Military and Native American Criminal Justice

The modern court-martial process still relies heavily on a military commander's decisions. The commander can order criminal investigations, issue search warrants, send the case to trial, select jurors, and change the court's results. The military judicial process also includes legally trained attorneys and judges, a jury, a thorough appeals review process, and allows a greater degree of legal representation than civilian courts.

To initiate a court-martial trial, a military commander receives a report of wrongdoing from military or civilian law enforcement. The commander decides whether to pursue a trial, dismiss the charges, or handle the alleged violation through a less formal process.

No bail (the money a defendant pays to be released while awaiting trial) exists in military courts. If the commander/judge decides to confine the accused until trial, the decision is reviewed in a hearing where the defendant and his or her attorney can participate. Military attorneys are provided free of charge to all defendants for every phase of a trial. Defendants can also hire private civilian attorneys to represent them.

If a commander decides to pursue a court-martial, a pretrial hearing (similar to a grand jury proceeding in civilian law) is held in which the prosecution's evidence is presented. In these hearings, a military defendant has greater rights than in civilian criminal law. Unlike civilian grand juries, military pretrial hearings are not closed to the defendants and his or her lawyer can cross-examine witnesses and introduce evidence as well. The commander then decides whether to proceed with a trial.

A military policeman escorting a soldier to court. (AP/Wide World Photos)

Court-martial trials begin within 120 days of initial imprisonment. The commander who ordered the trial also selects the five commissioned officers to compose the jury. The jurors must have a higher military rank than the defendant. Enlisted servicemen and servicewomen may request that part of the jury have enlisted personnel as well. The military judge is a senior judge advocate officer assigned by JAG. The process resembles a civilian trial except it proceeds much quicker.

Military judges can enforce the Fourth Amendment safeguard against unreasonable searches and seizures by ruling out certain evidence acquired by the prosecutor. In the military, however, evidence discovered during normal inspections of living quarters and duty stations can be used at trial. Unlike civilian judges, the military judge can also question witnesses during the trial. Another difference is that it takes just two-thirds of the jury to determine guilt, while it takes all jurors to agree on a verdict in a civil trial.

The punishment process in court-martials is different than in civilian court. The defendants are still protected against cruel and unusual punishment but sentencing normally occurs immediately upon the determination of guilt. No separate report is prepared for the sentencing phase like in civilian courts. Nonetheless, the defendant's background information is presented, including past arrests or disciplinary actions, and the defendant has a chance to speak. The same jurors who heard the case determine the sentence.

In military justice, there are no mandatory sentencing guidelines. The court has considerable flexibility in deciding a sentence. Choices include a prison sentence, the death penalty, a fine, loss of pay, or discharge from the service. There is no probation (a sentence other than imprisonment) in military justice, but there is parole (early release from serving a full sentence). Defendants given long prison sentences are sent to the military prison in Fort Leavenworth, Kansas, or to a federal prison; those with shorter sentences are held at U.S. military bases.

For all court-martial trials a judge advocate reviews the trial records to ensure the court followed proper procedures. At this time, defense attorneys can submit requests for lighter sentences or overturning convictions. For sentences longer than one year or for service discharges, the Court of Criminal Appeals automatically reviews the cases. Three judges hear arguments by both sides and once again the record is reviewed. Defendants may even appeal to the U.S. Court of Appeals for the Armed Forces and to the U.S. Supreme Court.