VanLandingham: Discipline, Justice, and Command in The U.S. Military

Discipline, Justice, and Command in the
U.S. Military: Maximizing Strengths and

Minimizing Weaknesses in a Special
Society
RACHEL E. VANLANDINGHAM*
ABSTRACT
The military justice system is intentionally designed as the mechanism
through which powerful figures known as commanders, working through
subordinate leaders, ensure that exacting behavioral standards necessary
for successful military operations are met. Military commanders, not
lawyers, make the critical legal decision regarding whom to criminally
prosecute within the militarys criminal justice system. This system has its
roots in antediluvian military organizational doctrine as a means to ensure
that authoritarian military commanders in pre-industrial eras could tightly
control their typically illiterate, poor, and conscripted male troops in the
chaotic and deadly environment of the ancient, and not-so-ancient,
battlefield.
While the foundations of the modern American military organizational
structure and its heart, the military justice system, remain rooted in such
long-standing behavioral assumptions of how best to control involuntary,
frightened human beings on a battlefield in achievement of military
objectives, the U.S. militarys disciplinary and criminal system has evolved
over its several centuries of existence. Reformations have occurred in
attempts to reconcile this statutory and regulatory schema with
constitutional values, and to soften its rough edges based on the realization
that justice and discipline are interdependent. Yet the evolution of the post-
Associate Professor of Law, Southwestern Law School; Lt. Col. (ret.), USAF. The author
extends her utmost gratitude to the excellent students of New England Law Review, at whose
kind invitation this article was written for presentation at a Fall 2015 Symposium. She also
thanks her research assistants Jessica Vasquez and Anaeis Minas Masihi for their steadfast
efforts.
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World War II military justice system is not over, nor should it be, as
measures for improving prosecutorial decision-making are recognized as
critically needed across the American criminal justice landscape. The
military should lead this charge for improvement.
This Article argues that vesting disciplinary and criminal discretion in
hand-selected individuals who are formally groomed and chosen for their
judgment, leadership, and maturity is a systemic strength of the military
justice system. However, the lack of prosecutorial standards, opaqueness in
how decisions are made, and insufficient training due to both a dearth of
comprehensive prosecutorial guidelines and the lack of transparency in
decision-making, add up to significant systemic weaknesses. This
symposium Article argues that the militarys command-centric military
justice system is one that can and should be strengthened by a statutorilyrequired sharing of prosecutorial power with military lawyers, coupled
with implementation of both enhanced transparency and review measures,
as well as robust prosecutorial standards.
INTRODUCTION
Properly designed leader development programs develop trusted leaders
of character, competence, and commitment.1
The combined power of the convening authority to determine which
charges shall be preferred, the level of court-martial, and the venue
where the charges will be tried, coupled with the idea that this same
convening authority selects the members of the court-martial to try the
cases, is unacceptable in a society that deems due process of law to be the
bulwark of a fair justice system.2
Power tends to corrupt and absolute power corrupts absolutely.3
HEADQUARTERS, DEPT OF THE ARMY, FIELD MANUAL 6-22, LEADER DEVELOPMENT 1-1
(2015) [hereinafter FM 6-22], available at www.milsci.ucsb.edu/sites/secure.lsit.ucsb.edu.mili.
d7/files/sitefiles/fm6_22.pdf.
2 WALTER T. COX III ET AL., REPORT OF THE COMMISSION ON THE 50TH ANNIVERSARY OF THE
UNIFORM CODE OF MILITARY JUSTICE 8 (2001) [hereinafter COX COMMISSION], available at
http://www.loc.gov/rr/frd/Military_Law/pdf/Cox-Commission-Report-2001.pdf.
But
see
REPORT OF THE ROLE OF THE COMMANDER SUBCOMMITTEE TO THE RESPONSE SYSTEMS TO ADULT
SEXUAL ASSAULT CRIMES PANEL 2 (2014) [hereinafter RSP REPORT OF ROLE OF THE
COMMANDER], available at http://responsesystemspanel.whs.mil/Public/docs/Reports/00_Final/
RSP_Report_Annex_Final_20140627.pdf (describing the power of commanders with
convening authority and recommending it remain with commanders and not be transferred to
military lawyers).
3 Lord Acton Quote Archive, ACTON INSTITUTE, http://www.acton.org/research/lord-actonquote-archive (last visited, Jan. 5, 2016) (adding that [g]reat men are almost always bad men,
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Discipline, Justice, and Command
23
The U.S. military criminal justice system, an integral part of the U.S.
military that the U.S. Supreme Court famously labeled a special society,
differs significantly from criminal justice systems at both the federal and
state levels.4 The many differences marking the military justice system as
separate and unique from U.S. civilian criminal systems flow directly from
the distinct, though partially shared, purposes of these systems; the
military justice systems attributes are teleologically-derived.5 Whereas the
goals of the state and federal criminal justice systems revolve around
community safety of both property and individuals, [i]f there is a single
reason for a code of military justice, it is the enforcement of discipline to
manage the peculiar demands of maintaining an effective fighting force.6
The necessity of maintaining discipline has been used to justify a wide
range of distinctions peculiar to the militarys justice system, similar to the
exploitation of military necessity on the battlefield. 7 Not only is the
spectrum of potential criminal conduct vastly broader than in the civilian
criminal justice systems, the military justice system revolves around
authority figures who typically wield far greater powerand carry far
greater responsibilitythan any local district attorney or U.S. attorney.
These authority figures, known as commanders, have long possessed wideranging power over their subordinates both on and off the battlefield. In
addition to making the decision to criminally prosecute service-members
assigned to their command, non-lawyer commanders also have the right
and responsibility to utilize lesser forms of punishment and administrative
even when they exercise influence and not authority; still more when you superadd the
tendency of the certainty of corruption by authority.).
4 See Parker v. Levy, 417 U.S. 733, 743 (1971) (This Court has long recognized that the
military is, by necessity, a specialized society separate from civilian society.).
5 WILLIAM WINTHROP, MILITARY LAW AND PRECEDENTS 49 (2d ed. 1920), available at
https://www.loc.gov/rr/frd/Military_Law/pdf/ML_precedents.pdf ([C]ourts-martial . . . are in
fact simply instrumentalities of the executive power, provided by Congress for the President as
Commander-in-chief, to aid him in properly commanding the army and navy and enforcing
discipline therein.).
6 LAWRENCE J. MORRIS, MILITARY JUSTICE: A GUIDE TO THE ISSUES 3 (2010); see also JONATHAN
LURIE, ARMING MILITARY JUSTICE Vol. 1, xv (1992) (highlighting the disparate goals of the
civilian versus military justice systems); Geoffrey S. Corn & Chris Jenks, A Military Justice
Solution in Search of a Problem: A Response to Vladeck, 104 GEO. L.J. ONLINE 29, 34 (2015) (The
Court has long recognized the distinct nature of tribunals established pursuant to this
authority and that these tribunals perform a specialized purposes altogether different from
those that animate the system of civilian justice governed by Article III.).
7 See generally GARY D. SOLIS, THE LAW OF ARMED CONFLICT: INTERNATIONAL
HUMANITARIAN LAW IN WAR 264 (2010) (Sometimes, military necessity is invoked when
military convenience is closer to truth.).
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disciplinary measures to change the behavior of their subordinates. 8 Such

non-criminal, lesser measures can constitute career-killers either by
adversely affecting a service-members promotion eligibility or outright,
such as when a commander institutes administrative separation
procedures against a service-member.9
Unlike a district attorney, these powerful commanders are given these
variegated behavioral tools by statute and custom because these same
commanders are concomitantly expected to ensure that thousands of men
and womenoften quite young men and womenadhere to specific
standards of behavior in the dangerous pursuit of war. Commanders are
tasked with ensuring their subordinates act in a certain manner as they
guide them to achieve often dangerous goals. These standards are
enshrined in international and domestic laws and regulations.10 Such
standards and a tight system of control are presumed necessary for
achievement of the militarys core mission: defeating and deterring those
labeled as the nations enemies while striking the international law of wars
balance between military necessity and humanity.11
The military justice system, broadly defined here to include the
militarys criminal and non-criminal disciplinary processes, consists of
rules, regulations, and processes that govern human behavior within the
military.12 It is integral to the U.S. militarys hierarchical, command-driven
organizational structure: through it, military commanders ensure
compliance with the standards necessary for mission accomplishment. The
military justice systems rules and processes currently pivot on the
presumed leadership qualities inherent in those designated as
commanders, and the ability of such leaders to use sound judgment to,
Solomon-like, wisely discipline others by deciding when misconduct
warrants criminal prosecution versus lesser means of redress. 13 To fulfill
such demanding roles, military commanders are hand-selected and
specifically groomed for command positions, ostensibly because of their
time-tested abilities to exercise mature judgment, at least according to the
militarys regulatory criteria.14
8 Military commanders have at their disposal what are considered judicial measures
criminal prosecutionsand non-judicial tools, such as the punishment procedure established
by Article 15, Uniform Code of Military Justice (UCMJ), as well as disciplinary procedures
ranging from letters of reprimand to administrative separation procedures. See infra Part II.
9 See id.
10 FM 6-22, supra note 1, at v.
11 See generally LURIE, supra note 6, at xv (Military justice is virtually inseparable from
military discipline which seeks attainment of specific objectives, gained by a military force
prepared for death, if necessary.).
12
See EVOLVING MILITARY JUSTICE ix (Eugene R. Fidell & Dwight H. Sullivan eds., Naval
2015
25
The fact that the military justice system vests the power to levy
criminal charges against a service-memberand to subsequently convene
a court-martial to decide the validity of such chargesin non-lawyer
military commanders has long been a subject of controversy. 15 Numerous
reforms have been enacted dealing with commanders prosecutorial
powers since George Washington commanded this countrys first military
justice system, a system which predates the U.S. Constitution. 16 Major
reforms were enacted primarily in response to Congressional and public
scrutiny prompted by heavy-handed, arbitrary, and unjust prosecutions
that occurred during World War I and II (as well as unjust summary
executions after tainted court proceedings, as in the case of the Houston
Riots in 1917). However, such reforms left largely untouched the unfettered
discretion of commanders to dispose of allegations of misconduct. 17
While these earlier debates carry familiar tones,18 the latest agitation to
spur inquiry into why commanders continue to wield such vast power in
military criminal prosecutions occurs in a very different milieu: one of an
Inst. Press, 2002) (describing the military justice system as the system of rules that governs
the conduct of members of the armed forces and the procedures by which those are
enforced).
13 By discipline, this Article refers to the ordinary sense of the word, meaning control that
is gained by requiring that rules or orders be obeyed and punishing bad behavior. Discipline
Definition,
MERRIAM-WEBSTER
DICTIONARY,
http://www.merriam-webster.com/
dictionary/discipline (last visited Jan. 5, 2016).
14 See infra Part II.
15 See generally LURIE, supra note 6, at 73, 127 (describing evolutionary stages of the military
justice system that called into question the role of the commander); RSP REPORT OF ROLE OF
THE COMMANDER, supra note 2, at 24 (discussing earlier proposals to modify the role of the
commander in the military justice system).
16 See generally LURIE, supra note 6, at 36 (describing the first Articles of War, the 1775 and
1776 versions, as the official foundation of American military justice).
17 See U. S. ARMY, THE ARMY LAWYER: A HISTORY OF THE JUDGE ADVOCATE GENERALS
CORPS, 17751975 at 194, 200, 204 (1975), available at http://www.loc.gov/rr/
frd/Military_Law/pdf/lawyer.pdf. See generally MORRIS, supra note 6, at 2325 (describing the
courts-martial in response to the Houston Riots as emblematic of many of the shortcomings
of the military justice system).
18 See, e.g., LURIE, supra note 6, at 135 (outlining a debate that occurred during World War
II, with opponents of vesting prosecutorial discretion in lawyers instead of commanders
stating that there is no assurance that a corps of lawyers will deal more fairly and justly than
a corps of line officers). Lurie further notes that [t]here remains in military justice an
ongoing tension between those who insist that legal issues must be handled by a separate trial
system . . . and those who claim that the unit commander can never afford to be insulated
from the operations of the military justice system. Id. at n.32.
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all-volunteer force that represents a tiny fraction of the country, 19 a military

