Scholarship Saturday: A proposal to help Senator Gillibrand’s bill better improve military justice

By Isaac Kennen

Scholarship Editor
www.caaflog.org

Readers of CAAFlog are, no doubt, well-aware, that Congress is primed to, in the near future, strip commanders of prosecutorial discretion. On Thursday, the Chairman of the Joint Chiefs of Staff, General Mark Milley, said he was open to “significant and fundamental change” in that regard. The most likely vehicle by which military commanders will be denuded of their authority as prosecutors is the Military Justice Improvement and Increasing Prevention Act (MJIA) of 2021. The official text of that bill was recently made available here on Congress.gov. The bill’s sponsor, Senator Kirsten Gillibrand, has marshaled a super-majority in support of the measure, overcoming significant resistance from within her own party.

The relative merits of the proposal have been recently discussed, extensively, by other authors on this blog. They have penned articles such as--

More from the Virtual Hill -- Fidell, Cave, Hillman, and VanLandingham on "Pink Courts" (June 10, 2021)

The Hill: Top general: Military justice overhaul proposed by Gillibrand 'requires some detailed study' (June 10, 2021)

Maurer: Comparative Analysis of UCMJ Reform Proposals (June 4, 2021)

NYT on Status of MJIA (June 3, 2021)

Paradis Tomorrow on Lawfare Live (June 3, 2021)

Prof. Dunlap Enters the Fray (June 2, 2021)

A Short Response to Fidell & Cave on Command Responsibility (June 2, 2021)

[Updated] Paradis Enters the Fray (June 1, 2021)

How far have we come (May 30, 2021)

A Reformist Response (May 28, 2021)

Christensen Responds to Schlueter and Schenck (May 16, 2021)

Cave Responds to Schlueter & Schenck (May 15, 2021)

​From The Hill today: Schlueter & Schenck on commander disposition statistics (May 10, 2021)

The question of whether commanders should act as prosecutors may have reached culmination recently, but, as this column discussed six months ago, we have long heard the drums, drums in the deep. Indeed, the very first article I wrote on CAAFlog, published in this Scholarship Saturday column more than 4 years ago, was entitled, “The ongoing discussion regarding the placement of military prosecutorial discretion.”

As we move forward, it is important to note that this robust discussion, some of which is captured in the links above, has extended well beyond the narrow question of how commanders exercise prosecutorial discretion. The military justice community's conversations have grappled with fundamental questions about how the military justice system is structured, and whether it adequately provides either justice or good order and discipline.

A primary concern in these discussions has been the failure of this commander-driven system to eliminate long-standing, persistent, documented racial disparities in the way military justice is administered. Just last month, the Associated Press reported that commanders have permitted “deep-rooted racism” to “permeate” the military jurisdiction. In particular: 

The AP . . . found that . . . rank-and-file people of color commonly face courts-martial panels made up of all-white service members, which some experts argue can lead to harsher outcomes.

Panels that are nonrepresentative may, as the AP suggests, expose accused persons to an increased risk of wrongful conviction and unfair punishment due to the panel lacking diverse viewpoints. The risk that such a thing might occur is only driven higher by the fact that military convictions and sentences are not required to be unanimous.  As the Supreme Court noted last year in Ramos v. Louisiana: 

Nonunanmous verdicts . . . dilute the influence of racial, ethnic, and religious minorities on . . . juries.

Aside from the risk that nonunanimous, nonrepresentative panels pose to accused persons, they also represent an affront to society itself. Communities of color ought to have an equal voice in disciplining the armed forces that wield lethal force in their name.

Senator Gillibrand’s bill does nothing to address these concerns. The bill as drafted leaves undisturbed the UCMJ’s preference for having commissioned officers serve on courts-martial even though, unlike the enlisted force, the commissioned officers corps is disproportionately white. The bill does not seek to change the preference for members who are senior in grade and rank to the accused even though minority representation becomes progressively less proportional as rank increases. The bill also does not abolish nonunanimous verdicts despite the fact that such a practice dilutes the voices of those few minority members who happen to make it onto a court-martial panel.

Accordingly, I propose the following (reader critiques, additions, and subtractions, are requested and welcomed):

Amendment to the MJIA by Isaac Kennen

- Originally published on June 12, 2021 by the National Institute of Military Justice on CAAFlog, here. Preserved by Archive.org, here.