Judge-Alone Special Courts-Martial
A Tool and an Opportunity
The implementation of the Military Justice Act of 2016 (MJA 2016) brought with it the first completely new court-martial forum in over fifty years: the judge-alone special court-martial (JA-SPCM).1 As the Army approaches its 100th JA-SPCM since the forum came to life on 1 January 2019, now is the perfect time to examine how it has been put to use. By early indications, JA-SPCMs have potential both as a means for commanders to exercise expedient justice, and as a forum that is especially suited to allowing Soldiers who have committed minor misconduct to demonstrate rehabilitative potential.
The Old History Behind a New Type of Court-Martial
The Military Justice Review Group (MJRG) was the high-level group of military justice experts behind many of the recommendations that worked their way into the MJA 2016.2 Creating a JA-SPCM was among the group’s specific proposals for strengthening the structure of the military justice system.3 The idea was to “incorporate[e] a practice used in U.S. district courts—the judge-alone trial with a punishment cap of six months confinement,” in support of the “key principle” of “discipline in the armed forces.”4 The end state was that commanders would have an efficient option to adjudicate “low-level, misdemeanor offenses”5 in a forum that was “less burdensome on the command than a special court-martial, but without the option [for the accused] to refuse as in summary courts-martial and non-judicial punishment.”6 The JA-SPCM, in the eyes of the recommenders, could be “particularly useful” in courts-martial that originated from Article 15 turn-downs and summary court-martial refusals, or in deployed environments where it could be difficult to assemble a panel.7
The other factor that drove the creation of the JA-SPCM was the increasing experience with judge-alone trials.8 Prior to 1968, trial by judge-alone was not even an option in courts-martial. General courts-martial were presided over by a law officer, 9 and special courts-martial by the panel president,10 but in both cases the results and the sentence were deliberated on and voted on by members.11 The Military Justice Act of 1968 created the statutory role of military judge.12 With this change, military judges presided over all general courts-martial and special courts-martial authorized to adjudge a bad-conduct discharge,13 and the accused had the option to elect trial by members or trial by military judge alone. A special court-martial could also be convened without a military judge presiding (referred to as a “straight special”), but punishment was limited to forfeitures and confinement for six months or less, and no punitive discharge.14 Finally, summary courts-martial could be convened without a military judge.15 These remained the four types of courts-martial available from 1968 through 2018.
Effective 1 January 2019, the MJA 2016 did away with “straight special” courts-martial and added in something new: the JA-SPCM. Like a straight special, the maximum punishment at a JA-SPCM is limited to six months’ forfeitures, six months’ confinement, and no punitive discharge.16 Unlike a straight special, a JA-SPCM must be presided over by a military judge.17 Although not delineated by statute, under the Rules for Court-Martial, an accused may object to trial by JA-SPCM if the applicable specification alleges (1) an offense for which the maximum authorized confinement would be greater than two years if tried at a general court-martial, except for wrongful use or possession, or attempts thereof, of a controlled substance under Article 112a(b), UCMJ; or (2) an offense for which sex offender notification would be required.18 Typically, the accused does not have a right to object to a JA-SPCM, because the types of offenses most often referred to this forum allow for a maximum punishment of less than two years. This includes offenses like absence without leave;19 disrespect;20 assault consummated by a battery;21 drunk driving;22 and drunk and disorderly conduct;23 in addition to the specific exception for drug use and possession offenses. So, from 2019 to the present, the four types of courts-martial now available to commanders include general courts-martial, special courts-martial empowered to adjudge a bad-conduct discharge, JA-SPCMs, and summary courts-martial. Only summary courts-martial may be conducted without a military judge.
