Congress to review proposal for military justice reform

The framework for the military’s justice system might be getting its first major update in more than 30 years.

On Monday the Department of Defense sent Congress a legislative proposal that reforms the Uniform Code of Military Justice.

The proposal, based on a more than 1,300-page report from the Military Justice Review Group, addresses issues including transparency, the appeals process, sentencing, standards for judges and pretrial procedures.

“This report’s proposals recommend retaining military-specific practices where the comparable civilian practice would be incompatible with the military’s purpose, function and mission, or would not further the goals of justice, discipline, and efficiency in the military context,” the report stated. “Maintaining distinct military practices and procedures — where appropriate — remains vital to ensuring justice within a hierarchical military organization that must operate effectively both at home and abroad, during times of conflict and times of peace.”

The changes stem from a 2013 directive given by former Defense Secretary Chuck Hagel to review the UCMJ.

“This report examines many of the distinctions that remain between military practice under the UCMJ and federal and state civilian practice,” the report stated. “The proposals recommend aligning certain procedures with federal civilian practice in instances where they will enhance fairness and efficiency and where the rationale for military-specific practices has dissipated.”

The proposed legislation includes 37 statutory additions and amendments to nearly 70 current UCMJ provisions, with the aim of:

• Strengthening the military justice system structure
• Enhancing fairness and efficiency in pretrial and trial procedures
• Reforming sentencings, guilty pleas and plea agreements
• Streamlining the post-trial process
• Modernizing the military appellate practice
• Increasing transparency and independent reviews of the military justice system
• Improving the functionality of punitive articles and proscribe additional acts

The substantial changes in many areas, said Larry Youngner, managing partner at Tully Rinckey PLLC,  show that “the military justice review group … took their tasking seriously and put forth serious consideration in coming up with these proposals.”

“As a result of their serious consideration, there will be critics that say it didn’t go far enough, and there will be critics that say it goes too far in certain areas,” said Youngner, who also serves as the military and national security law practice group chairman at Tully Rinckey.

A military judge-alone special court-martial has been suggested, which would be similar to a civilian court in which only a judge would decide a case.

“That’s a big area,” Youngner said.

The proposal also suggests the establishment of a military magistrates program “with magistrates authorized to preside over specified pre-referral matters upon designation by a military judge, and to preside with the consent of the parties in the proposed judge-alone special court-martial.”

Enhancing victims’ rights is also something many will see as an improvement, Youngner said.

The legislative proposal submitted to Congress also includes ways of modernizing the military appellate practices.

The changes would transform “the automatic appeal of cases to the service Courts of Criminal Appeals into an appeal of right in which the accused, upon advice of appellate defense counsel, would determine whether to file an appeal.”

They would also focus appeals on issues raised and establish “harmless error standards” like those in a civilian court.

Post-trial actions would also be streamlined under these proposed changes. According to the report, redundant paperwork would be eliminated, while an “entry of judgement” from the military judge would be required “to mark the completion of a special or general court-marshal — similar to civilian proceedings.

The proposed update to the UCMJ would give victims easier access to court documents, as well as providing more opportunities for victim input during the preliminary hearing stage.

“One thing that’s remained a constant throughout all these changes, is the need to have a separate military justice system within the Department of Defense. That’s because of this unique place the military has within our society,” Youngner said. “It’ll be very interesting to see how the Senate Armed Services Committee and the Senate Judiciary Committee take a look at these proposals.”

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