force that has long struggled with treating women and homosexuals
equally, with its systemic discrimination of both groups legally-sanctioned
by Congress until quite recently.20 Within this very environment, the
failure of commanders to control high rates of sexual assault within the
military ranks prompted the latest set of debates. 21
Reports of high rates of sexual assaults within a military, supposedly
tightly controlled by wise commanders with extensive disciplinary
authority and responsibility, were particularly disturbing considering the
frequent reports within the last few years of toxic leadership within the
military. Such reports regularly prompt concern that something may be
broken, or at least fractured within the U.S. militarys leadership corps.22
Such narratives have helped undermine the central organizing feature of
the military, the hierarchy of command, and focused attention on what
commanders are doing and not doing in their military justice roles. This
concern about rot at the top of the military, coupled with the scandal of
19 Less than 0.5% of the population serves in the military. Karl W. Eikenberry & David M.
Kennedy, Americans and Their Military, Drifting Apart, N.Y. TIMES (May 26, 2013),
http://www.nytimes.com/2013/05/27/opinion/americans-and-their-military-driftingapart.html?_r=0.
20 See Dont Ask, Dont Tell Repeal Act of 2010, Pub. L. No. 111-321, 124 Stat. 3515 (2010);
see also Jesse Lee, The President Signs Repeal of Dont Ask Dont Tell: Out of Many, We Are
One, THE WHITE HOUSE (Dec. 22, 2010, 12:35 PM), https://www.whitehouse.gov/blog/
2010/12/22/president-signs-repeal-dont-ask-dont-tell-out-many-we-are-one; News Release,
U.S. Dept of Def., Def. Dept. Rescinds Direct Combat Exclusion Rule; Servs. to Expand
Integration of Women into Previously Restricted Occupations and Units (Jan. 24, 2013),
available at http://archive.defense.gov/releases/release.aspx?releaseid=15784.
21
See, e.g., Eliott C. McLaughlin, Military Chiefs Oppose Removing Commanders from Sexual
Assault Probes, CNN (June 5, 2013, 10:31 AM), http://www.cnn.com/2013/06/04/politics/senatehearing-military-sexual-assault/. See generally, REPORT OF THE RESPONSE SYSTEMS TO ADULT
SEXUAL ASSAULT CRIMES PANEL 5963 (2014), available at http://responsesystemspanel.whs.mil/
public/docs/Reports/00_Final/RSP_Report_Final_20140627.pdf [hereinafter RSP REPORT]
(outlining the scope of sexual assault in the military and barriers to reporting).
22 See Craig Whitlock, Pentagon Investigations Point to Military System that Promotes Abusive
Leaders, WASH. POST (Jan. 28, 2014), https://www.washingtonpost.com/world/nationalsecurity/pentagon-investigations-point-to-military-system-that-promotes-abusiveleaders/2014/01/28/3e1be1f0-8799-11e3-916e-e01534b1e132_story.html; Thom Shanker, Concern
Grows Over Top Military Officers Ethics, N.Y. TIMES (Nov. 12, 2012), http://www.nytimes.com/
2012/11/13/us/petraeuss-resignation-highlights-concern-over-military-officers-ethics.html;
Morgan Hitzig, Military Officers Need More Frequent Ethics Training, Review Finds, CNN (Dec. 7,
2012, 5:50 P.M.), http://security.blogs.cnn.com/2012/12/07/military-officers-need-morefrequent-ethics-training-review-finds/; Lolita C. Baldor, Sex is Major Reason Military
Commanders are Fired, YAHOO! NEWS (Jan. 21, 2013, 4:52 A.M.), http://news.yahoo.com/sexmajor-reason-military-commanders-fired-123720150.html.
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high levels of sexual assault within the military, have renewed and
strengthened calls over the last several years to shift prosecutorial
discretion from commanders to military lawyers.
Most recently, Congress in 2014 and again in 2015 voted against
removing prosecutorial discretion from commanders, though they
circumscribed this power slightly regarding incidents of alleged sexual
assault.23 This symposium Article briefly goes behind this debate to
theoretically explore the meaning and necessity of discretion in criminal
justice. It focuses on the relationship between the sole vesting of such
discretion in layperson (non-lawyer) military commanders, and the
disciplinary system at whose apex stands criminal prosecution. It questions
the systems heavy reliance on commanders without sufficient
dispositional guidance, particularly given the episodic reports of military
leadership failure. It also questions the knee-jerk, throw-away-the-babywith-the-bathwater recommendation of instead vesting such power in
military lawyers, who have not demonstrated any better capacity to utilize
wise judgment, and in fact are not groomed for leadership responsibilities
as commanders are.24
Part I of this Article unpacks the elements of prosecutorial discretion in
U.S. criminal law, highlighting its essential character while noting the need
for structured improvement of the decision-making it entails, a need
generated by cognitive biases and other dysfunctional forces. Part II of this
Article briefly outlines the organizational and functional milieu within
which the military justice system operates: an environment which requires
obedience to orders and adherence to standards unlike that found in the
civilian community. It also briefly sketches how prosecutorial discretion is
exercised in the military, focusing on dispositional decisions regarding
allegations of misconduct. It notes the military justice systems weaknesses,
including a lack of transparency, inadequate dispositional guidance,
insufficient training, lack of review of dispositional decisions, and a failure
to capitalize on the attributes military lawyers bring to the decision-making
process regarding the disposition of allegations of misconduct.
This Article concludes by noting recent legislative and policy changes
that begin to cabin that discretion, and recommends further changes. These
additional modifications capitalize on the strength of the military justice
systemits (most often) mature and educated commanderswhile
23
See generally infra Part II.C.1.

See, e.g., Josh White, General is Sanctioned for 'Unprofessional' Affairs: Air Force's Top Lawyer
Pursued Sex with Subordinates, WASH. POST (Jan. 11, 2005) http://www.washingtonpost.com/
wp-dyn/articles/A64246-2005Jan10.html; Bruce Rolfsen, Colonel Booted, Busted to O-2,
AIRFORCE TIMES (Mar. 8, 2010), available at 2010 WLNR 5954129.
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addressing systemic weaknesses by recommending that lawyers be given

an equal vote in prosecutorial decision-making as well as recommending
additional transparency and educative reform measures. Similar but more
stringent than the quasi-required consensus for sexual assault charges
recently instituted by congressional changes to the military justice system,
military lawyers should be equal partners at the military prosecutorial
table, operating within articulated and trained prosecutorial guidelines,
and the resultant joint dispositional decisions should be subject to frequent
and independent legal and command review.
I.
Prosecutorial Discretion
The prosecutor has more control over life, liberty, and reputation than
any other person in America. His discretion is enormous . . . [i]f the
prosecutor is obliged to choose his cases, it follows that he can choose his
defendants.25
A. Prosecutorial Discretion: What and Why

Discretion is defined as the right to choose what should be done in a
particular situation.26 Prosecutorial discretion broadly refers to the official
power vested by law in a select persona lawyer in all American
jurisdictions except the militaryto choose what should be done regarding
allegations of criminal conduct.27 In the United States, prosecutors possess
largely unconstrained and largely unreviewable authority to decide
whether or not to formally charge members of a particular community
with a crime.28 Not only do prosecutors have the exclusive discretion to
prosecute a crime as long as probable cause supports the charge, 29
25
Robert A. Jackson, The Federal Prosecutor, 24 J. AM. JUDICATURE SOCY. 18, 1819 (1940).
WEBSTERS THIRD NEW INTERNATIONAL DICTIONARY 647 (1993); see also KENNETH CULP
DAVIS, DISCRETIONARY JUSTICE: A PRELIMINARY INQUIRY 4 (1969) (noting that [a] public officer
has discretion whenever the effective limits on his power leave him free to make a choice
among possible courses of action or inaction).
26
27 See generally Geraldine Szott Moohr, Prosecutorial Power in an Adversarial System: Lessons
from Current White Collar Cases and the Inquisitorial Model, 8 BUFF. CRIM. L. REV. 165, 16990
(2004) (arguing that the phrase prosecutorial power is more fitting than prosecutorial
discretion, at least in federal white-collar criminal cases).
28 See generally WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE 707 (5th ed. 2009) (The
charging decision, involving a determination of whether a person should be formally accused
of a crime and thus subjected to trial . . . is a vitally important stage in the criminal process
with serious implications for the individual involved.); see also Wayte v. United States, 470
U.S. 598, 606 (1985) (concluding that discretion is required as a matter of separation of powers
and involves factors particularly ill-suited to judicial review).
29 See Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) ([S]o long as the prosecutor has
probable cause to believe that the accused committed an offense defined by statute, the
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29
prosecutors also have the discretion as to which specific charges to bring in

a situation of overlapping criminal statutes; to grant immunity; to drop
charges; to accept plea bargains, and to recommend sentences. 30 No
wonder American prosecutors, the individuals who make these decisions
in both U.S. federal and state criminal justice systems, have been described
as the most powerful officials in the criminal justice system.31
By providing flexibility to pursue criminal charges in any given case,
the U.S. state and federal systems grant almost unfettered decision-making
power to prosecutors to choose whether or not to pursue criminal charges
against a particular person in any particular situation. 32 American
prosecutors33 possess the discretion to investigate and prosecute; this is
markedly different than a duty or obligation to do the same. 34 The lattertype system is demonstrated by Germany and similar civil law legal
systems, in which prosecutors are obliged by law to file charges whenever
there is sufficient suspicion that the suspect has committed a crime.35 Not
only do the criminal laws themselves offer a much narrower range of
choices to prosecutors in civil law jurisdictions, civil law prosecutors are
also bound by the principle of legality.36 This principle, which results in a
decision whether or not to prosecute, and what charge to file or bring before a grand jury,
generally rests entirely in his discretion.).
30 ANGELA J. DAVIS, ARBITRARY JUSTICE: THE POWER OF THE AMERICAN PROSECUTOR 12
(2007) (citing the powers of the prosecutor); see also H. Richard Uviller, The Neutral Prosecutor:
The Obligation of Dispassion in a Passionate Pursuit, 68 FORDHAM L. REV. 1695, 1695 (2000) ([N]o
less than the power to charge, to dismiss charges, and to immunize witnesses, the power to
tailor a charge . . . is the essence of the executive function in the prosecution of crime.); see
also Wayte v. United States, 470 U.S. 598, 60708 (1985).
31 DAVIS, supra note 30, at 5; see also THE PROSECUTOR IN TRANSNATIONAL PERSPECTIVE xi
(Erik Luna & Marianne L. Wade, eds., Oxford Press 2012) ([T]he American Prosecutor rules
the criminal justice system.).
32 Cf. Stephanos Bibas, The Need for Prosecutorial Discretion, 19 TEMP. POL. & CIV. RTS. L. REV.
369, 370 (2010) (highlighting the ubiquitous nature of prosecutorial discretion in the United
States, while noting that a few states such as West Virginia purport to mandate prosecution).
33
Cf. WEAVER ET AL., CRIMINAL PROCEDURE: CASES, PROBLEMS, AND EXERCISES,

INVESTIGATIVE PROCESSES 9 (5th ed. 2013) (noting that police in some states can initiate a
misdemeanor prosecution by filing a complaint in court, whereas felony prosecutions are only
initiated by action by prosecutors).
34 See generally id., at 834 (because prosecutors possess discretion (rather than an obligation
or duty) to investigate and prosecute, they are not legally bound to do either).
35 JOSHUA
DRESSLER & GEORGE C. THOMAS III, CRIMINAL PROCEDURE: PROSECUTING CRIME

826 (5th ed. 2013) (citing Thomas Weigand, Germany, in CRIMINAL PROCEDURE: A WORLDWIDE
VIEW 205 (Craig Bradley, ed. 1999) (further defining sufficient suspicion as the likelihood that
the suspect will be convicted after trial)).
36
Ronald F. Wright & Marc L. Miller, The Worldwide Accountability Deficit for Prosecutors, 67
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tradition of mandatory prosecution,37 provides that every crime and

every penalty shall be embodied in a statute enacted by the legislature.38
Why is the American prosecutor given so much discretion, and hence
power? Prosecutorial power is inseparable from the criminal justice system
it is part of, with criminal law providing the menu of options, in the form
of thousands of crimes, from which the prosecutor can choose to, or not to,
utilize against someone. Criminal law is generally referred to as an
expression of societys collective moral condemnation of particular
conduct;39 criminal law stigmatizes behavior in order to punish it, with
punishment providing deterrence, retribution, rehabilitation, and/or
incapacitation.40 Hence the community, that is, society, for whom the
prosecutor acts, has a vested interest in how the prosecutor chooses to
exercise his or her discretion.41 By exercising the flexibility that is the
essence of discretionflexibility inherent in the prosecutors ability to
choose among a menu of crimes and the choice to not open the menu at
allthe prosecutor theoretically incorporates the communitys changing
opinions regarding the harm associated with particular behavior.42
WASH. & LEE L. REV. 1587, 1595 (2010); see also THE PROSECUTOR IN TRANSNATIONAL
PERSPECTIVE, supra note 31, at xiii (highlighting early 20th Century debates regarding whether
the United States should incorporate the legality principle and hence restrict prosecutorial
discretion).
37 Wright & Miller, supra note 36, at 1595. But see Shawn Boyne, Is the Journey from the In-Box
to the Out-Box a Straight Line? The Drive for Efficiency and the Prosecution of Low-Level Criminality
in Germany, in THE PROSECUTOR IN TRANSNATIONAL PERSPECTIVE, supra note 31, at 3738
(noting a recent expansion in prosecutorial discretion in Germany).
38 Wright & Miller, supra note 36, at 1595 n.36 (quoting JOHN HENRY MERRYMAN & ROGELIO
PEREZ-PERDOMO, THE CIVIL LAW TRADITION: AN INTRODUCTION TO THE LEGAL SYSTEM OF
EUROPE AND LATIN AMERICA 126 (3d. ed. 2007)).
39 Henry M. Hart, Jr., The Aims of the Criminal Law, 23 LAW & CONTEMP. PROBS. 401, 404
(1958) (What distinguishes a criminal from a civil sanction and all that distinguishes it . . . is
the judgment of community condemnation which accompanies and justifies its imposition.);
see also Anthony V. Alfieri, Community Prosecutors, 90 CALIF. L. REV. 1465, 1470 (2002)
(lawbreaking is a breach of the community covenants of obligation and obedience . . .
[c]ulpability is a collective determination of communal breach . . . desert is a collective
assessment of consequence and worth).
40 See Alfieri, supra note 39, at 1471 (describing how the penological purposes of criminal
law are realized through the prosecutors role in administering appropriate punishment); see
also Ernest van den Haag, Punishment: Desert and Crime Control, 85 MICH. L. REV. 1250, 125053
(1987).
41
See LAFAVE ET AL., supra note 28, at 707 (characterizing charging decisions as of obvious
importance to the community).
42 Id.; see also United States v. Goodwin, 457 U.S. 368, 382 (1982) (concluding that [a]
prosecutor should remain free before trial to exercise the broad discretion entrusted to him to
determine the extent of the societal interest in prosecution); cf. H. Richard Uviller, supra note
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31
Prosecutorial discretion hence could be seen as a mechanism through

which societys evolving or devolving opinions are inputted into the
criminal justice system.43
Yet this explanation for prosecutorial discretion is not satisfying,
particularly because societys opinions as to what to punish are more
directlyand more transparentlyreflected in the formation of criminal
law by legislative bodies.44 Other reasons for prosecutorial discretion are
routinely cited; for example, courts emphasize that the constitutional
separation of powers framework of governance explains their deference to
prosecutorial decisions, however, this reason does not fully clarify why
American prosecutors are free to charge some individuals where sufficient
evidence exists and not others.45 Additionally, the lack of resources to
prosecute all crime is frequently cited as a primary reason supporting the
American prosecutors discretionary power,46 coupled with the vast
breadth of often vague criminal statutes that, by their very nature, seem to
shift the criminalization of conduct onto prosecutors as they decide how
and what to charge.47
The foundational explanation for the vast discretion vested in
American prosecutors is both inclusive of these reasons as well as deeper.
Prosecutorial discretion, particularly in the charging decision, is about
individualized justice: without such discretion, there would be many
30, at 169596 (characterizing the just disposition of a criminal charge as in part a

calibration of the level of contextual social outrage").
43
See generally U.S. DEPT OF JUSTICE, U. S. ATTYS MANUAL 9-27.001 (2014) [hereinafter
USAM 2014] (The manner in which Federal prosecutors exercise their decision-making
authority has far-reaching implications, both in terms of justice and effectiveness in law
enforcement and in terms of the consequences for individual citizens. A determination to
prosecute represents a policy judgment that the fundamental interests of society require the
application of the criminal laws to a particular set of circumstances . . . .).
44 Bibas, supra note 32, at 371 (claiming that [d]emocratically-elected legislatures can better
reflect the public's sense of justice, sorting the most blameworthy and harmful acts from those
that do not deserve punishment.).
45 See United States v. Armstrong, 517 U.S. 456, 464 (1996) (explaining that prosecutors have
wide discretion to dispose of criminal charges because they are designated by statute as the
President's delegates to help him discharge his constitutional responsibility to take Care that
the Laws be faithfully executed). See generally Wright & Miller, supra note 36, at 1607
(attributing the immense deference to executive discretion in prosecutorial decision-making
shown by courts to the constitutional doctrine of separation of powers).
46
See, e.g., Michael Edmund O'Neill, When Prosecutors Don't: Trends in Federal Prosecutorial
Declinations, 79 NOTRE DAME L. REV. 221, 222 (2003) (noting that resources, even at the
national level, are scarce); see also DAVIS, supra note 30, at 13 (There are not enough
resources in any local criminal justice system to prosecute every alleged offense.).
47
See generally THE PROSECUTOR IN TRANSNATIONAL PERSPECTIVE, supra note 31, at 1.
32
v. 50 | 21
more unjust decisions at every stage of the criminal process.48 Discretion