The Beginning of Something New
Judge-alone special courts-martial started off slowly as military justice practitioners tiptoed into the massive changes of MJA 2016, but have been on a steady uptick ever since. In the Army, the first JA-SPCM was tried on 21 March 2019, and a total of nineteen JA-SPCMs were completed in 2019 out of just over 800 total courts-martial.24 Sixty-two more JA-SPCMs were completed in 2020.25 As of April 2021, a total 97 JA-SPCMs have been completed in the Army so far.26
What do early statistics reveal about the role of JA-SPCMs? First, they span the ranks: the lowest-ranking accused was an E-1; the highest ranking was an O-6.27 Second, they are capable of facilitating expedient justice under certain circumstances. The author’s own trial judge experience with JA-SPCMs may not be entirely representative, but is one snapshot of how the forum has been used so far in two jurisdictions, one in the continental United States and one outside the continental United States. Out of fourteen JA-SPCMs presided over by the author, twelve were directly referred as JA-SPCMs, and two were originally referred as special courts-martial, only to be re-referred as JA-SPCMs pursuant to plea agreements. Twelve of these JA-SPCMs involved plea agreements, either at the time of referral or shortly thereafter, and two were contests. Eleven of the JA-SPCMs were not subject to objection because no specification alleged an offense authorizing confinement greater than two years; the remaining three JA-SPCMs did include objectionable offenses, but the objections were waived. The average time from preferral of charges to completion of trial through sentencing was thirty-nine days when accounting for the twelve guilty-plea cases28 and twenty-nine days when accounting for only the ten of those that were sent directly to a JA-SPCM. The quickest resolution was twelve days from preferral of charges through completion of trial and sentencing. When using referral as the metric, the quickest resolution was two days from referral to a completed trial (with an Article 35 waiver);29 three more cases took just five days from referral to a completed trial.
These examples are only part of the picture. A JA-SPCM is fully a court-martial and, depending on the circumstances, may or may not be more expedient than other forums. All of the usual rules apply, including those for production of witnesses and evidence. While a JA-SPCM, by consent or by operation of law, does away with the need to assemble a panel, there may still be a need to produce witnesses from out of the area to conduct trial. So whether a JA-SPCM is more expeditious than other types of courts-martial is always case-specific.
One more aspect of JA-SPCMs that may contribute to expedient justice is their lower level of disposition. Judge-alone special courts-martial are typically convened by special courts-martial convening authorities,30 often a brigade commander or an O-6 convening authority in an equivalent position. This makes the JA-SPCM the lowest-level court-martial in front of a military judge that can be convened without forwarding the case to a general court-martial convening authority.31 On the whole, the ability of JA-SPCMs to expediently resolve low-level offenses is consistent with the idea behind courts-martial jurisdiction in the first place, to provide a “prompt, ready-at-hand means of compelling obedience and order,”32 or discipline. The potential for military magistrates to preside over JA-SPCMs could contribute to even quicker resolution of JA-SPCMs, as magistrates—unlike military judges—would not have to juggle other caseloads to get JA-SPCMs tried quickly.33
An Opportunity for the Accused, Too
In all fairness, it is doubtful that many accused view going to court-martial as an “opportunity.” That being said, a JA-SPCM offers potential advantages to the accused that may not be as readily available in other court-martial forums. First, referral to a JA-SPCM means that a punitive discharge is off the table. It is only logical then to assume that “the potential of the accused for rehabilitation and continued service” is a factor behind the decision to refer the case to a JA-SPCM.34 While rehabilitation is a sentencing consideration in any court-martial,35 the very fact that punishments are limited and that a punitive discharge is prohibited in a JA-SPCM is an opportunity for the accused to make rehabilitation a more central factor of their sentencing case. Of course, a JA-SPCM also still affords an accused every right and opportunity to plead “not guilty” and to seek a full acquittal, if the accused wishes to do so.
