Military Justice

The Military Justice Act of 2016: Here Come the Changes

By Shane Reeves, Mark Visger
Tuesday, August 29, 2017, 9:00 AM

Last December, Congress passed the Military Justice Act of 2016, which then-President Barack Obama subsequently signed. Senator John McCain noted that the Act “constitute[d] the most significant reforms to the Uniform Code of Military Justice since it was enacted.” The Executive Branch issued draft implanting regulations on July 11, 2017, with a goal of issuing the regulations by the statutory deadline of December 23, 2017. The Act will then take effect when directed by the President, but no later than January 1, 2019.

This legislation attempts to improve the effectiveness and efficiency of the military justice system without diminishing due process or good order and discipline throughout the military. To accomplish these goals, the Act makes important structural changes that align the court-martial process more closely with those of federal district courts. Those changes include:

  1. Military judges will have the authority to act on cases before referral to a court-martial. This authority will allow judges to make decisions on requests for investigative subpoenas and wiretaps, as well as take legal action when directed by the appellate courts;
  2. The authority of Military Magistrate position is greatly expanded. While part-time military magistrates currently issue probable-cause warrants and conduct pre-trial confinement reviews, this new statutory office will have the authority to issue subpoenas and wiretaps as well as preside at certain judge-alone courts-martial. Ultimately, the military magistrate will likely have duties comparable to a federal district court magistrate;
  3. As described above, the Act creates a new judge-alone Special Court-Martial. This court-martial may adjudge confinement for up to six months but may not adjudge a bad-conduct discharge or dishonorable discharge. Upon agreement of both parties, a military magistrate may hear such courts-martial;
  4. New panel member sizes—four for special courts-martial, eight for general courts-martial and twelve for capital cases—are required. Panel members are the military version of jurors. Previously, the Uniform Code of Military Justice required a minimum of three panel members for special courts-martial and five for general courts-martial, although typically more members than the minimum were detailed to ensure a quorum after member challenges based on voir dire. Additionally, the Act requires a three-quarters vote to convict (up from the previously established requirement of two-thirds) and to agree on an appropriate sentence. In capital cases, the vote must be unanimous at findings and sentencing before an accused may be sentenced to death;
  5. Segmented sentencing, like in federal courts, is required. More specifically, an accused can request a panel to hear the case and decide on guilt. If found guilty, the military judge must then decide the sentence unless the accused requests member sentencing. If a military judge conducts sentencing, the Act changes the traditional practice of unitary sentencing, which resulted in a single sentence for all charges and specifications of which the accused was convicted. In its stead, the military judge will issue a discrete sentence for each offense and specify whether the terms will run consecutively or concurrently.

Additionally, the Act makes several changes to increase efficiency during the post-trial phase. Traditionally, the convening authority could disapprove a finding of guilty or reduce a sentence after trial. Congress eliminated this authority in the wake of the Lieutenant Colonel Wilkerson court-martial in the Air Force in 2013. Following the trial, Lieutenant General Craig Franklin, the convening authority, disapproved the rape conviction of Lt. Col. Wilkerson, angering many lawmakers on Capitol Hill. The Act further restricts the convening authority’s post-trial authorities and removes or simplifies other administrative processes. Of note:

  1. A conviction and sentence is formalized by means of a certificate of judgement, which includes a Statement of the Results of Trial. This certificate serves as the final disposition of the court-martial. Moreover, the record of trial is certified by the court-reporter instead of the military judge, thus reducing a significant administrative burden on the military judge;
  2. The convening authority may reduce a court-martial sentence, but only in limited circumstances and usually in situations involving minor offenses and minor punishments. In such cases, the convening authority must take such action prior to the entry of the certificate of judgment;
  3. Military judges will serve minimum service tours. This provision addresses a criticism that military judges are not independent due to a lack of security of tenure, while simultaneously providing more experience (and thus, presumably, greater efficiency) on the bench;
  4. Automatic review jurisdiction will be limited to situations where an accused is sentenced to a punitive discharge, dismissal or confinement. An accused sentenced to more than six months may also appeal, as can the prosecution, if it believes an adjudged sentence violates the law or is clearly unreasonable;
  5. The Act invokes federal standards on two occasions in directing the Secretary of Defense to implement the legislation. First, Article 140a directs the Secretary of Defense to “prescribe uniform standards and criteria for conduct” for case processing and management, utilizing when “practicable” the best practices of Federal and State courts. Similarly, Article 33 requires the Secretary of Defense to issue non-binding guidance on the disposition of cases which takes into account “the principles contained in the official guidance of the Attorney General to attorneys for the Government with respect to disposition of Federal Criminal cases.”

Finally, the Act makes sweeping changes to the substantive criminal code. Many General Article offenses under Article 134 have been codified as substantive articles while, for the fourth time in the past several years, Article 120 has been amended to clarify definitions of “sexual act,” “sexual contact” and “consent.” The Act also adds new punitive articles that deal with: retaliation, prohibited activities with a military recruit or trainee, offenses regarding government computers, and fraudulent uses of credit cards, debit cards or other access devices.

Again, the Executive Branch is currently working on implementation rules to clarify how these reforms will operate in practice, particularly the areas of significant change. The hope is that once in effect, the Military Justice Act will produce a streamlined and transparent court-martial process which more closely resembles federal criminal practice. If thoughtfully implemented, the Act should improve both the effectiveness and efficiency of the military justice system.