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October 07, 2022 National Conference of Specialized Court Judges

Major Changes in the Uniform Code of Military Justice

By Col. Michael Lewis, U.S. Air Force (ret.)

The National Defense Authorization Act for Fiscal Year 2022 (NDAA22) (Pub. L. No. 117-81, 135 Stat. 1551 (2021) signed by President Biden on Dec. 27, 2021, includes historic changes to how the Armed Services will prosecute certain victim-centric offenses, including sexual assault, under the Uniform Code of Military Justice (UCMJ). The most consequential reform transfers authority from commanders to military lawyers to make decisions on whether to prosecute these specific offenses. These reforms must be fully implemented by December 27, 2023.

The military lawyers serving as prosecutors in these new positions will be called "Special Trial Counsel (STC)." STCs must be specially trained and will exercise exclusive disposition authority over 11 victim-centric and statutorily defined "covered offenses." NDAA22 also requires a designated STC to be detailed as the lead prosecuting attorney for each general (felony level) or special (misdemeanor level) court-martial involving a covered offense. The offenses over which the STC will now exercise exclusive disposition authority were previously among the UCMJ offenses for which a commander “convening authority”, either having special or general court-martial authority exercised the decision-making.

NDAA22 also adds a provision to 10 U.S.C. § 1044f which is not part of the UCMJ, requiring that each Department of Defense (DoD) Service establish a "dedicated office ... from which the activities of the STC ... shall be supervised and overseen." The office is to be headed by a "lead" STC, a general or flag officer in the grade 0-7 or higher, with "significant experience in military justice." The lead STC will make referral decisions, oversee prosecutions of covered offenses, and report to the Service Secretary.

Because the U.S. Coast Guard is within the U.S. Department of Homeland Security rather than within DoD , the Title 10 reform does not explicitly apply to the Coast Guard. The Coast Guard, however, has announced it will establish an analogous structure within their organization.

Commanders will retain disposition authority over all criminal offenses not disposed of by STC, and senior commanders will retain their current responsibilities to convene courts-martial, including selecting panel members. Staff Judge Advocates will continue to advise commanders on military justice matters and Trial Counsel not designated as STC will continue to prosecute offenses that are not required to be handled by an STC.

A second consequential reform in NDAA22 amended Article 53, UCMJ, (10 U.S.C. § 853) and will require military judge alone sentencing in general and special courts-martial for offenses after December 27, 2023. Prior to NDAA22, an “accused”, the defendant, would elect whether to be tried before a judge sitting alone, or by members of a panel. The panel was selected by the commander having disposition authority, or “convening authority”, and was required to be equal to or of a higher rank than the individual accused of the offense.

If the accused elected trial before members and entered pleas of “not guilty”, the panel would decide guilt or innocence, and also determine the sentence for any offense of which an accused was found guilty. Under NDAA22, an accused will still have the option to have their guilt or innocence decided by a panel but military judges in all but capital cases will do sentencing.

Court members will still determine sentencing in capital cases with a conviction for a death penalty eligible offense. The law does not change the requirement that no part of a sentence extending to death may be executed until approved by the President.

Accompanying judge alone sentencing reform, Congress amended Article 56, UCMJ, (10 U.S.C. § 856) to require military judges to impose sentences within sentencing parameters established by the President on or before December 27, 2023. Sentencing parameters delineate sentencing ranges based on five considerations: (1) offense severity; (2) the corresponding guideline or offense category in a United States district court; (3) military-specific sentencing factors; 4) the need for the sentencing parameter to be sufficiently broad to allow for individualized consideration of the offense and the accused; and (5) other relevant sentencing guidelines. Sentence parameters must include between five and twelve offense categories. If the President declines to establish a sentence parameter for a particular offense, sentence criteria must be promulgated. Sentence criteria identify offense-specific factors and collateral effects of available punishments that the military judge should consider in determining an appropriate sentence. The military trial judge may deviate from the parameter range but must articulate reasons for doing so. NDAA22 also expands the ability for military appellate courts to consider cases where the sentence is above the parameter or the result of an incorrect application of the parameter.

Congress also established a Military Sentencing Parameters and Criteria Board. The five voting members will typically include the Chief Trial Judges from the Army, Navy, Marine Corps, Air Force, and Coast Guard. The Chief Judge of the Court of Appeals of the Armed Forces, the Chairman of the Joint Chiefs of Staff, and the General Counsel of the Department of Defense each designate one non-voting member. The Secretary of Defense has discretion to appoint an additional non-voting member. The Board will recommend the initial sentencing parameters and sentencing criteria to the President and propose subsequent revisions.

In NDAA22 Congress also ordered DoD to constitute the Military Justice Review Panel, originally established by 10 USC § 946. That panel, comprised of 13 members from the private sector with experience in criminal law with respect to courts-martial, Federal civilian courts, or State courts, will conduct independent periodic reviews and assessments of the operation of the UCMJ.

The Military Courts Committee is housed in the National Conference of Specialized Court Judges. We welcome the opportunity to share information about the Military Justice system with all of our colleagues in the ABA Judicial Division.

Col. Michael Lewis

U.S. Air Force (ret.)

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