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* Judge Advocate, United States Army. Presently assigned as an Associate Professor of Criminal Law at The Judge Advocate General’s Legal Center and School, United States Army, Charlottesville, Virginia. LL.M., 2015, University of Virginia School of Law; LL.M., 2011; The Judge Advocate General’s Legal School; J.D., 2006, University of California, Los Angeles; B.S., 1999, United States Military Academy. Previous legal assignments include Deputy Staff Judge Advocate, 3rd Infantry Division (Rear), Fort Stewart, Georgia 2013-2014; Chief of Justice, 3rd Infantry Division, Fort Stewart, Georgia 2012-2013; Brigade Judge Advocate, 2nd Armored Brigade Combat Team 3rd Infantry Division, Fort Stewart, Georgia 2011-2013; Senior Trial Counsel, 1st Armored Division, Fort Bliss, Texas 2009-2010; Trial Counsel, Fort Bliss, Texas 2007-2009; Legal Assistance Attorney, Fort Bliss, Texas 2007. Previously assigned as a military intelligence officer serving in various positions in the 2nd Infantry Brigade, 1st Infantry Division, Schweinfurt, Germany 2000-2002. A prior version of this article was submitted in partial completion of the author’s LL.M at the University of Virginia. The author would like to thank the editors of the Military Law Review for their insightful and helpful assistance.

 

1 Exodus 21:22 (New International Version).

2 See infra Section II.A. Utilitarian principles seek a ‘good’ for society. For our purposes, that “good” could be the prevention of future crime by that accused or by others, the rehabilitation of the accused, restoration of good order and discipline, or some other non- punitive end.

3 See, e.g., U.S. DEPT OF ARMY, PAM 27-9, MILITARY JUDGES BENCHBOOK para. 2-5-21 (10 Sept. 2014) [hereinafter DA PAM 27-9]. Retribution is the fifth sentencing principle. Id. Good order and discipline will not be a focus of this paper. The National Defense Authorization Act for Fiscal Year 2017 made numerous changes to the Uniform Code of Military Justice (UCMJ), including an amendment to Article 56 UCMJ that adds explicit factors for a sentencing authority to consider. See National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, § 5301 [hereinafter FY17 NDAA]. While the amendment explicitly lays out additional sentencing factors, all of the factors still fundamentally relate to the underlying sentencing rationales discussed in this paper. The effective date of the amendments is no later than January 1, 2019, unless earlier specified by the President. Id. § 5542(b).

4 United States v. Ellis, 68 M.J. 341 (C.A.A.F. 2010).

5 MANUAL FOR COURTS-MARTIAL, UNITED STATES, R.C.M. 1001(b) (2016) [hereinafter MCM]. See also discussion infra Section II.B.

text-align: justify;">6 See generally MCM, supra note 5, R.C.M. 1001(b)(5) (2016).

7 See generally id. R.C.M. 1001 (2016).

8 The fiscal year (FY) 2017 National Defense Authorization Act (NDAA) includes a provision for all sentencing to be conducted by military judge alone, unless elected otherwise by an accused who has been tried before members. See FY2017 NDAA, supra note 3, § 5182. The changes are significant to the broader military justice practice, and several are directly relevant to the focus of this article.

9 See generally MCM, supra note 5, R.C.M. 903 (2016). If the accused is enlisted, he has the further right to elect trial by a military panel composed of at least one third enlisted members. See UCMJ art. 25(c)(1)(1983); MCM, supra note 5, R.C.M. 503(a)(2) (2016). Ordinarily, the panel consists of members senior in rank to the accused. UCMJ art. 25(d)(1)(1983).

10 Id. The 2017 amendments to the UCMJ no longer allow this option; however, those amendments may not take effect until January 1, 2019. FY17 NDAA, supra note 3, § 5236.

11 Id.

12 See, e.g., Major Jody Russelberg, Sentencing Arguments: A view from the bench, ARMY LAW., Mar. 1986, at 50, 51 (stating, “Except in a few cases, neither the maximum punishment nor a sentence to no punishment is an appropriate sentence.”).

13 Coker v. Georgia, 433 U.S. 584 (1977). Notwithstanding Coker, death is an available sentence for rape offenses, under certain conditions. See Kennedy v. Louisiana, 554 U.S. 407 (2008)(containing a denial of petition for rehearing and modification of the Court’s opinion to comment on the availability of the death penalty for rape in the military).

