OPTIMIZING MILITARY INSTALLATION JURISDICTION.

• Author: Korsak, Dean W.

1. Introduction: Deficiencies in Military Installation Jurisdiction II. Sources of Military Command Jurisdiction A. UCMJ Jurisdiction over Service Members and Military Retirees B. Installation Entry and Exit Inspections Apply to All Persons and Property C. Internal Security Act--Defense Property Security Order III. Civilian Jurisdiction Applicable to Military Installations A. Federal Jurisdiction 1. Criminal Laws of General Applicability 2. Enclaves: Exclusive, Concurrent, and Proprietary Jurisdiction 3. Assimilative Crimes Use State Law as a Federal Offense Gap Filler B. Tribal, Foreign, and State Jurisdiction C. Military Cases Where Civilian Coordination or Prosecution is Mandatory 1. State Coordination Required by Military Regulation 2. Notice, Conferral, or Referral Required by the Department of Justice D. Military Cases Where Civilian Coordination is Prudent 1. Impaired Driving Cases and the Need for Public Safety Assurance 2. Drug, Sexual Assault, and Cases with Recidivism Sentencing Enhancements 3. Article 134 Offenses Where UCMJ Authority is Administratively Restricted 4. Cases Allowing Firearm Background Check Entries IV. Steps to Optimize Military Jurisdiction A. Local Military Command Approach B. DoD Enterprise Approach V. Conclusion Appendix--Template Defense Property Security Order I. Introduction: Deficiencies in Military Installation Jurisdiction

   A chasm between military and civilian criminal justice systems highlights a loss of understanding of how these systems should optimally interact. Concerns exist because of an abundance of overlapping criminal jurisdiction, not because there are deficiencies in military or criminal laws. Military command authority coexists with civilian criminal jurisdiction. Civilian criminal laws apply to both civilians and military service members on a military installation, just as they apply to individuals in local communities. Jurisdictional overlap has led to public safety vulnerabilities, inconsistent enforcement, and a level of dysfunction and confusion among military law enforcement that is easily preventable. This article explains how military commanders, military law enforcement personnel, and civilian authorities can improve their use of jurisdictional tools to enhance military installation security and public safety.

   Because every military installation is geographically unique, overlapping jurisdiction at each installation will also be unique. Lack of optimization creates the opportunity for dysfunction. This is due to the complex nature of overlapping jurisdiction and frequent military law enforcement rotations where local geography and jurisdictional status must be quickly learned. Competence in this area requires military installation legal offices and law enforcement to understand the basics of overlapping jurisdiction and also requires close working relationships with federal, state, and local authorities.

   This article focuses on increasing understanding of jurisdictional overlap specific to federal property where military and defense activities occur. The information provided, as well as the supporting authorities, serves to enhance the knowledge base of military law enforcement personnel, as well as civilian prosecutors and law enforcement personnel, so that they can decisively respond to incidents, even though multiple authorities maintain jurisdiction where incidents occur. This material will also empower those within the justice system, as well as law enforcement personnel, with additional tools and ideas to evaluate possible charges and alternate forums for certain cases.

   Substantive discussion begins at Section II, which explains the sources of military command jurisdiction and how commands can use these authorities to cover all incidents on installation property, regardless of legislative jurisdictional status of installation property. The Appendix provides a template Defense Property Security Order to assist practitioners in implementing the recommendations throughout this article.

   Section III summarizes the civilian criminal jurisdiction landscape, some aspects of which apply to every military installation. There is a brief discussion of federal jurisdiction, including generally applicable federal criminal law, federal enclave law, and the Assimilative Crimes Act, all of which are currently used to prosecute service members accused of certain offenses. This is followed by a discussion of the sovereign rights of tribal, foreign, and state governments to prosecute service members for crimes that take place in their geographical jurisdictions. Such sovereign jurisdiction extends within certain military installations where a state did not cede jurisdiction to the federal government. Section III concludes by discussing types of cases where prosecution of service members by civilian authorities is mandatory and other cases where civilian coordination or prosecution is prudent to enhance public safety.

