To Prosecute, or Not to Prosecute: Who

Should Make the Call?

JAMES E. GALLAGHER*

INTRODUCTION

o criminal justice system is perfect.1 Although designed with the

best intentions, each system is created by humans and thus subject
to human error. The military criminal justice system is no
differentit is far from broken, but it can evolve to become better. In
principal, Professor VanLandinghams theory that the system can be
tweaked to make it more transparent is sound. I disagree, however, with
some of her implementation methods. There should be mandatory
consultation between commanders and their judge advocate prior to any
charging decision regardless of the level of courts-martial selected. In
addition, uniform cross-service training for commanders should occur in
order to make charging decisions more just.
The military justice system, like many other criminal systems, is
designed to work within the society that it helps protect. That society, the
military, is a special one2 designed with one missionto be prepared to
fight our nations wars. Too often, however, we forget this unchangeable

Associate, Davis Malm & DAgostine, P.C., Boston, Massachusetts, Adjunct Professor of
Military Law at Suffolk University Law School, Boston, Massachusetts, and Major in the
Marine Corps Reserves. I would like to extend a special thank you to the staff of the New
England Law Review for inviting me to participate in their Fall Symposium and to submit this
response paper. Also, thank you to Professor VanLandingham, Professor Hansen, and Dean
Hillman for including me in this discussion of a system that I care about. Finally, thank you
to Gary Matsko, Esq. of Davis Malm and Heather Gamache, Esq. of Prince Lobel & Tye LLP
for participating in the editing of this response. The views taken in this piece are the authors
alone and do not represent the stance of Davis Malm & DAgostine, P.C., Suffolk University
Law School, the Department of Defense, or the United States Marine Corps.
1 Rachel E. VanLandingham, Discipline, Justice, and Command in the U.S. Military:
Maximizing Strengths and Minimizing Weaknesses in a Special Society, 50 NEW ENG. L. REV. 21,
2122 (2015) (noting the advancements of both the criminal and military justice systems).
2 Parker v. Levy, 417 U.S. 733, 742 (1971) (This Court has long recognized that the military
is, by necessity, a specialized society separate from civilian society.).

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fact, and rather than accept the fact that the military operates under a
separate construct, civilian society attempts to impose its own concepts of
how this special society should be organized and how it should operate.
I.

A Commander in the Prosecutorial ChainA Necessity

In order to accomplish its mission the military relies, in fact depends,

on its commanders. Commanders are legally tasked and obligated to
maintain their units readiness.3 To accomplish that end, Congress and the
President have designated commanders with the authority to control
virtually all aspects of the lives of those under their charge. 4 This is the
unity of command principle discussed by Professor VanLandingham, and
it is fundamental to the structure of our military.5
One of the key aspects of this authority is a commanders service as a
convening authority.6 In this role the commander ultimately makes the
decision on who should be prosecuted and with what crimes they should
be charged.7 On its face it is a highly unusual arrangementallowing a
non-lawyer to make judgment calls about who to prosecute and for what
crimes. But this arrangement is similar to a civilian grand jury where a
civilian group is making that very determination.8
There are good reasons for having the commander make this decision.
This structure helps commanders maintain the good order and discipline
of their unit.9 As Professor VanLandingham discusses, while the power
was originally given to commanders to control conscripts, it similarly
impacts the volunteers we have in todays services.10 Also, commanders
are put in this position to make charging decisions because they know
better than anyone else what decision is in the best interest of the
3 See, e.g., CHAIRMAN JOINT CHIEFS OF STAFF READINESS SYSTEM 3401.01E, at C2 (2014),
available at http://www.dtic.mil/cjcs_directives/cdata/unlimit/3401_01.pdf.
4

See Cafeteria and Restaurant Workers Union, Local 473 v. McElroy, 367 U.S. 886, 89091
(1961).
5

VanLandingham, supra note 1, at 4345.

David Classen, Military Justice Under Fire: Commanders Convening Authority Power,
BENCH & B. MINN. (Nov. 11, 2013), http://mnbenchbar.com/2013/11/military-justice-under-firecommanders-convening-authority-power/.
6

See Uniform Code of Military Justice, 10 U.S.C. 82224 (2012).

