Abolition of Court Member Sentencmg in the Military

• Author: Major Kevin Lovejoy
• Pages: 01

1. Introduction

   The courtmartial panel has convicted the accused of an offense. Counsel for the government and far the accused present evidence in awavation and extenuation and mitigation, respectively. The military judge provides the members with sentencing instructions and the court closes far deliberation on an appropriate sentence for the accused. The members enter the deliberation room and the following caiioquy occum:

   PRESIDENT "Alright, before we vote on a sentence, does anyone have anything they want to discuss?"

   MEMBER 1 "I do. We ail know the accused was lying through his teeth on the merits. I think we aught to sentence him to the maximum punishment."

   MEMBER 2: "We've heard this story before about how he came from a broken home and was abused bv his father. Let's not make the same mistake we did last time when we didn't give the accused a Dishonorable Discharge."

   MEMBER 3: "I'm confused. We heard B lot of testimony about the accused's lack of rehabilitative potential. Just what exactly does that mean? Because he doesn't have any should we give him a longer sentence orjust discharge him?'

   MEMBER 4: "I don't know, I can't help but think that 'but for

   KEVIN LOVEJOY'

   the grace of God go you or I ' Maybe we should be a little bit easier on the guy.'

   MEMBER 2. "Are you kidding? We gave him the benefit of the doubt on the charges he pleaded not guilty to, and then after we acqut him, the judge tells us that earlier he had pleaded guilty to a separate offense That ticks me off I think he deserves the maximum sentence."

   MEMBER 6: "I kind of agree with you-after ail, he did makean unsworn statement durmg sentencing and the judge says that he can't be cross-examined. If he was telling the truth he would haw made a sworn statement."

   MEMBER 5' "I thought we had agreed during findings that because it was a reaiiy close case, we'd go ahead and convict him of the offense, but then give him a break during sentencing."

   MEMBER 7: ''That's nght. Plus, the victim was a bum who got what he deserved Why punish this guy, who's got a goad military record, just because Some degenerate started a fight that the accused decided to finish?"

   MEMBER 4: "My biggest concern is how this will affect his retirement benefits. Anybody got any idea how that works?"

   MEMBER 8. "Not exactly, but my brother-in-law is a parole officer, and he telis me that the average prisoner gets out on parole after serving less than a third af the adjudged sentence. So we better not be too lenient."

   MEMBER 2: "That brings up anather issue. If this guy pleaded guiity he must have a pretnai agreement with the general I know that we're not supposed to concern OurSelves with that, but it sure seems to make this whole process a waste of time "

   MEMBER 4: "The only other thing I would like to mention ISthat this crime LS awfully similar to the trial last week. The general sure was upset about the results of that court-martial."

   MEMBER 1' ''I know the judge told us to disregard it, but I can't help but think about the trial counsel asking that defense witness if he knew that the accused was an alcohol rehabilitation failure."

   PRES: "Weil, let's get down to busmess. Everybody write down what they think 1s an appropriate sentence . .

   MEMBER 5. "We're Supposed to rote on the least severe proposed sentence first Does anyone know whether a Bad Conduct Discharge-, eighteen months, and a fine but no forfeitures, is less than a Dishonorable Discharge and twelve months confinement, with two-thirds forfeitures?"

   Although the above scenario is admittedly a bit extreme, It is intended to demonstrate the multitude of issues that may cause a panel to reach an uqust sentence for an accused. Knowing that these are the factors that court members might consider during sen.

   'I

   tencing deliberations, bath the accused and the government are better served when a military judge, specifically trained in the laws and principles of sentencing, decides the sentence of the accused. Because so many inappropriate and irrelevant factors may be considered by members during their sentencing deliberatians, the military must establish sentencing procedures that minimize the risks of these occurrences.

   The risks of improper sentences from court members could be reduced through continued piecemeal changes to the current procedural rules governing sentencing. A far more efficient and effective change, however, is to eliminate court members from sentencing completely, and to turn the entire process over to military judges.

   The normal courtroom procedure in this country is for the trial judge to determine the appropriate punishment for an offense. Inthe federal criminal system and in forty-two of the fifty states, judges decide the sentences in all noncapital criminal trials.' Jury sentencing has been criticized for a number of years. Some commentatom have charactelized it BS "sanctified guessmg,"z "sentencing by l~ttery;'~a "crapshoot,"' and ''amateur brain surgery."6 Although he did not question the constitutionality of jury senteneing, Justice Potter Stewart did have "serious questions about the

   "he mlirtary'i procedures for capital seenfencmg are beyond the "ope af Lhrs fhe613. arher than to ohrerve that the deckton whether to sentence an accused fa death 13 a matter far t w wave LO place an the rhoulderr of one p m n , no mafrcr how well tramed they may be m the selenee of sentencing. Cansequen~ls,thk pmponal to adopt mandatory mrlrfary iudge done senfenemg does nor address recommended procedures far eapitd E-8

   ZCharles W Webiter, Jvry SenMiclng-Crab-Eq Jwlm, 14 Sw L.J 227 (1860)

   3Russel U'.G Grove. Sentmnng W m Word a Mme U W m , lers Unin-I m d

   SWmn S(CmrL-Uortia1

   SmlPMw, ARm LAN'., July 1888, at 28 n.23 (crfmg tertlmany of MaJor General Kenneth J Hodsan before the Adilsary Commission to the Met- Juifrce Act of 1883).

