Sea Change for Military Justice

Signed into law by President Obama in December 2016, the Military Justice Act of 2016 took effect on January 1, 2019. It provides the most sweeping changes to the military justice system since the implementation of the Uniform Code of Military Justice in 1951. Some of the notable changes implemented by the Act include the:

1) Creation of a new special court-martial colloquially known as the “short-martial.” This new court-martial removes the accused’s option to elect a member panel (military version of a jury); instead mandating the judge alone option for both findings and sentencing. While the traditional special court-martial remains eligible to award up to a year of confinement and a bad conduct discharge, this new “short-martial” can only award confinement of up to six months and cannot adjudge a punitive discharge.

2) Standardization and increase in the required sizes of members panels. Special courts-martial now require a panel size of four members; an increase over the previous requirement of at least three members. General courts-martial now require a panel size of eight members; an increase over the previous requirement of at least five members.

3) Increase in the member concurrence percentage necessary for a finding of guilt and for sentencing. Members panels now require a three-fourths vote to convict and to adjudge a sentence. Previously, only a two-thirds vote was required. This change is somewhat illusory, however, since panel sizes of four and eight require three and six votes respectively for a conviction under both the two-thirds and three-fourths systems.

4) Option for sentencing by the military judge after guilty finding by a members panel. If an accused elects sentencing by military judge, the military judge now awards segmented sentencing for each guilty findings. The judge can also decide whether the punishments runs concurrently or consecutively. Under the former system, judges and member panels awarded punishment under a unitary sentencing scheme.

5) Addition of mandatory minimum punishments to pretrial agreements. Under the former plea bargain system, the accused and commanding officer signed a pretrial agreement placing caps (ceilings) on punishments in exchange for guilty pleas. This sentence limitation portion of the agreement was kept secret from the military judge until after the judge’s announcement of a sentence. The accused then received the lesser of the punishment awarded by the military judge or the sentence limitation section of the pretrial agreement. As a result, it was possible for a defense counsel to present a strong extenuation and mitigation case to “beat the deal.” Under the new system, the pretrial agreement includes minimum and maximum punishments. The military judge is made aware of these limits and awards a punishment within that range.

Sun Tzu stated, “In the midst of chaos, there is also opportunity.” Growing pains are sure to accompany the implementation of the Military Justice Act. Matthew T. Smith Law seeks to understand the changes as best as possible in order to maximize the opportunities for its military clients. If you find yourself in need of a military defense attorney, please schedule a free consultation by clicking HERE.

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