to tailor a response to a particular situation, versus an automatic, one-sizefits-all approach, is central to the American idea of fairness. 49 In the words
of one scholar, [j]ustice requires not only rules but also fine-grained moral
evaluations and distinctions.50 Such evaluations and distinctions are
necessary because it is almost axiomatic that criminal laws lack nuance;
they cannot capture every subtlety, which is why various actors need
discretion to tailor their application of the law.51 Whereas criminal law
often lacks nuance, human behavior is typically the exact opposite. Hence
discretion is needed to match the criminal rules with the situation: [f]or
many circumstances the mechanical application of a rule means injustice;
what is needed is individualized justice, that is, justice which to the
appropriate extent is tailored to the needs of the individual case.52
Hence the broad concept of American prosecutorial discretion rests on
the ideals of fairness and justice,53 and is made necessary by the complexity
of applying broad criminal laws to human conduct. Since no criminal
code can spell out crimes and punishments to fit every conceivable
scenario, prosecutors are given leeway to implement legislative
commands.54 Furthermore, in the words of one scholar, broad
prosecutorial discretion aligns with the popular moral intuition that we
generally want to pursue justice tempered by mercy. Individualized justice
and mercy both require a human being, not a robot or guidelines manual,
to review cases.55 Prosecutorial charging decisions are frequently
challenging ones that involve numerous considerations; because of this
complexity it is an exercise of discretion that . . . cannot be reduced to a
simple formula.56 The Supreme Court has articulated exemplary types of
48
DAVIS, supra note 30, at 6 (noting that police officers routinely exercise discretion when
choosing whether or not to arrest someone or to provide a warning, etc., though such
discretion has allowed huge amounts of unjust racial disparities).
49 See generally Bibas, supra note 32, at 370 ([R]ules cannot capture every subtlety, which is
why various actors need discretion to tailor their application of the law.).
50
Id.
Id.
52 DAVIS, supra note 26, at 19 (tracing the need for a balance between discretion and rules in
the evolution of the law from the Romans through today).
51
53
While the ABA Model Rules of Professional Conduct urge prosecutors to be a minister
of justice, it does not define justice. See MODEL RULES OF PROFL CONDUCT R. 3.8 cmt. 1 (2013).
54 Bibas, supra note 32, at 372.
55 Id.
56 Bennett L. Gershman, Prosecutorial Decisionmaking and Discretion in the Charging Function,
62 HASTINGS L.J. 1259, 1260 (2011); see also DAVIS, supra note 30, at 6 (noting that prosecutors
need to take into account individualized facts, circumstances, and characteristics of each
2015
33
factors that go into the decision to prosecute, which make such a decision
ill-suited to judicial review.57 These factors include the strength of the
case, the prosecutions general deterrence value, the Governments
enforcement priorities, and the cases relationship to the Governments
overall enforcement plan.58 Additionally, noted scholars have described
the prosecutorial decision-making process as one which involves these
potentially difficult determinations:
(1) whether there is sufficient evidence to support a
prosecution; (2) if so, whether there are nonetheless
reasons for not subjecting the defendant to the criminal
process; (3) if so, whether nonprosecution should be
conditioned upon the defendants participation in a
diversion program; and (4) if prosecution is to be
undertaken, with what offense or offenses the defendant
should be charged.59
Yet despite the sound reasons supporting a need for prosecutorial
discretion, its largely unchecked exercise in the charging and plea
bargaining arena have led to disturbing and decidedly unjust results;
results that have long led to calls for improvement in this arena. 60 It is
important to note that these results are not all, or even primarily, due to
intentional abuse of discretion:
Perhaps prosecutors sometimes fail to make decisions
that rationally further justice, not because they fail to
value justice, but because they are, in fact, irrational.
They are irrational because they are human, and all
human decision makers share a common set of
information-processing tendencies that depart from
perfect rationality.61
The cognitive sciences are revealing to a greater extent each year how
much of a captive audience decision makersall humansare to
case to produce just results).

57
Wayte v. United States, 470 U.S. 598, 607 (1985).

Id.
59 LAFAVE ET. AL., supra note 28, at 707.
60 See generally DAVIS, supra note 30, at 45 (describing the racial inequities inherent in the
current American system of broadly unchecked prosecutorial discretion); see also DAVIS, supra
note 26, at 5 n.4 (explaining that while discretion is necessary, too much exists, which leads to
abuses).
58
61 Alafair S. Burke, Improving Prosecutorial Decision Making: Some Lessons of Cognitive Science,
47 WM. & MARY L. REV. 1587, 1590 (2006).
34
v. 50 | 21
subconscious processes.62 Hence, in addition to the intentional abuse of

discretion that exists within the criminal justice system, 63 changes need to
be made to counteract the hidden but real dynamics of cognitive biases
which can pervert the exercise of discretion.64
B. Checks and Balances?
In their effort to give prosecutors the freedom and independence to
enforce the law, the judicial and legislative branches of government have
failed to perform the kind of checks and balances essential to a fair and
effective democracy.65
The Supreme Court itself has noted that prosecutorial discretion is not
completely unfettered;66 yet the checks on prosecutorial power that do exist
only come after the prosecutor decides to pursue a target.67 There are
essentially zero checks or balances, and hence little accountability, for the
crimes that a prosecutor chooses not to charge and for the decision-making
process that results in either a criminal prosecution or not. 68 A cursory
review of the checks that do exist, following the decision to prosecute,
reveals structural weakness, particularly given the prevalence of pleabargaining and the harsh sentencing laws which lend even greater import
to the particular charges a prosecutor chooses to levy against someone. 69 To
begin with, while the law in the form of statutes and case precedents itself
is supposed to be a checkas only specific criminal laws, which are now
almost all codified in the United States, 70 can serve as a basis for
62
See id.
See generally DAVIS, supra note 30, at 45 (highlighting the racial abuses of discretion
within the criminal justice system).
63
64 See generally Burke, supra note 61 (noting certain methods that can help prosecutors
overcome prosecutorial misconduct).
65 DAVIS, supra note 30, at 15.
66 Wayte v. United States, 470 U.S. 598, 608 (1985).
67 ONeill, supra note 46, at 223 (emphasis added) (noting that after the decision to
prosecute has been made, judicial supervision, grand and petit juries, and public scrutiny
come into play). Additionally, while over half the states require prosecutors to confer with
the victim regarding their views, such victim input is not seen to limit the prosecutors
discretion. See LAFAVE ET AL., supra note 28, at 708.
68 See generally Wright & Miller, supra note 36, at 1595 (citing an accountability deficit where
prosecutors make decisions at will, with very little explanation of their choices).
69
See generally William T. Pizzi, A Perfect Storm: Prosecutorial Discretion in the United States
189, in THE PROSECUTOR IN TRANSNATIONAL PERSPECTIVE, supra note 31, at 19495
(highlighting the increase in prosecutorial power as a direct result of mandatory sentencing
statutes).
70
See THE PROSECUTOR IN TRANSNATIONAL PERSPECTIVE, supra note 31, at 180 (noting that
2015
35
prosecutionmany criminal laws are intentionally vague, and almost none

compel prosecution.71
One check on prosecutorial charging discretion involves the sufficiency
of evidence: criminal charges cannot be lodged against individuals without
probable cause to support the charges. 72 This is a decidedly low standard,73
and one that has never been specifically defined by the U.S. Supreme Court
in the context of charging.74 Other checks on prosecutorial power include
the role of independent parties to judge the evidence against this standard:
prosecutors either must demonstrate to a grand jury that probable cause
exists to indict an individual, or they must demonstrate to a judge in a
preliminary hearing that such probable cause exists to forward the
charges.75 Yet scholars have long noted the farcical nature of grand jury
proceedings, which typically serve to rubber-stamp the U.S. attorneys
charging decisions, and the deference shown by judicial officers regarding
prosecutorial discretion in general.76
Judicially, the courts have been loath to review prosecutorial charging
decisions due to the above-mentioned separation of powers concern.
However, the constitutional protections of due process and equal
criminal laws were developed through cases, but are now codified in statutes).
71 See Bibas, supra note 32, at 369 (Legislatures . . . have strong political incentive
to pass overbroad and overlapping criminal statutes . . . these broad and overlapping criminal
laws let police and prosecutors decide who actually deserves to be charged and with what
crimes.).
72
See Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978); see also AM. BAR ASSN, CRIMINAL
JUSTICE FOR THE PROSECUTION FUNCTION 3-4.3 (a) (4th ed. 2015), available at
http://www.americanbar.org/groups/criminal_justice/standards/ProsecutionFunctionFourthE
dition.html (A prosecutor should seek or file criminal charges only if the prosecutor
reasonably believes that the charges are supported by probable cause, that admissible
evidence will be sufficient to support conviction beyond a reasonable doubt, and that the
decision to charge is in the interests of justice.).
73 See Gershman, supra note 56, at 1267 (noting that a probable cause standard is an
extremely low threshold for bringing charges); DAVIS, supra note 30, at 26 (probable cause
may be proven if it is more probable than not that the defendant committed the crime . . .
grand jurors rarely act independently of the prosecutor.).
74
See LAFAVE ET AL., supra note 28, at 708.

Indictments by a grand jury are required by the 5th Amendment in federal criminal
courts unless the defendant has waived this right; the states vary but many utilize preliminary
hearings at which a defendant can present evidence. See generally id.
75
76 See generally Uviller, supra note 30, at 1698 (characterizing grand juries as relics that
produce pro forma results); see also Wright & Miller, supra note 36, at 1607 ([J]udges have
shown little interest in regulating any aspect of prosecutorial decision-making. Courts in the
United States operate within a tradition of immense deference to executive discretion in
prosecutorial decision-making.).
36
v. 50 | 21
protection mitigate some arbitrariness in prosecutorial decisions, with

vindictive and selective prosecution prohibited.77 Regarding selective
prosecution, the Supreme Court has found that the prosecutorial decision
may not turn on an unjustifiable standard such as race, religion, or other
arbitrary classification, though the violation of this rule is quite difficult to
prove as it requires the defendant to show a discriminatory effect
motivated by a discriminatory purpose.78 Additionally, charging decisions
are presumed to be made in good faith, but a presumption of
vindictiveness will arise where a defendant is re-indicted, particularly
when a prosecutor increases the number or severity of charges after the
defendant has appealed his or her conviction.79
Separately, while most state prosecutors are elected, this electoral
accountability does not translate into accountability for discretionary
prosecutorial decisions because such decisions are not transparent. Most
prosecutorial decisions, in particular the decision to prosecute or not, and
for what crime, are shrouded in secret.80 The lack of transparency to almost
everyoneexcept perhaps to fellow prosecutors or a supervisor, if one is a
junior district attorney or assistant U.S. attorney who has a prosecutorial
supervisoris truly remarkable.81 Despite a supposed accountability to the
people, even elected prosecutors (which most state prosecutors are),82 are
not accountable for their decisions because most of their decisions are not
known; while there is of course a public record regarding who is
prosecuted, there is little public data on who is not prosecuted, and why
not. Similarly, there is no public data regarding why particular charges are
77 See generally Peter J. Henning, Prosecutorial Misconduct and Constitutional Remedies, 77
WASH. U. L. Q. 713, 73453 (1999) (analyzing vindictive and selective prosecution doctrines).
78
See United States v. Armstrong, 517 U.S. 456, 46465 (1996).

See U.S. CONST. amend. V; ONeill, supra note 46, at 248 (quoting Chris Zimmerman,
Prosecutorial Discretion, 89 GEO. L.J. 1229, 123839 (2001)). The highest military appellate court
has also recognized the impropriety of vindictive prosecution, which it defines as the decision
to prosecute in retaliation for the exercise of certain constitutional rights. See generally United
States v. Hagen, 25 M.J. 78, 84 (C.M.A. 1987) (As with a charge of selective prosecution, an
accused must show more than a mere possibility of vindictiveness; he must show
discriminatory intent.). Additionally, the constitutional bar against double jeopardy also
works to prohibit multiplicious charging.
80 See generally Bibas, supra note 32, at 373 (What is troubling about prosecutorial
discretion is not that it places discretionary power in the hands of individuals. What is
troubling is that it is very often ad hoc, hidden, and insulated from public scrutiny and
criticism.).
81 See DAVIS, supra note 30, at 5 (Prosecutors make the most important of these decisions
behind closed doors and answer only to other prosecutors.).
79
82 See id. at 1011 (noting that less than five states and the District of Columbia utilize
appointed prosecutors).
2015
37
filed in any given case versus other, equally valid ones, nor why a plea
bargain is struck in one case and not in another. 83 Because prosecutorial
decisions are not transparent, [m]any discretionary decisions require no
reasoned justification and risk being inconsistent, biased, and tainted by
agency costs that pull them far from the publics shared moral sense.84
C. Attempts at Guiding Discretion
As noted above, the most important prosecutorial decisions in
America, particularly whether to charge or not, and if so what charges to
lodge, are made in secret, with immunity, 85 and without formal checks.86
The potential for abuse by American prosecutors in this particular area of
government by men instead of law87 has long been noted. For example,
President Hoovers Wickersham Commission in the 1920s criticized the
lack of checks on American prosecutors, highlighting that electoral
accountability meant little.88 One respected scholar notes that the shift from
an early colonial system of victims as private prosecutors, to public
prosecutors appointed and tightly directed by governors, and finally to
popularly-elected public prosecutors, has been an evolution that has
83
Id. at 11.
Bibas, supra note 32, at 373.
85 American prosecutors enjoy absolute immunity from civil suit when performing their
prosecutorial duties. See, e.g., Van de Kamp v. Goldstein, 555 U.S. 335, 340 (2009) (citing
Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949) [I]t has been thought in the end better . . .
to leave unredressed the wrongs done by dishonest officers than to subject those who try to
do their duty to the constant dread of retaliation.); see also Imbler v. Pachtman, 424 U.S. 409,
427 (1976) (concluding that the considerations outlined . . . dictate the same absolute
immunity . . . that the prosecutor enjoys at common law). See generally Karen McDonald
Henning, The Failed Legacy of Absolute Immunity Under Imbler: Providing a Compromise Approach
to Claims of Prosecutorial Misconduct, 48 GONZ. L. REV. 219, 223 (2013) (noting the moral
hazards which accompany such immunity).
84
86 See generally LAFAVE ET AL., supra note 28, at 715 (noting that [t]he prosecution function
has traditionally been decentralized, so that state attorneys-general exercise no effective
control over local prosecutors).
87
See generally DAVIS, supra note 26, at 17 (explaining that Aristotles government of laws
and not men did not imply that governing can be accomplished without the exercise of
discretion; hence Davis maintains that [e]very government has always been a government of laws
and of men) (emphasis in original).
88 See Davis, supra note 30, at 12; George W. Wickersham, The Program of the Commission on
Law Observance and Enforcement, 16 A.B.A. J. 654, 660 (1930); see generally Ronald F. Wright, The
Wickersham Commission and Local Control of Criminal Prosecution, 96 MARQ. L. REV. 1199, 1203
(2013) (noting the Wickersham Commissions emphasis on political corruption of
prosecutorial decisions in jurisdictions with locally-elected prosecutors).
38
v. 50 | 21
reinforced [the prosecutors] power, independence, and discretion.89