See VanLandingham, supra note 1, at 35.
9 The need for discipline in the armed services has no parallel in the civilian world.
Kenneth M. Theurer & James W. Russell, III, Why Military Justice Matters, 37 REP. 7, 7 (2010).
8

10

See RESPONSE SYSTEMS TO ADULT SEXUAL ASSAULT CRIMES PANEL, TJAGS COMMENTS ON
REMOVING DISPOSITION AUTHORITY FROM COMMANDER 14 (2013), available at
http://responsesystemspanel.whs.mil/public/docs/meetings/Sub_Committee/20131023_ROC/0
8_RoC_Persp_TJAGs_and_Sr_Legal_Advisors.pdf.

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command and their respective service. In being selected for command,

commanders are the standard bearers of the military charged with carrying
forward the history and traditions, and maintaining and upholding the
standards of their services.11 Commanders use their discretion when
deciding what to prosecute to define what conduct is not conducive to
military service, maintain good order and discipline, and accomplish their
mission. Commanders are best suited to make these decisions because they
have been trained, screened, and evaluated to be able to make these
difficult decisions and lead their unitsnot some independent military
attorney as proposed by some.12 Commanders, more than any independent
lawyer, have a stake in making the military justice system succeed because
it will help with the discipline of their units. This is why it is critical to keep
the commanders involved in the charging process.
All that being said, because these decisions involve factors outside of
the commanders expertise, there is an undeniable benefit to having this
decision made after the commander has been advised by a judge advocate.
In most, if not all, situations commanders make the decision to prosecute in
close coordination with their judge advocate or the prosecutor for the
case.13 Indeed, in the case of a general court-martial this is mandated.14 This
should be expanded. An amendment to the text of the UCMJ and the Rules
for Courts-Martial (R.C.M.) making such a consultation mandatory would
be a step in the right direction.15 This is not a committee of two, but
rather a mandatory consultation where the issues of the case in question
are discussed and analyzedwith the ultimate decision left to the
commander.
Further, as Professor VanLandingham suggests, in order to increase
the transparency of the system the prosecutor or staff judge advocate
should prepare a writing16 reflecting the judge advocates recommendation,
with the writing receiving a commanders endorsement following the
charging decision. This writing would be served on defense counsel and
11 See DEPARTMENT OF DEFENSE, THE ARMED FORCES OFFICER 22 (2006), available at
http://dtic.mil/doctrine/education/armedforcesofficer.pdf.
12

See, e.g., Military Justice Improvement Act of 2014, S. 2992, 113th Cong. 2(a)(4) (2013).
See DAVID A. SCHLUETER, A WHITE PAPER ON THE PROPOSED AMENDMENTS TO THE
UNIFORM CODE OF MILITARY JUSTICE 2 (2013), available at http://responsesystemspanel.whs.mil/
13

public/docs/meetings/20140130/Materials_To_Members/19a_ProfSchlueter_WhitePaper_Milit
aryJusticeReforms.pdf.
14 Uniform Code of Military Justice, 10 U.S.C. 822 (2012); DEPARTMENT OF DEFENSE,
MANUAL FOR COURTS-MARTIAL 601(d)(2)(B), at II-2 (2012).
15 Perhaps prepared by the Staff Judge Advocate/Prosecutor and endorsed by the
Convening Authority.
16

See VanLandingham, supra note 1, at 5760.

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included with the record of trial. While this adds another step to the
process, it is not a terribly burdensome one for the prosecutors and staff
judge advocates. And, if seeking fairness and justice are the goals of the
systemwhy shouldnt the government work harder?
II. Prosecutorial DatabaseCentralizing and Removing Discretion
While increased transparency with respect to charging decisions would
be an improvement, we must be careful how far we go. One idea raised is
that all written charging letters from across the services be collected and
compiled into a database[], subject to review processes outside of the
command.17 The thought being that this would allow for someone to
review these decisions and to share them with other commanders to fight
inconsistencies and biases long noted in secret prosecutorial decisionmaking.18 Similar to after action reports prepared in virtually every other
facet of military life, this database would arguably be used to train new
commanders on the difficulty of making charging decisions. In theory,
there is a certain usefulness to such an idea. In practice, however, this will
lead to many negative unintended consequences.
Criminal law is not a one-size fits all issue.19 While certainly some
generalities exist, most cases have enough distinct issues that each charging
decision will be unique. There is no cookie cutter way to solve a
disciplinary problem. A commander who relies too heavily on a review of
the proposed database becomes ill-equipped to weigh the intricacies of any
one individual case. This could result in commanders who fail to make
their own charging decisions based on what may be best for their unit, the
accused, or even perhaps the victim, and instead make decisions based
solely on what information they retrieve from the database. And, it is not
too far a stretch to imagine a situation where a commanders staff judge
advocate advises one course of action, and the database points toward a
slightly different one. Who is to resolve that? Does a commander then
begin to second guess advice coming from the staff judge advocate? How
does such a situation impact their relationship on other matters?

