Over a series of posts, I have explored the jurisdiction of the military to prosecute American citizens for non-military offenses within the United States, while civilian courts are open for business and in the absence of a declaration of war. Previous posts highlighted the current state of the law; status alone subjects service members to court-martial for any alleged offense. In this penultimate post, I hope to highlight some differences between military and civilian prosecution. While doing so, it is notable that this separate system is not specifically designed to govern those currently serving; it is designed to govern you or a treasured loved one…

Some definitions and explanation is necessary before proceeding further. Military practitioners can skip ahead two paragraphs, but I believe one obstacle to increased civilian involvement in military criminal law is a language barrier that seems daunting at first. Progress and reform in military criminal law has never occurred without this involvement.

There are three types of military trials, called courts-martial. They are the summary court-martial, special court-martial, and general court-martial. These names are adopted from Army custom, but apply to all the services. The Supreme Court of the United States does not consider a summary court-martial a criminal proceeding because the Court views a summary court-martial a disciplinary, rather than adversarial, proceeding.[1] Thus, only special and general courts-martial are considered criminal proceedings.

The only relevant and substance difference between each type of court-martial is the jurisdictional limit on its ability to punish the offender.[2] Of particular relevance for this discussion is the power to incarcerate and to discharge from service. A summary court-martial can sentence an individual, up to a certain rank (E-4), to up to 30 days of incarceration, referred to as confinement.[3] Depending on the length of sentence and whether the particular military installation has a small confinement facility, a service member convicted at this “disciplinary” proceeding may serve his sentence in a civilian jail.[4] A special court-martial can sentence an individual to up to one year of confinement and discharge him involuntarily from further service. When a court-martial “jury,” known as a panel, or military judge sitting alone, sentences an individual to be involuntarily discharged, this is known as a punitive discharge called a bad conduct discharge.[5] A general court-martial can sentence an individual to death and discharge him involuntarily with a dishonorable discharge. For summary courts-martial, think traffic-type offenses in terms of severity. For special courts-martial, think misdemeanor-type offenses. For general courts-martial, think felonies. There is no misdemeanor/felony distinction in the military criminal law, but these are basic comparisons to understand which offenses likely end up in each court-martial. More on the decisionmaking process behind the forum decision below.

Before turning to the comparisons between military and civilian criminal prosecution, a few words on the relationship between the Constitution and service members are necessary. Though the Court has never directly held the Constitution applicable to the military justice system, it has commented on these rights. For example, Justice Ginsburg has stated “that men and women in the Armed Forces do not leave constitutional safeguards and judicial protection behind when they enter military service.”[6] In its 1960 decision in United States v. Jacoby, 29 C.M.R. 244 (C.M.A. 1960), the military’s highest court held “it is apparent that the protection of the Bill of Rights, except those which are expressly or by necessary implication inapplicable, are available to members of our armed forces.” In my previous writing, I’ve noted that these exceptions evolved from strictly the right to indictment by grand jury and trial by a jury of one’s peers, to the modern conception of military necessity, which is kind of like Justice Powell’s description of pornography—I know it when I see it.

With that background in hand, we can turn to our comparison of military and civilian criminal prosecution.

Collateral Consequences

Historically, the consequences of a court-martial conviction or punitive discharge were limited to military society. They did not bleed over into civilian life. This is not to say punishment wasn’t harsh. General George Washington was particularly fond of flogging. Branding was also a common punishment for offenses such as desertion. And, of course, courts-martial could impose the death penalty. But these forms of seemingly barbaric (by today’s standards) were not that unusual in societies that had trials by ordeal, burned “witches” at the stake, etc. The military, historically small and heavily distrusted, just evolved slower than broader society. But even in a civilian society that no longer branded convicts, for example, no one particularly cared if they saw someone with a “D” branded on their face because they were a convicted deserter. It only mattered if that individual tried to re-enlist. Civilian society didn’t think much of enlisted persons anyway. In other words, military discipline only mattered to the military.

That is no longer the case. An individual convicted at a special or general court-martial is convicted of a federal crime. Though states very in how they treat court-martial convictions (felonies or misdemeanors), the collateral consequences are virtually the exact same as conviction in civilian court. Sex offender registration, Lautenberg amendment (gun ownership), deportation, just to name a few. Then there is the requirement to report a criminal conviction on employment applications, the disqualification for financial aid if convicted while receiving any such financial support, and countless other impediments shared by every convict trying to re-integrate into society.

But that is not all. We live in extraordinary times. Unlike a civilian conviction, a person convicted and discharged at court-martial bears the additional burden of re-integrating into a society that idolizes its military—a fact inconsistent with our founding and most of American history.

Trial by Jury

It would not take long for a reader to find source after source describing the right to be tried by a jury of one’s peers as one of America’s most treasured rights. The Court has held that a person prosecuted in a criminal trial is entitled to a jury “large enough to promote group deliberation, free from outside attempts at intimidation, and to provide a fair possibility for obtaining a representative cross-section of the community.[7]  In its Williams decision, the Court upheld a six person jury. Federal rules require a minimum of a six person and a maximum of 12, and I do not believe there are any states that allow fewer than six persons to sit on a jury. Some states, such as Delaware, require a twelve person jury.[8] In 48 states and the federal courts, a unanimous verdict is also required. While I am not an expert in the jury system, I believe it is the independence, minimum size, and diversity of the jury that serves as the necessary check on arbitrary executive authority.

