Military justice reforms still leave some criminal cases to commanders with no legal expertise

By Vianna Davila, The Texas Tribune and ProPublica

"Military justice reforms still leave some criminal cases to commanders with no legal expertise" was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.

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More than a year has passed since Congress adopted reforms that promised to overhaul the U.S. military justice system. Lawmakers stripped military commanders of their authority to prosecute certain serious cases but allowed them to maintain control over other alleged crimes.

However, the reforms, which will not go into effect until the end of this year, may have created additional challenges, military experts said.

Commanders, who oversee service members but are not trained lawyers, still have control over various aspects of the system, including whether to confine soldiers ahead of trial for alleged crimes, ProPublica and The Texas Tribune found.

We spoke to two military legal experts, Geoffrey S. Corn and Rachel E. VanLandingham, about the reforms and what they mean for the future of the military justice system. Corn is a retired Army lieutenant colonel who is now a professor and directs Texas Tech University’s Center for Military Law and Policy. VanLandingham is a professor at Southwestern Law School in Los Angeles and a retired Air Force lieutenant colonel. They are both former judge advocate generals, or military lawyers. Here are takeaways from those conversations.

The reforms were long overdue

The military justice system was initially formed as a way to discipline soldiers during times of war, giving commanders unfettered authority to mete out discipline and punishment. That included determining who should be prosecuted and for what crime.

VanLandingham was largely unfamiliar with that system when she enlisted at the Air Force Academy at age 18. She remembers being sexually assaulted and harassed while at the academy but said she never reported anything for fear of being ostracized or retaliated against.

She was a senior at the academy when dozens of women reported being sexually assaulted or harassed during a three-day 1991 convention of Navy and Marine Corps aviators in Las Vegas.

The incident, which became known as Tailhook after the association that put on the event, was among the first times there had ever been focus on sexual misconduct in the military or how the military treated women in the armed services. The secretary of the Navy eventually resigned in the wake of the scandal and several admirals were censured or relieved of duty. The Navy also adopted a “zero tolerance” policy to sexual harassment.

“Tailhook was the first time that I recall that it hit me that ‘Oh, there might be a bigger problem here than just this little academy world,’” VanLandingham said. “‘That was my first time thinking, ‘Huh, is the military going to take care of me?’ But at that point, I couldn’t think about it too much because I had a five-year commitment.”

Similar scandals unfolded over the next three decades, prompting additional public scrutiny of military culture and commanders’ attitudes toward sexual assault. Congress turned up the pressure in 2013 as lawmakers like Sen. Kirsten Gillibrand of New York began to push the idea that commanders should not oversee the justice system.

But large-scale reform wouldn’t happen until 2021, one year after the disappearance and murder of Army Spc. Vanessa Guillén at Fort Hood in Central Texas. Her death, along with the deaths of several other soldiers at the post, spurred louder calls for change. Guillén was sexually harassed by a supervisor months before she was allegedly killed by another soldier. That year, an independent review committee appointed by the Secretary of the Army published a report that found evidence soldiers had underreported sexual assault and harassment at the post for fear of “ostracism, shunning and shaming, harsh treatment, and indelible damage to their career.”

“That commission actually found that there was an environment that was permissive of sexual harassment and assault, which was the first time any kind of military-related formal document actually pointed a finger at the commanders and said, ‘You allowed an environment that was conducive to this stuff,’” VanLandginham said.

The compromise will change only some things

In 2021, Congress made sexual harassment a separate offense in military courts, easing the path for charging soldiers. Previously, ambiguity in the law made it so that soldiers often would be charged with sexual harassment only in conjunction with other misconduct. Lawmakers also mandated that military judges, not jurors, sentence service members for all non-death penalty offenses and ordered the creation of recommended sentencing guidelines.

But the most significant change was lawmakers’ creation of a new office of military attorneys, called the Office of the Special Trial Counsel. Instead of leaving it up to military commanders to decide whether to prosecute cases related to serious offenses that include sexual assault and domestic assault, murder and involuntary manslaughter, attorneys within the new office will do that.

VanLandingham, who supports taking legal authority from commanders, believes that the new system does not go far enough because it leaves some cases in the hands of military commanders. For example, commanders continue to decide whether to prosecute offenses such as robbery, assault and distribution of controlled substances.

