Military Justice Reform: The Current State of Affairs

Congress enacted the Uniform Code of Military Justice (UCMJ) to function as a uniform legal system for all branches of the US military. The UCMJ applies to all active-duty military members, activated members of the National Guard and Reserve, and students at military academies. Congress modifies the UCMJ through legislation such as the National Defense Authorization Act (NDAA). See Jim Absher, The Uniform Code of Military Justice (UCMJ), Military.com (Mar. 25, 2022). The President implements the UCMJ through Executive Order in the form of the Manual for Court Martials (MCM). See Military Justice Quick Guide, U.S. Navy JAG Corps (Feb. 16, 2024). In the US military, judge advocates are commissioned officers who use materials such as the UCMJ to provide their commands with legal advice and serve as prosecutors and defense counsel in a court-martial. See Judge Advocate General FAQs, Univ. of Va. Sch. of L. (Dec. 5, 2023).

Under the UCMJ and MCM, the military conducts legal proceedings called courts-martial. See Jim Absher, What Is a Military Court Martial?, Military.com (Mar. 25, 2022). There are three different kinds of court-martial under the UCMJ: (1) the summary court-martial, (2) the special court-martial, and (3) the general court-martial. Id. Courts-martial are typically reserved for more serious offenses, with non-judicial punishments (NJP) also available to military commanders. Id.

Introduction to UCMJ Reform

There have been many proposals to amend the UCMJ over the last decade. One of the most commonly proposed reforms has been to modify the role of the commander in the military justice system. See David A. Schlueter & Lisa Schenck, Recent Legislative Developments: The 2022 National Defense Authorization Act, US Ct. App. for Armed Forces (Mar. 2022). Traditionally, military commanders have had the discretion to determine whether an offense should be charged and how offenders should be punished. See Military Justice Overview, DoD Victim & Witness Assistance (last visited Feb. 16, 2024). Concerns over sexual assault cases in the military have been a major motivator for curtailing the prosecutorial powers of the commander. The rationale behind this is that these matters might be better handled outside of the victim’s chain of command. Accordingly, one of the most significant reforms to the UCMJ has been the transfer of this authority from commanders to military lawyers who exist outside of the chain of command for specific serious crimes. See Michael Lewis, Major Changes in the Uniform Code of Military Justice, 26 Jud. Div. Rec. (ABA), no. 2, Fall 2022.

These reforms began with the Military Justice Act of 2016 (MJA16). The MJA16 marked a pivotal moment in the history of UCMJ, bringing about the most substantial reform to the UCMJ since its establishment in 1950. These comprehensive amendments encompassed court-martial jurisdiction, pretrial investigations, nonjudicial punishment, court-martial panel sizes, member selection processes, sentencing reforms, alterations to post-trial procedures, and the introduction of new punitive articles. The late Senator John McCain emphasized the significance of these amendments, outlining their core objectives:

1. Strengthening the structural foundation of the military justice system.
2. Enhancing fairness and efficiency in pretrial and trial procedures.
3. Reforming sentencing procedures, guilty pleas, and plea agreements.
4. Streamlining the post-trial process.
5. Modernizing military appellate practice.
6. Increasing transparency and establishing independent review mechanisms within the military justice system.
7. Enhancing the functionality of punitive articles and introducing new proscriptions.
8. Incorporating best practices from federal criminal proceedings, where applicable.

See Statement by SASC Chairman John McCain on National Defense Authorization Act Conference Report, John McCain, U.S. Sen. Ariz. (2016), https://www.mccain.senate.gov/public/index.cfm/2016/11/statement-by-sasc-chairman-john-mccain-on-national-defense-authorization-act-conference-report (site discontinued).

The MJA16 came into effect on January 1, 2019, but would not be the last major change in the past few years. The National Defense Authorization Act for Fiscal Year 2022 (FY22 NDAA) created a new Office of the Special Trial Counsel (OSTC). This granted independent and specially trained judge advocates, the Special Trial Counsel, prosecutorial discretion for 13 serious criminal offenses. See Press Release, U.S. Dep’t of Def., Statement by Secretary of Defense Lloyd J. Austin III on the Offices of Special Trial Counsel (Dec. 28, 2023). The OSTC was created to address the perception that the military needed “to improve the way it processes and prosecutes serious crimes” by moving prosecutorial authority to the OSTC. See Shannon Collins, Army Stands up Special Trial Counsel with Independent Authority for 13 UCMJ Offenses, U.S. Army (Dec. 28, 2023). FY22 NDAA and the OSTC took effect on December 28, 2023.

