The more? Uniform Code of Military Justice (and a practical way to make it better).

• Author: Flynn, Sean Patrick

INTRODUCTION

Army Regulation dictates that "[s]ideburns are hair grown in front of the ear and below the point where the top portion of the ear attaches to the head. Sideburns will not extend below the bottom of the opening of the ear," (1) and "[f]emales will not exceed a nail length of 1/4 inch as measured from the tip of the finger." (2) United States Navy Uniform Regulation states that on the right shoulder of a flight suit the "[w]eapons school patch (if authorized) shall be worn centered on the shoulder arch, approximately 1 inch below the seam." (3)

Uniformity matters to the professional appearance of those that serve in the Armed Forces. In some situations, uniformity may save lives. However, the importance placed on uniformity has not translated to uniform punishments for those who violate the Uniform Code of Military Justice (UCMJ). (4) In an effort to resolve this, Congress, at the request of the Department of Defense, passed the Military Justice Act of 2016 ("the Act"). (5) Among other things, the Act purports to bring military sentencing more in line with the federal sentencing system, which was created in part due to disparate sentences. (6) With the goal of increased uniformity, the federal system and federal sentencing guidelines increased the length of sentences defendants received across the board. (7) Guidelines in the military will likely have a similar effect on military sentences.

Part I of this Note examines the current military court-martial sentencing system and analyzes some of the impetus for a change. It also assesses the changes, in regards to sentencing, that the Act would bring about. Part II examines the negative effects of the federal sentencing system. Part III offers suggestions for the successful transition of the military sentencing system, in light of the responses to the federal sentencing system. This Note concludes that because sentencing guidelines are detrimental to the defendant, the military sentencing process should offer a guaranteed, but waivable, two days of preparation to the defendant post-conviction and presentencing.

1. THE CASE FOR A CHANGE IN MILITARY SENTENCING

   Prior to the UCMJ, a "commander historically had virtually unchecked control over military justice." (8) After World War II, though, protests against an unfair and unduly harsh system led Congress to adopt the UCMJ in 1951. (9) The UCMJ, and the individual services, went through many changes after its adoption in an effort to improve military justice. (10) The changes were successful enough to prompt praise from Justice Ginsburg, who described the new military justice system as "notably more sensitive to due process concerns than the one prevailing through most of our country's history." (11)

   1. The Current System

      Chapter 47 of Title 10 in the United States Code encompasses the UCMJ. (12) Articles 55 through 58 of the UCMJ govern the military sentencing process. (13) Article 53 is also relevant, declaring, "[a] court-martial shall announce its findings and sentence to the parties as soon as determined." (14) Either a panel (jury) or a military judge decides the outcome of the case. (15) If guilt is found, the deciding entity determines the sentence. (16)

      After the trial and "findings of guilty have been announced, the prosecution and defense may present [the] matter ... to aid the court-martial in determining an appropriate sentence." (17) A panel, composed of officers (and at least one-third enlisted members, if the accused is enlisted and so requests) (18) who outrank the accused, receives "appropriate instructions on sentencing]" from the military judge. (19) The required instructions must include a statement of (1) any mandatory maximum or minimum, (2) the effect of a punitive discharge and confinement or a confinement greater than six months on the accused's pay, (3) the procedures for deliberation, (4) the members' sole responsibility for choosing an appropriate sentence, and (5) "[a] statement that the members should consider all matters in extenuation, mitigation, and aggravation, whether introduced before or after findings, and matters introduced under R.C.M. 1001(b)(1), (2), (3) and (5)." (20) The military judge also informs the members of the panel of the five reasons principally considered by society in sentencing: "rehabilitation of the wrongdoer, punishment of the wrongdoer, protection of society from the wrongdoer, preservation of good order and discipline in the military, and deterrence of the wrongdoer and those who know of [the] crime[] and ... sentence." (21)