17

Id. at 59. (FN 224225).

Id.
19 See, e.g., Jeffrey Butts & Adele Harrell, One-Size-Fits-All Justice Simply Isnt Fair,
CHRISTIAN SCI. MONITOR (Dec. 1, 1998), http://www.csmonitor.com/1998/1201/120198.opin.
18

opin.1.html; Kamla D. Harris, Instead of One Size Fits All Justice That Hurts Communities, Lets
Get Smart on Crime, HUFFINGTON POST (Aug. 8, 2015, 5:59 PM), http://www.huffingtonpost.
com/kamala-d-harris/instead-of-one-size-fits-_b_5453064.html; Rich Stanek, Our CriminalJustice System Fails as One Size-Fits All, STAR TRIB. (Mar. 27, 2015, 7:14 PM),
http://www.startribune.com/our-criminal-justice-system-fails-as-one-size-fits-all/297852491/.

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Perhaps most problematic is the collection and use of such data over
time will indirectly result in the centralization of all charging decisions
inside the Pentagon. To assess the data, new analyst positions would
need to be created to review and scrutinize the decisions convening
authorities make. Regardless of whether those inside the Pentagon or the
halls of Congress agree with a specific charging decision (which may
depend on the direction of the wind, social media trends, what is current in
the news cycle, or some other unknown variable), the result will be that
each charging decision will become dissected, examined, and subject to
political influence.20 Undoubtedly, commanders would receive
constructive feedback from either inside the Pentagon or some other
senior command based on the review of their charging decision.21 In the
end, such a database would slowly lead to a system where discretion is
removed and every case is prosecuted22 because commanders fear that a
decision not to prosecute could negatively impact their opportunities for
career advancement.23 Thus, commanders would feel pressure to take
specific steps to prosecute and achieve a specific result. We have seen
higher commanders inserting themselves into a prosecutorial decision
beforeit is called unlawful command influence (the mortal enemy of

20

For a sample of some recent articles examining political influence on charging decisions,
see Helene Cooper, Two Cases, One Conclusion on Military Justice, N.Y. TIMES (Mar. 21, 2014),
http://www.nytimes.com/2014/03/22/us/two-cases-one-conclusion-on-military-justice.html?_
r=0; David French, Dear Congress, Get Your Hands Off the Military Justice System, NATL R. (Mar.
24, 2014, 1:22 PM), http://www.nationalreview.com/corner/374047/dear-congress-get-yourhands-military-justice-system-david-french; J.F. Kelly Jr., Military Justice and Political Pressure,
CORONADO EAGLE & J. (Aug. 30, 2013, 9:26 AM), http://www.coronadonewsca.com/opinion/
military-justice-and-political-pressure/article_f1dd87b8-1190-11e3-a6c2-0019bb2963f4.html;
Hope Hodge Seck, Sex Assault and the Pressure to Prosecute: Why Some Marines Fear Justice is No
Longer Blind, AIR FORCE TIMES (Feb. 17, 2014, 4:05 PM), http://archive.airforcetimes
.com/article/20140217/NEWS/302170007/Sex-assault-pressure-prosecute-why-some-Marinesfear-justice-no-longer-blind.
21

See VanLandingham, supra note 1, at 59.