The major amendments to the UCMJ, including the creation and functional directive of the OSTC, took effect on December 27, 2023. This commencement aligns with the two-year mark following the enactment of the legislation by presidential signature. This interval has provided an essential transition phase, facilitating the military justice system’s adaptation and the development and implementation of necessary regulatory structures.

The OSTC is headed by an O-7 Officer (a Brigadier General or Rear Admiral (Lower Half)). See Schlueter & Schenck, supra. The O-7, titled “Lead Special Trial Counsel,” reports directly to the secretaries of the service branches without any intermediate oversight. This lead prosecutor oversees a team of carefully chosen and trained judge advocates responsible for prosecuting specific “covered” offenses, such as sexual assault.

OSTC Covered Offenses

OSTC holds exclusive jurisdiction over all covered offenses committed as of December 28, 2023. Therefore, the Special Trial Counsel, not military commanders, decide whether to send a covered offense to a court-martial. There are 13 covered offenses, which are generally the most serious and complex crimes under the UCMJ. See The Military Commander and the Law 2023 Supplement, Judge Advoc. Gen.’s Corps (Jan. 9, 2024). By January 2025, this list will expand to include 14 covered offenses.

The Special Trial Counsel has been granted the power to exert authority over the following serious offenses, which can be divided between sex-related offenses and violent or serious offenses:

Sex-Related Offenses:

• Article 117a (wrongful broadcast or distribution of intimate visual images).
• Article 120 (rape and sexual assault).
• Article 120a (mailing or depositing obscene matter).
• Article 120b (sexual assault of a child).
• Article 120c (miscellaneous sexual offenses).
• Article 132 (retaliation).
• Article 134 (child pornography).
• Article 134 (sexual harassment, effective Jan. 1, 2025).

Violent and Serious Crimes:

• Article 118 (murder).
• Article 119 (manslaughter).
• Article 119a (death or injury of an unborn child).
• Article 128b (domestic violence and strangulation).
• Article 125 (kidnapping).
• Article 130 (stalking).

Sexual Harassment Is a Stand-Alone Offense

In the FY22 NDAA, Congress mandated the classification of sexual harassment as a distinct offense under Article 134 of the UCMJ, effective from January 26, 2022. This newly delineated offense comprises four specific elements, which diverge marginally from the criteria previously utilized for prosecuting sexual harassment under Article 92.

Pursuant to Section 543 of the FY22 NDAA, Congress has stipulated the necessity for independent investigations into formal sexual harassment complaints within the military. In addition, specific directives are outlined for commanding officers to manage these complaints. Under 10 U.S.C. § 1561, effective as of December 28, 2023, commanding officers are required, within 72 hours of receiving a formal complaint of sexual harassment, to (1) forward the complaint to an independent investigator, (2) forward the complaint to the next superior officer in the chain of command who is authorized to convene a general court-martial, and (3) advise the complainant of the commencement of the investigation. See 10 U.S.C. § 1561 (2023).

The inclusion of sexual harassment as a distinct offense under the MCM is a significant step toward addressing and curbing such conduct within the military. It underscores a zero-tolerance policy for behaviors that undermine dignity, respect, and the integrity of the military institution. The outlined elements of the offense provide a clear framework for identifying and prosecuting such conduct as well as ensuring that armed forces members have a safe and respectful working environment.

Known and Other Related Offenses

Special Trial Counsel also have jurisdiction over two additional categories of offenses: “known offenses” and “related offenses.” See The Military Commander and the Law 2023 Supplement, supra. A related offense is one committed by any individual that is somehow connected to the primary covered offense. The decision to pursue a related offense falls under the discretion of the Special Trial Counsel. For example, if an intoxicated service member commits a murder (Article 118—a covered offense) and then commits a DWI by fleeing the scene in a car, the DWI would be a related offense, and the Special Trial Counsel would have jurisdiction over both the murder and the DWI.

A known offense refers to any offense that the accused is alleged to have committed that is not a covered offense or related to the covered offense. For instance, consider a service member charged with rape, which is a covered offense under Article 120, UCMJ. If there are allegations that this individual also committed larceny (larceny is not a covered offense) a month earlier, the larceny would be classified as a known offense. In such cases, the Special Trial Counsel has the authority to decide whether to prosecute both the rape and the larceny in a court-martial. It is important to note that the timing or location of the covered and known offenses need not be the same for this provision to apply. However, Special Trial Counsel only addresses known and related offenses if there is a primary covered offense. The existence of a covered offense is a prerequisite for considering known or related crimes.