14 MANUAL FOR COURTS-MARTIAL, UNITED STATES app. A12 (2012)

15 See 10 U.S.C. § 856 (2013) (UCMJ) (requiring mandatory discharge for those found guilty of penetrative sexual offenses, or rape and sexual assault of a child).

16 Id. Article 60 of the UCMJ allows a convening authority to disapprove a “mandatory” discharge, if it is a part of a pretrial agreement with the accused. 10 U.S.C. § 860 (b)(4)(C)(i)(2013).

17 See, e.g., RESULTS OF TRIAL, U.S. NAVY JUDGE ADV. GENS CORPS, http://www.jag. navy.mil/news/ROT.htm (last visited Feb. 20, 2017) (reporting results of Navy courts- martial from 2013 to present).

18 See, e.g., Major Joseph B. Berger III, Making Little Rocks Out of Big Rocks: Implementing Sentences to Hard Labor, ARMY LAW., Dec. 2004, at 1, 1 (discussing hard labor without confinement and proposing a model to make administration of the sentence easier). The 2016 changes to the UCMJ eliminated diminished rations, e.g., bread and water, as an authorized punishment. FY2017 NDAA, supra note 3, § 5141.

19 See, e.g., U.S. DEPT. OF DEF., INSTR. 1325.07, ADMINISTRATION OF MILITARY CORRECTIONAL FACILITIES AND CLEMENCY AND PAROLE AUTHORITY encl. 2, app. 4 (listing offenses requiring sex offender processing and requiring registration with appropriate civilian jurisdictions).

20 See, e.g., Military Personnel Message, 1070-170, U.S. Army Human Res. Command, subject: Documents Filed in the Permanent Personnel Record (22 Aug. 2002) [hereinafter MILPER Message 1070-170] (stating guidelines for the filing of nonjudicial punishment and court-martial conviction records); U.S. ARMY, iPerms Required Documents, HUMAN RES. COMMD (Mar. 30, 2016), https://www.hrc.army.mil/Site/Assets/Directorate/tagd/ iPerms_required_documents.pdf (specifying that records of all court-martial convictions and non-judicial punishment are to be filed in the soldier’s permanent record).

21 Dismissal or dishonorable discharge is a mandatory minimum punishment for conviction of certain sex offenses. See UCMJ art. 56 (2014).

22 See, e.g., U.S. DEPT. OF DEF., DIR. 2013-21, INITIATING SEPARATION PROCEEDINGS AND PROHIBITING OVERSEAS ASSIGNMENT FOR SOLDIERS CONVICTED OF SEX OFFENSES (7 Nov. 2013); MILPERSMAN Message, 1910-142, 31 May 2013, Dep’t of Navy, Subject: Separation by Reason of Misconduct–Commission of a Serious Offense; MILPERSMAN Message, 1910-233, 11 July 2013, Dep’t of Navy, Mandatory Separation Processing (requiring discharge processing for certain kinds of sexual and other offenses).

23 See Applying for Benefits and Your Characterization of Discharge, VETS ADMIN., http:// www.benefits.va.gov/benefits/character_of_discharge.asp (last visited Feb. 7, 2017).

24 See UCMJ art. 58(a) (1960), UCMJ art. 58(b)(1996). The operation of these statutes has been greatly simplified here. For purposes of this article, it is enough to understand that statutorily imposed collateral consequences form an important—though not dominant—part of the sentencing landscape.

25 See FY17 NDAA, supra note 3, § 5301.

26 See Military Justice Review Group, A Bill, DEPT OF DEF. (2016), http://www.dod.gov/ dodgc/images/military_justice2016.pdf [hereinafter MJRG] (containing the Military Justice Act’s proposed amendment to Article 56 of the UCMJ, which included “sentencing parameters and sentencing criteria” that were to be developed by a statutorily created “Military Sentencing Parameters and Criteria Board”). In addition to the appeal provisions included in the FY2017 NDAA, the Military Justice Review Group proposed an amendment to Article 56 that would have allowed for government appeal where the sentence reflected an improper application of a sentencing factor. Id.