Another aspect not unique to JA-SPCMs, but that may play out especially effectively in this forum, is the possibility for suspended sentences. Suspending all or part of a sentence is wholly within the discretion of the convening authority,36 but a military judge may recommend suspension upon request of counsel, or sua sponte. Consistent with the policy that charges should be disposed of at the “lowest appropriate level,”37 a brigade-level commander who convenes a JA-SPCM is typically that much closer to the accused’s unit and situation when deciding whether to suspend all or part of a sentence. Of the fourteen JA-SPCMs adjudicated by the author, five resulted in recommendations for partial suspension of the sentence, several of which were approved by the respective convening authorities. Each judge makes their own decision as to recommending suspension, and the advent of the JA-SPCM does not necessarily mean that suspension recommendations, or suspended sentences, will be more frequent. But in cases where the military judge is convinced, for example, that a partially-suspended sentence may incentivize the accused to rehabilitate themselves and avoid future misconduct, an appropriately-articulated suspension recommendation can provide useful information to the convening authority when acting on the sentence.38
Also not unique to JA-SPCMs, but perhaps particularly suited to the rehabilitative aspect of the forum, is the opportunity for the military judge to articulate the reasons for his sentence. Although no explanation is required or perhaps commonly given for court-martial sentences, the Supreme Court in relation to the federal requirement called it “sound judicial practice” to state the reasons for a sentence in open court.39 Explaining the reasons for a sentence, when constrained to evidence that is available on the record, can help all participants and the accused understand the sentence. When rehabilitation is an appropriate consideration, it can also serve a “salutary purpose” 40 for the military judge to directly address the accused, and hopefully encourage the accused to avoid future misconduct. The task of the trial court is never to lecture or reprimand the accused. But a court-martial is likely a significant event in the accused’s life. If the judge can say anything to an accused, based on the evidence presented, that will motivate them to overcome their wrong or to improve their behavior, then the accused, the unit, the Army, and ultimately society stand to benefit.41
The typically rapid post-trial disposition of JA-SPCMs is another benefit of the forum, which potentially serves the interests of the command, the accused, and the justice process all at once. In the author’s experience, the time from completion of trial to entry of judgment for a JA-SPCM is typically a matter of days, not weeks; the quickest time between these two milestones was five days. The quickest total post-trial disposition, from completion of trial to authentication of the record, was thirteen days. While “fast” is not always an end in and of itself, these examples show that JA-SPCMs are indeed capable of meeting their intended role as an efficient means to resolve low-level offenses.
Finally, the after-the-fact implications of a JA-SPCM conviction and sentence may play out differently for an accused than they would for a special or general court-martial conviction and sentence. Though the way in which a federal or state jurisdiction treats a JA-SPCM conviction and sentence is not an issue for consideration by the military judge,42 it may be a consideration for the accused and convening authority when negotiating or deciding a case disposition.43 Overall, the JA-SPCM appears situated to occupy the useful middle ground between alleged offenses that are “serious” enough to warrant a court-martial, but still “petty” enough that felony-level penalties are not warranted.
While still a new forum and with relatively few cases to date, early indications are that JA-SPCMs are capable of serving their intended purpose, as an efficient means to resolve low-level offenses, while also allowing the accused to have their day in court in a way that preserves the accused’s rights and interests. Where the JA-SPCM goes from here remains to be seen, but it appears to be an innovation of MJA 2016 with room to grow. TAL
1. Formally referred to by statute as a “special court-martial consisting of a military judge alone.” See UCMJ art. 16(c)(2) (2017); UCMJ art. 19(b) (2016).
2. The MJRG, headed by the Honorable Andrew Effron, former Chief Judge of the Court of Appeals for the Armed Forces (CAAF), was directed by then-Secretary of Defense Chuck Hagel to conduct a holistic review of the Uniform Code of Military Justice (UCMJ) under “guiding principles” that included reassessing the existing UCMJ, examine to what extent the practices of U.S. District Courts could be implemented into court-martial practice, and to apply the UCMJ as uniformly across the services as possible. See Mil. Just. Rev. Grp., Report of the Military Justice Review Group, Part I: UCMJ Recommendations 14 (2015) [hereinafter MJRG Report]. The MJRG completed its substantive report in December 2015. Id. at 5.