Accountability via the ballot box remains chimerical in such a system
because the actions and decisions of the prosecutor [are] not generally a
matter of public record.90
One response to this concern regarding prosecutorial discretion was
the promulgation of the American Bar Associations hortatory91 criminal
justice standards in the late 1960s, which continue to include guidelines
specifically for prosecutors, designed to be used as a guide to professional
conduct and performance.92 While the principles themselves are nonbinding, they remain influential and have been adopted by many states. 93
They are also frequently cited by the Supreme Court, appellate and state
courts, and law review articles when dealing with prosecutorial conduct.94
The ABA Prosecution Function Standards (Standards) broadly
outline the prosecutors function as one of an administrator of justice, an
advocate, and an officer of the court who must exercise sound discretion
in the performance of his or her functions.95 They also outline specific
89 See DAVIS, supra note 30, at 11. Prosecutors . . . have escaped the kind of scrutiny and
accountability that we demand of public officials in a democratic society. Id. at 15.
90 See id. at 11; LAFAVE ET AL., supra note 28, at 715 (The public can hardly assess
prosecution policies that are kept secret.).
91
See generally Ellen S. Podgor, The Role of the Prosecution and Defense Function Standards:
Stagnant or Progressive?, 62 HASTINGS L.J. 1159, 1159 (2011) (describing the advisory role of the
ABA Criminal Justice Standards: The Prosecution and Defense Function Standards).
92 See ABA STANDARDS FOR CRIMINAL JUSTICE PROSECUTION FUNCTION AND DEFENSE
FUNCTION 3-1.1 (3d ed. 1993) [hereinafter ABA STANDARDS].
93 See LISA G. LERMAN & PHILIP G. SCHRAG, ETHICAL PROBLEMS IN THE PRACTICE OF LAW 6,
50 (3d ed. 2012) (citing the ABA Prosecution Function Standards incorporation by the
majority of states and describing their influential role). See generally Work Revising Criminal
Standards Flows From Life in Criminal Law, UC HASTINGS (Dec. 13, 2012),
http://www.uchastings.edu/news/articles/2012/12/criminal-standards-revised.php (describing
the Standards as having been cited over 1000 times in the lowers courts and over 100 times by
the Supreme Court).
94 See Brief for the American Bar Association as Amicus Curiae Supporting Petitioner at 4,
Smith v. Cain, 132 S.Ct. 627 (2012) (No. 10-8145) (discussing the Standards weighty import
while tracing their history; [t]he ABA [Prosecution Function] Standards represent a collection
of best practices based on the consensus views of a broad array of professionals involved in
the criminal justice system); Podgor, supra note 91, at 116869 (discussing extensive usage of
the ABA Prosecution Function Standards by federal courts and highlighting 2011 legal search
engine search results for the ABA Prosecution Function Standards); Martin Marcus, The
Making of the ABA Criminal Justice Standards: Forty Years of Excellence, 23 CRIM. JUST. 10, 11
(2009), available at http://www.americanbar.org/content/dam/aba/publishing/criminal_justice_
section_newsletter/crimjust_standards_marcus.authcheckdam.pdf (listing the number of cases
citing the standards over 40 years as almost 1000).
95
ABA STANDARDS, supra note 92, at 3-1.2.
2015
39
factors to consider regarding the decision to charge an individual with a

criminal offense.96 In addition to requiring that charges be supported by
probable cause, the Standards require that a prosecutor possess sufficient
admissible evidence to support a conviction prior to charging. 97 The
Standards also explicitly provide that, [t]he prosecutor is not obliged to
present all charges which the evidence might support, emphasizing that
in some circumstances prosecutors should decline to prosecute.98 The
Standards further list exemplary types of factors prosecutors should
consider in making appropriate charging decisions:
(i) the prosecutors reasonable doubt that the accused is in fact
guilty;
(ii) the extent of the harm caused by the offense;
(iii) the disproportion of the authorized punishment in relation to
the particular offense or the offender;
(iv) possible improper motives of a complainant;
(v) reluctance of the victim to testify;
(vi) cooperation of the accused in the apprehension or conviction
of others; and
(vii) availability and likelihood of prosecution by another
jurisdiction.
(viii) A prosecutor should not be compelled by his or her
supervisor to prosecute a case in which he or she has a reasonable
doubt about the guilt of the accused.
(viv) In making the decision to prosecute, the prosecutor should
give no weight to the personal or political advantages or
disadvantages which might be involved or to a desire to enhance
his or her record of convictions.
(x) In cases which involve a serious threat to the community, the
prosecutor should not be deterred from prosecution by the fact
that in the jurisdiction juries have tended to acquit persons
accused of the particular kind of criminal act in question.
(xi) The prosecutor should not bring or seek charges greater in
number of degree than can reasonably be supported with
evidence at trial or than are necessary to fairly reflect the gravity
of the offense.99
96
See id. at 3-3.9(a).

Id.
98 Id. at 3-3.9(b).
99 Id.
97
40
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Additionally, the Standards emphasize the lawyer as the prosecutor,

without explaining why.100 They recommend that the prosecution function
be vested in one public official who is a lawyer subject to the standards of
professional conduct and discipline.101 However, while these standards
are crafted to assure fairness and justice, unfortunately [n]o prosecutor is
required to follow or even consider these aspirational standards.102
Prosecutors are subject to mandatory state rules of professional conduct
for lawyers; these state ethical rules are primarily based on the American
Bar Associations Model Rules of Professional Conduct (ABA Model
Rules), which include a rule specifically governing prosecutors. 103 ABA
Model Rule 3.8 outlines what it calls the special responsibilities of a
prosecutor, and includes: a prohibition against prosecuting a charge for
which there is no probable cause; a provision regarding prejudicial
extrajudicial statements; exculpatory and mitigating evidence disclosure
requirements;104 and remedial measures regarding evidence of wrongful
convictions.105 The non-binding comments explain the need for these
prosecutor-specific rules: [a] prosecutor has the responsibility of a
minister of justice and not simply that of an advocate.106 This prosecutorspecific rule of 3.8 supplements rather than displaces the other ABA Model
Rules; that is, all the rules, such as those requiring lawyers to be
competent, prompt and diligent, and those providing guidance on how
to resolve conflicts of interest, also apply to lawyers in their prosecutorial
role.107
Hence the state-mandated, binding ethical rules specifically cabining
prosecutorial discretion are quite weak, essentially limited to probable
cause for charging and an undefined mandate to do justice. While the ABA
Standards are more comprehensive, they are purely aspirational in nature
and rather general; they therefore urge individual offices to develop
100
See id. at 3-1.2(a).

102 DAVIS, supra note 30, at 15. Without enforceable laws or policies to guide that
discretion, all too often it is exercised haphazardly at worst and arbitrarily at best, resulting in
inequitable treatment of both victims and defendants. Id. at 13.
101
103 MODEL RULES OF PROFL CONDUCT (2013); see also LERMAN & SCHRAG, supra note 93, at 25
(discussing the ABA Model Rules as states template for state rules of attorney professional
responsibility).
104 Most prosecutors do not treat disclosure requirements as trumping the more limited
rules of disclosure mandated by the U.S. Supreme Court in Brady v. Maryland. See generally
Brady v. Maryland, 373 U.S. 83 (1963).
105
MODEL RULES OF PROFL CONDUCT r. 3.8 (2015).

Id. at r. 3.8 cmt. 1 (2015).
107 Id. at pmbl. 4, 9 (2015).
106
2015
41
internal yet public guidelines to limit and structure prosecutorial

discretion:
(a) Each prosecutors office should develop a statement of (i)
general policies to guide the exercise of prosecutorial discretion
and (ii) procedures of the office. The objectives of these policies as
to discretion and procedures should be to achieve a fair, efficient,
and effective enforcement of the criminal law.
(b) In the interest of continuity and clarity, such statement of
policies and procedures should be maintained in an office
handbook. This handbook should be available to the public,
except for subject matters declared confidential, when it is
reasonably believed that public access to their contents would
adversely affect the prosecution function.108
Following this advice, the Department of Justice (DOJ) provides

additional, and quite robust, guidelines109 for its prosecutors,110 found in
the United States Attorneys Manual 9-27.000, entitled Principles of
Federal Prosecution (DOJ Manual).111 This manuals stated purpose is to
promote the reasoned exercise of prosecutorial discretion among federal
prosecutors.112 Its rules and policies are designed to help guarantee the
fair and effective exercise of prosecutorial responsibility by attorneys for
the government, as well as to promot[e] confidence on the part of the
public and individual defendants that important prosecutorial decisions
will be made rationally and objectively on the merits of each case.113 Its
principles are quite detailed in nature, particularly in comparison with the
ABA Standards as well as Model Rules. For example, the DOJ Manual
provides much greater explication regarding appropriate factors to
consider when deciding not to prosecute; instead of simply listing nature
and seriousness of offense as an appropriate factor, 9-27.230s comment
section details different ways in which community impact can actually be
evaluated.114 This habit of detailed explanation is repeated throughout the
108

Ellen S. Podgor, The Ethics and Professionalism of Prosecutors in Discretionary Decisions, 68
FORDHAM L. REV. 1512, 1512 (2000) ([t]he only real voice in the federal system that limits
prosecutorial discretion can be found in the guidelines of the Department of Justice).
109
110
See DEPT OF JUSTICE, U.S. ATTYS MANUAL 9-27.110 cmt. B (2010) [hereinafter USAM
2010] ([I]t is desirable, in the interest of the fair and effective administration of justice in the
Federal system, that all Federal prosecutors be guided by a general statement of principles
that summarizes appropriate considerations to be weighed.).
111
Id. at 9-27.000.
Id. at 9-27.110.
113 Id. at 9-27.001.
114 See id. at 9-27.230 cmt. B(2).
112
42
v. 50 | 21
DOJ Principles, such as in 9-27.300s twelve-paragraph treatment of

charging the most serious offense.115
Yet, while the need for such established standards has long been noted
in order for the prosecutors charging discretion [to] become more
structured and thus more rational by providing better training for new
prosecutors as well as by providing standards for internal and external
review,116 they are not always successful.117 Hence, other recommendations
have also been strongly urged in order to better channel prosecutorial
discretion across the American criminal justice landscape, both to relieve
the intentional misconduct inherent in the exercise of such currentlyunreviewable plenary power, and more importantly, to address the
unintentional inappropriate decisions that stem from cognitive biases and
other subconscious dynamics that influence human decision making. 118
These include measures resulting in greater transparency of prosecutorial
decisions; such transparency can be obtained through procedural
mechanisms such as requiring decisions not to prosecute be annotated by a
documented statement of the reasons. 119 Another related suggestion to
improve the exercise of prosecutorial discretion is through enhanced
education.120 Improving prosecutorial discretion requires [ ] prosecutors
understand the ramifications and appearance of inequity resulting from
inconsistency and abuse in the discretionary decision-making process.121
Measures should be implemented to educate decision-makers to consider
conscious and unconscious biases in charging decisions.122 Finally,
suggestions have long been made to institute close administrative review
such as the bureaucratic reviews integral to the German prosecutorial
115
See id. at 9-27.300.

LAFAVE ET AL., supra note 28, at 714.
117 See Podgor, supra note 109, at 1531 (noting that [i]nternal guidelines have been
disregarded with no legal enforcement mechanism to monitor the violations). See generally
Angela J. Davis, The Legal Professions Failure to Discipline Unethical Prosecutors, 36 HOFSTRA L.
REV. 275 (2007) (critiquing the efficacy of legal ethical rules and citing their failure as a
restraint on prosecutorial misconduct).
116
118 See Podgor, supra note 109, at 1514 (Consideration needs to be given to how conscious
and unconscious bias may affect discretionary decisions.). See generally Burke, supra note 61,
at 160213 (assessing how cognitive biases affect prosecutorial discretion).
119 See LAFAVE ET AL., supra note 28, at 714.
120 See Podgor, supra note 109, at 1513 (arguing education is a means to providing a more
ethical and professional methodology in helping prosecutors navigate the discretionary
decision-making process).
121
122
Id. at 1531.
Id. at 1533.
2015
43
system.123
II. Military Command & Military Discipline
A. Context
While a monocular focus on an individual actor such as the
prosecutor . . . risks losing the broader systemic context,124 this Article
hopes to avoid such a distortion by briefly outlining the milieu in which
military commanders exercise prosecutorial discretion. The scene must
therefore be appropriately set in which the criticality of the maintenance of
tight control over troops via disciplinary measuresor at least the
assumption of such criticalityhas been, and for the most part remains,
the guiding dynamic behind the military justice system: [t]o steel soldiers
for the tightly packed formations that marched terrifyingly close to their
opponents to achieve effective musket fire, officers resorted to relentless
drill and brutal discipline.125 The terrifying environment of battlefield long
predates musket fire, and hence the need to control individuals by coercive
orders, backed up by threat and imposition of punishment for failure to
obey said commands, also predates technological advancements in
weaponry such as the musket.126 While U.S. service-members today no
longer maneuver in the same massive phalanx infantry formations first
utilized by the Greeks and then Alexander the Great of Macedonia in the
fourth century B.C.E., those ancient battlefield operations successful use of
groups of men organized through formal discipline influences modern
military structure and methodology.127
This need for discipline recognized by Alexander the Great runs
throughout military history; it is a corollary to one of the principles of war
that has a cross-cultural lineage spanning thousands of years: the principle
of unity of command.128 This principle, recognized by Sun Tzu in ancient
China as well as by todays modern Army, directs that: [f]or every
123
See, e.g., LAFAVE ET AL., supra note 28, at 715.

