Who Should Decide: Prosecutorial Discretion and Military Justice

The American military has operated under a separate justice system since before the signing of the United States Constitution. The distinct character of military society drives the need for this separate system. Unlike civilian society, the military exists for a single purpose, to fight and win our nation’s wars. This mission requires that the military have different crimes, different jurisdictional rules, a broader capacity to administer justice under difficult circumstances, and different prosecutorial decision-makers than civilian society. Every Congress to address military justice since 1775 when the Continental Congress passed the first Articles of War has recognized the unique needs of military society that necessitated this distinct system of justice. Recently, Congress has set in motion steps directed at altering one of the core aspects of military justice, the role of military commanders in the decision to prosecute service members.

In 2019, Congress, through section 540F of the National Defense Authorization Act 2020, directed the Secretary of Defense to conduct a study that considers, among other things, the feasibility and advisability of transferring prosecutorial discretion from military commanders to senior judge advocates (military lawyers), for any misconduct that could be classified as a felony. Although the military does not classify offenses as misdemeanors or felonies, the traditional demarcation between the two categories is determined by the maximum authorized punishment for an offense–felonies are generally classified as any offense with an authorized maximum punishment of more than one year in confinement. Were this proposal to be implemented, commanders would be stripped of their existing authority to decide whether to charge (prefer) such an offense, and whether to send the charge to trial (refer). That authority would be shifted to a senior military lawyer. At the heart of this proposal is the assumption that a military lawyer is better suited than a senior military commander to exercise this prosecutorial discretion. We believe this assumption is incorrect and the proposal is neither necessary nor advisable. Preserving the current system will provide better utilization of military resources, check abuses resulting from overzealous prosecutors, produce more just outcomes that balance respect for the law and fairness, and most importantly better meet the needs of military society and our country.

Prosecutorial Discretion

The exercise of prosecutorial discretion is often the source of controversy regardless of who possesses it. Numerous legal scholars have challenged the power possessed by state and federal prosecutors in the United States. Critics suggest that prosecutors abuse this power by overcharging, or by exercising this authority arbitrarily, resulting in wide variations from one office or prosecutor to the next. These abuses are often linked to the incentives that can drive prosecutors. These incentives include: political pressure to appear tough on crime; a suggestion that the higher the sentence a convicted individual receives the better the prosecutor; and a drive to have the highest conviction rate possible resulting in a refusal to try difficult cases. Critics argue that these incentives drive prosecutors to outcomes that are inconsistent with social justice.

Prosecutorial Discretion in the Military is a Collaborative Process

The exercise of prosecutorial discretion in the U.S. military is more nuanced than in the civilian system and involves complex interactions between lawyers and lay commanders (for a discussion of how prosecutorial discretion is exercised in a typical felony case prosecuted in the United States military please see the Appendix below). This combination allows for consideration of both legal and societal interests that are aligned with military society.

The usual process by which criminal charges are preferred (initiated) and referred (directed) to a general court martial demonstrates a collective decision-making process. Typically, several levels of military lawyers are present throughout, providing commanders with advice as to the evidence and recommendations regarding charges and disposition. Commanders possess both positive and negative prosecutorial discretion (i.e. commanders decide whether to charge or not charge), and judge advocates possess a degree of negative prosecutorial discretion (a judge advocate cannot be ordered to prosecute a crime in the absence of probable cause).

What Training is Required to Exercise Prosecutorial Discretion?

Regardless of who exercises prosecutorial discretion, there are two primary and two secondary questions present in any prosecution.

The primary questions are:

Can a charge be brought (i.e. is the charge supported by probable cause, and is there admissible evidence sufficient to support a conviction beyond a reasonable doubt)?

Should a charge be brought?

The secondary questions are:

If a charge should be brought, at what level should it be brought (should the misconduct be the subject of non-judicial punishment, summary court-martial, special court-martial, or general court-martial)?

If a guilty plea is offered what should be the terms?

Of those four questions, only the first requires legal training. Under the current system when bringing a charge to a general court martial, lawyers advise commanders at every stage of the charging process. Lawyers draft the charges and review the charges. A lawyer conducts the preliminary hearing and makes recommendations as to the charges and proper disposition of the case. Before a charge can be referred to a general court-martial, the staff judge advocate (a senior military lawyer) must confirm in writing that there is jurisdiction over the accused and the offense, and that the evidence supports the charge(s). Further, any general court-martial charge will be examined by the military judge at trial and be subject to a motion to dismiss if the charge is not supported by evidence produced at trial. Thus, military lawyers review the charges thoroughly.

