Faculty Blog, Hansen

The Evolution of Military Justice Continues

Those who are interested in national security law and military justice should take note that the most significant changes to the U.S. military justice system in almost 70 years will soon go into effect.  We have not seen change on this scale since the adoption of the Uniform Code of Military Justice (UCMJ) in 1951. The amendments that go into effect on January 1, 2019, are significant in both depth and breadth and, like the initial reforms in the UCMJ, they reflect a continuing “civilianization” of military justice.

The most recent changes came about largely as a result of two influences.  The first is the political and public pressure the military has received over the past several years about its inability to provide meaningful protection to victims of sexual assault within the armed forces.  The second is the sustained pressure that advocates for reform have applied to the military and policymakers over several years.  Both of these influences created an atmosphere in which Congress, in a surprisingly by-partisan effort, undertook sweeping reform.

The overarching result of the reforms is to make the military justice system look more and more like its civilian counterparts.  This theme is clearly reflected in three changes to the role and authority of the military judge. Prior to these reforms, a military servicemember had the choice in a court-martial to have their case heard by either a panel consisting of military members, or by a military judge.  If the servicemember elected to have a panel determine guilt, that same military panel would be responsible for imposing a sentence on any guilty findings.  An amendment to Article 25 of the UCMJ will make sentencing by the military judge the default rule, regardless of whether a military panel determined the servicemember’s guilt.  The servicemember can, if he or she so chooses, have a military panel impose the sentence.

A second, related reform is a form of tenure for military judges.  Currently, there is no statutory tenure protection for military judges.  This has been one of the biggest criticisms that reformers have lodged against the fairness of military justice.  The concern has been that a military judge could be reassigned or removed because of the military leadership’s disagreement with a judicial action.  In order to provide some protections the army and other services have created regulatory protections governing the assignment and reassignment of military judges.  An amendment to Article 26 of the UCMJ requires the President to set uniform standards among all of the services for the minimum tours of duty for a military judge.  While not providing the kind of judicial tenure that exists in the federal system, the amendment is a clear recognition that military judges in all of the services should be assigned and reassigned based upon legitimate criteria, and not the military leadership’s agreement or disagreement with a judge’s action in a particular case.

A third significant reform related to judicial authority gives the military judge a greater and earlier role in the pre-trial proceedings of a case.  Under the UCMJ structure, courts-martial are created on an ad hoc basis.  There is no continuously sitting court-martial.  A military judge is only detailed to a case once the convening authority (a non-lawyer and most often a military commander) formally refers the case to trial.  In the past this has meant that many preliminary issues such as search authorizations, subpoenaing of witnesses, requests for mental competency evaluations, and expert funding requests either were decided by the convening authority, or were not decided until the case was referred to trial and a military judge was detailed to the case.  An amendment creating a new Article 30a of the UCMJ will give military judges some authority to resolve these matters even before the case is referred to court-martial.

These reforms and others like them do not fully align the military justice system with its civilian counterparts.  Military justice remains a separate system that seeks to strike the appropriate balance between protecting the rights of the servicemember and giving the military commander the tools needed to ensure good order and discipline within the force.  These reforms do recognize the increased and important role that the military judge plays in helping strike this balance.  These and other changes also reflect Congress’s view that the best way to strike the right balance is to adopt many of the time tested procedures used in the civilian system.

Victor Hansen is a Professor at New England Law | Boston where he teaches Criminal Law, Criminal Procedure, Evidence, and Prosecutorial Ethics.