Powers of the OSTC

The OSTC has been given broad jurisdiction over covered offenses. These new powers signify a move toward centralizing the prosecution of serious crimes within the military justice system, ensuring that such cases are handled by the Special Trial Counsel, specialized prosecutors with the requisite expertise and impartiality. See Offices of the Special Trial Counsel Background Interview on Reforms to Improve the Prosecution of Sexual Assault and Other Serious Criminal Offenses in the Department of Defense, U.S. Dep’t of Def. (Dec. 21, 2023) [hereinafter OSTC Background Interview]. Furthermore, this approach aims to enhance the fairness and integrity of military trials, especially for complex and sensitive cases, and strengthens the overall trust in military justice proceedings. The OSTC is expressly empowered to (1) initiate charges against individuals accused of covered offenses, (2) request the appointment of a preliminary hearing officer under Article 32 of the UCMJ to conduct preliminary hearings, (3) refer cases to general or special court-martial for trial, and (4) choose to return a case to the convening authority for action, with the caveat that it prevents the convening authority from referring charges for covered offenses to general or special court-martial. See Schlueter & Schenck, supra.

The establishment of the OSTC signifies the military’s commitment to enhance its handling of major criminal cases. See OSTC Background Interview, supra. This initiative seeks to increase the level of specialization of prosecutors and uphold stringent standards in prosecuting these significant crimes, which are crucial for maintaining order and justice within the military. Furthermore, this reform is designed to guarantee uniform and meticulous management of serious offenses, a matter of paramount importance to the military and the public. This development reflects a progressive adaptation of the military’s legal framework, aligning it with contemporary requirements to ensure the fair and efficient application of military law.

Plea Bargaining

Plea bargaining within the military justice system has been further refined by amendments to Article 53(a) of the UCMJ. The revisions to this article codify the Special Trial Counsel’s exclusive jurisdiction in crafting plea agreements for all covered offenses. See Schlueter & Schenck, supra. This jurisdiction underscores the shift toward a more centralized prosecutorial authority in the military. Before these changes, the convening authority (senior commanding officer), not prosecutors, had exclusive authority over plea bargains in the military justice system. Therefore, prosecutors had no authority to enter into binding plea agreements with the accused.

Now, plea agreements negotiated by Special Trial Counsel inherit all the conventional attributes and legal effects of agreements traditionally brokered between a convening authority and an accused. This parity ensures that plea agreements between the Special Trial Counsel and the accused carry the same weight and enforceability as those conducted within the previous military legal framework.

The incorporation of these provisions within the UCMJ signifies a noteworthy change. By centralizing the responsibility for plea agreements in cases of covered offenses with the Special Trial Counsel, the military justice system aims to standardize the approach to such crimes, potentially enhancing the uniformity and fairness of outcomes. This specialized oversight indicates the military’s commitment to handling serious offenses with prosecutorial expertise and diligence commensurate with their gravity.

These changes are expected to influence the dynamics of plea negotiations, with the Special Trial Counsel’s decisions reflecting adherence to the overarching principles of military justice, including good order, discipline, and maintaining high standards of conduct. With this authority, the Special Trial Counsel will play a critical role in shaping the resolution of covered offenses, thereby shaping the broader contours of justice within the military establishment.

What Remains the Same

Considering the significant amendments enacted through the FY22 NDAA regarding the commanders’ role within the military justice framework, specifically pertaining to the adjudication of specific offenses now overseen by the Special Trial Counsel, it is critical to recognize the aspects of command authority that remain the same. Under the FY22 NDAA, military commanders still maintain their conventional duties in areas not explicitly under the jurisdiction of the Special Trial Counsel. Id.

The domains in which the commander’s authority remains unchanged include, but are not limited to, the following areas:

• Pretrial Investigations
• Pretrial Confinement Decisions
• Selection of Members for a Court-Martial Panel
• Grants of Immunity to Witnesses
• Requests for Individual Military Defense Counsel
• Requests for Witnesses
• Post-Trial Review of the Case

Military Sentencing Reform

The continuous responsibilities highlight the commander’s continued key role in employing the UCMJ to maintain good order and discipline within the armed forces. Establishing the Office of the Special Trial Counsel did not completely exclude military commanders from the military justice process. Consequently, these recent modifications indicate that Congress aimed to achieve an equilibrium between impartial prosecution and the influence commanders hold, an essential aspect of the military’s legal framework.

The FY22 NDAA significantly changes how military sentences are given, aiming to make military sentencing more like the civilian federal court procedures. See OSTC Background Interview, supra. These reforms result from many years of discussion and a call for change from experts who suggest that judges should decide sentences, as is widely supported by research in the field.