3. MJRG Report, supra note 2, at 6.
4. Id. at 222. The U.S. Code defines a “petty offense” as a Class B misdemeanor, a Class C misdemeanor, or an infraction. 18 U.S.C. § 19. The most serious of these, a Class B misdemeanor, is classified for sentencing purposes as an offense for which the maximum term of imprisonment authorized is six months or less. 18 U.S.C. § 3559. Under federal rules, a defendant has the right to a jury trial “unless the charge is a petty offense.” Fed. R. Crim. P. 58(b)(2)(F).
5. MJRG Report, supra note 2, at 1218.
6. Id. at 222.
8. Id. at 221.
9. Manual for Courts-Martial, United States ¶ 39 (1951).
10. Id. ¶ 40.
11. Id. ¶ 41.b.
12. Pub. L. No. 90-632, 82 Stat. 1335 (1968).
13. UCMJ art. 19 (2016).
15. UCMJ art. 16(3) (2017).
16. UCMJ art. 19(b) (2016). Although the statutory amendments that created the JA-SPCM only specifically refer to the prohibition of a “bad-conduct discharge,” which would apply to enlisted personnel, no type of special court-martial is authorized to adjudge a dismissal for an officer. See Manual for Courts-Martial, United States, R.C.M. 201(f)(2)(B) (2019) [hereinafter MCM].
17. Unless both parties consent to a military magistrate presiding.
18. MCM, supra note 16, R.C.M. 201(f)(2)(E).
19. MCM, supra note 16, pt. IV, ¶ 10.d.
20. E.g., id. ¶ 15.d(1)-(2).
21. Id. ¶ 77.d(2).
22. Id. ¶ 51.d.
23. Id. ¶ 98.d.
24. This data is drawn from the Army Court-Martial Information System (ACMIS) on JAGCnet, https://www.jagcnet.army.mil/Sites/JAGC.nsf (last visited May 17, 2021). The ACMIS, which is accessible to clerks of court and military judges via login, is a web-based management tool developed by the OTJAG Information Technology Division to monitor and track courts-martial using Court-Martial Case Reports (CMCRs). The CMCR reports case details and triggers the Army’s tracking system for post-trial processing. See U.S. Army Trial Judiciary, Standing Operating Procedures (12 Feb. 2018) (on file with author).
25. Id. The total of 81 JA-SPCMs through 2020 excludes cases for two individuals that were “double reported,” which happens, for example, when a case is withdrawn after arraignment and then re-referred.
27. Since summary courts-martial may not try officers, a JA-SPCM is the most limited court-martial forum which can be referred for an officer accused. See MCM, supra note 16, R.C.M. 1301(c)(1). And for any accused, a summary court-martial is not a criminal forum and a finding in a summary court-martial is not a criminal conviction, making the JA-SPCM the lowest level of a truly criminal court-martial forum. Id. R.C.M. 1301(a).
28. Data is still pending for the two contests.
29. See UCMJ art. 35 (2016); MCM, supra note 16, R.C.M. 602(b)(1)(B) (no person may be brought to trial in a special court-martial “from the time of service of charges…through the third day after the date of service,” unless the accused waives any objection).
30. General court-martial convening authorities (GCMCAs) may of course convene any lower level court-martial, including JA-SPCMs, as sometimes happens due to the GCMCA’s withholding policy. See MCM, supra note 16, R.C.M. 407(a)(4).
31. Subject to any withholding by higher authority pursuant to R.C.M. 401(a), or jurisdictional limitations such as those applicable to certain sexual offenses. See MCM, supra note 16, R.C.M. 201(f)(1)(D).
32. United States ex rel. Toth v. Quarles, 350 U.S. 11, 22 (1955).
33. Article 19(c), UCMJ, allows for properly-designated military magistrates, with the consent of both parties, to preside over JA-SPCMs, a practice not yet implemented in the Army.
