MILITARY JUSTICE CHANGES – BAD NEWS FOR THE ACCUSED SERVICEMEMBER
PART I – New Mandatory Minimum Sentences
Colby C. Vokey, LtCol USMC (Ret.)
Over the last several years, radical changes have been made to the UCMJ, the Rules for Courts-Martial (RCM), and the Military Rules of Evidence (MRE). None of these changes have been made for the benefit of the individual servicemembers. As a result of Congressional pressure on the military regarding sexual assault, the law and rules have been changed to appease those on the Hill and other special interest groups. Many of these changes were made because false or exaggerated facts and assumptions. The end result is a military justice system that is designed to convict rather than seek justice. There have been many changes but only one is discussed in this article – new mandatory minimum sentences.
In December 2013, in the 2014 National Defense Authorization Act, Congress made changes to military law. Big changes. Cowardly changes. Instead of trying to dispute exaggerated or false claims about military law and the warriors who serve, the Pentagon bent over backwards to satisfy a few crusading Congresspersons. And in doing so, they sacrificed those who serve.
One of those changes was to create mandatory minimum sentences for certain sex offenses, such as rape and sexual assault. These mandatory minimums require dishonorable discharges or dismissals for those convicted of the subject offenses. Many of the earlier efforts to “reform” military justice did result in increased convictions for sexual assault. Although to be fair, it mostly resulted in forcing the military to charge and try more servicemembers than ever before. However, the crusading, out-of-touch politicians didn’t get the results they were demanding. The sentences were not extreme. It never occurred to them that, perhaps, these heinous crimes were not so severe after all. They believed that the officers and senior noncommissioned officers on the military jury panels must be soft on sexual assault. Or that somehow these military leaders want to excuse such criminal conduct. It’s ironic that the same men and women who make life or death decisions for their subordinated men and women are not capable of evaluating evidence and meting out an appropriate punishment according to the facts of the particular case.
Instead, this institution of a mandatory minimum punishment for only certain sex offenses takes the responsibility and authority of the members of a court-martial away. It says, “we don’t trust you to make such decisions.” So these new mandatory minimums were created to take the power out of the hands of those evaluating facts and allows the politicians to dictate punishment. One should always be suspicious of laws designed to take the power away from the people. Or in this case, the military jurors. Since the enactment of the UCMJ more than 60 years ago, there have only been two offenses which carry a mandatory minimum – premeditated murder and spying. Now Congress has included just sexual offenses in this group, requiring dishonorable discharges or dismissals.
I find it curious that there are so many senior, experienced lawyers in the military who either drafted these changes or provided support for them. There are so many generals and admirals who also supported such actions. They act as though they agree with the crusader’s accusations that the senior leaders have been sweeping these crimes under the carpet or turning a blind eye. They have not fought and argued and stood up for their leadership and their military justice system. But it is a funny thing. If these accusations of burying sexual assault allegations were true, wouldn’t that mean that the very leaders who endorse these changes (and the senior lawyers who would have advised them to do so) are the cause of the problems? Aren’t they the ones who have kept this hidden? We know this is simply not true. Anyone who has closely followed military justice in the last 20 years would know that the military has been very diligent in prosecuting sexual assaults. In fact, the military often prosecutes cases which the local district attorney won’t touch.
But instead of fighting for their honor and that of their men and women, these senior military leaders gave in. They compromised. I have heard it argued that the Department of Defense and the Pentagon were worried about losing funding for some appropriations or support for some program. I don’t think that is true or at least it’s not the primary reason. There have been some bills introduced and lots of discussion about taking away control of military justice from the military commanders. So these compromising changes are proposed/drafted/supported to appease the hate mongers in Congress and get them to back off on any attempts to wrest the power of the court-martial away from the commanders. So they make these drastic, unnecessary changes to stave off some aggressive politicians. Shame on them. If our military leaders cannot stand up for military justice and the honor of all warriors, then they do not deserve to keep the power of the court-martial.