Reforming Military Justice
David A. Schlueter
The Uniform Code of Military Justice (UCMJ), 10 USC §§ 801–946, provides statutory guidance for the American military justice system. It was first enacted in 1950, in response to calls for reform to the Articles of War, which had governed the military starting in 1775.
The UCMJ addresses topics such as court-martial jurisdiction, and pretrial, trial, and appellate procedures. It also includes punitive articles which set out not only common law offenses, such as larceny and murder, but also offenses unique to the military, such as unauthorized absences and dereliction of duty. In 2016, Congress enacted significant changes to the UCMJ in the Military Justice Act of 2016, which is set out in Division E of the National Defense Authorization Act for Fiscal Year 2017. It was signed into law by the President on December 23, 2016. The Act specifies that the President must determine the effective date of those amendments not later than January 1, 2018. It appears at this point that the President will sign an Executive Order before that date, which will enact implementing amendments to the Manual for Courts-Martial and will indicate that all of the changes will become effective on January 1, 2019. That will provide ample time for the armed forces to adjust to the dramatic changes in the UCMJ.
B. The Path to the 2016 Reforms
Several factors contributed to the massive amendments to the UCMJ. First, not since 1983 had Congress reviewed the UCMJ in a comprehensive fashion; amendments over the years had amounted to largely piecemeal changes, addressing specific problem areas. Second, over the last decades commentators had offered suggested changes to the military justice system, including proposed changes to court-martial jurisdiction, the role of the commander, court-martial sentencing, and appellate review of court-martial convictions. The third factor leading to the 2016 amendments was Congress’ increasing concern over the military’s ability to address the intractable problem of sexual assaults.
At the urging of the Joint Chiefs of Staff, the Department of Defense in October 2013 created the Military Justice Review Group, chaired by the Honorable Andrew Effron, the former Chief Judge of the United States Court of Appeals for the Armed Forces. The Group’s report, numbering approximately 1300 pages, provided a comprehensive review of every article of the UCMJ; it addressed the history of each article, its application over the years, and the proposed changes to the articles. The Group provided its Report to the Department of Defense, which in turn forwarded it to Congress as a legislative proposal. Congress, without holding any hearings on the proposed changes, adopted most of the proposals.
C. Selected Key Changes
Before the 2016 amendments, the UCMJ consisted of 161 articles. The 2016 Act added sixty-seven new articles and amended ninety-six articles. The following list covers some of the key changes. The 2016 Act —
Creates the position of military magistrate;
Permits military judges and military magistrates to conduct specified pre-referral proceedings;
Increases the number of members on a general court-martial from five to eight and in a special court-martial from three to four members;
Requires the military to promulgate rules which will address the issue of uniform minimum tours of duty for military judges;
Changes the number of votes for conviction from two-thirds to three-fourths;
Provides that in a court-martial with members, unless the accused requests sentencing by those members, the military judge will impose the sentence;
Provides that the government may appeal a court-martial sentence to the Court of Criminal Appeals;
Revises the UCMJ articles addressing the convening authority’s post-trial responsibilities;
Provides that the military judge will enter a judgment in the court-martial, which completes the proceedings at the trial and post-trial level;
Reorganizes and renumbers a significant number of punitive articles;
Moves a large number of Article 134 offenses, which are currently covered in the Manual for Courts-Martial, Part IV, to new punitive articles; and
Requires greater transparency in the military justice system.
D. Observations About the 2016 Changes
First, the amendments solidify and expand the role of military judges in the American military justice system. Although commanders continue to play a critical role in military justice, military judges will not only be able to address issues raised before charges are referred to a court-martial, but will also have the final say in the disposition of the court-martial by issuing the “judgment” in a case, after the convening authority completes his or her limited review of the court-martial.
Second, over the years, there have been persistent calls for removing the commander from the military justice system. It is important to note that despite those sometimes heated proposals, the 2016 amendments maintain the traditional role of the commander. The commander still retains authority to prefer and refer charges to a court-martial, appoint the court members, enter into pretrial agreements with an accused, and retain, albeit in a more limited form, post-trial review powers. In retaining the commander’s traditional role, Congress apparently recognized that one of the hallmarks of the military justice system is the maintenance of good order and discipline.
Third, the changes demonstrate the continuing view that the military justice system should more closely parallel the federal criminal justice model. Throughout its Report, the Military Justice Review Group recommended changes to the UCMJ, which create new procedures and use terminology reflecting federal criminal procedure.
Finally, the 2016 amendments reflect the fact that there has always been change in the American military justice system. The issue is not whether there should be changes to the UCMJ. The questions instead are: When will the changes be made and how significant will they be? The 2016 Military Justice Act reflects the traditional purpose of past amendments—modify military justice procedures to reflect contemporary notions of due process. That process has sometimes been referred to as the evolution of military justice and a civilianization of military justice. The labels for making those changes are not important. What is important is that the procedures and protections in the UCMJ keep pace with emerging notions of due process.
The 2016 Military Justice Act is discussed in greater detail in Reforming Military Justice: An Analysis of the 2016 Military Justice Act, 49 St. Mary’s L.J. 1 (2017), by David A. Schlueter, available at http://www.stmaryslawjournal.org/wp-content/uploads/2017/07/Schlueter_Reforming-Military-Justice.pdf. That article includes a chart as an appendix which lists the amended and new articles to the UCMJ, the substance of each change, the legislative source for those changes, and comments about the changes.