General Court-Martial Changes in 2023
The current court-martial system has been around for over 50 years, but that doesn’t mean there aren’t important differences in 2023 to the military justice system. The biggest difference is centered around the way in which the military is prosecuting allegations of sexual assault at court-martial, but there are other key differences between court-martial trials in 2023 than there were in other recent years.
Sexual Assault Court-Martial in 2023
The entire process for prosecuting sexual assault allegations in the military is in the middle of a fundamental overhaul. Instead of commanders being in charge of making the critical decisions regarding the prosecution of sexual assault allegations, Congress and the President have altered the system to put senior JAGs in charge of making prosecutorial decisions in sexually based offenses.
The decision to put JAGs in charge of prosecutorial decisions in sexual assault cases is meant to make the military more in line with civilian criminal justice systems in which prosecutors decide who to prosecute, not politicians or other government officials. Experienced prosecutors, it is believed, have a broader base of knowledge and context to make the often difficult decisions about prosecution.
Many people in the victim advocacy community have pushed for the change from commander control to JAG control because they believe that commanders have failed to take the alleged victim’s allegations as seriously as they should have. They believe that commanders have stopped prosecutions unjustly and that prosecutors running the system will lead to better “numbers” showing the military is taking sexual assault seriously.
In many ways, switching from commanders to JAGs may help out those accused of sexual assault. Commanders are so detached from the actual court-martial process that they don’t really understand the nature of what makes for a viable case for prosecution versus what types of cases are destined for an acquittal.
The JAGs in charge are also more junior, rank-wise, than the generals and admirals that were previously making the same decisions. The more senior ranking an individual is, the more they are the target of Congress who are responsible for approving promotions and assignments for flag officers. While there have been generals in the past that were essentially fired for their court-martial prosecutorial decisions, it will be more difficult for Congress to take similar adverse actions against the lower ranking prosecutors now in charge of the decision.
We have worked closely with many of the new JAGs being put in the new prosecutorial positions. These long relationship we have formed with these JAGs is critical for our client because it provides the opportunity for early and practical conversation about the legitimacy of prosecution. When commanders are in charge of prosecution, they are busy and disinterested in more conversation than necessary about prosecution. However, JAGs tend to be far more accessible and receptive to conversations and negotiations about the prosecutorial decisions.
Other Differences in a Court-Martial in 2023
Court-martial trials in 2023 are also different than in years past because of recent changes in the jury system and the sentencing procedures. These are changes that occurred within the last few years, but are still new issues in court-martial trials in 2023.
A general court-martial now requires 8 jury members. Previously, a general court-martial only required 5 members, but could have any number of jurors over 5. In both the new and old system, a vote of guilty by 2/3rd or more of the jurors was required for a conviction. This two-thirds requirement still exists, but is more advantageous to an accused with 8 jurors versus 7 or 9 jurors.
The sentencing system has also changed, now allowing an accused to decide whether the jury or the judge makes the sentencing decision.
With the new system, lawyers don’t have a good base of experience to give good advice on this issue. However, given the hundreds of court-martial trials our firm has done, we are firmly convinced that unless confronted with strong rationale, the best decision is to be sentenced by members. There are many reasons for this that should be discussed with your attorney. We provide free consultations and are happy to discuss this particular decision in your first consultation.
General Court-Martial Attorneys
Bottom line, military law constantly changes, and the changes can have a direct impact on the ability of an accused military member to fight the charges against them. We believe the best way to fight any allegation is with the very best attorney you can find.
Experience matters. Litigation skills matter. Relationships matter. We have no doubt we are the best court-martial attorneys out there. Contact us to find out more!
