One 'Get Out of Jail Free' Card: Should Probation be an Authorized Courts-Martial Punishment?

• Author: Major Tyesha E. Lowery
• Pages: 06

ONE "GET OUT OF JAIL FREE" CARD: SHOULD PROBATION BE AN AUTHORIZED COURTS-MARTIAL PUNISHMENT?

MAJOR TYESHA E. LOWERY*

1. Introduction

   First Afghanistan. Then Iraq. Now Iraq . . . again. He was distraught-not because of the hardships of yet another deployment- that's what Soldiers do. He could handle another deployment, but his wife could not . . . not for fifteen months. His wife responded just like he thought she would. She left. She left him alone to take care of their two young children. With no friends and family to leave them with, he feared what would happen to his children. Maybe he should get out of the Army for lack of a family care plan? But he loved the Army, and his achievements reflected it. Maybe he could stay in the rear. No, as a team leader, he would not feel right staying behind while his men were in the fight. Plus, his command frowned upon such requests as a sign of cowardice although they never stated such. Believing that he had no other recourse, he absented himself without leave. When he returned three months later, he was court-martialed. His only sentence was a bad-conduct discharge with a recommendation from the military judge to the convening authority that the discharge be suspended.

   Some say he got off easy. After all, he did not have to go back to Iraq. But he stood ready to serve. His record was otherwise unblemished. What was the likelihood that the convening authority would suspend his bad-conduct discharge? Slim to none? But what if the military judge had the option of sentencing him to probation instead of only making a recommendation to the convening authority to suspend his sentence?1

   Today, the only authorized punishments that a court-martial (special courts-martial2 and general courts-martial3) may adjudge are a reprimand, forfeiture of pay and allowances, a fine, reduction in pay grade, restriction to specified limits, hard labor without confinement, confinement, and a punitive discharge.4 While this list initially sounds expansive, affording the military judge or panel much room for creativity in fashioning an appropriate sentence for a particular accused, a military judge or panel is not authorized to adjudge probation. When one considers that probation is the most common criminal sentence adjudged in U.S. federal and state courts today,5 but is not available for the convicted servicemember, this expansive list suddenly seems more restrictive.

   Then, when one considers the rapid rate that the military is allowing ex-convicts to enter the military under moral waivers, the question becomes even more perplexing. Since October 2006, "more than 8,000 of the roughly 69,000 recruits have been granted waivers for offenses ranging in seriousness from misdemeanors such as vandalism to felonies such as burglary and aggravated assault."6 Almost twelve percent of new active duty and Army Reserve troops in 2007 received "moral waivers."7

   With the prolonged wars in Iraq and Afghanistan, and others potentially brewing, do these numbers really reflect a belief that these individuals have been rehabilitated or do they reflect the amount of risk the Army is willing to accept to satisfy the simple economic principle of supply versus demand?8

   Though we publicly claim that the increase in moral waivers is not based on mission accomplishment,9 public sentiment favors the latter- criticizing the armed forces for "scraping the bottom of the barrel"10 to meet recruitment needs. But does motive really matter? At the end of the day, we must all agree that "[a] volunteer army-even one including ex-convicts-will fight . . . ."11

   Why is the military willing to give civilian ex-convicts12 a chance to prove that they have indeed been rehabilitated, yet we have no such formal system that affords a convicted accused the same opportunity? Why does the Army take more risks on others than on its own Soldiers? This article argues for empowering a court-martial to sentence a convicted accused to probation, a form of punishment that provides a meaningful opportunity to rehabilitate while satisfying the simple principle of supply versus demand.13

   Since a formal probation system would be new in the military, section two of this article begins with an overview of the civilian probation system. Section three examines the current military justice system-the derivation of authorized punishments and their competing objectives. Section four addresses the pros and the cons of implementing a formal probation system in the military. Section five discusses how to empower a court-martial to adjudge a sentence that includes probation. Finally, section six suggests an alternative to empowering courts-martial to adjudge probation-empowering courts-martial to suspend punishment.

