Congress Reforms Military Sentencing, Creating an Opportunity for a Productive Sentencing Reform Dialogue Between the Military and Civilian Criminal Justice Systems

Abstract

In recently-enacted legislation, Congress drew upon the 35-year experience with sentencing reform in the federal civilian criminal courts to reform significant aspects of the sentencing process in the military justice system. The article reviews the sentencing reform provisions contained in the National Defense Authorization Act for FY2022 and the Military Justice Act of 2016, which address many of the core elements of sentencing, including: (1) the principles governing sentencing in courts-martial; (2) the use of sentencing “parameters” and “criteria” in the adjudication of sentences by general and special courts-martial; (3) the role of the military judge in the adjudication of sentences; (4) consideration of plea agreements at the trial level; (5) appellate review of sentences; (6) clemency and related actions on the sentence, and more. After summarizing the history of military and civilian sentencing, the article reviews the newly-enacted military justice sentencing provisions, comparing them to the relevant provisions in the federal civilian sentencing system that were enacted as part of the Sentencing Reform Act of 1984 and subsequent legislation, and implemented by the U.S. Sentencing Commission. Although some of these newly-enacted reforms mirror similar elements of the federal civilian sentencing system, others follow a different approach, reflecting a decision by Congress to adapt rather than simply adopt current civilian practices. As Congress, the Administration, and a new Sentencing Commission focus on criminal justice reform, including possible changes to civilian sentencing law and policy, the recent reforms in military justice sentencing provide an important source of insights worthy of consideration.