That disparity “makes no sense,” VanLandingham said. “It’s a product of politics versus a product of doing the right thing.”

By comparison, Corn supports maintaining commanders’ ability to decide cases in which service members are accused of crimes. He said commanders “are in those positions because they have had a career of exercising careful, thoughtful and decisive judgment.” But he said if Congress was going to take away that authority, it should have done so across the board and not only in certain cases.

“I struggle with the idea that Congress has said a nonlawyer commanding general is not competent to make decisions on whether or not an individual should be brought to trial for sexual harassment, but he is competent to make decisions on whether another defendant can be brought to trial on some other offense,” Corn said. “If I’m that other defendant, I’m saying, ‘Wait a minute, that’s fundamentally unfair.’”

The 2021 law wasn’t the last word

Congress passed additional changes in December that VanLandingham said helped address some of what had been left unfinished in 2021.

Lawmakers moved three additional charges under the purview of military attorneys. Those are sexual harassment, causing the “death or injury of an unborn child” and “mailing obscene matter,” which means wrongfully sending explicitly sexual materials like a nude photo of a child.

The new law also requires the U.S. president to remove such powers as the ability to grant immunity to witnesses and hire witness experts from commanders in cases that the new trial counsel office is handling.

Congress also passed a measure requiring the Secretary of Defense to annually report on the outcomes of cases handled by the new Special Trial Counsel office beginning no later than 2025.

All service members will also for the first time have the ability to seek judicial review of their convictions. Previously, only service members who were sentenced to several months of confinement or received a punitive discharge were eligible to ask for such a review.

Congress directed that an existing advisory committee examine what information about a case should be shared with lawyers representing victims of crimes allegedly committed by military personnel. Victims have historically had trouble accessing evidence connected to their cases.

Corn believes the change will bring more transparency for alleged victims. “If I’m a victim’s counsel, and the prosecutor is saying, ‘We have decided not to prosecute this case,’ and my client is distraught and doesn’t understand it, my ability to have access to the file to show the victim what the problems are in the case helps me do my job,” Corn said.

VanLandingham said one of the most significant changes in December was Congress’ decision to require that courts-martial jurors — known as panel members — be selected at random, like a civilian jury. Currently, military commanders select the panel members. Those rules are not expected to go into effect until the end of 2024.

The change is “huge, at least appearance-wise,” VanLandingham said. “It’s just one more step to show that, yes, all these things that have been done for hundreds of years in the civilian sector really do and can be done” in the military.

More work remains to be done

The 2021 overhaul, which included the creation of the Office of the Special Trial Counsel, won’t go into effect until the end of this year at the earliest. That’s too long, VanLandingham said: “We can invade a country in far shorter of a time frame.”

She expects Congress and the Department of Defense to want time to see how the new system works before considering other large-scale reforms.

VanLandingham said she believes the only solution is to transfer prosecutorial authority of all felony-level offenses in the military to the Justice Department, “whose prosecutors do nothing but prosecute.” Short of that, she said, commanders should be taken out of the military justice equation entirely instead of having the two-pronged system Congress created.

“You’ve created a Frankenstein system that is doubly inefficient and, I think, still leaves in place things like gross racial disparities, gross rank disparities in the administration of military injustice. It’s hard for me to even call it military justice when you have twice as many African Americans still court-martialed to this day,” VanLandingham said.

She said commanders should not be in the business of practicing law.

Corn said future reforms should focus on creating more uniform and effective training for commanders “on the ethical guideposts that prosecutors, good prosecutors, use to decide whether or not to send the case to trial.”

Still, he expects that prosecution of almost all criminal offenses will one day fall to the special trial counsel office.

“So 10 years from now, when the captain at Fort Hood who is a brigade or division commander, if you said to him, ‘Hey, did you know that 15 years ago, if you were in this job, you would decide what cases go to trial?’” Corn said. “He’d probably say, ‘That’s crazy.’”

Disclosure: Texas Tech University has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.

This article originally appeared in The Texas Tribune at https://www.texastribune.org/2023/02/13/military-justice-reforms-pretrial-confinement/.

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