27 The Federal Sentencing Guidelines—even after United States v. Booker relaxed the mandatory application—seem highly structured by comparison the military system. United States v. Booker, 543 U.S. 220 (2005); see generally U.S. SENTENCING GUIDELINES MANUAL (2016). Whether such flexibility in military sentencing is a good thing is beyond the scope of this article.

28 Evidence presented by the victim and the accused fall under separate procedures. Compare MCM, supra note 5, R.C.M. 1001(c) (2016) with id. R.C.M. 1001A (2016). However, for the purposes of this article, they will be analyzed together.

29 Colonel Michael J. Hargis, A View from the Bench: Findings, Sentencing, and the “Good Soldier”, ARMY LAW., Mar. 2010, at 91, 91.

30 MCM, supra note 5, R.C.M. 1001(f)(2) (2016).

31 Id. M.R.E. 404(a)(1) (2016) (allowing the prosecution to introduce evidence of “pertinent” character traits of the accused under certain limited circumstances).

32 Id. M.R.E. 404(b) (2016).

33 Id. M.R.E. 404(b)(2) (2016) (“This evidence may be admissible for another [noncharacter] purpose.”); United States v. Castillo, 29 M.J. 145, 150 (C.M.A. 1989). See also Major Bruce D. Landrum, Military Rule of Evidence 404(b): Toothless Giant of the Evidence World, 150 MIL. L. REV., 271, 314-15 (1995).

34 MCM, supra note 5, R.C.M. 1001(f)(2)(A) (2016).

35 Lieutenant Colonel Tiernan P. Dolan, A View from the Bench: Sentencing: Focusing on the Content of the Accused’s Character, ARMY LAW., Aug. 2012, at 34.

36 But see United States v. Hills, 75 MJ 350, 356 (C.A.A.F. 2016) (limiting the use of propensity evidence where the evidence sought to be admitted for propensity purposes is charged misconduct). Trailer cases have continued to refine the meaning of Hills for military practice. See, e.g., United States v. Guardado, 75 M.J. 889 (A.C.C.A. 2016).

37 MCM, supra note 5, M.R.E. 413(a), 414(a) (2016); but see United States v. Dacosta, 63 M.J. 575 (A. Ct. Crim. App. 2006) (imposing duty to instruct panel members on purposes for which such evidence may be considered).

38 Compare MCM, supra note 5, M.R.E. 413(a) (2016) (“[T]he military judge may admit evidence that the accused committed any other sexual offense), with MCM, supra note 5, M.R.E. 405 (limiting the types of evidence that may be used to prove character generally).

39 See, e.g., United States v. Solomon, 72 M.J. 176 (C.A.A.F. 2012). In light of Hills, practitioners may wish to avoid using evidence of misconduct which has previously been prosecuted to an acquittal. Hills, 75 MJ at 356. Part of the reasoning in Hill found that charged propensity was problematic because it could confuse the fact finder and result in a reducing the burden of proof as to either (or all) charged offenses being used for propensity purposes. Id. (“[Military Rule of Evidence] 413 ‘would be fundamentally unfair if it undermines the presumption of innocence and the requirement that the prosecution prove guilt beyond a reasonable doubt.’”) (quoting United States v. Wright, 53 M.J. 476, 481 (C.A.A.F. 2000). Note however, Hills did not call into question the fundamental constitutionality of the MRE 413. Hills, 75 MJ at 357-58. More importantly for purposes of this article, Hills did not restrict the use of propensity evidence on sentencing. Id.

40 For example, the government might try to use the rules to blunt the spillover instruction in a child molestation case with two victims; however, this type of tactical use is very risky. While the explicit language of Rule for Courts-Martial (RCM) 413 and RCM 414 appears to authorize such use, recent cases have clamped down on the use of propensity evidence, particularly where the propensity evidence is also charged misconduct. See, e.g., United States v. Hills, 75 MJ 350, 356 (C.A.A.F. 2016). See also DA PAM 27-9, supra note 3, para. 7-17 (requiring a panel instruction that “[t]he burden is on the prosecution to prove each and every element of each offense beyond a reasonable doubt” and that “[p]roof of one offense carries with it no inference that the accused is guilty of any other offense,” even where the propensity evidence offered is uncharged).

