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December 28, 2021

Signing of NDAA into law brings some (low profile) federal sentencing reform to the military justice system

Who says significant federal sentencing reform cannot makes its way though Congress these days?  As this week proved, as long as a reform involves a relatively small and low-profile part of the federal justice system, and especially if it is part of a must-pass/must-sign National Defense Authorization Act (NDAA), federal sentencing reform can become law without even a peep in the press.  Indeed, I would be entirely unaware that Prez Biden's signing of the NDAA was worthy of this blog post, but for a helpful colleague ensuring I did not miss the sentencing piece of the military justice reform story in this year's NDAA.

Of course, as can be found in various press pieces, there was considerable attention given to one high-profile piece of military justice reform in the NDAA: "Democrats applauded provisions in the bill overhauling how the military justice system handles sexual assault and other related crimes, effectively taking prosecutorial jurisdiction over such crimes out of the hands of military commanders."  But, as this Just Security piece laments, the new law only makes "piecemeal changes" in this arena, because "the FY22 NDAA military justice reform provisions transfer only a narrow class of crimes out of the chain of command and into the hands of military lawyers under their respective service secretaries."  Helpfully, in addition to giving extensive critical attention to the high-profile reforms of the NDAA, this Just Security piece also just summarizes the sentencing story:

Revolutionizes military sentencing. The NDAA mandates that sentencing for all non-capital offenses be conducted by military judges instead of the current practice, which allows for panel (jury) sentencing.  It provides for offense-based sentencing, as opposed to the current unitary model (imposing a single sentence for all offenses) and directs that non-binding sentencing guidelines be created. This sentencing reform is a much-needed step forward, though it leaves in place the only criminal justice system in the United States that tolerates non-unanimous votes to convict, a practice the U.S. Supreme Court found unconstitutional for states last year. 

Because I tend to be a fan of jury sentencing, but this press article from a few months ago, headlined "'Crapshoot' Sentencing by Court-Martial Juries Likely to End, Advocates for New Legislation Say," highlights the disparity problems it seemed to produce in the military system:

Court-martial sentencing by juries may go the way of flogging, a change many military justice experts say is long overdue. Military judges instead would hand down sentences based on federal guidelines as part of military justice system reforms proposed in the 2022 National Defense Authorization Act....

Supporters say the revision would make sentences in military trials fairer, as well as more consistent and predictable.  "People convicted of sexual assault, one guy gets five years, the other guy gets no confinement," Don Christensen[, a former Air Force prosecutor and president of Protect Our Defenders,] said. "In drug cases, you'd also see huge disparities with no justification. With shaken baby cases, sentences were all over the place."

Military defendants currently may choose whether a judge or a jury, called a "panel," decides their cases, including sentencing.  Military jurors have little experience, context or guidance when determining sentences, Christensen said.  That is magnified by the fact that under the Uniform Code of Military Justice, jurors' sentences can range from no punishment all the way to lengthy prison terms, he added....

Proposals to end it in the military date to at least 1983. The Pentagon proposed an overhaul in 2016, but the idea was dropped.

Critically, in addition to shifting sentencing from juries to judges, the new NDAA calls for the creation of "sentencing parameters" and "sentencing criteria" to guide military judges with "no fewer than 5 and no more than 12 offense categories."  These new parameters and criteria are to be created by a "Military Sentencing Parameters and Criteria Board" with five members, all judges, within the next two years.  In other words, a brand new set of (more simple) federal sentencing guidelines are due to be created for the military justice system.  All sentencing fans should be sure to keep an eye on this process, and one can hope that it might provide some useful lessons for reform to the civilian federal justice system.

December 28, 2021 at 05:48 PM | Permalink


DOD should just be put out of the business of adjudicating serious crimes of a nonmilitary nature committed in a judicial district. We have life tenured judges and independent jurors in district court. Why accept a second-rate alternative both for victims and accused?

Posted by: Jason | Dec 29, 2021 10:21:26 AM

As someone who has done defense work, almost exclusively for the past 40 years, most of which was/is in military forums, the sentencing "reforms" in the NDAA are simply idiotic. First, until about 1916, all serious, non-military offenses, e.g., murder, robbery, rape, etc., were indeed handled by civilian-State or Federal-prosecutions as the U.S. military had no jurisdiction over them. The lone exception were offenses committed onboard naval vessels. As WW I loomed and it became apparent that the US was going to be committing legions of troops to the battlefields of Europe, extra-territorial jurisdiction was added.

That itself was problematic, primarily because the lack of procedural protections for those accused, so from 1948-50, a number of Congressional Committees studied military justice reform, resulting in the enactment of the Uniform Code of Military Justice [UCMJ], 10 USC 801 et seq. Congressional intent was that, unless otherwise specified, 10 USC 836 mandated to the extent practicable, that courts-martial follow practices in federal district courts. And, in some ways, the military procedures far surpassed their civilian counterparts. E.g., long before SCOTUS decided Miranda, the UCMJ via 10 USC 831 mandated "rights advisements" to all suspects being questioned, whether in custody or not; and, in lieu of a Grand Jury, an investigation per then 10 USC 832, focused on two things: probable cause for the offenses alleged, and discovery by the defense. The "discovery" provision was removed at the "suggestion" of military prosecutors some years back and the current "preliminary hearing" process is a jurisprudential farce.

The push for military sentencing by military judges is just another nefarious scheme to increase sentences, contrary to the long-standing [since the time of George Washington] procedures for individualized sentencing. The reality of the military judges' corps is that the vast majority are former prosecutors, many of whom have little "real world" experience in litigating complex criminal cases, and the defense side has even less experience. Thus, the "disparities" that Col (ret) Christensen complains of above, were intentionally built into the system.

The only thing that can be said about the structure of the new "guidelines" sentencing and appellate review, is that it will employ a legion of lawyers for many years. The amended procedures do not address Apprendi issues; they make the guidelines mandatory contrary to Booker, and generally do little to comply with SCOTUS sentencing jurisprudence.

So in the end, those unfortunate souls who face criminal prosecution under the UCMJ when the guidelines go into effect, have this as their criminal "justice" system: (1) Prosecutors who draft charges, will use the guidelines to coerce pleas, as evidenced by federal issues in this area; (2) military judges who have minimal "tenure" provisions; (3) presiding over Article I, courts-martial; (4) sentencing guidelines created by Article I, military judges [the vast majority being long-time prosecutors prior to donning their Black Robes]; (5) elimination of sentencing by "Members" (Panel), which destroyed a salient feature of long-standing sentencing procedure, i.e., an Enlisted Member facing a court-martial could demand that the panel have at least 1/3 Enlisted Members who, if convicted, would then sentence the Enlisted Accused; (6) Article I, appellate Courts of Criminal Appeals, which have broad sentencing-reduction powers [significantly restricted now by the NDAA's procedures]; and (7) The guidelines for sentencing will be made by the Chief Trial Judges of the respective services.

While the guidelines' process may be new in the military criminal system, it begins in an era ignoring Apprendi, Booker, and their progeny. Hardly a robust system which our military member deserve.

Posted by: Donald G Rehkopf, Jr. | Dec 29, 2021 11:47:32 AM

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