THE PROSECUTOR IN TRANSITIONAL PERSPECTIVE, supra note 31, at 178.
125 Colonel Charles J. Dunlap, Jr., Welcome to the Junta: The Erosion of Civilian Control of the
U.S. Military, 29 WAKE FOREST L. REV. 341, 347 (1994) [hereinafter The Junta].
126 See generally Victor Hansen, Changes in Modern Military Codes and the Role of the Military
Commander: What Should the United States Learn from this Revolution?, 16 TUL. J. INTL & COMP.
L. 419, 423 (2008) (Military operations, particularly in war, often require immediate and
unquestioned obedience to orders and commands.).
127 See generally AMERICAN MILITARY HISTORY VOL, I, THE UNITED STATES ARMY AND THE
FORGING OF A NATION, 17751917, at 19 (Richard W. Stewart, ed., 2005) (describing ancient
warfares use of organized, disciplined forces).
124
128
Id. at 8.
44
v. 50 | 21
objective, ensure unity of effort under one responsible commander.129 A

current Army field manual further defines this core principle of war with
an emphasis on its need for authority:
4-44. Developing the full combat power of a force requires unity
of command. Unity of command means that a single commander
directs and coordinates the actions of all forces toward a common
objective. Cooperation may produce coordination, but giving a
single commander the required authority unifies action. 130
This required authority stands in contradistinction to coordination

through cooperation: command authority requires respect for such
authority, and this translates to the need for means to impose swift and
summary punishment to ensure control through obedience to orders.131
That is, since the days of the Greeks and Romans, the power of command
has been synonymous with the power to discipline forces under ones
command132an authority inextricably linked to the power to order, and
be obeyed, in pursuit of military objectives. 133
Military history supports the unity of command principles criticality;
it is replete with examples that emphasize that superior disciplined
forces win battles; such forces are considered disciplined and hence
successful because they do what they are told.134 Soldiers follow orders
because their commanders, who, per the unity of command principle, must
possess authority over other soldiers, and utilize disciplinary measures.
Discipline, long considered the soul of an army,135 is roughly the practice
129
Id.
HEADQUARTERS DEPARTMENT OF THE ARMY, OPERATIONS FIELD MANUAL 3-0, at 4-14
(2001).
131 See Hansen, supra note 126.
132 See generally WILLIAM WINTHROP, MILITARY LAW AND PRECEDENTS 17 (2d ed. 1920)
(describing how early Roman and Germanic military commanders administrated discipline
through means such as death, whipping, maiming, etc.).
130
133 See David A. Schlueter, The Court-Martial: An Historical Survey, 87 MIL. L. REV. 129, 131
(1980).
134 See AMERICAN MILITARY HISTORY VOL. I, THE UNITED STATES ARMY AND THE FORGING OF
A NATION, 17751917, supra note 127, at 21 (describing how in the Middle Ages formations of
disciplined infantry using longbow . . . reasserted their superiority on the battlefield); id. at
23 (attributing the greatness of Frederick the Greats Prussian army to near clock-like
precision [achieved] by brutal discipline and unquestioning obedience throughout the army);
id. at 21 (describing how European armies transformed themselves into highly disciplined
and powerful military machines).
135 Letter from George Washington to Virginia Regiment Officers July 29, 1757, in The
George Washington Papers at the Library of Congress, 17411799, available at
http://memory.loc.gov/cgi-bin/query/r?ammem/mgw:@field(DOCID+@lit(gw020074))
(last
2015
45
of training people to obey rules by using punishment to correct

disobedience.136 It is both [t]he practice of training people to obey rules or
a code of behavior, using punishment to correct disobedience as well as
[t]he controlled behavior resulting from such training.137
While obedience to orders in the military can be and is often achieved
by non-coercive means,138 discipline is considered the ingredient that
enables the commander to discharge all these responsibilities.139 While this
requirement for a disciplinary system which uses punishmentthat is, a
requirement for the ability to disciplineis often stated or assumed, the
appropriate link to context is just as often overlooked: violence, the
managed application of which is the raison detre of todays military as well
as yesterdays, that demands discipline.140 Both causing and experiencing
death and destruction constitute the context of many, if not most, military
operations, and influence military forces structure, training, and codes of
conduct.
Strict discipline141 through punishment has historically been needed to
overcome fear of death and injury in the dangerous pursuit that is the
profession of arms.142 The sheer terror of battle, as well as battlefield
visited Jan. 5, 2016).

136 See Elizabeth T. Gerschoff, More Harm than Good: A Summary of Scientific Research on the
Intended and Unintended Effects of Corporal Punishment on Children, 73 LAW & CONTEMP. PROBS.
31, 40 (2010) (defining the goal of punishment as to put an end to inappropriate or
undesirable behavior and to promote positive and acceptable behavior in both the short and
long terms); What is Discipline, PSYCHOL. DICTIONARY, http://psychologydictionary.org/
discipline/ (last visited Jan. 5, 2016) (defining discipline as the control of conduct by using
punishment and reward).
137 Discipline
Definition, OXFORD DICTIONARIES, http://www.oxforddictionaries.com/
us/definition/english/discipline (last visited Jan. 5, 2016).
138 See Franklin D. Rosenblatt, Non-Deployable: The Court-Martial System in Combat from
20012009, 2010 ARMY LAW. 12, 12 (2010) (chronicling deployed U.S. military commanders
successfully ordering their subordinates into dangerous combat situations without the
concomitant legal authority to initiate court-martial proceedings against them).
139
Merlin H. Starting, The Role of the Commander, 61 A.B.A. J. 305, 305 (1975).
See generally AMERICAN MILITARY HISTORY VOL. I, THE UNITED STATES ARMY AND THE
FORGING OF A NATION, 1775-1917, supra note 127, at 16 (describing the Army as an instrument
of force).
141 See COMM. ON THE UNIF. CODE OF MILITARY JUSTICE, GOOD ORDER, AND DISCIPLINE IN
THE ARMY, REPORT TO THE HONORABLE WILBER M. BRUCKER, SECRETARY OF THE ARMY 11
(1960) (defining discipline as a state of mind which leads to a willingness to obey an order no
matter how unpleasant or dangerous the task to be performed).
142 See generally Charles N. Pede, Soldiers in Combat and Military Justice, in U.S. MILITARY
OPERATIONS: LAW, POLICY, AND PRACTICE 437, 443 (Geoffrey S. Corn et al. eds., 2015) ([T]he
ability to address indiscipline and criminal misconduct is one of the vital lifebloods of the
140
46
v. 50 | 21
boredom, have been exacerbated throughout history because most of the

men have not been fighting voluntarily; men have been forced to fight
since antiquity, a history of conscription that continued in this country
until relatively recently.143 In addition to the need to force men to
involuntarily expose themselves to mortal danger, discipline 144 has been
required because violence by nature is difficult to control.
[A]rmies have struggled to balance fanning the violence held in
the hands of youthful warriors to destroy the enemy with the
ever-present danger that this same violence, if not properly
contained, could spill over in myriad ways to the loss of innocent
life and property.145
A recognition that violence breeds violence, thus requiring a special

type of disciplinary control within militaries, is no less true today than it
was for Hannibal, Frederick the Great, or George Washington, despite the
voluntary nature of the U.S. armed forces. Crime is part of the American
social and military fabric, and the nature of the modern battlefield
exacerbates the need for discipline, instead of reducing it.146 While TwentyFirst Century warfare differs in many ways from its predecessors, it is still
governed by the same principles and the need for discipline is just as
great.147 In fact, such needs may be greater than ever: [b]asic discipline is
required not only to ensure a disciplined force is ready to carry out orders,
but to preserve our allies and host-nation support as we wage war.148
This brief discussion uses broad brushstrokes to paint a picture that is
actually quite complex, one worthy of the libraries of volumes and miles of
film dedicated to the reality of war and warfare. This Article only paints a
tiny snapshot of such complexity; it does so to highlight that the
uniqueness of warfare and its ancient influence on the forces engaged in it
must be understood in order for observers to make informed judgments
regarding the exercise of prosecutorial discretion by military commanders.
In summation, U.S. military commanders and those they command
military. Without the systems of punishment and rewards, discipline erodes.).
143 See generally AMERICAN MILITARY HISTORY VOL. I, supra note 127, at 2125 (tracing the
evolution of western armies).
144 Here, discipline is utilized in the sense of the control of conduct by using punishment
and reward. See Discipline, supra note 137.
145
Pede, supra note 142, at 438.

Id. at 438, 439 (noting how unseen enemies, nonlinear battlefields, and . . . terror
tactics make maintaining discipline more difficult in modern warfare).
147 Id. at 439 (Although commanders today do not have the same concerns about desertion
that George Washington labored under, the need to enforce basic discipline remains just as
elemental to a field commander today, and is at the core of mission accomplishment.).
146
148
Id.
2015
47
function within an insular sociological and hierarchical organizational

context, one that demands obedience and subordination of self to the unit.
This organizational design is not arbitrary; it results from millennia of
experience regarding what type of organizational structure best achieves
results on the battlefield.
Commanders are expected to guide those under their command in
achievement of frequently violent military objectives by directing conduct
that may risk the very lives of those individuals whom they are so leading.
The key to successfully getting both one solider as well as hundreds of men
and women to risk their lives for their country is an organizational
structure. This framework is cemented together by leadership skills and
reinforced by the commanders ability to impose punishment. The latter is
imposed through a disciplinary system that provides the means with
which to react to, and hence guide, behavior. This Article now turns to this
system.
B. How Is Discipline Maintained in Todays Military?
This unity of command principle is implemented in the modern U.S.
military through the militarys hierarchical organization, one whose clearly
established chain of command lies at the heart of the military ethic.149
The hierarchy of ranks determines a functional task by itself, the
maintenance of good order among subordinates in his presence being a
responsibility of every superior.150 This organizational structures
lifeblood is the military justice system.151 At the apex of this system of
punishment stands the Uniform Code of Military Justice (UCMJ), the
militarys penal code.152 It was enacted by Congress in 1950 under its
constitutional power to regulate the armed forces, 153 and in 1951 replaced
the Articles of War, which, though frequently revised, had been governing
the armed forces since 1775.154
149 GEOFFREY S. CORN ET AL., THE LAW OF ARMED CONFLICT: AN OPERATIONAL APPROACH
468 (2012).
150 Note, Lessons in Transcendence: Forced Associations and the Military, 117 HARV. L. REV.
1981, 1993 (2004) (quoting NICO KEIJZER, MILITARY OBEDIENCE 42 (1978)).
151
Pede, supra note 142, at 443 (The military justice system is an essential element of a
deployed army . . . . The ability to address indiscipline and criminal misconduct is one of the
vital lifebloods of the military.).
152
See generally 10 U.S.C. 801940 (2012).

See U.S. CONST. art. I, 8, cl. 14.
154 See generally LURIE, supra note 6, at xiii, 320 (aptly chronicling the early history of the
American military justice system).
153
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v. 50 | 21
The preamble to the Manual for Courts-Martial (MCM),155 an executive

branch compilation that includes the UCMJ and supplements it with
implementing regulations and discussion, outlines that: [t]he purpose of
military law is to promote justice, to assist in maintaining good order and
discipline in the armed forces, to promote efficiency and effectiveness in
the military establishment, and thereby to strengthen the national security
of the United States.156
In order to promote such goals, the military justice system places
commanders in the leading role: military commanders control discipline
within the military because they are given the power to decide how to
handle service-member misconduct.157 Commanders are those
commissioned officers in command or an officer in charge;158 their
command authority is exercised by virtue of the office and the special
assignment of officers holding military grades who are eligible by law to
command.159 Commanders are in charge of particular units and
responsible for such units ability to carry out assigned missions.160 These
units function within a cascading series of units, each nested under the
155 MANUAL FOR COURTS-MARTIAL UNITED STATES Part 1 (2012) [hereinafter MCM]. The
2012 MCM incorporates Executive Orders providing rules for all amendments to the Rules
for Courts-Martial, Military Rules of Evidence (Mil. R. Evid.), and Punitive Articles made by
the President in Executive Orders (EO) from 1984 to present, and specifically including EO
13468 (24 July 2008); EO 13552 (31 August 2010); EO 13593, (13 December 2011). Id. at 1. This
edition also contains amendments to the Uniform Code of Military Justice (UCMJ) made by
the National Defense Authorization Acts for Fiscal Years 2009 through 2012. Id.
156 MCM, supra note 155, at I-1. Additional reasons traditionally given for the maintenance
of a separate criminal system for the U.S. military include, 1. The worldwide deployment of
military personnel; 2. The need for instant mobility of personnel; 3. The need for speedy trial
to avoid loss of witnesses due to combat effects and needs; 4. The peculiar nature of military
life, with the attendant stress of combat or preparation for combat; and 5. The need for
disciplined personnel. CRIMINAL LAW DEPT, THE JUDGE ADVOCATE GEN. LEGAL CTR. & SCH.,
U.S. ARMY, CRIMINAL LAW DESKBOOK VOL. I, at A-1 (2012) [hereinafter CRIMINAL LAW
DESKBOOK] (quoting FRANCIS A. GILLIGAN & FREDERIC I. LEDERER, COURT-MARTIAL
PROCEDURE, at V (3d ed. 2007)).
157 See CRIMINAL LAW DESKBOOK, supra note 156, at A-1 (Given the need for discipline in
the military, military justice is under the overall control of the commander.); see also James B.
Roan & Cynthia Buxton, The American Military Justice System in the New Millennium, 52 A.F. L.
REV. 185, 186 (2002) (The maintenance of good order and discipline is an absolutely essential
function of command.).
158 MCM, supra note 155, at II-1 (stating R.C.M. 103(5)).
159 KIRK L. DAVIES, THE JUDGE ADVOCATE GEN.S SCH., U.S. AIR FORCE THE MILITARY
COMMANDER AND THE LAW 2 (12th ed. 2014).
160 See MORRIS, supra note 6, at 5 (describing the inherent authority of command to take
actions necessary for mission accomplishment). See generally RSP REPORT, supra note 21, at 73.
2015
49
authority of a superior commander in charge of a larger unit, thereby

creating a chain of command.161
Commanders possess the authority to respond to misconduct with a
range of responses, up to and including the power to decide to prosecute
criminal charges.162 This includes the responsibility to investigate
allegations of misconduct as well as the authority to dispose of them along
a broad continuum, ranging from taking no action at all to prosecuting the
charges in a court-martial.163 Commanders in all of the services possess
various non-criminal disciplinary tools with which to handle service
member misconduct.164 Typically referred to as administrative actions, such
responses include letters of reprimand, demotions, extra training, and
promotion withholdings.165
Furthermore, particular commanders are granted authority per Article
15, UCMJ, to offer a forum for resolution of minor offenses, which allows
the commander to serve as a judge of sorts.166 In this type of disciplinary
forum, a commander swiftly and exclusively decides guilt and imposes
what is known as nonjudicial punishment, which can include forfeitures,
punitive demotions, and other measures. 167 While the target service-
161 See MORRIS, supra note 6, at 5 (describing the inherent authority of command to take
actions necessary for mission accomplishment). See generally RSP REPORT, supra note 21, at 73.
162 See DAVIES, supra note 159, at 116 (commanders always have jurisdiction to perform
administrative actions and can hold members accountable for wrongdoing by using a variety of
adverse administrative actions such as letters of counseling, admonishment, reprimand, etc.);
see also MCM, supra note 155, at III-8 (stating R.C.M. 306(c)) (providing options of how
offenses may be disposed of).
163
See MCM, supra note 155, at II-19II-26 (stating R.C.M. 30306).