The FY22 NDAA introduces two significant updates to how the military handles sentencing. In military trials for non–death penalty crimes, only a judge can decide the sentence. See Schlueter & Schenck, supra. This change is a major departure from the previous law, where the defendant had the option to choose a military panel to determine the sentence. In addition, the FY22 NDAA has set up specific sentencing parameters for judges to follow when they decide on a sentence after someone is convicted. These parameters are meant to make sure sentencing is fair and consistent.

Responsibilities of Military Judges

Drawing upon decades of recommendations, Section 539E of the FY22 NDAA codifies that in non-capital cases, regardless of whether the offenses are covered offenses, the military judge assumes full responsibility for imposing the sentence.

The sentencing parameters take into consideration the following factors:

• The severity of the offense;
• The guideline or offense category that would apply to the offense if the offense were tried in a US district court;
• Any military-specific sentencing factors;
• The need for the sentencing parameter to be sufficiently broad to allow for individualized consideration of the offense and the accused; and
• any other relevant sentencing guideline.

Id. These sentencing reforms mark a significant departure from previous military sentencing practices, embodying a push for more uniformity with the civilian justice system and addressing long-standing concerns about consistency and fairness in military sentencing. The amendments are expected to impact the military justice landscape considerably, influencing everything from trial strategy to the ultimate outcomes of court-martial proceedings.

Sentencing in Death Penalty Cases

When it comes to crimes that could result in the death penalty or life in prison without parole, the court panel plays a crucial role in deciding the outcome. If they do not choose the death penalty or life without parole, then the judge steps in to set a lesser sentence that aligns with the panel’s decision. The FY22 NDAA eliminates a previous provision from the MJA16 that allowed the accused to choose whether the judge or the panel members would impose the sentence. The new legislation standardizes the sentencing authority solely with the military judge in non-capital cases, removing this choice from the accused. Id.

Authority of Military Judges to Reject Plea Agreements

In a significant procedural shift, the Revised Courts-Martial (R.C.M.) now clarifies that a military judge retains the authority to reject a plea agreement. This authority applies mainly when the military judge deems the sentence-limitation clause within the agreement manifestly unreasonable. See Military Justice Personnel: Military Judge: Duties and Responsibilities, US Ct. App. for Armed Forces (last visited Jan. 12, 2024).

Governmental Appellate Rights Regarding Sentencing

A notable change in the appellate process is the introduction of the government’s right to appeal a military judge’s sentencing decision. See Schlueter & Schenck, supra. This unprecedented change enables the government to challenge sentences it considers inappropriate. Additionally, the Courts of Criminal Appeals (CCA) now have the mandate to review whether a sentence, under the sentencing guidelines, is excessively severe.

Victims’ Rights

The FY22 NDAA has brought significant amendments to enhance victims’ protections and procedural rights within the military justice system. Id. Per the legislation establishing the Office of the Special Trial Counsel, explicit provisions offer victims of covered offenses the chance to provide nonbinding recommendations to Special Trial Counsel on matters related to disposition decisions, plea negotiations, and opting for separation instead of trial. Furthermore, both the victim and the accused commanders are entitled to submit nonbinding opinions on these decisions.

During the trial phase, while victims have traditionally been allowed to present a victim impact statement during sentencing, they were previously restricted from suggesting a specific sentence. See National Defense Authorization Act for Fiscal Year 2022, Pub. L. No. 117-21, 124 Stat, 1541 (2021). Under the new provisions, victims can now recommend a sentence, except in capital cases.

Additionally, the statute necessitates that victims be informed about any subsequent proceedings post-court-martial that could affect the verdict, the sentence, or the release of the accused from custody. This includes situations where a victim’s confidential information, typically sealed in court records, is proposed to be made public. In such instances, victims are entitled to notification on the decision to unseal their private information, allowing them to raise objections.

Conclusion

The Military Justice Act of 2016 represents a transformative shift in the US military justice system. These reforms mark the most significant overhaul since the inception of the Uniform Code of Military Justice in 1950, introducing sweeping changes across various facets of military law. A central feature of this reform is the establishment of the Office of the Special Trial Counsel, an autonomous entity aimed at modernizing and enhancing the prosecution of serious offenses, such as sexual assault and violent crimes. This office is a move towards greater specialization, fairness, and efficiency in military trials.

These changes reflect a concerted effort to balance the need for a fair and impartial military justice system with the traditional role of commanders. While commanders retain their authority in specific areas, the shift towards specialized prosecution and judicial sentencing for serious crimes signifies a modernization of military law. Overall, these changes represent a progressive adaptation of the military’s legal framework to contemporary needs, promising a more uniform, fair, and efficient application of military law and reinforcing public trust in the military justice system.