Plea-Bargaining in the Military: An Unintended Consequence of the Uniform Code of Military Justice

• Author: Colonel Carlton L. Jackson
• Pages: 02

MILITARY LAW REVIEW

Volume 179 Spring 2004

PLEA-BARGAINING IN THE MILITARY: AN UNINTENDED CONSEQUENCE OF THE UNIFORM CODE OF MILITARY JUSTICE

COLONEL CARLTON L. JACKSON1

The impact of the Uniform Code of Military Justice on the Army and on this Corps has been very great. Among its effects have been an overworked Court of Military Appeals, over-worked boards of review, a pipeline filled with cases at various stages of progress toward final conclusion, and confinement facilities filled with prisoners in a technically "unsentenced" status. All of these must be reduced. One way to do it is to relieve trial and appellate tribunals of the burden of passing upon needless issues of law and fact.2

1. Introduction

   When Congress enacted the Uniform Code of Military Justice (UCMJ) in 1950, neither the President nor Congress realized that the UCMJ would force the military to adopt plea-bargaining.3 After all, Congress enacted the UCMJ to level the playing field in contested trials and enhance appellate review.4 The UCMJ did not even mention plea-bargaining in 1950,5 and the Manual for Courts-Martial (MCM) did not discuss the practice until 1960.6 While this may surprise current judge advocates, there was simply no precedent for plea-bargaining in the military in 1950-1951.7 As the drafters of both documents focused on correcting past abuses in contested cases,8 they failed to consider the impact of suddenly expanding the due process rights in a military justice system, when the Army alone would try over 100,000 courts-martial in its first year of the UCMJ's implementation.9

   During the 175 years that preceded the enactment of the UCMJ, the military used the Articles of War to punish misconduct.10 Under the Articles, military justice was "command-dominated" and served the commander's will.11 Courts-martial "had few of the procedures and protections of civilian criminal justice, and protecting the rights of the individual was not a primary purpose of the system."12 Rather, the system was designed to "secure obedience to the commander," and to swiftly punish those who opposed him.13

   Judged by these standards, the old system worked extremely well-it obtained convictions in better than ninety percent of contested cases.14

   Punishment was swift because there was little, if any, appellate review.15

   So from the commander's perspective, there was no need for the distasteful practice of plea-bargaining.16 All this changed, however,

   when the UCMJ was enacted. It broke new ground in the following areas: (1) it contained provisions to prevent commanders from "unduly influencing the justice system";17 (2) the accused was provided with new pretrial and trial rights;18 and (3) appellate review was substantially expanded.19 While civil libertarians applauded these changes, practitioners quickly realized that these new due process rights came with a price tag-an immense backlog of cases at the trial and appellate levels.

   In 1953, the Army became the first service to officially encourage plea-bargaining.20 The adoption of the practice was not an altruistic act, but a pragmatic decision to avoid drowning in a sea of litigation. By the end of the decade, plea-bargaining spread to the Coast Guard and the Navy.21 The Air Force, however, did not officially endorse the practice until 1975.22

   Between 1952 and 1956, the guilty plea rate in Army general courts-martial rose from less than one percent to sixty percent.23 This allowed staff judge advocates to substantially reduce general courts-martial processing times,24 enabling them to process 11,168 general courts-martial in FY 1953, and then catch their breath as the number of such trials dropped to 7,750 in 1956.25

   By 1958, this combination of increased guilty pleas and decreased general courts-martial reduced the workload of the Army Board of Military Review (ABMR) enough to eliminate three of its seven panels of appellate judges.26 These numbers, however, do not tell the whole story because the birth of plea-bargaining occurred in the midst of the Korean War, and the dynamics of that conflict significantly impacted the development of the practice of law in the military.27

   Additionally, the pioneering Army judge advocates, warrant officers, legal noncommissioned officers, and civilians of the 1950s profoundly

   impacted this process. Their collective wisdom, along with astute guidance from the Army Judge Advocate General's Corps (JAGC) leadership, developed and institutionalized the basic tenants of military plea-bargaining that are used in courts-martial today.28 In fact, the lessons they learned in the 1950s form the basis of Rules for Courts-Martial (RCM) 705, 910, and 1001; and Military Rule of Evidence (MRE) 410.29