See generally U.S. DEPT OF AIR FORCE, INSTR. 36-2907, UNFAVORABLE INFORMATION FILE
(UIF) PROGRAM 4 (2014), available at http://static.e-publishing.af.mil/production/1/
af_a1/publication/afi36-2907/afi36-2907.pdf; U.S. DEPT OF ARMY, REG. 600-20, ARMY
COMMAND POLICY 24 (2014) [hereinafter AR 600-20], available at http://www.apd.army.mil/
pdffiles/r600_20.pdf; U.S. DEPT OF NAVY, JAG INSTR. 5800.7F, MANUAL OF THE JUDGE
ADVOCATE GENERAL, 19 (2012), available at http://www.jag.navy.mil/library/instructions/
jagman2012.pdf (describing administrative disciplinary tools).
164
165
See, e.g., U.S. DEPT OF AIR FORCE, INSTR. 36-2907, supra note 164, at 29 (providing
guidance on administrative reprimands, counseling, and admonitions within the Air Force);
see MCM, supra note 155, at II-26 (stating R.C.M. 306(c)(2), which lists administrative
corrective measures available to commanders). See generally CRIMINAL LAW DESKBOOK VOL. I,
supra note 156, at A-1 (delineating some adverse administrative actions).
166
See 10 U.S.C. 815(b) (2012); MCM, supra note 155, at II-26 (stating R.C.M. 306(c)(3),
which highlights a commanders option to dispose of charges via non-judicial punishment).
See generally Hansen, supra note 126, at 429 (describing a commanders role as the sole
adjudicator of charges brought by the commander against the service member).
167
10 U.S.C. 815(b)(1).
50
v. 50 | 21
member possesses a statutory right to refuse this forum, doing so may

result in the same commander initiating criminal prosecution for the
offense168 (or a superior one if the offering commander does not possess
requisite authority); most nonjudicial punishment offers are accepted by
military members.169
Most pertinent to this Article, the UCMJ vests discretionary authority
in particular commanders to criminally prosecute service-members within
their units. These commanders, known as convening authorities, possess
the statutory authority to convene courts-martial (criminal trials)170 to
adjudicate particular charges that the commander sends to such court; each
court-martial is individually convened for a particular defendant and
particular charges.171 These convening authorities are given plenary,
independent authority to dispose of criminal charges in numerous ways
including: dismissing accusations, imposing lesser administrative
disciplinary measures, and convening a court-martial (criminal trial) to
prosecute the individual.172 These same commanders qua convening
168
While Article 15 does not legally foreclose a superior commander from pursuing courtmartial charges for the same offense(s), it is very rare for someone to be court-martialed for
something for which they already received Article 15 punishment. See United States v.
McKeel, 63 M.J. 81, 83 (C.A.A.F. 2006) (citing United States v. Bracey, 56 M.J. 387 (C.A.A.F.
2002); United States v. Pierce, 27 M.J. 367 (C.M.A. 1989)).
169
See, e.g., MORRIS, supra note 6, at 155 (In practice, the vast majority of soldiers offered
NJP decide to accept this mechanism . . . .); Patrick J. McLain, Nonjudicial Punishment: Service
Culture
Divides
in
Military
Justice,
HG.ORG
LEGAL
RESOURCES,
http://www.hg.org/article.asp?id=20041 (last visited Jan. 6, 2016) (describing high rate of
Article 15, NJP acceptance rates).
170
Three types of court-martial, or criminal trial, are authorized by the UCMJ: special,
summary, and general. The first two are jurisdictionally limited regarding types of
punishment, whereas a general court-martial has no such limitation. See 10 U.S.C. 816820
(2012); MORRIS, supra note 6, at 41 (describing the different types of court-martial as differing
by maximum punishments, level of command that can convene each, and extent of appellate
process for each).
171 See 10 U.S.C. 822824 (2012); MCM, supra note 155, at II-25, II-31 (stating R.C.M. 306,
401). See generally CRIMINAL LAW DESKBOOK, supra note 156, at A1A2 (describing the process
of handling misconduct within the military); Hansen, supra note 126, at 429 (describing
commanders ability to dispose of criminal charges against a service member). It is important
to note that the commanders with the power to refer chargers to courts-martial and convene
the proceedings are limited in number; this power is not inherent in command authority. RSP
REPORT, supra note 21, at 74 (The authority to convene a court-martial is distinct from
command authority.).
172
See MCM, supra note 155, at II-68 (stating R.C.M. 306(c)). There are currently over 15,000
commanders in the active duty armed forces, with approximately 2,402 exercising special
courts-martial convening authority and approximately 411 exercising general courts-martial
convening authority. See RSP REPORT, supra note 21, at 74.
2015
51
authorities also possess wide-ranging authority to enter into binding plea

bargains,173 as well as the authority to choose the pool of jury members for
those they decide to prosecute.174 Finally, these unit commanders possess
recently narrowed clemency power to modify sentences.175
173
See MCM, supra note 155, R.C.M. 705(a), (b); see also United States v. Callahan, No.
200100696, 2003 WL 21789149, at *2 n.3 (N-M. Ct. Crim. App. July 30, 2003) (This Court gives
deference to a CA's decision on the appropriate disposition of charges or a decision regarding
the appropriate limitations of punishment agreed to in a pretrial agreement as these decisions
are also exercises of prosecutorial discretion.) (emphasis added); United States v. Bulla, 58
M.J. 715, 717 (C.G. Ct. Crim. App. 2003).
174
MCM, supra note 155, at II 6870 (stating R.C.M. 705).

See 10 U.S.C. 860(c)(3) (2012). Congress recently altered Article 60 by removing the
commanders authority to set aside convictions in all but minor, military-related offenses,
though commanders can still reduce sentences in specific instances. See National Defense
Authorization Act (NDAA), Pub. L. No. 113-66, 1702, 127 Stat. 672, 95556 (2013) 1702. See
generally Brent A. Goodwin, Congress Offends Eisenhower and Cicero by Annihilating Article 60,
UCMJ, ARMY LAW. 1, 23 (2014) (describing the 2013 Congressional changes to Article 60,
UCMJ).
175
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Per the Rules for Court-Martial (R.C.M.),176 consisting of

presidentially-promulgated military procedural rules, military criminal
prosecution of specific misconduct is formally initiated by preferral and
referral of charges.177 The immediate commander of the suspected service
member typically decides how to initially dispose of the alleged offense. 178
The most powerful and final step in initiating a trial by court-martial
involves the referral of charges; referral power rests exclusively with
particular commanders. Referral is the order of a convening authority that
charges against an accused will be tried by a specified court-martial[,]179
and it can only be accomplished by a commander granted convening
authority.180 When deciding to refer charges, 181 convening authorities are
bound by no legally required standard besides that of probable cause, 182
176 The Rules for Courts-Martial are promulgated by the President at the direction of
Congress and are included within the Manual for Courts-Martial. See U.S. CONST. art. I, 8; 10
U.S.C. 818, 836 (2012); Exec. Order No. 13643, 78 Fed. Reg. 29559 (May 15, 2013).
177 See MCM, supra note 155, at II 2753 (stating R.C.M. 307, 401, 403, 404, 407, 601).
178 MCM, supra note 155, at II 25 (stating R.C.M. 306(a)) (Each commander has discretion
to dispose of offenses by members of that command. Ordinarily the immediate commander of
a person accused or suspected of committing an offense triable by court-martial initially
determines how to dispose of that offense.); see also DAVIES, supra note 159, at 176 (By Air
Force custom, the accuseds immediate commander ordinarily prefers the charge.). Preferral
of charges is not restricted to commanders; anyone subject to the UCMJ can formally charge
another service member by taking an oath swearing that the charges are true to the best of his
or her knowledge and belief based upon either personal knowledge or investigation. MCM,
supra note 155, R.C.M. 307(a), (b)(2).
179
MCM, supra note 155, at II-52 (stating R.C.M. 601(a)).

See MORRIS, supra note 6, at 41 (highlighting that Army and Air Force colonels and Navy
commanders typically act as special court-martial convening authorities, whereas general
court-martial convening authorities are typically two-star, or above, generals or admirals). See
generally Hansen, supra note 126; Lindsy Nicole Alleman, Note, Who Is in Charge, and Who
Should Be? The Disciplinary Role of the Commander in Military Justice Systems, 16 DUKE J. COMP. &
INTL L. 169 (2006).
180
181 Typically, a unit commander refers charges (and thereby acts as the accuser) and the
superior commander with court-martial convening authority convenes such a court. See
HOLLY M. STONE, THE MILITARY COMMANDER AND THE LAW 171 (Kenneth A. Katz et al. eds.,
11th ed. 2012) (By Air Force custom, the accuseds immediate commander ordinarily prefers
the charge.). A special court-martial is one of limited punishment; it is only authorized to
punishments of no more than one-year confinement and a bad conduct discharge for enlisted
service members; it cannot dismiss an officer from their military service. See MCM, supra note
155, at II-12 (stating R.C.M. 201(f)(2)).
182
See MCM, supra note 155, at II-52 (Outlining in R.C.M. 601(d)(1) the sole requirement for
the basis for referral of charges to a court-martial: If the convening authority finds or is
advised by a judge advocate that there are reasonable grounds to believe that an offense
triable by a court-martial has been committed and that the accused committed it, and that the
2015
53
despite the fact that the standard for conviction is beyond a reasonable
doubt.183
1.
Operating Instructions for Commanders Tools: Any HowTo Guides?
Commanders are given little formal guidance regarding which

disciplinary tool, including criminal prosecution, to use in response to
misconduct. R.C.M. 306, Initial Disposition,184 specifically gives each
commander the discretion to dispose of offenses by members of that
command.185 It further provides that [a]llegations of offenses should be
disposed of in a timely manner at the lowest appropriate level of
disposition listed in subsection (c) of this rule.186 The allowable levels of
disposition start with no action.187 Other disposition levels include
administrative measures, nonjudicial punishment under Article 15,
forwarding the matter to another commander, and pursuing criminal
charges.188
This very limited discrete guidanceof timeliness and a preference for
the lowest appropriate dispositionis legally binding on a commander
when faced with how to handle misconduct by a subordinate, given that
the R.C.M.s are promulgated by Executive Order.189 While the rules
themselves do not explain what constitutes the lowest appropriate
disposition, the non-binding discussion paragraphs of R.C.M. 306 generally
specification alleges an offense, the convening authority may refer it.). This standard is
known as one of probable cause. See MCM, supra note 155, at II-40 (discussing R.C.M. 406(b)).
183 Davis, supra note 117, at 28485 (arguing that probable cause is an inappropriately low
standard for prosecution and encourages abuse, urging implementation of a standard closer
to beyond reasonable doubt).
184 MCM, supra note 155, at II-25 (stating R.C.M. 306). The discussion to subsection (b) of
R.C.M. 401, titled Forwarding and disposition of charges in general, also directs commanders to
R.C.M. 306 when determining disposition of actual charges received. Id. at II-31 (stating
R.C.M. 401(b)).
185 Id. at II-25. It further provides that [o]rdinarily the immediate commander of a person
accused or suspected of committing an offense triable by court-martial initially determines
how to dispose of that offense. Id. This disposition decision follows a required preliminary
investigation. See id. at II-19 (stating R.C.M. 303).
186 Id. at II-25 (stating R.C.M. 306(b)).
187 MCM, supra note 155, at II-26 (stating R.C.M. 306(c)).
188 See id. The R.C.M. does not explicitly list preferral of charges as an option but it is
implied in RCM 306(c)(4), which refers to RCM 401 regarding disposition of charges. See id.
The discussion following R.C.M. 306(c) clarifies that preferral of charges is an option. Id.
189
See id. at A21-2 (noting that each rule is considered as stating binding requirements).
54
v. 50 | 21
explain this standard,190 and include the following advice regarding the
commanders disposition decision:
Many factors must be taken into consideration and balanced,
including, to the extent practicable, the nature of the offenses, any
mitigating or extenuating circumstances, the character and
military service of the accused, the views of the victim as to
disposition, any recommendations made by subordinate
commanders, the interest of justice, military exigencies, and the
effect of the decision on the accused and the command. The goal
should be a disposition that is warranted, appropriate, and fair.191
The Discussion of R.C.M. 306(b) further lists considerations a

commander should utilize when deciding how to handle a disciplinary
matter.192 The majority of these factors are based on the ABA Criminal
Justice Standards for Prosecution Function 3-3.9(b) (ABA Prosecution
Function Standards).193 R.C.M. 306 cherry-picks from the ABA
Prosecutorial Function Standard factors, ignoring several ABA
considerations, such as the prosecutors reasonable doubt that the accused
is in fact guilty.194 The R.C.M. dispositional factors instead include:
190 The Discussion sections of the MCM, compiled by the Department of Defense, do not
have the force of law, but may describe legal requirements derived from other sources. It is
in the nature of treatise, and may be used as secondary authority. Id. at A21-3. But c.f. United
States v. Foley, 37 M.J. 822, 828 (A.F.C.M.R. 1993) ([T]here is little value in relying upon the
discussion, for it is not authoritative . . . . [T]he discussions that appear throughout the
Manual are neither legislative nor Executive and do not purport to have the force of law.).
191
MCM, supra note 155, at II-25.

