Military and Native American Criminal Justice

The first federal courts in the United States were military courts created to maintain discipline and order in the American Revolutionary Army during the war for independence from Great Britain. In 1775 the Continental Congress created Articles of War patterned after the British military legal system. The articles emphasized discipline more than justice. In addition to the more common types of crimes such as murder, robbery, and rape, the military also added insubordination (disobeying someone of higher military rank), poor performance of duties, and absenteeism. Federal civilian courts did not come into existence until the late 1780s, following the adoption of the U.S. Constitution in 1787.

The two justice systems remained separate even though the Constitution gave responsibility for military matters to the civilian side of government. The Constitution named the U.S. president as commander-in-chief of the armed forces. It also gave Congress responsibility to raise and fund the armed services for the common defense of the nation. The U.S. Supreme Court stayed away from accepting appeals from military cases, The trial of Caption Henry Wirz, the only person to have been tried for war crimes following the American Civil War. (The Library of Congress)
except where the cases protected civilians (nonmilitary people) from prosecution in military courts.

One main difference between the two criminal justice systems was that the military system did not have an appeals process with appellate courts. A military member convicted in a court proceeding had no means of appealing the decision. Even the U.S. president, who could pardon (grant exemption from punishment) the defendant, could not actually reverse the decision.

With limited revisions through the years, the system remained largely unchanged until after World War II (1939–45; war in which Great Britain, France, the Soviet Union, the United States, and their allied forces defeated Germany, Italy, and Japan). The emphasis remained on discipline. Public concern over justice within the military system was rare; military justice was considered primarily a tool for commanding officers to maintain discipline. To ensure military order, the military system had to operate swiftly and harshly when necessary, quite different from the much slower civilian criminal system.

The military police are responsible for the enforcement of military codes and discipline. (National Archives and Records Administration)

It was common knowledge that when citizens joined the military, they gave up a certain degree of their constitutional rights, such as freedom of speech. The authority of the military command had to be reinforced. Military society was clearly different than civilian society.

One change did come in 1863 during the American Civil War (1861–65) when Congress more clearly defined the court-martial process, reaffirming the authority of the military to prosecute the crimes and conduct of its personnel. During this early period, commanders held considerable influence over the military criminal justice system. Commanders accepted cases, selected members of the court from those under their command, and had to approve sentences before they went into effect. Commanders could alter punishments either by influencing court members or by simply changing them, making sentences harsher or lighter if they chose.

Military defendants did not have the right to an attorney like in civil criminal cases. Instead, the judge advocate general (JAG) would both prosecute the case on behalf of the military and provide limited legal advice to the defendant. The person JAG assigned to advise the defendant might not even be a lawyer; they mostly followed instructions from a booklet about court-martial proceedings.

To operate swiftly wherever military personnel were stationed, the system had to be mobile and function in combat conditions. Given these various characteristics of the military justice system, one major result was how the same crime might have very different punishments based on the location where the offense was committed and the military offender's commanding officer.