34. MCM, supra note 16, app. 2.1, sec. 2.5f.
35. See UCMJ art. 56(c)(1)(C)(vi) (2019) (discussing, among other sentencing considerations, the need for the court-martial sentence to “rehabilitate the accused.”).
36. See MCM, supra note 16, R.C.M. 1107.
37. Id. R.C.M. 306(b).
38. There is nothing in the UCMJ, Rules for Courts-Martial, or other guidance that requires a judge to articulate the reasons for a suspension recommendation in a JA-SPCM. See, e.g., MCM, supra note 16, R.C.M. 1109(f) (requiring a recommendation of a military judge in order for the convening authority to suspend a sentence to a punitive discharge or confinement in excess of six months—sentences not applicable in a JA-SPCM). On the other hand, nothing prohibits a military judge from articulating the reasons for his sentence recommendation. When recommending a sentence suspension in a JA-SPCM, the author finds it helpful to articulate the evidence-based reasons on the record, and in blocks 25-28 of the Statement of Trial Results (STR). See MCM, supra note 16, R.C.M. 1101(a)(5) (describing the requirements for a suspension recommendation in the STR).
39. Rita v. United States, 551 U.S. 338, 356 (2007).
40. Id. As the Court in Rita recognized, “often at sentencing a judge will speak at length to a defendant, and this practice may indeed serve a salutary purpose.” Id. at 357.
41. See, e.g., United States v. Green, 64 M.J. 289, 291-92 (C.A.A.F. 2007) (explaining that even though the 1951 MCM provision that authorized the court-martial to provide “a brief statement of the reasons for the sentence” was removed in later revisions, the removal “was not intended to preclude the military judge, in a bench trial, from setting forth reasons for the judge’s decision.”). In Green, the CAAF took no issue per se when the sentencing military judge addressed the accused to explain “why I think the sentence is appropriate for you,” with reference to basic sentencing principles and the evidence presented in the case, including the harm to the accused’s victims, his family, and the Army. Id. at 292. The issue of discussion in Green was the military judge’s use of religious references, which prompted the Court to note (but not find error in the case) that “[a] military judge may not interject his or her personal beliefs into the sentencing process.” Id. at 293. As long as a trial judge sticks to evidence introduced at trial, and resists bringing in personal thoughts or references from outside of the record, no appellate court is likely to find error in addressing the accused.
42. See, e.g., UCMJ art. 56(c)(1) (2017) (laying out permissible sentencing considerations); United States v. Talkington, 73 M.J. 212, 215 (C.A.A.F. 2014) (“The general rule concerning collateral consequences is that ‘courts-martial [are] to concern themselves with the appropriateness of a particular sentence for an accused and his offense, without regard to the collateral administrative effects of the penalty under consideration.’”) (internal citations omitted).
43. How a JA-SPCM conviction and sentence are classified in a federal or state jurisdiction could, for example, affect a subsequent sentence in the unfortunate event that the accused ever finds himself in federal or state court. See, e.g., U.S. Sent’g Comm’n, Guidelines Manual § 4A1.2 (2018) (explaining that a “prior sentence” when computing “criminal history” status generally includes sentences by a special court-martial, but that certain offenses such as reckless driving or disorderly conduct may be excluded if the sentence to confinement was less than thirty days, and the prior offense is dissimilar to the currently-charged offense); State v. Reed, 2000 Kan. App. Unpub. LEXIS 694 (Ct. App. Kan. 2000) (discussing how, under Kansas state, prior military convictions are classified as felonies or misdemeanors, and how military convictions are determined to be one or more “counts” of the offense at issue); In re Nelson, 87 Va. Cir. 203 (Cir. Ct. Fairfax Cnty. 2013) (classifying a special court-martial conviction as a misdemeanor conviction under Virginia state law). Again, none of this directly involves the trial court at the JA-SPCM; the intent here is just to point out that how a JA-SPCM conviction plays out might be worth exploring by counsel.