2000] MILITARY SENTENCING GUIDELINES 159
DEVELOPMENT, ADOPTION, AND IMPLEMENTATION OF MILITARY SENTENCING GUIDELINES
MAJOR STEVEN M. IMMEL1
The U.S. Army convicted Private First Class Looney of unpremeditated murder and sentenced him to 120 months of confinement.2 In a case with similar facts, the U.S. Army convicted a second soldier, Private First Class Saulsberry, of unpremeditated murder and sentenced him to confinement for 360 months.3 The difference in adjudged confinement was 240 months.
Seaman (E-3) Kirkman, U.S. Navy, was convicted of rape at a general courts-martial and sentenced to eighty-nine days of confinement.4 In a similar factual scenario, the U.S. Navy successfully prosecuted Hospital
Apprentice (E-2) Iberra for rape, but he was sentenced to forty-eight months of confinement.5 The confinement adjudged in these two cases varied by forty-five months.
The U.S. Air Force convicted Airman First Class Johnson of five specifications involving methamphetamine and marijuana use and distribution. He was sentenced to thirteen months of confinement.6 U.S. Army Private Goodenough was convicted of two specifications involving possession and distribution of methamphetamines. He was sentenced to sixty-one months of confinement.7 Although his case involved fewer charges, Private Goodenough was adjudged forty-eight more months of confinement than Airman Johnson.
The examples above illustrate the problem of unwarranted sentence disparity. To solve this problem, this article proposes military sentencing guidelines. Military sentencing guidelines will reduce sentence disparity while retaining much of the current military sentencing system.
Unwarranted sentence disparity exists when individuals convicted of similar crimes receive unequal sentences.8 Congress determined that unwarranted sentencing disparity does not promote the goals of federal sentencing.9 To remedy this, Congress created the United States Sentencing Commission and tasked the Commission with developing a sentencing system that reduced sentence disparity.10 Congress told the Commission
to create a sentencing system that reduced sentence disparity by "formulat[ing] federal trial judges in their sentencing decisions."11 The Commission created the federal sentencing guidelines to satisfy its mandate to reduce sentence disparity.12
Currently, the federal system and thirty-three of the states employ some form of sentencing guidelines13 to combat unwarranted sentence disparity.14 By contrast, the military justice system does not use sentencing guidelines.15 Instead, the military uses a system that allows the sentencing authority16 almost complete discretion.17 This divergent approach to sentencing is troublesome considering that the sentencing goals of the federal system and the military system are remarkably alike.18 Both systems pursue the goals of just punishment, deterrence, incapacitation, and rehabilitation. The military pursues the additional goal of maintaining good order and discipline.19
This article discusses military sentencing guidelines in seven sections. Section II discusses the military sentencing process; while Section III gives similar information for the federal system. Both sections are
divided into a history subsection and a subsection explaining the current sentencing process. These sections are included for two reasons. First, they provide the reader with a basic understanding of the workings of both sentencing systems. This is critical because the proposed military sentencing guidelines are a hybrid of the federal and military sentencing system. Second, Sections II and III illustrate that while the sentencing goals of the military and federal system are almost identical,20 the approaches employed by the two systems are dissimilar.21 Sections II and III highlight that the federal system makes sentence uniformity a priority while the military system does not.
Section IV illustrates the degree of sentence disparity that currently pervades the military justice system. Section IV discusses sentencing data collected from four branches of the military.22 It then calculates the standard deviation23 for a variety of punitive articles. This section discusses the standard deviation that attaches to several punitive articles to demonstrate the wide range of confinement that currently exists within the military.
Section V proposes that the military adopt sentencing guidelines by advancing a unique military sentencing matrix. This section provides the
framework under which sentencing guidelines would be implemented and applied in the military system.
Section VI addresses various criticisms commonly levied against the federal sentencing guidelines. This section argues that the proposed military sentencing guidelines overcome these criticisms through a number of features that are unique to the proposed military sentencing guidelines.
