The Pentagon is proposing a significant change to the method in which troops are tried and sentenced, a change that is the first of its kind to be suggested in over three decades.
According to Military.com, the proposal follows an investigation of the current UCMJ system by former Defense Secretary Chuck Hagel after a rash of sexual assault controversies.
Straying from current procedures that require untrained military jurors to decide a defendant’s guilt or innocence- often resulting in disproportionate sentences upon conviction, the new proposal dictates that military judges would be called upon to decide sentencing based on US Department of Justice doctrine.
Traditionally, civilian judges have always decided sentences in bench trials, which would make the new proposals more aligned with the traditional system.
In addition, the changes would allow all convicted servicemembers a right to appeal and military court documents once only available through the Freedom of Information Act would be filed in the public system like any other Federal case.
“There’s a lot of good stuff in this bill,” retired Air Force former top prosecutor Don Christensen said. “But the fact is that we lived with this insane sentencing process for so many years and the generals never said it made no sense.”
Advocates of the overhaul say that removing the chain of command from the prosecutor and judicial role will allow for more fair sentencing than ever before, removing sympathetic or malicious bias from the system.
“A panel can come in very high or very low,” said Army Reserve lawyer Major Joseph Wilkerson, a former editor of the Army Lawyer and the Military Law Review who is currently serving on the defense team of one of the Guantanamo detainees.
Christenson says that allowing people with more legal experience to dictate sentencing would provide a more consistent and fair process than the current system, which often gives erratic sentencing for the same crimes.
“You’d have three guys get together and go shoplifting or abuse cough medicine- exactly the same history,” Christensen said. “One gets two years, one gets a month and the other guy gets restricted to base.”
Despite the proposed overhaul that is scheduled to be presented before the Senate Armed Services Committee in the next few weeks, many experts feel there are still glitches in the old system that haven’t been addressed, which often lead to rushed sentencing.
Unlike in civilian courts that generally have a brief pause before sentencing to truly contemplate a proper punishment to fit the crime, military sentences are handed down immediately after guilty verdicts.
“There’s such a rush to get it done,” Christensen said. “The leadership would rather have a case done quickly than done right.”
Under the new proposal, military commanders would still be able to determine the charges brought against a defendant and which cases would go to court-martial.
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