That is, of course, until the news media attacks the Department of Defense for being too
aggressive in its prosecutions. E.g., Marissa Taylor & Chris Adams, Militarys Newly Aggressive
Rape Prosecution Has Pitfalls, MCCLATCHY D.C. (Nov. 28, 2011), http://www.mcclatchydc.com/
news/nation-world/national/national-security/article24719683.html.
23 As an example, commanders could receive negative comments on fitness reports or
evaluations based on charging decisions made in a specific case. Such a negative comment
may not end a career, but it may be enough to have that commander passed over for a further
command. See Seck, supra note 20 (Marine commanders are now under great pressure, from
Congress and Marine Corps top general, to be prompt and aggressive when sexual assault
allegations emerge.).
22

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military justice24), which the services have certainly seen enough of

lately.25
III. Training: The Real Answer
Rather than collect all charging decisions in a database, the real way to
effectuate change and ensure that the most just charging decisions are
made is to address training. Specifically, training that teaches commanders
about their role and responsibilities of being a convening authority.
By the time that a commander is selected for, and assumes command,
they have received years of training that is primarily, if not exclusively,
focused on their military specialty or general military strategic studies. 26
This is understandable as junior officers need to become proficient leaders
and operators in their chosen specialty. Once chosen for command,
however, commanders need more training on their responsibilities as a
convening authority.
Admittedly, this training will probably not be the most exciting
training commanders attend in their military career, but it is crucial that
commanders not only understand the system but appreciate their role in it.
This is especially true for those commanders serving as a convening
authority for the first time. Generally, the services each offer short intense
Senior Officer Courses27 or provide written materials28 designed

24 See United States v. Thomas, 22 M.J. 388, 393 (C.M.A. 1986); see also United States v.
Lewis, 63 M.J. 405, 407 (C.A.A.F. 2006).
25 See Andrew deGrandpre & Dan Lamothe, Complaint Alleges Marine General Influenced
Video Probe, U.S.A. TODAY (May 20, 2013, 12:44 PM), http://www.usatoday.com/story/news/
nation/2013/05/20/marine-general-influence-complaint/2327115/.
26 See UNITED STATES AIR FORCE AIR WAR COLLEGE, http://www.au.af.mil/au/awc/ (last
visited Nov. 12, 2015); UNITED STATES AIR FORCE AIR FORCE COMMAND AND STAFF COLLEGE,
http://acsc.maxwell.af.mil/ (last visited Dec. 3, 2015); Missions, U.S. NAVAL WAR C.,
https://usnwc.edu/About/Missions.aspx (last visited Dec. 3, 2015); About the U.S. Army War
College, U.S. ARMY WAR C., http://www.carlisle.army.mil/overview.htm (last visited Dec. 3,
2015); About CAC, U.S. ARMY COMBINED ARMS CENTER, http://usacac.army.mil/about-cac (last
visited Dec. 3, 2014); About MCWC, MARINE CORPS WAR C., http://www.mcu.usmc.mil/
mcwar/SitePages/About.aspx; Vision Statement, MARINE CORPS U., https://www.mcu.usmc.
mil/SitePages/aboutus/Vision%20Statement.aspx (last visited Nov. 30, 2015).
27 See Naval Justice School Curriculum, U.S. NAVY JUDGE ADVOCATE GEN. CORPS,
http://www.jag.navy.mil/njs_curriculum.htm (last visited Nov. 11, 2015).
28 E.g., THE UNITED STATES ARMYS COMMANDERS LEGAL HANDBOOK 106 (2015), available at
https://www.jagcnet.army.mil/Sites/jagc.nsf/0/EE26CE7A9678A67A85257E1300563559/$File/C
ommanders%20Legal%20HB%202015%20C1.pdf; UNITED STATES NAVY AND UNITED STATES
MARINE CORPS COMMANDERS QUICK REFERENCE LEGAL HANDBOOK 47 (2015), available at
http://www.jag.navy.mil/documents/NJS/Quickman.pdf.