These factors were added to the discussion section in the 1984 revision of the MCM. See
id. at A21-21.
192
193
See AMERICAN BAR ASSOCIATION, STANDARDS FOR CRIMINAL JUSTICE: PROSECUTION

FUNCTION 3-3.9(b) (2d ed. 1980). While the second edition of the ABA Prosecution Function
Standards (1980) was used for the original 1984 MCM discussion, the incorporated standards
remain in the current edition of the MCM. MCM, supra note 155, at A21-21. The third edition
of the ABA Prosecution Function Standards have retained these as well, though found in
different listing sequence. See AMERICAN BAR ASSOCIATION, STANDARDS FOR CRIMINAL
JUSTICE: PROSECUTION FUNCTION AND DEFENSE FUNCTION 3-3.9(b) (3d ed. 1993).
194 See James G. Exum, Jr. et. al., Prosecution Function and Defense Function, A.B.A.
STANDARDS FOR CRIMINAL JUSTICE 33.9(b)(i), at 71 (3rd ed. 1993). This standard was 3
3.9(b)(i) in the second edition, as well. See Kenneth J. Hodson et al., The Prosecution Function,
A.B.A. STANDARDS FOR CRIMINAL JUSTICE 33.9(b)(i), at 54 (2nd ed. 1980). The Discussion
drafters considered this decision rule inconsistent with the convening authoritys judicial
function, and therefore omitted it from their list of recommended factors guiding
prosecutorial discretion. MCM, supra note 155, at A21-21 (citing no case law to support this
assumption). The reference to the commanders prosecutorial decision here as a judicial
function is perplexing, as well as inaccurate. The military appellate courts have since the
1980s characterized the convening authoritys power to criminally prosecute as prosecutorial.
2015
55
(A) the nature of and circumstances surrounding the offense and

the extent of the harm caused by the offense, including the
offenses effect on morale, health, safety, welfare, and discipline;
(B) when applicable, the views of the victim as to disposition;
(C) existence of jurisdiction over the accused and the offense;
(D) availability and admissibility of evidence;
(E) the willingness of the victim or others to testify;
(F) cooperation of the accused in the apprehension or conviction
of others;
(G) possible improper motives or biases of the person(s) making
the allegation(s);
(H) availability and likelihood of prosecution of the same or
similar and related charges against the accused by another
jurisdiction;
(I) appropriateness of the authorized punishment to the
particular accused or offense;
(J) the character and military service of the accused; and
(K) other likely issues.195
These R.C.M. factors have been periodically revised, including in 2012,

when the consideration of the victim as a new dispositional factor was
added,196 and again in 2013, which eliminated the character and military
service of the accused from the list altogether.197
2.
Live Hotline
Little formal written guidance, outside of the sparse R.C.M. 306(b) list,
exists to educate and channel military commanders wide discretion
regarding how they should deal with misconduct. 198 Nothing similar to the
See United States v. Fernandez, 24 M.J. 77, 78 (C.M.A. 1987) (In referring a case to trial, a
convening authority is functioning in a prosecutorial role.); United States v. Allen, 31 M.J.
572, 584 (N.M.C.M.R. 1990) ([W]hen a convening authority refers a case to court-martial he is
functioning in a prosecutorial rather than a judicial role.).
195
MCM, supra note 155, at II-25II-26 (outlining R.C.M. 306(b)).

Id.
197 National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66, 1708, 127
Stat. 672, 961 (2013) [hereinafter NDAA FY14] (discussing that the character and military
service of the accused in the discussion following R.C.M. 306(b) shall be deleted from the
factors considered by a commander when disposing of an offense).
196
198 See generally Rachel E. VanLandingham, Acoustic Separation in Military Justice: Filling the
Decision Rule Vacuum with Ethical Standards, 11 OHIO ST. J. CRIM. L. 389 (2014) (highlighting an
56
v. 50 | 21
DOJs comprehensive Attorneys Manual exists for military commanders.199

Military commanders do receive advice from military lawyers when
making many disciplinary decisions, but these lawyers are equally
unguided, at least regarding formal dispositional touchstones as well as
prosecutorial training and experience. Regarding the decision to prosecute,
R.C.M. 601 requires that the convening authority be advised by a judge
advocate, or unilaterally find, that there are reasonable grounds to believe
that an offense triable by a court-martial has been committed and that the
accused committed it; that is, the commander must have probable cause
to prosecute.200 While R.C.M. 601(d)(1) makes clear that a convening
authority can unilaterally make this finding in a summary or special courtmartial without lawyer advice, this probable cause determination must be
made by a judge advocate before a convening authority can refer charges
to a general court-martial.201
This requirement for a military lawyers written finding of probable
cause prior to referral of charges to a general courts-martial is found in a
broader requirement for a convening authority to refer the charges to his
staff judge advocate for advice and consideration.202 This written advice
must include a finding of probable cause, advice regarding jurisdiction and
form, plus a non-binding recommendation regarding what action the
convening authority should take on the charges.203 In practice, convening
authorities almost always confer with their senior military lawyers, known
as staff judge advocates, before referring charges to a court-martial,
regardless of type.204 Additionally, prior to a convening authority referring
inappropriate lack of commander guidance and suggesting ethical standards and products
akin to the U.S. Attorneys Manual).
199 See USAM, supra note 110, at 9-27-000.
200 MCM, supra note 155, at II-52 (stating R.C.M. 601(d)(1)). The analysis notes that while
probable cause was required for referring charges to a general court-martial (GCM), the
1984 revisions to the rules expanded this basis to apply to all referrals, and not just GCMs. See
id. at A21-31.
201 Id. at II-52, A21-31 ([b]ecause of the judicial limitations on the sentencing power of
special and summary courts-martial, any judge advocate may make the determination or the
convening authority may do so personally (emphasis added)).
202 10 U.S.C. 834 (2012); see also MCM, supra note 155, at II-40. See generally United States v.
Smith, 33 C.M.R. 85, 89 (C.M.A. 1963) (describing staff judge advocate pretrial advice as a
valuable pretrial protection to an accused).
203 10 U.S.C. 834. See generally MORRIS, supra note 6, at 59 (describing this procedural
requirement as one in which the balance in the military justice system that generally gives
most disposition authority to a layperson, the convening authority, is balanced back toward a
noncommander).
204 RSP REPORT OF ROLE OF THE COMMANDER, supra note 2, at 73 n.260 (commanders do not
make decisions in a vacuum . . . and their [j]udge [a]dvocates are involved at every step of the
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57
charges to a general court-martial, a newly-revised preliminary hearing

must be conducted, preferably by a military lawyer, in order to find
probable cause and otherwise recommend disposition action. 205 Whereas
the Article 34 requirement for written advice from a staff judge advocate
can block referral of charges to a general court-martial if that advice fails to
find the charges supported by probable cause, the preliminary hearings
findings are merely recommendations with no binding effect. 206
C. Improving Military Prosecutorial Decision-Making
Commanders play a powerful and distinctive role in the armed forces
. . . [t]he command structure of the armed forces enforces obedience,
rewards sacrifice, and prioritizes the mission . . . .207
[D]iscretion is necessary in criminal justice administration because of
the immense variety of factual situations faced at each stage of the
system and the complex interrelationship of the goals sought. The issue
is not discretion versus no discretion, but rather how discretion should
be confined, structured, and checked.208
1.
Change in the Right Direction
The role of the non-lawyer military commander as the decision-maker

in prosecutorial decisions in the military has been center-stage on Capitol
Hill for the last several years. As the latest maelstrom of yet another sexual
assault controversy in the uniformed ranks swirled around the Pentagon, 209
whether or not to remove prosecutorial discretion from commanders and
instead vest it in military lawyers has been vigorously debated. 210 While
proposals to fully divest commanders of their power to dispose of
way ); id. at 80 (Like the preferral decision, these decisions are normally made after
consultation with, and recommendation from, a judge advocate officer). See generally
MORRIS, supra note 6, at 4 (In practice, most commanders rely heavily on legal advice from
their judge advocates . . . .).
205 See NDAA FY14, supra note 197, at 1702.
206 Id.; see also MORRIS, supra note 6, at 59.
207 RSP REPORT OF ROLE OF THE COMMANDER, supra note 2, at 133 (statement of
Subcommittee Member Elizabeth L. Hillman).
208
LAFAVE ET AL., supra note 28, at 713.

The military, beginning with Tailhook in 1991, has been deservedly notorious for being
unable, unwilling, or both, to protect its service-members from sexual assault. See generally
Megan N. Schmid, Comment, Combating a Different Enemy: Proposals to Change the Culture of
Sexual Assault in the Military, 55 VILL. L. REV. 475, 47982 (2010) (assaying the series of sexual
assault scandals and the militarys responses).
209
210
See RSP REPORT, supra note 21, at 167.
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v. 50 | 21
allegations of misconduct through criminal prosecution were rejected,211

recent legislation has, to a quite limited degree, curtailed command
military discretion.212 Regarding convening authorities prosecutorial
discretion to refer charges to court-martial, while their discretion is still
vast,213 such power regarding allegations of sexual assault has been
recently structured by Congress.214 This recent procedural channeling of
prosecutorial discretion, though limited solely to the arena of particular sex
offenses allegations, is a step in the right direction to improve military
prosecutorial decision-making. Such structural changes need to be both
reinforced, as well as generally applied across the board to all allegations of
criminal misconduct. Per the 2014 National Defense Authorization Act
(NDAA FY14), jurisdiction for sexual assault charges is now limited
exclusively to general courts-martial.215 Thus, only senior commanders
with general court-martial convening authority can ultimately dispose of
such charges by either dismissing them or referring them for prosecution,
but only for those charges that are first formally charged (preferred) by
someone at a lower level. While not legislatively required, new
Department of Defense policy requires that this someone be a
commander in the grade of colonel or above with special court-martial
convening authority; such commanders now serve as what are now termed
the initial disposition authority for all sexual assault allegations within
their command.216 This subordinate commander, as the initial disposition
authority, is specially designated to be the first to exercise discretion
regarding sexual assault allegations and is also, per the same departmental
policy, required to consult with a military lawyer prior to taking action. 217
Furthermore, in addition to restricting jurisdiction for sexual assault
allegations to general courts-martial, the NDAA FY14 also installs
211 See Leo Shane III, Military Sexual Assault Reform Plan Fails Again, MILITARY TIMES (June
18, 2015), http://www.militarytimes.com/story/military/crime/2015/06/16/ndaa-gillibrand-sexassault/28814451/.
212 See, e.g., Goodwin, supra note 174, at 2526 (describing the FY2014 modifications to
commanders Article 60, UCMJ clemency power).
213 But see DEPARTMENT OF DEFENSE OFFICE OF THE GENERAL COUNSEL, MILITARY JUSTICE
PORTION OF THE REPORT TO THE PRESIDENT ON SEXUAL ASSAULT PREVENTION AND RESPONSE 1
(2014),
available
at
http://sapr.mil/public/docs/reports/FY14_POTUS/FY14_DoD_
Report_to_POTUS_Annex_4_OGC.pdf (claiming that [t]he amount of discretion
commanders exercise over such cases has been sharply constrained).
214 See LAFAVE ET AL., supra note 28, at 713 (noting the need for how discretion should be
confined, structured, and checked).
215
NDAA FY2014, supra note 197, 1705(b).

See RSP REPORT OF ROLE OF THE COMMANDER, supra note 2, at 4.
217 Id.
216
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59
transparency measures regarding disposition of these offenses. First, it

requires that the initial disposition authority forward all allegations to a
professional criminal investigatory body 218 as well as report the allegations
to individuals higher in their chain of command, 219 thus providing some
measure of transparency regarding the allegations that are being made
within their command. Additionally, the general court-martial convening
authoritys decision not to refer charges is now statutorily required to be
reviewed at a higher level. The commander must document, in writing, his
or her reasons for declining to prosecute, and this documentation must be
forwarded to their civilian service secretary if this decision is in
contradiction to their staff judge advocates advice.220
However, this requirement for documentation and review is quite
limited, as it only involves those charges that the first commander, the
lower-level initial disposition authority, decides to prefer and forward to
the appropriate general court-martial convening authority. The statutory
changes neglect to require documentation and review of the most
important decision, the initial decision regarding how to handle the
charges. It cannot be overstated that the lower-level commander, as socalled disposition authority, can decide to dispose of sexual assault
allegations by pursuing no course of action at all, by imposing Article 15
non-judicial punishment instead of criminal charges, or by leveling lesser
administrative disciplinary actionall without any required formal
documentation and review of this most critical decision.221 Hence the
military justice systems greatest area of structural weaknessthe lack of
formal guidance, training, experience, and transparency regarding the
initial decision of how to dispose of allegations of criminal misconduct
remains opaque and fatally flawed.
218
NDAA FY14, supra note 197, at 1742.

Id. at 1743.
220 If the commanders lawyer agrees that a court-martial is not warranted, the
commanders documentation of the reasons must only be forwarded to the next superior
commander. NDAA FY14, supra note 197, at 1744.
219
221 The National Defense Authorization Act for Fiscal Year 2015 requires that victims be
consulted regarding their preferences regarding prosecution; the statute does not require
documentation by the initial disposition authority regarding whether and why they chose to
follow or disregard said victims preferences. It does not require documentation of this initial
decision whatsoever and also seems to imply that such consultation only need occur at the
general court-martial convening authority level. See Carl Levin and Howard P. Buck
McKeon National Defense Authorization Act for Fiscal Year 2015, Pub. L. 113-291 (2014).
60
2.
v. 50 | 21
Extending and Reinforcing Change: If Good for the Goose,

Good for the Gander
i.
Require Written Documentation of All Major Dispositional

Decisions and Establish Review Mechanisms for Such
Documentation
Accountability is a theme that has dominated debates on military

prosecutorial discretion of sexual assaults. It is the leitmotif of the lengthy
report compiled by a Department of Defense-appointed panel that studied
the legislative proposals to modify or eliminate commander prosecutorial
discretion;222 it is also a concept the Chairman of the Joint Chiefs of Staff
has emphasized when addressing commanders prosecutorial discretion.223
If accountability generally means a willingness to accept responsibility or
to account for ones actions,224 transparency in such actions is a necessary
first step: how can commanders, analogously to civilian prosecutors, be
held accountable for their decisions if their superiors are unaware of them?
To achieve accountability for prosecutorial decisions in the military,
there needs to be documentation and review of all major dispositional
decisions, not simply the aforementioned processes, as these are limited to
only those decisions not to pursue prosecution at the apex of the general
court-martial concerning authority level, and hence these requirements
provide zero oversight of, or insight into, the initial winnowing decision by
a lower-level commander (the initial disposition authority). Transparency
through documentation and review processes should occur for all
prosecutorial decisions in which courts-martial is a possibility,225 not
simply for a tiny slice of the huge range of misconduct that occurs within
the military: the cognitive biases that impair more effective decisionmaking is not limited to such crimes. Such documentation should be
compiled in databases, subject to review processes outside of the
command, and utilized to create scenarios that can be shared for
222
See RSP REPORT, supra note 21, at 5.

