The military’s problem of “different spanks for different ranks” — or officers facing lighter punishment than enlisted troops for the same offense — may be built into the military justice system’s sentencing process in addition to stemming from cultural issues, advocates say.
Current law does not allow commissioned officers to be reduced in rank as a criminal sentence in a court-martial. Advocates argue that leaves little middle ground between a slap-on-the-wrist, such as a fine or a letter of reprimand, and what could be an overly harsh sentence in some circumstances, such as jail time or a dismissal that strips officers of all retirement pay and benefits.
Uniformed military judges, trained for years to venerate generals, often err on the lighter side, justice reform advocates say.
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“We pay them more, we give them more accolades, more responsibility because of their rank,” said Rachel VanLandingham, a former Air Force judge advocate who now teaches at Southwestern Law School. “Therefore, why should there actually be structurally less options for their punishment?”
VanLandingham was speaking to Military.com following last month’s conviction and sentencing of Air Force Maj. Gen. William Cooley.
The crime Cooley was convicted of, abusive sexual contact, carries a maximum sentence of seven years’ confinement and dismissal from the military, which is the commissioned officers’ equivalent of a dishonorable discharge. But Cooley was sentenced to a fine and a letter of reprimand, which is often a career-ender but still allows for retirement pay and benefits.
By contrast, Air Force summaries of court-martial results and the service’s court-martial docket show enlisted airmen convicted of the same offense being sentenced to months of confinement, dishonorable or bad conduct discharges, and reductions in rank.
While officers’ ranks can still be downgraded in administrative processes when they retire, advocates maintain that doesn’t send the same message as a criminal sentence.
“For the E-3 that committed the same offense that sent him in jail and got punitive discharge, it’s kind of hard to explain to that E-3 why the general officer who’s supposed to be held to a higher standard has committed the same offenses and is drawing $160,000 in retirement the rest of his life,” Don Christensen, president of Protect Our Defenders, told Military.com after the Cooley verdict.
Congress has undertaken some sentencing reform in recent years in an effort to close the gap between punishments for officers and enlisted personnel. But advocates say lawmakers need to do more to make sentencing more consistent.
In addition to major reforms to how sexual assault cases are prosecuted in the military, Congress last year enacted reforms lawmakers hope will lead to more consistent sentences.
Last year’s defense policy bill stipulated that judges, not juries, will hand down sentences in all cases except capital offenses, bringing the military justice system closer to the civilian system. Previously, military defendants were allowed to choose whether they wanted to be sentenced by a judge or jury, in contrast to most civilian courts where juries are involved in sentencing only when the death penalty is a possibility.
The bill also requires new sentencing guidelines for the Uniform Code of Military Justice that outline standard sentences for offenses and what factors judges should consider when going higher or lower than the standard. The executive branch has until the end of 2023 to write the guidelines.
But there does not appear to be movement in Congress toward specific reforms to officer punishments.
The reason commissioned officer ranks can’t be downgraded in courts-martial is because their promotions were approved by the president and confirmed by the Senate, a spokesperson for Rep. Jackie Speier, D-Calif., the chair of the House Armed Services personnel subcommittee and one of Congress’ top proponents for military justice reform, told Military.com.
While legislation could allow officers to be demoted in courts-martial, “it would be extremely complicated, would struggle to find support from other members and could potentially face legal challenges,” the spokesperson, Tracy Manzer, said in an email.
Asked about mandatory minimums, Manzer noted that “generally the trend is to move away from those” and said lawmakers are hopeful the new sentencing guidelines will result in “more consistent sentences for offenses across similar circumstances.”
Meanwhile, a spokesperson for Sen. Kirsten Gillbrand, D-N.Y., the chair of the Senate Armed Services personnel subcommittee and another of Congress’ most vocal military justice reform proponents, said she believes “additional work is necessary to put the military’s sentencing process more in line with the process utilized by civilian criminal jurisdictions.”
But the spokesperson highlighted a different reform than reducing officers’ ranks or setting mandatory minimums.
“For instance, the reforms [enacted last year] failed to include the ability of judges to order supervised release, which is common in civilian systems in order to offer protections for victims and the public from potentially dangerous offenders,” Gillibrand spokesperson Evan Lukaske said in an email.
VanLandingham called sentencing laws that treat officers and enlisted personnel differently a “remnant” from history that is past due to change and advocated a “holistic, comprehensive look” at sentencing reform.
If convicted officers aren’t going to be dismissed from the service and are allowed to retire honorably, she added, at least their cultural cache could be reduced.
“Why should this officer be able to walk around in his uniform for the rest of his life, because being honorably retired means you can wear your uniform for ceremonial purposes,” she said. “It wouldn’t be as bad as if there had been an option of perhaps reducing him in rank as a true punishment, all the way down to second lieutenant, first lieutenant. So he’s walking around as the first lieutenant. I doubt he’d wear his uniform again when going from a general to first lieutenant.”
— Rebecca Kheel can be reached at firstname.lastname@example.org. Follow her on Twitter @reporterkheel.
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