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February 13, 2024

Victims’ Rights, Sentencing Reform, and a Civilian-Military Dialogue on the Implementation of Criminal Justice Initiatives

By: Bobby Luyties

Over the last two decades, both the civilian and military criminal justice systems have enhanced victims’ rights, and the military has begun to mirror the federal system in terms of sentencing. The overlap is so clear that Justice Kagan recently wrote that there is no reason to make a distinction between the two. See Ortiz v. United States, 138 S. Ct. 2165, 2174-2176 (2020).

With the recent overhaul of the military justice system and the upcoming move to “Judge-Alone [imposed]” sentencing like in the federal system, it follows that the military has taken many of the lessons learned and is developing similar (and hopefully better) parameters for sentencing.

The panel included both a DOJ attorney, a Judge Advocate with extensive history with victims’ rights, a member from the Committee in charge of the Federal Sentencing Guidelines, and a Judge Advocate who is developing the soon-to-be-implemented DOD Sentencing “parameters.”

Regarding victims’ rights, both the DOJ and DOD have made significant updates recently. For example, the Attorney General’s guidelines give critical guidance concerning DOJ policy emphasizing a victim-centered and trauma-informed commitment when evaluating cases for trial. This will help build trust and help victims heal. The DOD’s policy mirrors this. Additionally, both DOJ and DOD have expanded the access victims (or their representatives) have with prosecutors. For example, the JAG Corps has represented over 8,000 victims of various crimes even though many cases have not gone to trial.

In 2015, Article 6b of the UCMJ (crime victim rights) was expanded to give victims reasonable and timely notice before a plea is accepted since many cases are resolved prior to referral (getting before the Judge/creation of the court-martial) in the military system. Likewise, recently the AG guidelines expanded the definition of victim since the previous definition did not always include those who may be significantly harmed.

Overall, the trend in the victims’ rights arena is for victims to be informed at all stages (sometimes before a “proceeding” has started), expand those who are considered victims, and make both the prosecutor and the judge responsible to ensure the victim knows his/her rights. However, there are still gaps that need to be addressed, likely with legislation. For example, both the military and federal systems have parole/clemency, but these are not often seen as “public proceedings,” so the victim has less rights in that context and is not always notified or involved in the same manner. Likewise, a victim’s right to appeal court orders regarding certain discovery, and their standing to do so, is another area that could be addressed.

Overall, involving victims in the criminal justice process, even if an accused is acquitted, has allowed those who have been harmed feel more confident about the process.

Speaking of confidence, the military is about to undertake a move similar to the federal sentencing guidelines to help cure what some in Congress have seen as disparate or light sentences.

Recent changes to the Manual for Court-Martial have allowed the Convening Authority (who acts as the person who sends a case to trial) to set sentencing ranges in plea deal similar to the Federal Rules. As of July 2023, they can now include terms to dictate specific sentences or portions thereof (since military sentences affect not just confinement, but the accused’s rank, pay, discharge characterization, and even things like Hard-Labor). While military judges can reject a plea deal if it is “unreasonable,” there are no guidelines like in the federal system that they can analyze to decide whether to accept or reject a plea, which is an important step in the Federal System.

The two speakers in this area discussed the inception of the federal sentencing guidelines, and how military professionals have taken the lessons learned (and worked closely with the Federal drafters) to craft the military sentencing parameters. For example, the federal sentencing guidelines have dozes of categories that have made them lengthy and harder to apply (they also seem to keep expanding over time). The military, as of now, has drawn from the lessons of the federal guidelines, and is planning to start with 7 “parameters” that are broader and hopefully will not need as much tinkering.

Once published, these will be binding on a court-martial and will work very similar to the Federal Sentencing Guidelines. While there still will be exceptions to try and ensure the unique nature of military sentencing, the two systems will be much more closely aligned. As Justice Kagan noted, the two systems continue to come closer together to the point where there may no longer be any meaningful distinction.

Bobby Luyties

Defense Appellate Division

Bobby Luyties is an Army Judge Advocate currently assigned as a Branch Chief with the Defense Appellate Division both supervising appellate attorneys, representing clients, and overseeing emergency appeals. Previously, he has litigated over 100 courts-martial serving as a trial counsel, trial defense counsel, senior trial counsel (twice), special victim’s prosecutor, victim’s counsel, and served as the Army Liaison instructor to the Air Force’s JAG School. He has an LLM in Military Justice, and has served non-military justice roles as a Brigade, Command, and Regimental Judge Advocate both in Garrison and Deployed and was most recently the Deputy Staff Judge Advocate for the 1st Theater Sustainment Command.

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