2. The Implementation of the New UCMJ Brings Sweeping Changes to Courts-Martial Practice

   When Congress enacted the UCMJ in 1950, it incorporated some procedures that were not generally accepted in American jurisprudence.30

   For example, Article 31 of the UCMJ provided military suspects the rights to be:

   1. Advised of the general nature of the accusation against them;

   2. Advised of their right to remain silent regarding the offense; and

   3. Admonished that any statement made by them could be used against them in trial by court-martial.31

   While the historical roots of this procedure date back to 1786, the provision had no civilian counterpart in 1950.32 Sixteen years later, however, the Supreme Court favorably noted the military practice in its landmark decision of Miranda v. Arizona.33

   The UCMJ also provided the right to a formal pretrial investigation in serious cases. During this hearing, the accused could confront the witnesses against him, and present evidence in defense, extenuation, and mitigation.34 This is in stark contrast to federal grand jury practice which to this day does not afford the accused such adversarial rights.35

   Trial practice also significantly changed. Before the enactment of the UCMJ, line officers, with no formal legal training could prosecute and defend Soldiers before courts-martial.36 After the UCMJ took effect, it required all appointed counsel in general courts-martial to be judge advocates in the Army or Air Force, or law specialists in the Navy or Coast Guard.37 Service members tried by special courts-martial were also entitled to such legally trained defense counsel, if the trial counsel was so qualified.38

   The UCMJ also changed procedures governing courts-martial. Under the UCMJ, special courts-martial can only adjudge a bad conduct discharge when a verbatim record is kept.39 The UCMJ as enacted in 1950 also required that an appointed judge advocate serve at each

   general court-martial as a "law officer."40 This law officer instructed the court on the elements of offenses and court procedures, and ruled on interlocutory questions of law.41 While not a military judge in the true sense, this requirement was a significant step in the creation of an independent trial judiciary in the military.42

   Finally, all approved sentences affecting general or flag officers; and those including the death penalty, dismissal from the service, a dishonorable or bad conduct discharge, or confinement for one year or more; were automatically appealed to boards of review (now courts of criminal appeals).43 These boards were composed of at least three judge advocates or civilian attorneys certified by the Service Judge Advocate General.44 Their mandate was to review such trials for errors in both law and fact.45

   To further ensure fairness to military personnel, the UCMJ also provided appointed counsel to represent the convicted Soldiers before the board of review.46 The Soldiers could also appeal the board's decision to a Court of Military Appeals (COMA) (now Court of Appeals for the Armed Forces (CAAF)).47 It was composed of three (now five) civilian judges appointed by the President, with the advice and consent of the Senate.48 The term of these appointed judges was set at and remains at fifteen years. 49

   In many respects, these requirements still exceed the procedural guarantees used in federal criminal appeals. For example, while civilian appellants before federal courts must pay for legal services unless they are indigent, military appellants are afforded free legal counsel at all

   stages of criminal proceedings without regard to their financial means.50

   Additionally, as a general rule, federal appellate courts are limited to reviewing questions of law, and are bound by the factual determinations of the trial court.51 Implementing such sweeping changes would have been difficult even under the best of circumstances. The task, however, became formidable in an overburdened military justice system during a time of war.52

3. Astronomical Courts-Martial Rates and the Korean War Force the Army to Adopt Plea-Bargaining

   When North Korea crossed the 38th parallel on 25 June 1950, with eight divisions and an armored brigade,53 the U.S. Army had ten divisions-four in the Far East, one in Germany, and five in the United States. 54 Unfortunately, the demobilization following World War II left these units unprepared to fight a major war in the Far East.55 The occupation force in Japan was undermanned and not combat-ready; U.S. troops in Germany were indispensable to the defense of Western Europe; and most of the divisions in the United States were hollow.56

   Consequently, as beleaguered South Korean forces fled in disarray, General Douglas MacArthur was forced to deploy an ill-equipped and undermanned force to delay the invaders and evacuate American

   dependents.57 The results were predictably disastrous. When Task Force Smith (a 540-man force) engaged the enemy, it was quickly outflanked, suffered 200 casualties, lost all its equipment, and broke into a disorganized retreat.58

   After thirty-seven months of bitter combat, the border between North and South Korea was reestablished along the 38th parallel.59 The cost, however, was high-over two million combatants on both sides...