The questions of whether a charge should be brought, at what level, and the parameters of a guilty plea are questions of justice, societal need, and efficient use of government resources. In civilian society, where the object of government is to protect the citizenry while maximizing personal freedom, prosecutors make these decisions. The reason prosecutors make these decisions is in part out of necessity— if not prosecutors then who? Further, at least with regard to the resources of a prosecution office—the prosecutors are in the best position to determine the efficient use of their own resources. Additionally, prosecutors are accountable, either directly or indirectly, to the people of a given jurisdiction. If a prosecution office does not adequately serve society’s needs or the public’s sense of justice, the people can remove the political head of the office via elections.

Why Commanders are Better Suited to Exercise Prosecutorial Discretion

In the military, a society that exists for the single purpose of fighting and winning our nation’s wars, commanders currently have the final say on what is just, an efficient use of resources, and in the best interests of military society. To ordinary civilians this system may seem strange—in effect, a service member’s supervisor or manager has the final word on what charge will be brought against him or her regardless of when or where the crime occurred. However, when considering the role of the commander in the day-in-day-out lives of service members, it makes sense. In military society, commanders are responsible for ensuring the needs and purposes of that society are met. Commanders are expected to prepare and lead their units in combat thus fulfilling the society’s purpose. In addition to training and leading service members, commanders ensure their service members are properly housed, fed, paid, and receive appropriate medical and dental care. Commanders are expected to understand the particular needs of his or her unit and meet those needs.

Justice, Resources, and Societal Needs

Justice, although a notoriously abstract concept, has been said to include respect for the law and fairness. So, who is in the best position to make a just decision that balances respect for the law and fairness in the military? Many of the felonies contained in the Uniform Code of Military Justice can be described as crimes against good order and discipline. A few examples are: striking a superior commissioned officer, failure to follow a general order, desertion, deliberately missing movement, willfully disobeying a superior commissioned officer, aiding the enemy, disloyal statements, and fraternization. With regard to these offenses, commanders are in the best position to determine the harm caused by such misconduct. Further, commanders are in at least as good a position to make a just charging decision as a senior lawyer regarding other misconduct such as murder, rape, and larceny. Commanders who decide whether to direct charges to a general court martial usually have at least 24 years of experience as an officer, and years of additional education in command, management, and leadership. Finally, nothing in the training of lawyers makes them any better suited than military commanders to determine what is fair in any given situation.

Consideration of the efficient use of resources also strongly favors command prosecutorial discretion. Commanders are responsible for providing most of the resources necessary to any prosecution. In the Army, a division commander is responsible for providing the jury, the prosecutors, the courtroom, and paying for the production of all relevant evidence and witnesses. If a senior judge advocate were responsible for determining what charges would be preferred and referred, would he or she be given a budget independent of the command, or would the judge advocate be able to access a commander’s budget as he or she saw fit?

The strongest argument in favor of command prosecutorial discretion is that commanders are better informed and in touch with the needs of military society. This is particularly relevant when the unique needs of specific command are taken into consideration. For example, the commander of a training unit may choose to punish fraternization more severely than the commander of an infantry unit recently returned from a combat deployment. The training unit commander may make such a determination because the unique power dynamics present in a training command demands a more severe punishment than a recently redeployed combat unit. Similarly, the commander of a recently returned combat unit may make their determination based on a host of factors related to the unit’s combat deployment. The prosecutorial decision is best crafted to the needs of military society and the particular community of that society. Commanders, more than lawyers, are necessarily more aware of these various needs and competing interests.

Prosecutorial Incentives

One final point that favors maintaining prosecutorial discretion in the hands of commanders is that of incentives. As mentioned above, critics of how civilian prosecutors exercise prosecutorial discretion often suggest that there is a disconnect between the exercise of that discretion and the interest of justice and the needs of society. The need to look tough on crime, achieve severe sentences, and a high conviction rate can cause prosecutors to overcharge, seek excessive punishments, or not prosecute tough but meritorious cases because the danger of acquittal is substantial. Commanders generally do not suffer from these incentives.

It could be argued that commanders suffer from a different set of incentives. A commander may be concerned that misconduct by one of his or her service members reflects poorly on the command, so the commander might be incentivized to bury the misconduct. In addition, commanders are responsible for the welfare of all those under their command, and so an individual commander might be too lenient on misconduct. Although both scenarios are possible, they are unlikely. Most commanders, especially those senior enough to be general court martial convening authorities, understand that part of their responsibility is to confront service member misconduct and, provided he or she does so appropriately, there will be no adverse reflection on the commander. What’s more, because commanders must look out for the interest of their entire command, including victims and potential future victims, any incentive to protect the career of a member of their command would be counterbalanced by the interest in protecting other members of their command.

