Academic journal article Notre Dame Law Review

The More? Uniform Code of Military Justice (and a Practical Way to Make It Better)

Academic journal article Notre Dame Law Review

The More? Uniform Code of Military Justice (and a Practical Way to Make It Better)

Article excerpt

INTRODUCTION

Army Regulation dictates that "[s]ideburns are hair grown in front of the ear and below the point where the top portion of the ear attaches to the head. Sideburns will not extend below the bottom of the opening of the ear," (1) and "[f]emales will not exceed a nail length of 1/4 inch as measured from the tip of the finger." (2) United States Navy Uniform Regulation states that on the right shoulder of a flight suit the "[w]eapons school patch (if authorized) shall be worn centered on the shoulder arch, approximately 1 inch below the seam." (3)

Uniformity matters to the professional appearance of those that serve in the Armed Forces. In some situations, uniformity may save lives. However, the importance placed on uniformity has not translated to uniform punishments for those who violate the Uniform Code of Military Justice (UCMJ). (4) In an effort to resolve this, Congress, at the request of the Department of Defense, passed the Military Justice Act of 2016 ("the Act"). (5) Among other things, the Act purports to bring military sentencing more in line with the federal sentencing system, which was created in part due to disparate sentences. (6) With the goal of increased uniformity, the federal system and federal sentencing guidelines increased the length of sentences defendants received across the board. (7) Guidelines in the military will likely have a similar effect on military sentences.

Part I of this Note examines the current military court-martial sentencing system and analyzes some of the impetus for a change. It also assesses the changes, in regards to sentencing, that the Act would bring about. Part II examines the negative effects of the federal sentencing system. Part III offers suggestions for the successful transition of the military sentencing system, in light of the responses to the federal sentencing system. This Note concludes that because sentencing guidelines are detrimental to the defendant, the military sentencing process should offer a guaranteed, but waivable, two days of preparation to the defendant post-conviction and presentencing.

I. THE CASE FOR A CHANGE IN MILITARY SENTENCING

Prior to the UCMJ, a "commander historically had virtually unchecked control over military justice." (8) After World War II, though, protests against an unfair and unduly harsh system led Congress to adopt the UCMJ in 1951. (9) The UCMJ, and the individual services, went through many changes after its adoption in an effort to improve military justice. (10) The changes were successful enough to prompt praise from Justice Ginsburg, who described the new military justice system as "notably more sensitive to due process concerns than the one prevailing through most of our country's history." (11)

A. The Current System

Chapter 47 of Title 10 in the United States Code encompasses the UCMJ. (12) Articles 55 through 58 of the UCMJ govern the military sentencing process. (13) Article 53 is also relevant, declaring, "[a] court-martial shall announce its findings and sentence to the parties as soon as determined." (14) Either a panel (jury) or a military judge decides the outcome of the case. (15) If guilt is found, the deciding entity determines the sentence. (16)

After the trial and "findings of guilty have been announced, the prosecution and defense may present [the] matter ... to aid the court-martial in determining an appropriate sentence." (17) A panel, composed of officers (and at least one-third enlisted members, if the accused is enlisted and so requests) (18) who outrank the accused, receives "appropriate instructions on sentencing]" from the military judge. (19) The required instructions must include a statement of (1) any mandatory maximum or minimum, (2) the effect of a punitive discharge and confinement or a confinement greater than six months on the accused's pay, (3) the procedures for deliberation, (4) the members' sole responsibility for choosing an appropriate sentence, and (5) "[a] statement that the members should consider all matters in extenuation, mitigation, and aggravation, whether introduced before or after findings, and matters introduced under R. …

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