McLaughlin, supra note 21 (Dempsey replied that he'd prefer a constellation of checks
and balances to help empower commanders and hold them accountable.).
223
224
Accountability Definition, MERRIAM-WEBSTER DICTIONARY,

webster.com/dictionary/accountability (last visited Jan. 6. 2016).
http://www.merriam-
225 The author realizes that almost all misconduct in the military can hypothetically result
in court-martial proceedings, given the incredibly vast range of conduct criminalized by the
UCMJ, particularly all conduct that is prejudicial to good order and discipline. However, as
demonstrated by the fact that typically commanders and judge advocates are not brought into
low-level handlings of misconduct by front-line supervisors, there is a line which demarcates
more serious misconduct from that less serious, but setting that line is beyond the scope of
this Article.
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61
educational purposes among commanders and lawyers across the military

services.
Accountability and transparency are not simply goals in and of
themselves: they are means to improve decision-making in order to
enhance production of consistently fair and appropriatejustresults,
results which enhance unit discipline by their fairness. Requiring decisionmakers to document their decision-making process involves a reflection on
their rationales, and hence can lead to better decision-making through
introspection. Implementation of data management systems to facilitate
reviews of such decisions and the sharing of such decisions can help
combat the inconsistencies and biases long noted in secret prosecutorial
decision-making.226
There is some informal sharing of commander prosecutorial decisionmaking within the military, typically occurring via status of justice type
meetings during which the commanders on a particular military
installation meet to hear the staff judge advocate list recent episodes of
serious misconduct and report upon the eventual disposition of such
misconduct.227 Additionally, most military commanders confer with
military lawyers regarding prosecutorial decisions, even when not
mandated by law. These lawyers can share concerns about their
commanders decisions with lawyers at superior echelons.228 However,
such informal, non-binding, and haphazard processes should not hide the
need for more formalized methods of providing transparency and
accountability, which improve decision-making.
226
See supra Part I.B.

See Request for Information 1(c) USAF RESPONSE SYSTEMS TO ADULT SEXUAL ASSAULT
CRIMES PANEL, http://responsesystemspanel.whs.mil/public/docs/Background_Materials/
Requests_For_Information/RFI_Response_Q1.pdf (last visited Jan. 6, 2016) (describing
quarterly Status of Discipline (SOD) meetings in the Air Force which provide an opportunity
for squadron commanders to hear how their fellow commanders handled cases and is an
opportunity for the SJA to provide lessons learned and training as necessary).
227
228
See RSP REPORT OF ROLE OF THE COMMANDER, supra note 2, at 82.
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v. 50 | 21
ii. Require Joint Prosecutorial Decision-Making: Two Heads

Are Better than One229
Senator Kirsten E. Gillibrand, the leading congressional proponent for
transferring prosecutorial discretion from commanders to lawyers in the
military, states that:
I think what we need so urgently is transparency, and
accountability, and an objective review of facts by someone who
knows what theyre doing, who is trained to be a prosecutor, who
understand [sic] prosecutorial discretion. And these cases on a
good day for any prosecutor in America to get right is [sic]
difficult. So why would we be giving it to someone who doesnt
have a law degree[?]230
The reason to give it to someone who doesnt have a law degree is

because that someonea senior military commanderpossesses specific
skills which are exactly those required for exercising prosecutorial
discretion. Military commanders receive training, education, and
experiential opportunities designed to enhance their ability to make
appropriate decisionsto improve their judgment:
The Services seek to select commanders who possess the highest
standards of professional competence and character to discharge
their responsibilities effectively. The effort to ensure only the
very best are selected for command increases proportionally
according to the level of command, with the process becoming
more centralized and deliberate for levels of command that are
also vested with special and general court-martial convening
authority.231
The fallacy of Senator Gillibrands statement is one rooted in her

misunderstanding of the elements of prosecutorial discretion regarding
whether to criminally charge an individual. While this decision has a
formal legal component, that the facts support the legal standard of
probable cause, the actual decision is one less legal and more social.
229 See Rachel VanLandingham & Geoffrey Corn, Two For One: The Ethical Pursuit of Justice
in the Military, And Battlefield Success, Through Joint Prosecutorial Decisions (unpublished written
submission to Response Systems to Adult Sexual Assault Crimes Panel), available at
http://responsesystemspanel.whs.mil/Public/docs/meetings/20130924/materials/academicpanel/additional/VanLandingham_Corn_Two_For_One_Ethical_Pursuit_of_Justice.pdf (last
visited Jan. 6, 2016) (outlining a proposal to require joint decision-making by commanders
and military lawyers in prosecutorial decisions in the military).
230 PUBLIC SESSION, RESPONSE SYS. TO ADULT SEXUAL ASSAULT CRIMES PANEL, 31213 (Sept.
24, 2013), http://responsesystemspanel.whs.mil/public/docs/meetings/20130924/24_Sep_13_
Day1_Final.pdf.
231
RSP REPORT, supra note 21, at 89.
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63
Prosecutorial discretion regarding the decision to charge a service-member

with a criminal charge, or more broadly to dispose of allegations of
misconduct using an entire range of disciplinary tools including criminal
prosecution, involves judgment. The reasoned judgment that goes into
weighing and balancing the numerous factors involved in prosecutorial
decisions, as described in Part I, is one requiring maturity, experience, and
appropriate guidelines more than a law degree.
Even the legal component, the finding of probable cause, does not
require a lawyerthis standard is evaluated and decided by civilians
sitting on grand juries across the country on a daily basis. Yet there is a
legal component to the decision to prosecute or not, as this decision
involves characterizing facts as evidence and balancing criminal charges
against the penological objectives of deterrence, punishment, protection of
the public and the military, and offender rehabilitation. Additionally,
prosecutorial decisions must consider protection of the individual rights of
all involved, including both victims and the accused. Lawyers possess
education and training in evaluating such considerationstheir
professional legal expertise theoretically balances that of commanders
expertise in leadership and behavioral management.
In other words, while the decision to prosecute is not wholly or even
predominantly a legal one, lawyers in the military, and particular those
senior enough to be hand-selected as staff judge advocates, bring a
different and needed skillset and perspective to the dispositional table than
those possessed by non-lawyer commanders. Congress recognized this fact
by essentially requiring a consensus opinion between commanders and
their lawyers regarding prosecution of sexual offense cases. By mandating
a report to a civilian service secretary when a general court-martial
convening authority disagrees with their lawyer, a very strong incentive to
reach consensus is created. Yet, why should such recognitionthat a
decision jointly made by a commander and their lawyer is better than that
solely of one or the otherbe limited to the very small subset of sexual
assault type offenses? It should not. A joint decision-making process
should equally apply to all allegations of military criminal misconduct,
both those of an inherently military nature as well as common law crimes
such as sexual assault, larceny, or battery. The commander and military
legal adviser should function as a team to capitalize on their respective
expertise, with every referral to court-martial requiring mutual
agreement.232 Prosecutorial decisions that are made jointly by commandermilitary lawyer teams would preserve the commanders organizational
232 If this team disagrees, the case should be forwarded to the next higher level of
command for a similar joint decision-making process.
64
v. 50 | 21
role of leadership in the military that has long been recognized as

necessary for effective military operations. Formally incorporating the
expertise of the military legal adviser into the prosecutorial decisionmaking process, in a more essential manner than is currently the case,
would allow a military lawyer to serve as a true counterweight to potential
biases and improper commander impulses. Such joint decision-making
leverages the good-judgment commanders, as convening authorities, are
supposed to possess, while utilizing legal skills to lessen the risk of
arbitrary referral decisions based on improper influences (such as rank
protection, favoritism, or other biases).233
iii. Promulgate Comprehensive Prosecutorial Guidelines and
Improve Training
As mentioned in Part I.C, the military justice system possesses little
formal guidance to channel and guide dispositional decisions, those
decisions regarding how to handle individual misconduct. While the
military services all engage in some type of training of their commanders
and lawyers regarding military justice and their roles in the system, this
training is superficial and lacks standardization. 234 It is hampered by the
lack of transparency regarding how commanders across the services
respond to particular instances of misconduct, and also by the lack of
formal dispositional touchstones for making such dispositional decisions. 235
While the first hindrance can be remedied by requiring database-supported
documentation and review of dispositional decisions, the guidance void
can be partially filled by creating comprehensive guidelines such as those
found in the DOJ Attorneys Manual. Such guidelines would aid in the
training and educative processes and could help lead to more consistently
fair prosecutorial decisions.
CONCLUSION
Discretion is a tool, indispensable for individualization of justice. All
governments in history have been governments of laws and of men.
Rules alone, untempered by discretion, cannot cope with the
complexities of modern government and modern justice. . . [y]et every
truth extolling discretion may be matched by a truth about its dangers:
discretion is a tool only when properly used; like an axe, it can be a
233
VanLandingham & Corn, supra note 229 (noting such influences).

See Request for Information 1(c), supra note 227.
235 See VanLandingham, supra note 198, at 43536 (summarizing the need for dispositional
rules to guide military prosecutorial decision-making).
234
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65
weapon for mayhem or murder.236
Given that this Article was written in response to public attention paid
to the role of the commander in the military justice system because of
troublingly high rates of sexual assault within the military, it is important
to note that improving the exercise of prosecutorial discretion within the
military should not be accomplished solely in the realm of sexual assault
cases. Flawed exercises of such discretion due to cognitive biases, group
think, inexperience, and lack of appropriate training are just as likely to
occur in all criminal dispositions, not just those dealing with sexual assault.
Furthermore, efforts to improve prosecutorial decision-making processes
within the military by requiring equal participation by military lawyers in
that process, by further mandating greater transparency, as well as through
articulated guidelines, will not fix the sexual assault problem,237 nor cure
the mindset that Abu Ghraib was a military justice success story
overnight.238
But such reform efforts focused on education, accountability, and
transparency can help lead to the appearance and reality of fair decisionmaking and results. Educationally-enhanced understandings of cognitive
236
DAVIS, supra note 26.

See RSP REPORT OF ROLE OF THE COMMANDER, supra note 2, at 9 (agreeing that there is
no silver-bullet answer to the occurrence of sexual assault. An approach to preventing sexual
violence has greater potential to impact behavior to the extent it applies multiple and varied
strategies at the different levels of a given environment.).
237
238
During the 2014 American Bar Association Standing Committee on National Security
Laws Annual Review of the Law, the three-star judge advocate general of the Army (the
ranking Army military lawyer) stated that Abu Ghraib was a military justice success story.
(Notes on file with author). Given that the detainee abuse had been occurring for months
before action was taken, and that the commanding officer responsible for the conduct of the
soldiers at Abu Ghraib was allowed to retire as a colonel with an administrative reprimand,
Abu Ghraib is not a success. Instead, it could be seen as exemplifying unjust and unequal
favoritism of officers over enlisted personnel in the military justice system. This phenomenon,
informally called different spanks for different ranks, is one of the lopsided effects of the
current system of vast, opaque, and unchecked prosecutorial discretion vested in
commanding officers in the military. See generally Pede, supra note 142, at 442 (noting such
double standards for officers and enlisted personnel, and concluding that the case involving
Army Lieutenant Colonel Allen West is exemplary of such disparate treatment within the
military justice system). No officer was court-martialed for the horrific abuse and strategic
failure that was Abu Ghraib. See also RSP REPORT, supra note 21, at 130 (noting the persistent
perception of immunity and/or protection for high-ranking officersboth for wrongful or
criminal behavior and for oversight and response.). See generally Will Anyone Pay for Abu
Ghraib?, N.Y. TIMES (Feb. 5, 2015), http://www.nytimes.com/2015/02/05/opinion/will-anyonepay-for-abu-ghraib.html?_r=0 (explaining the lack of criminal accountability for officers, and
the outlook on civil accountability for contractors).
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v. 50 | 21
biases and refined understandings of just results gained through

promulgated guidelines plus exposure to real scenarios (transparency of
the disposition of other misconduct on other installations) can serve to
strengthen the military justice system. Instead of simply shifting
prosecutorial discretion to military lawyers not similarly vetted and not
personally responsible for either mission accomplishment, or the welfare of
service-members, a better-informed commander in partnership with a
military lawyer should lead the military justice system into the future. Such
a system does not mirror the American civilian criminal justice systems,
nor should it, as civilian systems lack the context of discipline and
command: [t]he fundamental necessity for obedience, and the consequent
necessity for imposition of discipline, may render permissible within the
military that which would be constitutionally impermissible outside it.239
239
Parker v. Levy, 417 U.S. 733, 74344, 758 (1974) ([A]n army is not a deliberative body. It
is the executive arm. Its law is that of obedience. No question can be left open as to the right to
command in the officer, or the duty of obedience in the soldier. (quoting United States ex rel.
Toth v. Quarles, 350 U.S. 11, 17 (1955) and In re Grimley, 137 U.S. 147, 153 (1890))).

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Discipline, Justice, and Command in the

U.S. Military: Maximizing Strengths and

New England Law Review

Discipline, Justice, and Command

New England Law Review

disciplinary measures to change the behavior of their subordinates. 8 Such

Discipline, Justice, and Command

New England Law Review

all-volunteer force that represents a tiny fraction of the country, 19 a military

Discipline, Justice, and Command

See generally infra Part II.C.1.

New England Law Review

addressing systemic weaknesses by recommending that lawyers be given

A. Prosecutorial Discretion: What and Why

Discipline, Justice, and Command

prosecutors also have the discretion as to which specific charges to bring in

Cf. WEAVER ET AL., CRIMINAL PROCEDURE: CASES, PROBLEMS, AND EXERCISES,

DRESSLER & GEORGE C. THOMAS III, CRIMINAL PROCEDURE: PROSECUTING CRIME

New England Law Review

tradition of mandatory prosecution,37 provides that every crime and

Discipline, Justice, and Command

Prosecutorial discretion hence could be seen as a mechanism through

30, at 169596 (characterizing the just disposition of a criminal charge as in part a

See generally THE PROSECUTOR IN TRANSNATIONAL PERSPECTIVE, supra note 31, at 1.

New England Law Review

more unjust decisions at every stage of the criminal process.48 Discretion

Discipline, Justice, and Command

case to produce just results).

Wayte v. United States, 470 U.S. 598, 607 (1985).

New England Law Review

subconscious processes.62 Hence, in addition to the intentional abuse of

Discipline, Justice, and Command

prosecutionmany criminal laws are intentionally vague, and almost none

See LAFAVE ET AL., supra note 28, at 708.

New England Law Review

protection mitigate some arbitrariness in prosecutorial decisions, with

See United States v. Armstrong, 517 U.S. 456, 46465 (1996).

Discipline, Justice, and Command

New England Law Review

reinforced [the prosecutors] power, independence, and discretion.89

ABA STANDARDS, supra note 92, at 3-1.2.

Discipline, Justice, and Command

factors to consider regarding the decision to charge an individual with a

See id. at 3-3.9(a).

New England Law Review

Additionally, the Standards emphasize the lawyer as the prosecutor,

See id. at 3-1.2(a).

MODEL RULES OF PROFL CONDUCT r. 3.8 (2015).

Discipline, Justice, and Command

internal yet public guidelines to limit and structure prosecutorial

Following this advice, the Department of Justice (DOJ) provides

ABA STANDARDS, supra note 92, at 3-2.5.

New England Law Review

DOJ Principles, such as in 9-27.300s twelve-paragraph treatment of

See id. at 9-27.300.

Discipline, Justice, and Command

See, e.g., LAFAVE ET AL., supra note 28, at 715.

New England Law Review

objective, ensure unity of effort under one responsible commander.129 A

This required authority stands in contradistinction to coordination

Discipline, Justice, and Command

of training people to obey rules by using punishment to correct

visited Jan. 5, 2016).