41 See id. at 7-13-1, n.5.1.

42 See, e.g., United States v. Care, 40 C.M.R. 247 (C.M.A. 1967).

43 MCM, supra note 5, R.C.M. 910(e) Discussion (2016) (requiring the military judge to inquire into and resolve “any potential defense . . . raised by the accused’s account” before accepting the plea).

44 See, e.g., Colonel Thomas S. Berg, A View from the Bench: A Military Judge’s Perspective on Providency, ARMY LAW., Feb. 2007, at 35, 36.

45 For example, the military judge may ask how an accused knew that he was ingesting an illegal drug, which inquiry could result in a brief discussion of prior unlawful (and uncharged) use. Note, however, that such an inquiry would also conform to the evidentiary rules regarding uncharged misconduct. See MCM, supra note 5, M.R.E. 404 (2016).

46 This term is common Army parlance for the sentencing categories. See, e.g., Colonel Michael J. Hargis, A View from the Bench: Military Rule of Evidence (MRE) 412 and Sentencing, ARMY LAW., Mar. 2007, at 36, 36 (discussing different categories of sentencing evidence as “pigeon holes”).

47 See MCM, supra note 5, R.C.M. 1001 (2016).

48 The key inquiry is that the record must relate to the manner of military service performed by the accused—not records predating her service. Id. R.C.M. 1001 (2016). A recent case found that a service record referring to misconduct committed by the accused before his entry into the military was not admissible under this rule. United States v. Ponce, 75 M.J. 630 (A. Ct. Crim. App. 2016).

49 Training records and test scores can sometimes be relevant to the question of whether the accused had the capability to commit the crime. See, e.g., Ellis v. Jacob, 26 M.J. 90 (C.M.A. 1988) (finding that provisions of the UCMJ regarding mental responsibility extended beyond the question of mental disease or defect to the question of whether the accused had the capability of forming the requisite intent); see also DA PAM 27-9, supra note 3, para. 5-17 (providing panel instructions on same).

50 Administrative records are usually a significant part of the so-called Good Soldier Book defense counsel frequently admit as mitigation evidence. See, e.g., Hargis, A View from the Bench: Findings, Sentencing, and the “Good Soldier,” supra note 29, at 93 (“[T]he Soldier’s Medal citation, . . . the APFT score, the weapons qualification scores, and the accused’s noncommissioned officer evaluation reports are all admissible and are commonly submitted in the form of a “Good Soldier Book.”). Note, however, that in this context, the records are being admitted under the broader evidentiary rules available to the defense. MCM, supra note 5, R.C.M. 1001(c) (2016).

51 Soldiers who commit minor offenses may be discharged administratively, eliminating many would-be recidivists from the pool of potential criminal soldiers. See e.g., DEPT OF ARMY, REG. 635-200, ACTIVE DUTY ENLISTED SEPARATIONS para. 14-12(a), (b ) (6 June 2005) (Rapid Action Revision 6 Sept. 2011) Additionally, some offenses require the initiation and processing of a proceeding leading to discharge (whether the proceeding is criminal or administrative does not matter). See, e.g., DEPT OF ARMY, REG. 600-85, THE ARMY SUBSTANCE ABUSE PROGRAM para. 10-6 (28 Dec. 2012) (mandating discharge for soldiers with drug related misconduct).

52 This is true for reasons highlighted in the preceding footnote. Criminological studies have also empirically demonstrated this proposition. See, e.g., A.J. Rosellini et. al., Predicting non-familial major physical violent crime perpetration in the U.S. Army from Administrative data, PSYCHOL. MED., JAN. 2016, at 3 (noting that the vast majority of Army personnel do not have prior criminal records).

53 MCM, supra note 5, R.C.M. 1001(b)(4) (2016).

54 Id.

55 Id.

56 The limitation here may roughly approximate the tort concept of proximate cause. The further removed the evidence sought to be admitted, the less likely the evidence is “directly related” to the alleged offense. See THOMAS G. SHEARMAN & AMASA A. REDFIELD, A TREATISE ON THE LAW OF NEGLIGENCE 48-50 (Robert G. Street ed., 6th ed.) (1913). Additionally, similar to the tort concept of an intervening cause, the introduction of an intervening event is not ordinarily evidence “directly related” to the offense. See generally U.S. v. Rust, 41 M.J. 472 (C.A.A.F. 1995) (finding that a suicide note was admitted inappropriately in the sentencing case of an obstetrician whose criminal dereliction resulted in the death of an unborn child but caused neither the mother’s murder nor the suicide of the child’s father thereafter); U.S. v. Stapp, 60 M.J. 795 (Army Ct. Crim. App. 2004).