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specifically for convening authorities. Also, as noted in Professor

VanLandinghams article, it is a common occurrence across the services for
many base prosecutors to arrange periodic trainings for their convening
authorities to discuss trends and results from recent courts-martial.29
However, there is no established cross-service curriculum for either of
these courses.
The problem with this current educational structure is two-fold. First,
if our military justice system is ever to be uniform then there needs to be
a uniform curriculum for the training for convening authorities. It is not
necessary that there be joint trainings, but that the way the convening
authority role is being explained is uniform across the services. The UCMJ
is one of the few things that applies across all services. Unless we ensure
that the commanders receive uniform training, we should not expect
uniform results. 30
Secondly, commanders must be required to attend training on their
convening authority responsibilities prior to assuming command. The
mantra crawl, walk, run is often used across the military to explain
training evolutions.31 We do not expect our infantry to charge up a hill
under fire before receiving basic tactics training, and we should not expect
our commanders to be able to understand the military justice system
without some basic explanations. Training should be provided to help
commanders crawl and walk through military justice issues before they are
forced to run through an actual case.
IV. Recent ChangesHelping or Creating More Problems?
The changes implemented in the National Defense Authorization Act
(NDAA) for Fiscal Year 201432 brought about extensive changes to the way
that the military prosecutes sexual assault cases. These changes, however,
are shortsighted in that they do not apply uniformly to all crimes

29

VanLandingham, supra note 1, at 41, 5960.

In my own experience, I found that Marines charged with adultery and/or drug use
would generally find themselves facing a court martial, but that an airman, sailor, or solider
would all experience different, and sometimes vastly different, outcomes. Some may go to a
court-martial while others may only receive non-judicial punishment. While there are always
exceptions to the rule, in a truly uniform system there would be more consistency in how
these crimes were treated.
30

31

E.g., DEPARTMENT OF THE ARMY, A LEADERS GUIDE TO LANE TRAINING 14 (1996), available
at http://armyrotc.msu.edu/resources/TC25-10LaneTraining.pdf.
32 See National Defense Authorization Act for Fiscal Year 2014, H.R. 3304, 113th Cong.
1744 (1998), available at http://www.gpo.gov/fdsys/pkg/CPRT-113HPRT86280/pdf/CPRT113HPRT86280.pdf.

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prosecuted under the UCMJ.33 The apparent elevation of some crimes over
others does not help the system as a whole. For example, why are only
decisions not to refer a sex-related offense reviewed by a service
secretary?34 Why are all decisions not to prosecute reviewed? Are sexrelated offenses somehow worse than other crimes? There can be victims
in any crime punishable under the punitive articles of the UCMJ.35 What
does this change say about how Congress feels about those victims? A
uniform system should have uniform proceduresjust like the federal
system. Professor VanLandingham rightly points out this problem.36
More concerning, however, is that some of these changes, including
those contained in 1744, have arguably created a kind of institutional
unlawful command influence. It is not difficult to interpret what the
implied meaning of 1744 really isnamely that all sex-related crimes
must be prosecuted irrespective of what admissible evidence may actually
support such crimes.37 As a result, Congress has removed all discretion
from this process because no commanders will want to forward their case
to a service secretary to second guess their decision. This will likely result,
if it has not already, in an untold amount of time prosecuting cases that
would never have been brought in any civilian jurisdiction anywhere in the
country. How can that be the solution? The better way would have been to
make changes in the charging process by requiring commanders to consult
with their counsel to determine whether their case has merit and whether it
should be prosecuted. This would ensure that a service member would
have the benefit of a senior commander and a legal expert reviewing the
case and determining if it merits prosecution, similar to, or as close to
similar to, the process utilized in the civilian justice system.

CONCLUSION
No justice system is perfect. The military justice system is no different
and like every justice system in the United States, it is constantly evolving.
One of the systems strengths is that commanders play an integral part in
deciding who should be prosecuted and with what crimes. Indeed, without
the commanders, the systems primary stakeholders, being involved, the
system as a whole would suffer and become weaker with commands being

33 Professor VanLandingham discusses this at length and I believe she is correct. See
VanLandingham, supra note 1, at 47.
34

See e.g., H.R. 3304.

See VanLandingham, supra note 1, at 59 n.224.
36 Id. at 4142.
37 H.R. 3304.
35

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less committed to the systems success. Tweaks to the way in which

charging decisions are made and how commanders utilize that discretion
would go a long way toward pulling the curtain back on decisions that had
previously been made in secret.38 But, nothing would be gained by
removing the commander from this process.

38

Just like charging decisions in the civilian world. See U.S. CONST. amend. V.