The Exercise of Prosecutorial Discretion Is, and Should Be, Different in Military Society

Section 540F is the first step on the path to remove prosecutorial discretion from commanders. Arguments in favor of this proposal often boil down to, “that is not how we do it in the civilian system.” But the exercise of prosecutorial discretion in the military should be treated differently than in civilian society. The American people have tasked commanders with ensuring their units are combat ready and combat effective, and central to that obligation is the good order and discipline of each unit. A commander’s ability to impose or withhold military justice action is a necessary tool for maintaining good order and discipline. The current system of prosecutorial discretion is collaborative—involving attorneys and commanders. This approach ensures a properly crafted set of charges and a prosecutorial decision best suited to the needs of the military society and the nation.

[Editor’s note: Readers may also be interested in an Open Letter From Former U.S. Military Commanders & Judge Advocates to the Committees on Armed Services of the U.S. Senate and the House of Representatives, “Commander Authority to Administer the UCMJ is Required for an Effective U.S. Military” with an introduction by Corn, Jenks, and MacDonnell]

Appendix

Military Justice and a Typical Felony Charge

In the ordinary circumstance, bringing a felony charge against a service member to a general court martial involves interaction between several commanders and military lawyers. Each service has a somewhat different path by which a charge makes it way to a general court-martial (serious felony offenses are usually tried by a general court-martial, which means a court with jurisdiction to impose the maximum statutory punishment) but all involve collaboration between military lawyers and commanders.

Imagine the following fact pattern. Service member A purposely hits service member B in the head with a metal pipe while yelling, “I’ll knock some sense into you.” Service member B has a concussion but nothing more. Such a set of facts, without more information, could easily support a prosecution of service member A for aggravated assault—a violation of Article 128 of the Uniform Code of Military Justice (UCMJ). Professional military investigators usually investigate serious misconduct in the military (such as an aggravated assault). Each service has its own investigative body and their investigators are independent of the commands they investigate. In our fact pattern, let us assume the service members are Army soldiers thus the Army’s Criminal Investigation Division (CID) would have jurisdiction. Since our fact pattern imagines a prosecution under an Army command, four military lawyers (JAG) and four commanders will typically be involved in the process. For simplicity, we can describe these JAGs and commanders as occupying different levels: JAGs (level 1, 2, 3, and 4); commanders (level 1, 2, 3, and 4). CID would coordinate with the command of the victim and the suspect, as well as coordinating with the trial counsel or military prosecutor for the command of the suspect (the trial counsel is usually a captain, a junior officer in the judge advocate general’s (JAG) corps with 2-8 years of experience) (level 1 JAG). As CID investigates, the trial counsel would assist the command in determining whether to place restrictions on the suspect’s movements and coordinate with CID to determine whether a search authorization is necessary and how to go about securing it. Once the matter has been adequately investigated, the trial counsel will coordinate with the chief of the criminal law division, a more senior military lawyer with roughly 10 years of experience, to prepare the proposed charge(s) (level 2 JAG).

Level 1 JAG Meets With Level 1 Commander

In a normal case, the trial counsel would meet with the suspect’s immediate commander, the commander of the company or unit to which the accused service member is assigned (level 1 commander). A company commander is a regular or line officer, a non-lawyer, with 5-7 years of experience. In that meeting the trial counsel would explain the potential charges, the available evidence, and provide recommendations as to charge and disposition (what action the trial counsel is suggesting). Assume in the proposed fact pattern that the trial counsel has recommended that service member A be tried at the most serious level of court martial, i.e., a general court-martial, on a charge of aggravated assault. Provided the company commander agrees, the commander will sign the charge sheet, have service member A report to their office, read the soldier the charge, provide the soldier the charge sheet and accompanying documents, and arrange for the soldier to meet with a judge advocate defense attorney. Each service member is entitled to the representation of a military defense counsel at no expense (usually a military lawyer with 2 to 15 years of experience) or a civilian attorney at the service member’s expense.