57 U.S. v. Hammer, 60 M.J. 810 (A.F. Ct. Crim. App. 2004).

58 This occurs in child pornography cases, where, though the identity of the victim may not be known, the government may seek to admit evidence of Senate findings of the negative victim impact of child pornography production and trafficking. U.S. v. Anderson, 60 M.J. 548 (A.F. Ct. Crim. App. 2004).

59 United States v. Ashby, 68 M.J. 108 (C.A.A.F. 2008).

60 In United States v. Ashby, the accused concealed a videotape of an accident in which a Navy airplane severed the cable supporting a gondola, sending the occupants to their deaths. Ashby, 68 M.J. at 108, 108. The family members testified at the trial of the officer who concealed the tapes as to the effect that it had on their ability to have closure. Id. On appeal, the court found that the judge’s decision to allow the testimony of the family members in a case involving a conviction for conduct unbecoming an officer was not an abuse of discretion under the circumstances. Id.

61 MCM, supra note 5, R.C.M. 1001(b)(5) (2016)..

62 Id.

63 MCM, supra note 5, R.C.M. 1001(b)(5)(B) discussion (2016).

64 Id. 1001(b)(5)(B).

65 Id. 1001(b)(5)(D).

66 Id. preamble discussion para. 4. The supplementary materials in the Manual for Courts- Martial, to include discussion of the Rules for Courts-Martial, are not “binding on any person, party, or other entity.” Id.

67 MCM, supra note 5, R.C.M. 1001(b)(5)(D) discussion (2016).

68 Email from a former military judge (name withheld), to author (Mar. 10, 2016 4:20 PM) (on file with author). (“I listen to rehab potential evidence, as I am required to do. And I “considered” it, as I was required to do. But that is an area that I gave very miniscule weight. For the Government, it’s one of those things that often backfires on them when a witness says the accused has no rehab potential. Really? They lose []some credibility when they say that. Everyone has rehab potential—just varying degrees of it . . . .”).

69 See generally Exec. Order. No. 13696 80 Fed. Reg. 35783 (June 17, 2015) (amending Rules for Court-Martial to include certain victim rights). This article is focused primarily on how sentencing rules impact the prosecution, because that is where the procedural rules have the most limiting impact on the full expression of the sentencing principles. It will briefly cover evidence admissible by the victim and the accused. It does not focus extensively on the victim or accused here because: (1) evidence offered by the victim is a new and untested area of the law; while (2) evidence offered by the accused is more broadly admissible and subject only to a few caveats. For example, while the rules of evidence apply on sentencing, the accused can request that the judge relax them. MCM, supra note 5, R.C.M. 1001(c)(3) (2016).

70 MCM, supra note 5, R.C.M. 1001A(a) (2016).

71 Compare 10 U.S.C. §1044e (2013), with MCM, supra note 5, R.C.M. 1001(b)(4), with MCM, supra note 5, 1001(c)(1)(B) (2016).

72 A victim may not offer extenuation evidence, presumably because it is less clear where or how a victim might seek to offer evidence that “serves to explain the circumstances surrounding the commission of an offense, including the reasons for committing the offense which do not constitute a legal justification or excuse . . . .” MCM, supra note 5, R.C.M. 1001(C)(1)(A). However, given the non-exclusive wording of the rule, a victim could conceivably offer “extenuation” evidence as to other circumstances, such as uncharged misconduct by the accused, which “serves to explain the circumstances surrounding” the offense, that would not be aggravating under the technical definition, but could be highly relevant to a sentencing rationale such as retribution. Id. It remains to be seen whether this limitation will be significant.

73 It remains to be seen whether courts will apply any balancing test to the victim’s right to be heard. See generally MCM, supra note 5, M.R.E. 403 (2016).

74 See MCM, supra note 5, R.C.M. 1001(c) (2016).

75 Id.

76 Id. R.C.M. 1001(c)(1) (2016).

77 Id. R.C.M. 1001(c)(1)(A) (2016).

78 Id. 1001(C)(1)(B) (2016).

79 See, e.g., United States v. Washington, 55 M.J. 441 (C.A.A.F. 2001) (finding error when the military judge excluded defense evidence of loss of retirement pay which would result from an adjudged punitive discharge).