A service member prosecuted in a court-martial, even while within the United States when civilian courts are open, is not entitled to a trial by a jury of his peers. The member’s commanding officer, the person who determined prosecution by court-martial is appropriate, selects the individuals that will serve as the venire. Under Article 25 of the UCMJ (10 U.S.C. § 825 (2012)), the commander determines who, “in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament.” If requested by the Accused, the commander will replace one-third of the venire with enlisted persons. The practical effect of Article 25 is that panel members who are officers generally are high ranking individuals with command experience—they are current or prior commanders. Enlisted members are also often high ranking individuals with experience at the command level.

In addition, the minimum requirement for court-martial panels is lower than in civilian courts. A special court-martial requires at least three individuals for a valid panel; a general court-martial requires five. Of these, a 2/3 vote is required for conviction. As an example, a service member facing a court-martial for possession of cocaine, a likely special court-martial offense, can be convicted by two people. Likewise, a person prosecuted for sexual assault, a definite general court-martial offense, can be convicted by four people.

The need for the military to have an apparatus enabling it to prosecute service members for a number of offenses during a declared war, and the fact that the grave military necessities involved in fighting such a war—on American soil or abroad—make it impractical to guarantee a service member the rights and procedural protections found in civilian criminal prosecution, cannot be disputed easily. Whether it is appropriate in all circumstances is for another day. The purpose of this post is to merely identify some differences between the systems.

Indictment by Grand Jury

Military and civilian attorneys should be familiar with the Fifth Amendment right to indictment by a grand jury. Similarly, the state practice of prosecution by information instead of indictment should require little explanation.

As stated earlier, the Court held in 1895 that service members are not protected by the Fifth Amendment right to indictment by a grand jury.[9] Instead, Congress established what has been known since 1950 as the Article 32 hearing. This hearing is often described as grand jury-like. The main difference between this hearing and a grand jury is that the Accused is entitled to be present, to cross-examine Government witnesses, and to introduce evidence and testimony on his behalf. Characterized as a pretrial investigation, some services did not even include the prosecutor, known as the trial counsel. The hearing consisted of the Article 32 Investigating Officer, the Accused, and his defense counsel. In other services, it was a fully adversarial proceeding. Recent amendments to Article 32 have turned this proceeding into a probable cause proceeding. Because the burden is so low, defense counsel often does not introduce any evidence, cross-examine Government witnesses, or challenge Government documentary evidence in order to avoid disclosing its eventual trial strategy.

Judiciary

The independence of the civilian trial and appellate judiciary needs little explanation. Some state trial judges are elected, others appointed—same for appellate judges. Regardless, the judiciary is an entirely separate branch devoted to the judicial function.

The military judiciary is one of the most impressive developments in military justice. But notable differences remain. Trial judges in the military are called military judges. Appellate judges are often referred to as appellate military judges. Both tend to be more senior military officers, usually with 12-20 years of military experience. Appellate judges tend to be at the upper end, trial judges the lower. However, this military experience does not necessarily include an equivalent level of criminal law experience. With the exception of the Navy, I believe, the bulk of a judge advocate’s military criminal law experience occurs within the first six to possibly ten years of military experience. Because the military services value breadth over depth over assignments and experience, those who push to ten years risk harming their promotion potential. While a judge advocate may get assigned as a military judge toward the ten to twelve year mark, the appellate military judge is most often nearing the end of his career. Between the ten or so year mark and the appellate military judge assignment, a judge advocate has held a number of assignments outside military justice, as well as a number of management and leadership assignments. Unlike civilian judges, military judges are determined to have judicial temperament based on their military experience. Neither have they, more often than not, developed a similar history of judicial experience and scholarly inquiry. A military judge may serve a two or possibly three year assignment, and it is the rare case to continue as a military judge for a follow on assignment. Appellate military judges also typically serve two or three year assignments, but it is unclear how many serve out their full terms, often moving on to follow on assignments or retiring in a few months.[10]

Military judges do not report to the commanding officers that convene courts-martial. They report directly to the highest ranking judge advocate in each service, The Judge Advocate General. Thus, though they are more senior ranking officers, they are independent of the chain of command pursuing the court-martial, but not independent of A chain of command.[11]

In order to receive judicial review of a conviction, a service member must receive more than a year of confinement or a punitive discharge. All other sentences are reviewed within the bureaucracy of the service.

Right to Remain Silent and to Counsel

In 1966, the Court in Miranda required law enforcement to advise suspects of certain rights, including the right to an attorney prior to and during questioning, when in custody and subject to interrogation.

Sixteen years before Miranda v. Arizona, the military required any service member suspected of an offense to be advised of certain rights, including the right to remain silent and to an attorney prior to questioning, regardless of whether he or she is in custody. Some would argue this is an example of leaning forward ahead of civilian society and providing additional protections not available to civilian defendants. Others might argue this is a requirement necessary in a society in which individuals are programmed to obey authority, whether a superior officer or an institution, such as law enforcement.

