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by on January 28, 2020
It is time for the military justice system to align with the basic principles of American justice, injecting independence, objectivity, and professionalism into the process. This change would help to ensure that cases are decided on their merits; absent external influences, previous relationships or political pressure. It would eliminate the layers of bureaucracy that bog down the system, allowing for quick, effective and efficient justice. Also, additional measures must be taken to improve the current system, including reform of the jury structure, the pre-trial settlement process, sentencing procedures, and the appeals process.
• Military jurors must be composed of 12 members for a general court-martial and must be selected at random without the influence of commanders.
• Judges must consider the terms of a pre-trial contract when preparing an appropriate sentence, as in the federal system.
• Sentences must be decided by the judge, not the jury, and the submission of reports similar to those used in the federal system must be mandatory for those convicted of serious crimes. This would give the judge a clearer picture of the person he is condemning, in contrast to the current system, which lacks transparency about the accused's past. Evidence rules should not be used during the sentencing hearing, except those that ensure that the process is fair, as in the federal system.
• Appeal judges must have served as first instance judges before entering the service's appellate courts and have extensive experience in criminal litigation. The prestige of the service appeals courts must be restored. One way to achieve this may be to nominate only fixed-term JAGs with the same status as the Armed Forces Court of Appeals judges, rather than the current process of assigning the JAGs for a short period before moving on to the next task. All sentences must be eligible for review, regardless of the sentence, and only death sentences should require review. (The current standard requires a review of sentences that result in a discharge or confinement sentence of one year or more, but those who receive a minor sentence do not have access to the courts. As a result, a defendant pleading guilty to a single drug, on the other hand, a defendant who pleaded not guilty in a highly contested trial and with numerous contentious sentences will not have his case reviewed unless the case is dismissed (his sentence is long enough).
The military should also develop race tracks in litigation to ensure that prosecutors, defense lawyers, and judges have the experience and knowledge necessary to ensure a fair justice system and place them in a separate chain of command under a civilian oversight body, as a service secretary to guarantee true independence and eliminate the fear of reprisals. As in the federal system, the independence of prosecutors, defense lawyers and judges are fundamental to the appearance and reality of a fair system.
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