FY 2023 NDAA -- random selection, expanded appellate review, but no unanimity

By Isaac Kennen

Editor at Large
CAAFlog
www.nimj.org/caaflog

Last week, Senator Gillibrand, Chair of the Subcommittee on Personnel of the Senate Armed Services Committee (SASC), announced that the personnel subcommittee’s markup of the Fiscal Year 2023 National Defense Authorization Act (FY23 NDAA) contains the following provisions relevant to military justice practitioners:

The markup amends article 25 of the UCMJ to require the randomized selection of qualified personnel for service on court-martial panels.

The markup amends article 66 of the UCMJ to authorize judicial review of any conviction by court-martial regardless of the sentence imposed.

Markup for Fiscal Year 2023, Hearing Before the Subcomm. on Personnel, 117th Cong. (June 14, 2022) (Statement of Senator Kirsten Gillibrand, Chair), (video link, timestamp 25:25 to 25:43).

Both of those provisions have been adopted by the full SASC.Executive Summary of the FY23 NDAA, Senate Armed Service Committee (June 16, 2022) (link), pp. 17-18.

Notably missing from the subcommittee’s markup is language requiring court-martial panels to be unanimous to convict. Last year, the subcomittee’s markup contained such language, as blog covered here: Scholarship Saturday: The proposal to strip commanders of prosecutorial discretion in all serious cases will be part of the Senate’s version of the 2022 NDAA, but that’s not all (also at archive.org). Last year, the SASC did not adopt the personnel subcommittee’s proposed language requiring unanimity, but it did issue this task to the Department of Defense:

The committee directs the Secretary of Defense to conduct a legal review of Article 52 of the UCMJ, to determine whether that Article is constitutional in light of [the] recent Supreme Court decision [in Ramos v. Louisiana]. The committee directs the Secretary to provide a briefing to the Committees on Armed Services of the Senate and House of Representatives, not later than February 1, 2022, on the results of this legal review and on the feasibility and advisability of revising the UCMJ to require unanimous verdicts to be consistent with Federal and State civilian practices, even if not legally required to do so.

Senate Report 117-39, at 176 (September 22, 2021).

There is no public record concerning whether the Department of Defense complied with that direction.

CAAFlog has extensively covered the need to require unanimous verdicts in all courts-martial. (A list of articles concerning the matter is included below.) The fatal problem with a criminal justice system that does not require unanimity is that the practice tends to dilute the voices of racial and ethnic minorities in the deliberation room. Justice Kavanaugh explained this effect best in his concurring opinion in Ramos v. Louisiana, 140 S.Ct. 1390, 1417-1418 (April 20, 2020):

[S]ignificant to my analysis [. . .] non-unanimous juries can silence the voices and negate the votes of black jurors, especially in cases with black defendants or black victims, and only one or two black jurors. The [remaining] jurors can simply ignore the views of their fellow panel members of a different race or class. That reality—and the resulting perception of unfairness and racial bias—can undermine confidence in and respect for the criminal justice system. The non-unanimous jury operates much the same as the unfettered peremptory challenge, a practice that for many decades likewise functioned as an engine of discrimination against black defendants, victims, and jurors. In effect, the non-unanimous jury allows backdoor and unreviewable peremptory strikes[.]

As Justice Kavanaugh makes clear, allowing non-unanimous verdicts perpetrates institutional harm upon minority communities (which are already underrepresented in the military). That societal harm is independent of any prejudice that might be suffered by an individual accused. That context makes it clear that the Army Court of Criminal Appeals’ recent decision in U.S. v. Dial is in error because it only evaluated the practice of allowing nonunanimous convictions from the perspective of whether it harms the accused. The Army Court missed the point: The implications of non-unanimous verdicts are far broader, and more profound, than the interests of a single accused in a single case. Requiring unanimity to convict is about ensuring that minority servicemembers can fully participate, with an undiluted voice, in the military justice system. That is a right guaranteed to every service member by the fifth amendment. It is a right the Army Court failed to vindicate.

In moving forward, the Department of Defense should publicly release the legal review it was required to conduct by Senate Report 117-39. Then, in order to ensure the equity and inclusion implications of this issue are fully explored, SASC should invite commentary on the Department’s findings from organizations who appeared as amicus curiae before the Supreme Court in Ramos v. Louisiana. Organizations such as: the NAACP Legal Defense & Education Fund (amicus brief here), the American Bar Association (brief here), the National Association of Criminal Defense Lawyers (brief here), the American Civil Liberties Union (brief here), the States of New York, California, Illinois, Michigan, Minnesota, Nevada, Vermont, and Virginia, and the District of Columbia (brief here), ten law professors and social scientists (brief here), the Institute for Justice (brief here), and the Innocence Project (brief here).

Some of this blog’s prior publications concerning this matter are:

Maurer’s Addendum, Donald Rehkopf (June 19, 2022)

Unanimous verdicts—update, CAAFlog editorial board (April 13, 2022)

Maurer on Unanimous Verdicts, Dan Maurer, Assistant Professor, U.S. Military Academy (April 6, 2022)

Should guilt be decided by a unanimous vote, CAAFlog editorial board (March 27, 2022)

Ongoing Litigation--Unanimous Verdicts, CAAFlog editorial board (March 7, 2022)

Do Not Fear Change: The Advantages of Proactive Reform on Panel Votes, Blake Williams, International Institute of Humanitarian Law (February 7, 2022)

Scholarship Saturday: A proposal to help Senator Gillibrand’s bill better “improve military justice”, Isaac Kennen (June 12, 2021)

Scholarship Saturday: Nonunanimous court-martial convictions are no longer constitutionally defensible, Isaac Kennen (May 22, 2021)

Scholarship Saturday: We hear drums, drums in the deep, Isaac Kennen (January 1, 2021)

 - Originally published on June 19, 2022 by the National Institute of Military Justice in CAAFlog, here. Perserved by Archive.org, here.