Miscellaneous Notable Substantive and Procedural Differences

The aforementioned are perhaps the most notable distinctions between the military and civilian criminal justice systems. I’m surely missing others that readers may also find notable. Here are some other miscellaneous differences I can recall, in no particular order.

The defense community does not have an independent budget or subpoena power. An Accused must ask the Government to produce witnesses for his defense and to pay their expenses. He must also ask the Government to approve and fund expert consultants to assist in the preparation of his defense. In response, the Government may substitute the individual requested, requiring resolution by the military judge. The defense must request, and justify that request, to be afforded an investigator.

A service member is also not entitled to the same Double Jeopardy rights as his civilian counterpart, though the distinction may not seem substantial at first glance. Jeopardy attaches in civilian court upon the empaneling of a jury. It does not attach in a court-martial until the introduction of evidence. This was the holding of the Court of Appeals for the Armed Forces in the recent decision in United States v. Easton, 71 M.J. 168 (C.A.A.F. 2012).

Finally, the circumstances surrounding military society necessitate a law prohibiting the unlawful attempts of commanders to influence a court-martial. Article 37 of the UCMJ states that “[n]o person subject to this chapter may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts.”[12]

Why Should the Public, Practitioners, and Scholars Care?

As I mentioned earlier, there is no real reason why the military cannot produce service members to federal courts for prosecution for federal, or military specific, offenses. A service member under investigation for a likely court-martial offense cannot retire or separate, cannot attend professional military education, will not be allowed to deploy, and will not be allowed to transfer to another assignment through a permanent change of station. So, for the current standing military, there is no real obstacle to producing service members for prosecution in civilian courts. The only real “obstacle” is the substantial delay commonly associated with civilian prosecution and the argument that this delay somehow impedes the ability of the military to accomplish its warfighting mission.

But the broader reason a separate criminal justice system exists is to absorb a mass mobilization of American society similar to WWII or the Korean War. In the event a similar situation develops in the future—a war against Russia or China, for example—the country will require a vast increase in the military strength of the Nation. This may be a combination of voluntary and involuntary mobilization. It would likely include both males and females. Rather than conceptualize and implement a military justice system at that time, Congress has decided to create such a system now (in 1950, to be exact) that will be able to absorb this massive increase of individuals not accustomed to military service and all serving in foreign lands under desperate conditions.

So, if you are between the ages of 18-45, or have a family member in that age range, our military justice system exists to govern you or your family member in the event of a war or contingency requiring a mass mobilization. One option is to ignore this judicial system—one larger than sixteen state judicial systems according to the 2010 Census—until after the next major war. Perhaps a better option, one that is consistent with the traditions of our country, is for the public, practitioners, and scholars to proactively shape the military justice system through rigorous scholarship and critique. This scrutiny not only benefits those currently subject to military law while considering the importance of maintaining good order and discipline in the armed forces, it defines the very system that will govern countless of American citizens when the need inevitably arises.

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[1] In at least one service, at least, summary courts are quite adversarial. In fact, other than the fact the summary court officer is not judge and thus not in a judicial robe, summary courts in this service are virtually indistinguishable from special and general courts-martial.

[2] There are some other differences, such as who has the authority to convene each court-martial, but they are not particularly relevant for our purposes here.

[3] Officers are not subject to summary courts-martial.

[4] For example, Joint Base Andrews, located in Prince George’s County, Maryland, does not have a confinement facility. Therefore, any service member sentenced to confinement in a summary court-martial for up to fifteen days may likely find himself serving that time in solitary confinement in Prince George’s County Detention Center, pursuant to a Memorandum of Agreement between the 11th Wing and Prince George’s County.

[5] A person separating or retiring from military service receives a form called a DD-214. It is the document that formally discharges an individual from the military. Among other items, it contains a characterization of one’s service. Administrative characterizations include an Honorable, Under Honorable Conditions, and Under Other Than Honorable Conditions Discharge. Characterizations that are punitive, meaning the result of a court-martial and thus punishment, include a Bad Conduct or Dishonorable Discharge.

[6] Weiss v. United States, 510 U.S. 163, 194 (1994) (Ginsburg, J., concurring).

[7] Williams v. Florida, 399 U.S. 78, 100 (1970).

[8] See Claudio v. State, 585 A.2d 1278, 1301 (Del. 1991) (“It has also been expressly recognized that the Delaware Constitution guarantees the common law right to a trial by a jury of twelve persons in a criminal proceeding.”) (citations omitted).

[9] Johnson v. Sayre, 158 U.S. 109, 113-15 (1895).

[10] There have been instances in which appellate military judges serve less than six months in the job before moving on to another assignment or retiring. Unfortunately, the paucity of public records make it difficult for scholars to study appellate military judge tenure.

[11] Military judges receive their performance reviews from the senior judge advocates of their respective service. Though independent of the prosecuting chain of command, it cannot be denied that the promotion and career prospects of a service member serving as a military judge are dependent upon senior military officials.

[12] 10 U.S.C. § 837(a) (2012).