today to leaders of the committees on Armed Services in the House (PDF) and Senate (PDF).

The letters, signed by ABA President Paulette Brown, express particular concern about proposals to make sentencings judge-only and eliminate a defendant’s choice of being sentenced by a court-martial jury, made up of enlisted and officer personnel selected by a commanding officer, or by the judge.The ABA also has concerns about the proposal to adopt a form of sentencing guidelines.

While the ABA believes “the majority of recommended changes represent a positive step forward,” Brown wrote, the ABA is “concerned, however, that some of the recommended reforms involving sentencing and appellate rights could cause unintended consequences, including infringing on the rights of service members accused of crimes in the military.”

For example, the Defense Department’s proposal for judges to determine sentences in all noncapital cases would remove “an additional choice for the protection of the service member” and “diminish that right.” The ABA’s current policy on the UCMJ supports the option.

Historically, the military’s justice system in some ways has long provided more protections for criminal defendants than in many civilian jurisdictions. But after years of concern over increasing problems, especially sexual assault in the military, the Pentagon is seeking the most significant overhaul of the UCMJ in decades, ProPublica reported.

And for the first time, the Pentagon is pushing for sentencing guidelines. Most military crimes have no minimum sentences, and maximum punishment could include life in prison, Stars and Stripes reported. The only crimes with minimum sentences are murder, death of an unborn baby, spying, and, added by Congress in 2014, mandatory punitive discharge for penetrative sexual assault.

The ABA urges Congress to “consider carefully” whether more research through data analysis should be done before adopting sentencing guidelines. Such an effort “proved crucial to the development of federal sentencing guidelines” and “is consistent with ABA Criminal Justice Standards.”

The proposed UCMJ reforms also would end automatic appeal rights, and though the ABA takes no position, it urges Congress to “proceed with caution before acting on proposals that take any material rights away from an accused.” In noncapital trials, the letter says, a defendant “can be convicted by a less than unanimous vote at court-martial and yet, under the current proposals, must be sentenced by the military judge alone.”

An automatic appeal outside the command structure adds a level of confidence and integrity in the UCMJ system, the letter says, and “we ask the committee to consider whether there is a compelling justification to rescind or diminish this important right at this time.”

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