Court-Martial Clemency

Court-martial clemency is an interesting and nuanced topic. As a form of military justice, court-martials operate differently than civilian courts. There are a lot of complicated issues and precedents when it comes to clemency in this context. In this article, I’ll try to break it down in an accessible way and highlight some of the key considerations around court-martial clemency.

What is a Court-Martial?

First, what exactly is a court-martial? It’s essentially a military court that deals with violations of military law. These courts are convened to try members of the armed forces for offenses they are charged with. The procedures are established by the Uniform Code of Military Justice (UCMJ), which acts as the foundation for the military justice system[1].

There are three types of courts-martial – summary, special, and general. Summary courts-martial deal with minor offenses and can only impose limited punishments. Special courts-martial are for mid-level offenses and can impose penalties including confinement for up to a year. General courts-martial are for the most serious crimes and can impose any lawful sentence, including death[2].

What is Clemency in a Court-Martial?

Clemency refers to reducing the severity of a punishment or granting a pardon. In the context of courts-martial, clemency is when the punishment set by a court-martial is lessened by a convening authority. The convening authority is usually a high-ranking commander who has the power to modify court-martial sentences[1].

Convening authorities can dismiss charges completely, change a guilty verdict to not guilty, reduce a sentence, or change the type of discharge ordered. However, they cannot increase punishments imposed by a court-martial[2].

Clemency petitions allow the defense to request the convening authority show mercy and reduce the sentence. The convening authority is not obligated to grant clemency, but these petitions give them the option to use their discretionary powers.

Legal Basis for Clemency

The legal basis for convening authorities having clemency powers comes from the UCMJ itself. Specifically, Article 60 states that a convening authority “may approve, disapprove, commute, or suspend the sentence in whole or in part” for most courts-martial[3].

This clemency power reflects the unique role of commanders in the military justice system. It gives convening authorities flexibility to ensure discipline while considering factors like fairness and rehabilitation that courts may not focus on[4].

When is Clemency Appropriate?

There are no hard and fast rules about when a convening authority should grant clemency. It is up to their individual discretion. However, common reasons clemency may be appropriate include[5]:

• The defendant’s service record is otherwise exemplary
• There are extenuating personal circumstances
• A trial irregularity may have affected the outcome
• The defendant has rehabilitative potential
• The sentence appears disproportionately severe

Convening authorities do not have to specify reasons when granting clemency. But when they do, these are some of the most common justifications.

Clemency Process and Procedure

The rules around the clemency process are laid out in Rule for Courts-Martial 1105. This rule specifies the following procedural requirements:

• The accused can submit matters to the convening authority within 10 days after sentencing.
• Government counsel can provide recommendations.
• The military judge must provide recommendations for clemency if requested.
• The convening authority must consult with their legal advisor before taking action.

While the convening authority has wide discretion, RCM 1105 helps standardize the process for requesting and considering clemency. This gives the defense a clear avenue to pursue sentence relief.

Debates Around Clemency Powers

Granting broad clemency powers to convening authorities has been the subject of some debate. Critics argue it can potentially undermine the decisions of military judges and juries. Some of the counterarguments in favor of clemency include:

• Convening authorities consider factors courts cannot, like military readiness.
• It acts as a check against sentences that seem unjustly harsh.
• Commanders must maintain discipline while ensuring fair treatment.

Reasonable people can disagree on the appropriate balance. But clemency powers have been an ingrained part of the military justice system for decades. It gives commanders flexibility to uphold order and justice in their units.

Notable Clemency Cases

Here are some noteworthy clemency cases that illustrate when convening authorities exercised their powers:

United States v. Brubaker-Escobar

In this case, the convening authority reduced the defendant’s sentence from a dishonorable discharge to a bad conduct discharge. The defendant had over 20 years of honorable service. The convening authority determined the dishonorable discharge was too harsh under the circumstances[1].

Robert Bales

Robert Bales was convicted of murdering 16 Afghan civilians. His life sentence was reduced to 20 years after the convening authority determined the sentence was “inappropriately severe.” Bales had no previous criminal history and his mental health issues were not properly considered at trial.

Chelsea Manning

Chelsea Manning’s 35 year sentence for leaking classified documents was reduced to 7 years by the convening authority. The original sentence was widely perceived as excessive compared to similar civilian cases. The convening authority determined a shorter sentence was appropriate.

Conclusion

In summary, court-martial clemency is an important tool for convening authorities to ensure justice in the military context. Granting clemency is a weighty responsibility, but the discretionary powers given to commanders help them balance discipline and fairness. While the practice is sometimes contentious, clemency remains an ingrained part of the military justice system.

References

[1] https://www.armfor.uscourts.gov/digest/IIF5.htm
[2] https://armypubs.army.mil/epubs/DR_pubs/DR_a/pdf/web/ARN18871_AD2012-7-Final.pdf
[3] https://www.hqmc.marines.mil/Portals/135/MJA/20-22%20Annual%20Report%20-%20Signed.pdf?ver=2022-03-23-093804-677