Structural reform is central to fixing the broken military justice system, improving the culture and climate within the military, and ensuring that our service members are given access to blind justice equal to the system they have pledged their lives to protect. We support changes to create a fair, impartial, and objective system of justice including giving professional military prosecutors, rather than untrained, conflicted and often biased commanders, the decision to prosecute. And, we offer the following suggestions for fixing additional points of failure in the system and improving justice for our troops.
Empower Military Prosecutors to Make Prosecution Decisions
The military justice system is controlled by non-lawyer commanders who have almost unfettered authority. This authority includes the most basic of prosecution functions such as deciding whether to charge an offender or to send the charges to a trial. Commanders also make decisions on authorizing the use of expert witnesses, adding or dismissing charges, approving or rejecting plea deals, and appealing adverse decisions by a judge. The process is inefficient and subject to command bias. Commanders are not attorneys and have minimal legal training. They are unqualified to make prosecution decisions. Investing prosecution authority in commanders is contrary to the American Bar Association’s standards for criminal justice that only attorneys admitted to a bar and subject to ethical standards should make prosecution decisions.
Congress should empower senior and experienced military prosecutors with the authority to decide which cases should or should not be sent to trial. Prosecutors have the expertise and experience to make the prosecution decisions currently controlled by commanders. Giving this authority to military prosecutors will eliminate the impact of command bias and create a fair and impartial system.
Create Standing Courts
The military currently does not have standing courts. Instead, courts are created anew each time a convening authority refers charges. As a result, a military judge has no authority to act in any way prior to the referral of charges. Referral does not take place until after many critical legal decisions are made. These are decisions that would be made by a judge or a magistrate in the civilian systems, such as search authorization or reviewing the decision to place someone in pretrial confinement. In the military, these decisions are made by commander or lay magistrates with minimal legal training, often resulting in significant legal errors.
Congress should create standing courts to empower military judges and magistrates to have powers consistent with their civilian equivalents. Judges would also be more readily available to quickly rule on motions such as discovery, hiring of experts, and production of witnesses.
Mandate Judicial Terms
To strengthen both the independence of judges and the quality of judges, judicial assignments should be for a fixed period of at least 4 years for both trial and appellate court judges. The military without a doubt has the least experienced trial and appellate judges in the country. Currently, judges rotate quickly through assignments, often before gaining the experience needed to effectively administer justice. For example, after the 2016 summer rotation, the most experienced judges on the Air Force Court of Criminal Appeals had only been on the court for 1 year.
The FY17 NDAA included language recognizing the problem, but did virtually nothing to fix it. Rather than require fixed terms, the amendment only requires “appropriate minimum periods” subject to exceptions. This will have virtually no impact and leaves too much discretion with the military who opposes fixed terms.
Create a System for Randomly Selecting Court Members
Members should be selected randomly rather than selected by the convening authority. This is one of the more common complaints about military justice and the current process creates many issues on appeal. Commanders should be allowed to exempt certain critical personnel from the random selection list.
The current process of commanders selecting court-members allows commanders to slant a jury toward a desired outcome. Commanders who reluctantly send popular or connected offenders to trial can put their thumb on the scale by selecting members they believe are more likely to vote not guilty.
Create Real Juries for General Courts
Juries (court members) for general courts-martial should reach a verdict by consensus. The verdict should either be unanimous or at minimum 6 – 2. The verdict, whether guilty or not guilty, should be reached by consensus.
The military is the only system of justice in the United States to allow a person to be found not guilty without the jury reaching a consensus. A not guilty verdict can be reached by the vote of a small minority of the members in contrast to civilian juries that must reach a verdict, whether guilty or not guilty, by consensus. The process denies survivors a thorough deliberation of the facts and substantially increases the likelihood of an acquittal. Currently, only one-third of all sexual assault and rape courts-martial end in a guilty verdict.
Create Litigation Tracks
Mandate each service to create litigation tracks to allow JAGs to specialize in court-martial trial practice. The tracks will ensure each service develops JAGs with significant in-court experience to provide the best possible prosecutors and defense counsel. To the greatest extent possible, military judges will have significant litigation experience prior to becoming a judge.
The FY17 NDAA watered down both the House and Senate proposals to a meaningless study as to whether there should be specialization in “military justice,” which is not the same as “litigation.” Military justice includes all the bureaucratic functions needed to advise commanders, because of the command-based system, which have little to do with actual in-court talent or experience.
As with judges, too many cases are prosecuted by young and inexperienced prosecutors resulting in cases being presented poorly and ending in acquittals. Sexual assault crimes are the most complex cases that require experienced prosecutors to ensure the best change of achieving justice.
Give Victims Right to Interlocutory Appeal for MRE 513 and 412 rulings
Historically, victims of sexual assault have had no meaningful way to challenge a trial judge’s ruling which violated the victim’s rights contained in MRE 513 (psychotherapist-patient privilege) and MRE 412 (rape shield) rulings, and orders to sit for a deposition despite being available for trial, along with any other rights under the Article 6b (the military’s Crime Victims’ Rights Act). Once the trial judge ruled adversely to a victim, the door was closed to an appeal. Over the past several years, POD has advocated for victims right to access interlocutory appeals in line with the rights of civilian victims under the 18 USC 3771(d)(3), the Federal Crime Victims Rights Act, to protect their rights.