Level 1 JAG Meets with Level 2-3 Commanders

Since a level 1 or company level commander cannot refer a case to a general court martial, the matter must be forwarded to the superior commanders above service member A’s company commander for recommendations and disposition. The trial counsel would take the charge sheet and accompanying documents (witness statements and the CID report if available) to service member A’s intermediate level commander, the battalion commander, a line officer with roughly 17 years of experience (level 2 commander) and again explain the charge, the evidence, and provide recommendations.

Assuming that the level 2 commander concurs with the level 1 commander, the trial counsel would meet with the next level of commander, service member A’s brigade commander, a line officer with more than 20 years of experience (level 3 commander) and have a conversation with that commander much like the conversation with the level 2 commander.

Preliminary Hearing

Provided the level 3 commander agrees with the trial counsel’s recommendation, the commander will order a preliminary hearing (in accordance with Article 32 of the UCMJ). The preliminary hearing serves a similar purpose as a grand jury, but it is more expansive and the hearing officer’s recommendations are non-binding. The level 3 commander appoints a single officer to conduct the hearing, and absent extraordinary circumstances, the officer should be a judge advocate (level 3 JAG). The preliminary hearing officer will review the charge and evidence, receive witness and evidence production lists from the trial counsel and service member A’s defense counsel, and set the time and location of the hearing. After the preliminary hearing is conducted, the hearing officer will submit a report to the officer who ordered the hearing. In the report, the hearing officer must state: whether there is probable cause to believe the charged offense occurred and the defendant committed it; whether there is court-martial jurisdiction over the offenses and accused; whether the charges and specifications are in proper form; and his or her recommendation as to the disposition of the charges. Assuming the hearing officer recommends the charge proceed to a general court-martial and the level 3 commander agrees, the matter will be forwarded to the level 4 commander.

Level 4 JAG Meets with Level 4 Commander/General Court-Martial Convening Authority

After the preliminary hearing officer has submitted his or her recommendation, the head of the military legal office assigned to that unit, typically called the staff judge advocate (SJA), an experienced military lawyer with 15 or more years of experience (level 4 JAG), will prepare a written pretrial advice. Next, the SJA will meet with the final level of command, the level 4 commander, the division commander, an officer with more than 25 years of experience. The UCMJ requires that the SJA provide the division commander with the SJA’s independent review of the charge and evidence. Additionally, the pretrial advice must inform the division commander of whether: each specification alleges an offense under the UCMJ; there is probable cause to believe the accused committed the offense; and court-martial jurisdiction exists over the offense and the accused. Provided the SJA recommends the charges proceed to a general court-martial and the division commander agrees with the advice, the division commander will refer the matter to a general court martial.

What if the Commander and Trial Counsel Disagree?

One question the above description raises is what happens if a military commander (at level 1, 2, 3, or 4) disagrees with the judge advocate’s recommendation? Such disagreements can take several forms. A commander may not believe there is enough evidence to support a charge or may feel the recommended disposition is too severe or not severe enough. Also, a commander may believe other, additional charges are in order. Commanders at each level exercise independent discretion. This means that a higher-level commander may not order or influence a lower commander into any action. However, the higher commander is still permitted to exercise his or her own prosecutorial discretion. If, for example, a level 1 commander disagrees with a disposition or a charge and does not endorse transmission of a charge, the trial counsel will go to the level 2 commander and provide his or her recommendation on charges and disposition and the lower level commander’s refusal to prefer the charge. The higher-level commander can choose to approve the trial counsel’s recommendations and prefer charges or, like the lower level commander, not prefer charges. The trial counsel could have no support from any commanders, and the charges would not advance to any court martial. 

About the Author(s)

Timothy C. MacDonnell

Timothy C. MacDonnell is a Clinical Professor of Law at Washington and Lee University School of Law and the Director of the Advanced Administrative Litigation Clinic. Professor MacDonnell served on active duty in the United States Army for 21 years and retired as a Lieutenant Colonel. During his service, Professor MacDonnell was an Air Defense Artillery Officer for four years before transitioning to the Judge Advocate General’s Corps (JAG).  

Chris Jenks

Chris Jenks served as Special Counsel to the General Counsel of the Department of Defense (2017-2018) where he was awarded the Secretary of Defense Medal for Exceptional Public Service. He is a Professor at the SMU Dedman School of Law. He formerly served as Chief of the U.S. Army’s International Law Branch in the Pentagon. You can follow him on Twitter @ChrisJenks_SMU.

Geoffrey S. Corn

Retired U.S. Army JAG Officer, Vinson & Elkins Professor of Law at South Texas College of Law Houston, Distinguished Fellow for the Jewish Institute of National Security for America’s Gemunder Center for Defense and Strategy