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May 01, 2016

ABA expresses concern about some proposed changes to UCMJ

ABA President Paulette Brown expressed concerns to Congress this month that some of the recommended reforms proposed for the Uniform Code of Military Justice (UCMJ) could cause unintended consequences that should be considered as legislation is crafted to improve the code.

Brown wrote May 5 to the House and Senate Armed Services Committees that the ABA commends the comprehensive approach taken by the Department of Defense when it appointed a Military Justice Review Group to analyze the UCMJ and make recommendations for reform. While the association believes that the vast majority of the recommended changes are a positive step forward for the military justice system, she said, some of the proposals involving sentencing and appellate rights may infringe on the rights of servicemembers accused of crimes in the military.

The ABA is particularly concerned, Brown said, about major proposed changes to court-martial sentencing procedures that would eliminate an accused’s choice of sentencing forum by either court members or a military judge at the election of the accused. This right, which has existed since 1968 and is supported by the ABA, would be replaced by a process mandating judge-alone sentencing in 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,” Brown emphasized.

She also recommended that the committees proceed with caution before acting on other recommendations in areas on which the ABA has taken no formal position.

The first would require segmented sentences for each charge resulting in a conviction in the court-martial process (instead of the current unitary sentencing process) and would call for the development of sentence parameters for sentences that include confinement. The ABA also has major concerns about a recommendation to rescind the automatic appeal rights that servicemembers currently have in the military justice process.

Brown urged the committee members, as they draft fiscal year 2017 defense authorization legislation, not to rescind an accused servicemember’s right to elect his or her sentencing forum and also to carefully consider whether the committees need more data collection and analysis before including sentence  parameters in the bill and whether there is a compelling justification for rescinding the accused’s automatic appeals rights.

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