2. The U.S. Federal Probation System14

   A. The Road to the Modern-Day Federal Probation System

   In August 1841, Boston boot maker John Augustus, a religious and wealthy man, posted bail for a man accused of drunkenness.15 Augustus urged the Boston Police Court to defer sentencing the man for three weeks.16 Augustus, having had experience working with alcoholics, also urged the court to release the man into his custody in the meantime.17

   Augustus called the act "probation," derived from the Latin term probatio, which means "period of proving or trial."18 Despite the brevity of his probationary period, the man convinced the judge that he had been rehabilitated and was ordered only to pay a fine at the end of his probation.19

   Over the next fifteen years, Augustus similarly assisted more than 1900 individuals.20 Augustus did, however, screen his applicants- mainly assisting "those who were indicted for their first offense, and whose hearts were not wholly depraved, but gave promise of better things."21 In addition to making an impartial report to the court, Augustus helped his charges with housing, employment, and education.22

   Augustus' probationers performed remarkably well and seemingly reformed their lives.23 Even then, Augustus frustrated law enforcement officials "who wanted the offenders punished, not helped."24

   Nevertheless, it was difficult to argue with his success and his ideas spread.25 "In 1878, Massachusetts was the first state to adopt a formal probation law for juveniles."26 By 1910, twenty-one states had probation statutes27 and "[b]y 1956, all states had adopted adult and juvenile probation laws."28

   In 1925, Congress passed the Federal Probation Act which authorized courts of original jurisdiction to place a convicted defendant on probation when it found "that the ends of justice and the best interests of the public, as well as the defendant, will be subserved."29 The Act gave great discretion to the court-allowing the court to fashion the terms and conditions of probation "for such period and upon such terms and conditions as they may deem best."30 Furthermore, the Act allowed the court to modify the terms of probation or revoke probation with no parameters.31 Probation officers were charged with informing the court of the probationers' compliance of the imposed conditions.32 Though the Act mandated that probation officers serve free of charge,33 it gave probation officers a great deal of power over probationers, giving them the power of arrest without a warrant and authorizing them to "use all suitable methods, not inconsistent with the conditions imposed by the court, to aid persons on probation and to bring about improvements in their conduct and condition."34

   Concerned with the virtually unfettered discretion granted to federal trial courts under the Federal Probation Act of 1925, the National Commission on Reform of Federal Criminal Laws (National Commission) began urging in 1971 for greater certainty and uniformity in sentencing and for a more comprehensive sentencing law.35 On March 3, 1983, Senator Kennedy presented a proposal to the Subcommittee on Criminal Law, based in part on the National Commission's recommendations.36 That proposal, the Sentencing Reform Act of 1983 (SRA), 37 later became "the first comprehensive sentencing law for the federal system."38 A discussion of the impact of the SRA on our modern-day federal probation system follows.

   B. The Modern-Day Federal Probation System39

   One of the most noteworthy achievements of the SRA40 is that it created the United States Sentencing Commission, an independent commission within the judicial branch, to establish sentencing policies, practices, and guidelines for federal courts.41 The other particularly noteworthy thing that the SRA did was to make the application of the Federal Sentencing Guidelines (Guidelines) binding on federal courts.42

   Though the SRA marked great change in federal sentencing as a whole, there are several things provided under the Federal Probation Act of 1925 that still ring true today under the SRA, the Guidelines,43 and recent Supreme Court decisions.

   1. The Probation Officer and the Presentence Report

      Similar to the Federal Act of 1925, the SRA relies heavily on probation officers to make modern-day probation work. Beginning at the point of arrest, a probation officer is appointed to a defendant to conduct a presentence investigation and report.44 The presentence report must identify the applicable Guidelines, the defendant's offense level and criminal history category, the sentencing range and the sentences available, matters relating to the appropriate sentence, and matters such as the defendant's history, characteristics, and financial condition.45

      Except in very limited instances, a judge may not impose a sentence, probation or otherwise, unless a presentence report is conducted.46 A

      probation officer must serve a copy of the presentence report on the defendant, his attorney, and the prosecutor at least thirty-five days before sentencing.47 The court can order the probation officer not to disclose his recommendation to anyone except the court.48

   2. Making the Decision

      Despite the SRA's goal of uniformity in sentencing, probation is...