Military Justice

AuthorJoseph W. Bishop, Jr.
Pages1726-1727

Page 1726

The Constitution, in language taken from the ARTICLES OF CONFEDERATION, empowers Congress to "make Rules for the Government and Regulation of the land and naval Forces." Congress has enacted Articles of War and Articles for the Government of the Navy since 1775, but in 1950 the two systems were fused in the Uniform Code of Military Justice (UCMJ).

Criminal justice under the UCMJ resembles that in civilian courts more than it differs. As in most states, the type of trial court depends on the gravity of the offense. Petty offenses are dealt with by nonjudicial punishment or summary court-martial; more serious offenses may be tried before a special or general court-martial. The types of court-martial differ in number of members and in the maximum punishment they may impose. The rules of EVIDENCE are about the same as in the federal courts; and a defendant tried by a special or general court-martial enjoys the RIGHT TO COUNSEL at government expense. The Supreme Court held in Middendorf v. Henry (1976) that

Page 1727

the right to free counsel does not apply in summary courts-martial, which more closely resemble administrative hearings than criminal trials.

The major difference between military and civilian criminal justice is the absence of a jury. The members of the court are appointed by the convening authority, who can, theoretically, "pack the court." However, the accused can avoid the possibility of command influence by electing trial by a military judge sitting alone, who is responsible only to the Judge Advocate General of his service. When the military judge sits with members of a court-martial his role is like that of a civilian judge, except that the members determine the sentence if the accused is convicted. There is an elaborate system of review but, except in a limited class of cases, APPEAL to the Court of Military Appeals (three civilian judges appointed by the President) is not by right.

The UCMJ does not provide for review by any civilian court: findings and sentences of courts-martial, as affirmed under the code, are "final and conclusive" and "binding upon all ? courts ? of the United States." The Supreme Court has always held that, absent provision by Congress, there can be no direct appeal from the decisions of military tribunals. The federal courts have, however, developed several techniques of collateral review?notably HABEAS CORPUS, MANDAMUS, and suits for back pay in the COURT OF CLAIMS...

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