   Section IV discusses steps that military authorities can take to optimize jurisdiction. The discussion highlights the benefits of an enterprise-wide approach that could apply to all installations and defense property, regardless of service component. Military departments may welcome an enterprise-wide approach in the age of joint bases, privatized housing, and disparity in how military departments prosecute civilians and service members under departmental regulations and practices.

   This article concludes that all military installations and defense property locations should maintain only proprietary jurisdiction, implement a defense property security order, improve coordination among military and civilian authorities, and charge cases in the forum that will best enhance public safety.

2. Sources of Military Command Jurisdiction

   Military commands and directors of defense operations are responsible for the protection of personnel and property entrusted to their control. [1] The primary source of military jurisdiction is the Uniform Code of Military Justice (UCMJ). The UCMJ is a criminal code applicable to all federal military service members. Military jurisdiction also includes authority over geographical locations under federal military control. [2] This section discusses the unique criminal jurisdiction that exists over service members and how that authority extends into military retirement. This section then discusses the authority for military commands to inspect and search all persons and property entering and exiting certain facilities. This section discusses unique statutory authority to heighten security and how military commands can better use this authority. Finally, this section provides a foundation to appreciate the overlap military jurisdiction has with civilian criminal jurisdiction. The reach of the UCMJ is unlike civilian jurisdiction; it is not geographically based--authority exists over the individual service member, regardless of geographic locale.

   1. UCMJ Jurisdiction over Service Members and Military Retirees

      Establishment of the UCMJ military justice system required reconciliation with the constitutional criminal justice norms, such as grand jury indictment and trial by civilian jury. [3] It is well-settled constitutional law that courts-martial jurisdiction "is not exclusive, but only concurrent with that of civil courts." [4] This means even if the UCMJ did not exist, society maintains effective systems to adjudicate crimes committed by service members both on and off military installations.

      Historically, military authorities had no jurisdiction over capital offenses, such as rape, that took place within the geographical limits of the United States in times of peace. [5] This meant civilian authorities adjudicated the most serious offenses perpetrated by a service member. The historic model was based on the foundational principle of civilian oversight of military activities embodied in the Constitution. [6] The historic norm was that "a military tribunal ordinarily may not try a serviceman charged with a crime that has no service connection." [7] The UCMJ still includes many military-specific offenses, specifically: fraudulent entry to service, desertion, absence without leave, missing movement, contempt toward officials, disrespect towards superiors, insubordination, dereliction of duty, disobedience of lawful orders, cruelty and maltreatment of subordinates, mutiny and sedition, unlawful detention, noncompliance with procedural rules, misbehavior before the enemy, subordinate compelling surrender, improper use of a countersign, forcing safeguard, failure to secure captured or abandoned property, aiding the enemy, mishandling military property, improper hazarding of a vessel, drunk on duty, misbehavior of sentinel or lookout, malingering, conduct unbecoming an officer, and any act that prejudices good order and discipline or is of a nature to bring discredit to the armed forces. [8]

      Enactment of the UCMJ was a comprehensive reform to modernize and standardize and improve a deficient military justice system. [9] The UCMJ is often advantageous in lieu of civilian prosecution as it provides a streamlined approach to military discipline. [10] Enactment of the UCMJ sought to accomplish two primary goals: to "unify the service codes of military justice," and to "increase public confidence" in the military justice system. [11] Although a goal of the UCMJ is to increase public confidence, the UCMJ is a code without general applicability, meaning it does not apply to the public at large, only specifically identified personnel. [12]

      The best example to describe the reach of the UCMJ over service members is to envision misconduct occurring in a remote location, such as aboard a submarine, a deployed location outside of the continental United States, or, looking to the future, at an outpost in space. Regardless of location, if a service member commits misconduct, the UCMJ provides jurisdiction for the unit commander to...