Section VII proposes legislative and executive changes necessary to implement military sentencing guidelines. Most of the recommended changes modify existing Rules for Courts-Martial (R.C.M.).24 While these changes would implement sentencing guidelines, they would also preserve the majority of the current military sentencing system.
This article concludes that the military should adopt the proposed sentencing guidelines as a solution to the problem of unwarranted sentence disparity.
Summary of Military Sentencing Procedures
This section provides an orientation to the military sentencing system, which, when combined with section III, will enable the reader to compare and contrast the military and federal sentencing system. Comparing and contrasting the two systems will be important when assessing the viability of adopting military sentencing guidelines.
A. History of Military Sentencing
The military code of discipline for the Colonial Army of the United States was the American Articles of War of 1775.25 The American Articles were born from the British Code. The British Code can be traced to General Adolphus's 1621 Code of Articles.26 The Articles of War outlined military court-martial procedures and were the precursor to the Manual for
Courts-Martial.27 The Articles of War of 1775 gave panel members great latitude in fashioning a sentence.28 Court-martial sentencing remained remarkably consistent from 1775 until the enactment of the Uniform Code of Military Justice (UCMJ) in 1950.29
Before the Manual for Courts-Martial was enacted in 1951, a separate sentencing hearing was not a formal part of a court-martial.30 Evidence presented on the merits was used to form the sentence when an individual was found guilty.31 An exception was the guilty plea, which incorporated a quasi-hearing, to assist the sentencing authority in forming a sentence.32 A sentencing hearing was necessary to provide the sentencing authority with the information required to fashion an appropriate sentence.33 This information was often mitigation evidence in the form of good military character.34
The pre-1951 Manuals for Courts-Martial gave the court members general guidance regarding sentencing determinations. The Manual for Courts-Martial of 1928 told members to consider former discharges, previous convictions, and circumstances that tend to mitigate, extenuate, or aggravate either the offense or collateral consequences of the offense.35
The 1949 version of the Manual for Courts-Martial directed members to consider the accused's background, uniformity in sentencing, general deterrence, and discipline.36 Of particular note is that sentence uniformity was a sentencing goal in the 1949 Manual for Courts-Martial.37
The Military Justice Act of 195038 resulted in the UCMJ and the Manual for Courts-Martial of 1951.39 Much of the emphasis behind the Military Justice Act surrounded concerns about the ability of the military justice system to fashion just sentences.40 So suspect were the sentences ajudged during World War II that the Secretary of War remitted or reduced eighty-five percent of the sentences submitted to the clemency board of review.41
The 1951 Manual for Courts-Martial made a number of changes to the military justice system, attempting to protect the rights of the individual soldier and to closely mirror the civilian criminal justice system.42 The Manual for Courts-Martial of 1951 developed a distinct sentencing hearing for every court-martial.43 Sentencing hearings were adversarial.44 The government could present aggravation evidence subject to defense cross-examination.45 The defense enjoyed wide discretion in presenting extenuation and mitigation evidence, to include the accused making a statement.46 The changes implemented in 1951 were the genesis of the current sentencing procedures.
The 1951 Manual for Courts-Martial gave members general guidance on what to consider when fashioning an appropriate sentence.47 The
1951 Manual urged members to limit the use of the maximum sentence.48
The Manual further mandated that members use their own discretion when fashioning a sentence.49 Additionally, sentence uniformity was retained as a sentencing goal.50
The next major change to the Manual occurred in 1969. The 1969 version of the Manual for Courts-Martial removed sentence uniformity as a sentencing goal.51 Abandoning sentence uniformity has its origin in the Court of Military Appeal case of United States v. Mamaluy.52 In Mamaluy, the law officer53 instructed the members that they could consider sentence uniformity when fashioning a sentence. The Mamaluy court determined that instructing the members as to sentence uniformity was inappropriate.54 The court found the sentence uniformity instruction faulty because panel members do not have the requisite information necessary to adjudge a uniform sentence.55 The Mamaluy court did not say that sentence uniformity was an inappropriate goal of sentencing.56 Rather, the Mamaluy court found that court-martial...