December 01, 2016

Defense authorization awaits president’s signature; preserves rights for accused

A $619 billion fiscal year 2017 national defense authorization bill presented to the president Dec. 14 includes proposals that substantially reform court-martial procedures in the military but also retain procedures of interest to the ABA.

S. 2943, which passed the House by a 375-34 vote on Dec. 2 and the Senate by a 97-2 vote on Dec. 8, aligns with ABA policy by retaining an accused’s right in a court-martial to choose whether to be sentenced by court members or by a military judge in non-capital offense cases. If an accused chooses to be sentenced by a panel, the panel will assign a “unitary” sentence for all offenses as it does now. If a military judge does the sentencing, a new provision on which the ABA does not have policy would require segmented sentencing for each offense similar to the practice used in most civilian proceedings.  

In a May 5 letter to the House and Senate Armed Services Committees, the ABA expressed serious concerns about proposals to eliminate an accused’s choice of sentencing forum ─ a right that has been in place since 1968 ─ and replace it with a process mandating judge-alone sentencing on all non-capital cases.

“Preserving broad rights like this afforded to servicemembers prosecuted in the military justice system is essential to meeting its overarching goals of justice, good order and discipline, while maintaining public confidence in its fairness and integrity,” then ABA President Paulette Brown wrote.

In two other areas on which the ABA does not have policy but expressed concern, the legislation does not mandate the development of sentence parameters for military courts or rescind all of the automatic appeal rights that servicemembers currently have in the military justice process.

The measure maintains automatic appeals rights for sentences greater than two years, in capital cases, or where a punitive discharge is issued, and it establishes an “appeal as of right” for sentences between six months and two years in non-capital cases.

The changes would be implemented over a two–year period.

In another area of interest to the ABA, the legislation continues to prohibit the use of federal funds for: the transfer or release of individuals detained at Guantanamo Bay for any purpose, including prosecution in Article III courts; construction or modification of facilities in the United States to house detainees transferred from Guantanamo Bay; and closure of the Guantanamo Bay facility. The association supports prosecution in Article III federal courts of Guantanamo Bay detainees charged with criminal law violations unless the attorney general certifies that prosecution cannot take place before such courts.

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