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February 17, 2021

Midyear 2021: How U.S. military is driving criminal justice reform

The military justice system has undergone tremendous change over the past 20 years, in many ways attempting to emulate or keep pace with civilian criminal justice. Now, as the American criminal justice system grapples with the call for reform — particularly in sexual assault prosecutions, appellate review and protecting the rights of the accused — many of the military justice system’s policies are being recognized and hailed as truly progressive.

Legal experts from the Army Judge Advocate General’s Corps will this during a panel discussion, “Military Justice — Learning and Leading Change in American Criminal Justice,” on Friday, Feb. 19, from noon to 1:30 p.m. CST at the American Bar Association Midyear Meeting to be held online this year due to the coronavirus pandemic.

The military justice system’s progressive approach to investigation and prosecution of sexual assault cases has been hailed as a model, even though there have been several military assault cases in the headlines recently.

Prevention is the key to building and sustaining long-term success in the fight against sexual misconduct, says Lt. Maj. Scott Goble of the Office of the Judge Advocate General.

“Prevention and prosecution are not the same thing. While the deterrent effects of holding offenders accountable is a component, the Department of Defense has renewed its commitment to get ahead of the problem with an emphasis on prevention,” explains Goble, who will moderate the panel discussion.

“To do that we must look at how to address cultural issues not only within our ranks, but cultural problems within our country that foster the disrespect and objectification of our young people. We must identify early within a soldier’s career where their value system is incompatible with the standard of treating their teammates with dignity and respect, and then teach and mentor them to live their lives within the Army value.”

Goble says the military justice system serves as an important tool for commanders to enforce standards and discipline when other prevention efforts have failed, while also ensuring due process for both the subject and the victim.

However, one major criticism of the military justice system involves the role of commanders in the process, which essentially means that nonlawyers have a role in whether cases are prosecuted, unlike other U.S. judicial systems for criminal cases. 

“It is important to note that American criminal justice is not the exclusive province of attorneys—neither in the military justice, nor in federal or state criminal justice systems,” says Goble.  “Many decisions in federal and state systems use nonlawyers in critical roles. We, as lawyers should not be so quick to dismiss the judgment and experience of nonlawyers in exercising the many nonlegal aspects of prosecutorial discretion. 

“Unlike corporate leaders who are responsible for their employees at work, commanders are responsible for the health, welfare and safety of their soldier 24/7,” Goble continues.  “As such, commanders must maintain the ability to enforce the standards.  To be effective, commanders, with advice from well-trained judge advocates, must have the necessary tools to enforce accountability.  They must dispassionately and effectively administer military justice, ensuring both respect for, and adherence to, the rule of law.”

Racial equity is another area where Goble says the military justice system has taken steps to improve perceptions of inequity and ensure fair treatment for all service members.

“Racial justice is not just a concern for the military, but as events this past year have made clear to us all, the promise of equality in criminal justice remains unfilled for too many in our nation in state and federal systems.  The American criminal justice system, including military and civilian systems, needs to keep getting better,” says Goble.

A 2019 report from the Government Accountability Office found that Black service members were more likely to be subjects of law enforcement investigations than white service members. From that report, the Secretary of the Army directed a Holistic Evaluation and Assessment of Racial Disparities in the Military Justice System, with the goal being of getting to the “why,” according to Goble.

“It is not enough just to know that there is a disparity, but to really improve we have to know what is driving that disparity,” says Goble.  Answering this question of “why” is driving not only a comprehensive review of all the data that is available, but also a subjective assessment of our system by commanders, military justice practitioners and the soldiers who live under the system.”

Goble will be joined on the panel by Karen Carlisle, Office of the Judge Advocate General; Lt. Col. Rebecca Farrell, the Judge Advocate General’s Legal Center and School; Lt. Col. Adam Kazin, Office of the Judge Advocate General; Lt. Col. Philip Staten, Trial Counsel Assistance Program, Fort Belvoir, Virginia; and Lt. Col. Angela Swilley, U.S. Army Defense Appellate Division, Fort Belvoir.

“The biggest takeaway from our panel discussion, I hope, would be to demystify the military justice system.  The military justice system is part of the American criminal system, designed to fit the needs to ensure we have a disciplined force,” says Goble. “We should not hesitate to ask the hard questions, or to acknowledge our deficiencies. We hope there is some great dialogue and discussion on how the military justice system can be a force for positive change and to learn where it can improve.”

The program is sponsored by the ABA Criminal Justice Section.