   .lh WnlonlBht Into thecurrent attitudesand opimond ofthase affected by the rntencrng process, survey8 were provided to pn~onerr 81 the Umted States Dlwlphn-pry Earracks at Fort Leavenwmh, Kansas, convenlng aufhontiea, staff judge advo-cafes, mitary judges, defense counsel, and seenior commanders attending the Senlor Officer Legal Onemation (SOW) Course at The Judge Advocate Generars School. Uruted States Amy, Chadoflesvdlle, Yamma Respo~eawere received from fifty-four defense COU-I, amty-elght pnsanerr, twenty-flve SOM Course attendees, fony-seven conuenlg aurhodlies. flfleen millf- judges. and sky-eight staff judge advocates Copies af thia survey and the 'eoponsea am on file m the bhrary of TheJudge Advocate General's khool This survey does not profess to be a model of xienfific accuracy Nevertheless, II represents the mslghts of B large wrtmn of those lndlvlduair involved in the adminufration of mnlrtaryju,tice References Lo responsex to fhlr survey jhereinnfter Them survey], along with B survey conducted bs the AdvisaryCammiar,ontotheMihtary Justice Act of 1883,willbe made throughoutthe remaining ten. SBB turn note 10 (dlseumg the survey Conducted by the Advsory Commusion to the Mdtary Justice Act af 1983) See also I*, note 167 (surveyresponser from defense counsel)

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   L REV BBI(1867)

   wisdom of such a practice "6 five of the thirteen states that at one time used the jury far sentencing have done away with that practice.'

   Criticism of the military practice of court member sentencing can be traced to the historic Cmzudm-Amell dispute foilowing World War 1.5 Court member sentencing has come under more recent review dunng the revision of the 1984 Manual for Courts-Martial (1984 Manual). Congress tasked the Advisory Commission to the Military Justice Act of 1883 to conduct an in-depth analysis of sev-eral issues related to military justice including "whether the sentencing authority m courts-martial cases should be exercised by a military judge in all noncapitai cases to which a military judge is detaied."*

   Although many consider sentencing to be the most important phase of a criminal trial in terms of its impact on an accused's life,l0 it perhaps has been overshadowed by the attention awn to the guilt or merits portion of B tnal. Numerous statutes and rules of criminal procedure deai with proving the guilt or innocence of an accused, while very few are focused an determinmg an appropriate sentence once criminal guilt is proven beyond a reasonable doubt. Even the Constitutmn reflects a preoccupation with guilt as opposed to punishment. Of all the articles and amendments to the Constitution related to cnminal trials," the only restriction with respect to pun- SGiaceo Y Penniylvanla, 382 U s. 338, 405 (1866) (Stewart. J coneurnog). -Indiana. Montana Xonh Dakota, Georda, and Alabama have elimmafed jury

   *TenyW Brawn TheCiawder-AnseilD~ nirEmmg-aJ@meraIsom- "el T Ansell, 35 MIL L REI 23 (1867) One of General AnseUs nYmerOYS pmpaalr was that the milllary caunjvdge advocate ' determine and imp" an sppropnate ientenee See also Robert D. Byem, The Cowl-MorLiol ru Sentmnng Agency Mde stom m ,Wtllavine. 11 MIL L RE, 105 (18681: M Scott Mnagerr. The Mihtw Sentenemg Procedure-Time for a Change 72 (1974) (unpublished LLM them The Judge Adroeate Generalb Ehool, tinired Sfales Amy!

   -1 Adrimry Commlsson to the Mihfari Justlee Act of 1883 Rewn at GI [hereinafter Repan]. The Advtsan Committee recommended maintaining the status quo,but not Without much debate and two separate oplmm9

   se",P.cmg in "oncapltal enmlnal trials

   "'Cralg Reese Jury Senhmg in lbms hmJm 0 Change?. 31 S h x L J 331 (1880) (renrencmg Iat anee. the mobf crltied and CnflClZed phase of the cmmal ju~fice synem). JOB aiso timfed States Y Dihanceseo 448 U.S 117. 148-50 (18801 (Brennan J , diisentmg) (senrencmg phase aa cnfieal aa gullr-mnaeenee phase) Advrlory Commissioo Lo the Mlhlary Jumce Act of 1983 Survey at 25 (60% of defense coumel beheve seenfencms considerations mare mwnant than fmdmm with resmct

   . . to peleciingfomm) The Advisory Commmmn eandveted B comprehensive survey ofcomerung...