The 2016 NDAA included a provision amending Article 6(b) providing that victims may petition the Court of Criminal Appeals (CCA) for a writ of mandamus to seek enforcement of their rights under MRE 412 and MRE 513, as well as MRE 514 (advocate-victim privilege), MRE 615 (right not to be excluded from court proceedings), or any other right under 6(b), and that victims subject to an order to sit for a deposition may petition to challenge the order. Under this new provision, petitions by victims are required to be given priority by the court.
While the 2016 NDAA changes served as an improvement, the provision fell short in two important ways: First, the change did not allow a victim to seek review of the CCA’s ruling to the Court of Appeals for the Armed Services (CAAF). This limited the ability of victims to receive meaningful review of orders that violate their rights, and precludes development of the law to guide future decisions. Second, rather than providing for a direct appeal right, Congress limited the review to a “writ of mandamus.” A writ is treated as “a drastic and extraordinary” remedy “reserved for really extraordinary causes.” This extremely high standard makes obtaining meaningful relief in practice almost impossible to achieve. For victims, providing a right in theory means little if in reality it fails to protect them.
POD’s efforts to secure the right of victims to appeal to CAAF were successful and included in 2018 NDAA. POD continues to pressure for direct appeals for victims and the right to appeal to CAAF, the military’s highest court.
Expand Eligibility for Special Victims’ Counsel to Civilians
The court-martial process is unlike any other criminal process in the country. It is confusing enough for service members, but for civilians with little or no ties to the military, the system can be impossible to understand. The military often seeks jurisdiction over cases involving non-military victims, and these survivors should not be denied the protections that have been put in place to guard against the military’s abusive practices. It is essential that civilians have access to the Special Victims’ programs to ensure that their rights are protected and to achieve justice.
Provide SVCs with Needed Case Documentation
SVCs are often hindered from providing adequate representation because they are not guaranteed basic access to investigative records, motions, or filings during a court-martial, even when such documentation relates directly to the victim’s rights. Further, the type and timeliness of access to documentation that SVCs receive can vary dramatically between judges and legal offices, adding an additional level of unpredictability to judicial proceedings. Victims and victims’ attorneys must have timely and thorough access to all records they require to represent their client and protect their rights.
Allow Victim Participation in Non-Judicial and Administrative Punishment Proceedings
In 2017, only 7.9% of reported sexual assaults were tried at court martial. For many cases, instead of facing a criminal charge, the perpetrator faces non-judicial punishment or an administrative separation board. Depending on the service, victims must be invited into these proceedings, and they are often barred from knowing the outcome of the case, even when the perpetrator is disciplined for causing them direct harm. Victims should have the right to submit a statement or other relevant information for consideration during these proceedings, and should be entitled to learn of any punishment or administrative discharges their assailant receives.
Improve System for Access to Investigatory and Court-Martial Records
The military should implement a standardized process for preparing and maintaining records from courts-martial, including transcripts of proceedings, exhibits, and all other relevant documentation, regardless of the end result of the trial. Investigative records, including case notes, should also be maintained indefinitely. Finally, in order to ensure that the military justice system is as transparent as the civilian justice system, the DoD should create an online document system that is open to the public that contains records from all court-martial and appellate proceedings.
Provide Victims with Limited Immunity for Collateral Misconduct Charges
The specter of punishment for collateral misconduct has a chilling effect on survivors and allows sexual predators to remain hidden in the ranks. According to DoD itself, “[c]ollateral misconduct … is one of the most significant barriers to reporting assault.”[1] When victims engage in minor infractions related to the assault, they are often threatened with disciplinary action, sometimes by the assailant as a tool used to silence them, and many survivors who do come forward find their careers destroyed.
Where evidence of minor misconduct is obtained as the result of a victim or witness’s own report of sexual assault, these individuals should be extended immunity from criminal, non-judicial, and administrative punishments. Such minor misconduct should include issues such as alcohol-related misconduct, adultery, or fraternization.
Similarly, in the aftermath of an assault, temporary lapses in performance are common as survivors struggle to cope with a painful and traumatic event. Some survivors struggle to concentrate on daily tasks, socialize with peers, or even just arrive to work on time. While sometimes this response will develop into a mental health condition, more often, short-term support and accommodations can help service members recover and excel in the military. By retaining qualified service members in the service, the military can avoid the cost of retraining new members and will actually improve good order and discipline.
DoD should provide a moratorium on adverse personnel actions against victims of sexual assault for minor misconduct for a period of time after a report. In addition, DoD regulations should emphasize commanders’ role in supporting survivors of sexual assault and should clarify commanders’ ability to use their discretion in disciplinary matters involving survivors.
Establish Sentencing Guidelines Based on Federal System
There are currently no minimum sentencing guidelines in the military justice system, which has led to extraordinarily disparate sentences among cases and on installations around the world. Congress should mandate the establishment of minimum sentencing guidelines, modeled upon the well-established civilian federal system. These guidelines provide a reasonable framework, while still allowing an appropriate degree of flexibility in setting individual sentences based on the specific circumstances. Sentencing should be by the military judge and not the court members, as is currently allowed.
Allow Victim Impact Statements With Full “Allocution” Rights
In June 2105, the President signed an executive order modifying Rules for Court-Martial 1001(A), giving victims the right to make a statement before the court during sentencing without being subject to cross-examination. However, a victim still may not recommend a specific sentence or any particular sentence, including asking for his or her offender to be sentenced to confinement or be punitively discharged. Congress needs to clearly establish that victims in the military have the right to full allocution at sentencing similar to the civilian sentencing process.