      Currently there are only a handful of articles of the UCMJ whose violation carry any sort of mandatory minimum. Premeditated and felony murder carry a minimum sentence of imprisonment for life, (22) and spying in a time of war carries a minimum sentence of death. (23) Any rape, sexual assault, forcible sodomy (violations of Article 120(a) and (b) (24) and Article 125), (25) or attempt to commit any of the above, carry a mandatory minimum of dismissal or dishonorable discharge. (26) All other punitive articles of the UCMJ state that the convicted "shall be punished as a court-martial may direct" or other similar language. (27)

      Upon conclusion of the court-martial "[t]he findings and sentence of a court-martial shall be reported promptly to the convening authority after the announcement of the sentence." (28) Although the ability has been restricted, (29) the convening authority may still grant clemency in certain situations. (30) A servicemember sentenced to more than one year confinement or a punitive discharge (dishonorable or bad conduct) receives a mandatory review from the appropriate court of criminal appeals. (31) Following review at the Service Court of Appeals, the Court of Appeals for the Armed Forces (CAAF) reviews cases (1) with a death sentence, (2) ordered to the CAAF by the Judge Advocate General of the relevant service, and (3) cases that it grants review for good cause shown upon petition of the accused. (32) Finally, a case may be appealed to the United States Supreme Court. (33)

   2. Complaints with the Current System

      Critics of the current sentencing system in the military argue that, for a panel sentencing, the jury is unfamiliar with norms for similar crimes. (34) This problem may have been exacerbated by the Supreme Court's extension of courts-martial jurisdiction to servicemembers even if the crime has no military connection. (35) While panel members may be well suited to understand the gravity and appropriate sentencing for military-related offenses, for other cases they may "have no frame of reference." (36) Members are not permitted to receive information about sentences for other comparative cases, unless it is introduced by the defense, at which point the prosecution may respond. (37) In some cases, jurors will readily admit they are unprepared and ill equipped to deliver an appropriate sentence to a convicted servicemember (38) because they are cognizant "that the accused's sentence should not be considerably different from other accused who are similarly situated." (39)

      Also relevant in a military context is that the jury members, for the most part, are subordinates of the authority who convened the general court-martial. Therefore, the UCMJ specifically prohibits unlawful command influence, because of the concern that it may cause a miscarriage of justice. (40) It states:

      No authority convening a general, special, or summary court-martial, nor any other commanding officer, may censure, reprimand, or admonish the court or any member, military judge, or counsel thereof, with respect to the findings or sentence adjudged by the court, or with respect to any other exercise of its or his functions in the conduct of the proceeding. No person subject to this chapter may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts. (41) The arguments for and against jury sentencing in the military are similar to those in civilian criminal justice. (42) One argument in favor of jury sentencing is that "jury members are better able to express the community's outrage at an offender's violation of its norms." (43) Another is that juries will not feel political pressure to sentence in a certain way. (44) But in the military context, "[t]his argument carries little to no weight ... because military judges are not elected and they report through a separate chain of command from the convening authority." (45) In fact, given the facts of command and evaluations, the military juries may actually feel more pressure to impose a harsh sentence than a military judge.

      Moreover, the current sentencing system can lead to unacceptable disparities in sentences for crimes with similar facts. For example, in November of 1994, Private First Class (PFC) Looney was with some friends before going out to the bars. (46) PFC Looney "displayed a knife to his companions and indicated that he was 'ready' if any trouble broke out and that he had the group 'covered.'" (47) After drinking throughout the evening, although not getting drunk, PFC Looney and one of his good friends (the victim) got into a physical altercation. Punches were being thrown and landed, and eventually another soldier stepped in between. (48) While the soldier was restraining PFC Looney the victim punched PFC Looney in the face. The soldier then turned to restrain the victim and PFC Looney "landed what appeared to be a direct blow to [the victim's] upper body." (49) PFC Looney immediately left the establishment and, while his friends followed, the victim collapsed, and later died due to a "lateral, penetrating stab wound to the heart, entering from the left side of the chest." (50) PFC Looney was convicted of unpremeditated...