80 United States v. Talkington, 73 M.J. 212 (C.A.A.F. 2013).

81 MCM, supra note 5, R.C.M. 1001(c)(2)(A) (“The accused may testify, make an unsworn statement, or both . . . .”).

82 Id. 1001(c)(2)(C) (2016)..

83 Talkington, 73 M.J. at 212. A recent unpublished Army case suggests that a military judge could prohibit an accused from discussing sex offender registration; however, this rationale has not been treated by the Court of Appeals for the Armed Forces. See United States v. Feliciano, No. 20140766, slip op. (A. Ct. Crim. App.) (Aug. 22, 2016).

84 United States v. Johnson, 62 M.J. 31 (C.A.A.F. 2005). In the case of a guilty plea, defense evidence that casts doubt on the providence of the guilty plea will result in the reopening of the plea and may result in the military judge rejecting the plea. See United States v. Phillippe, 63 M.J. 307 (C.A.A.F. 2006) (finding “if an accused sets up matter inconsistent with the plea at any time during the proceeding, the military judge must either resolve the apparent inconsistency or reject the plea”).

85 DA PAM 27-9, supra note 3, para. 8-3-21 (the five recognized principles of sentencing are “[r]ehabilitation of the wrongdoer, punishment of the wrongdoer, protection of society from the wrongdoer, preservation of good order and discipline in the military, and deterrence of the wrongdoer and those who know of his. . .crimes and his sentence . . . .”)

86 This article uses the terms utilitarian and instrumental interchangeably throughout to denote punishment theories that seek to maximize societal benefit in the present and future. Utility is “[t]he quality of serving some function that benefits society. Utility, BLACKS LAW DICTIONARY (9th ed. 2009). An instrumentality is “a thing used to achieve an end or purpose.” Id. Instrumental.

87 See, e.g., ANDREW VON HIRSCH & ANDREW ASHWORTH, PROPORTIONATE SENTENCING: EXPLORING THE PRINCIPLES (2005).

88 See, e.g., Paul H. Robinson, Competing Conceptions of Modern Desert: Vengeful, Deontological, and Empirical, 67 CAMBRIDGE L. J. 145 (2008) (describing three distinct rationales for retributive theory—all of which focus on desert).

89 See generally Andrew von Hirsh, Proportionate Sentences: A Desert Perspective, in PRINCIPLED SENTENCING: READINGS ON THEORY AND POLICY (Ashworth & Von Hirsch eds., 2000).

90 See, e.g., Paul H. Robinson, The Role of Moral Philosophers in the Competition Between Deontological and Empirical Desert, 48 WM. & MARY L. REV. 1831 (Apr. 2007) (discussing different ways to affix retributive blameworthiness and suggesting that blameworthiness could be fixed through empirical research of the community punitive norms).

91 Exodus 21:22 (New International Version).

92 See generally MARVIN FRANKEL, CRIMINAL SENTENCES—LAW WITHOUT ORDER (1973) (proposing sentencing commissions which have the authority to set sentencing ranges as a way to overcome this problem).

93 This divergence seems to be a key argument for why the military justice system should make the judge the sole sentencing authority, as has been proposed in recent statutory amendments. See, e.g, MJRG, supra note 26 (containing a proposed amendment to Article 53, UCMJ which would have provided for “judicial sentencing for all non-capital offenses”). The argument is that judges are more capable, through repetition, to understand what a crime is worth than are military jurors who may sit on only one panel during the entirety of their career. See, e.g., Paul Larkin & Charles “Cully” Stimson, The 2015 Report of the Military Justice Review Group: Reasonable Next Steps in the Ongoing Professionalization of the Military Justice System, HERITAGE (Apr. 2016), http://www.heritage.org/research/reports/2016/04/the-2015-report-of-the-military-justice-review-group-reasonable-next-steps-in-the-ongoing-professionalization-of-the-military- justice-system. While it is a fact that judges may be more internally consistent in sentencing, sentencing guidelines—that were also proposed (though not adopted) in the amendments—may be necessary to ensure a degree of cross-jurisdictional normalization.

94 See, e.g., John Monahan & Jennifer L. Skeem, Risk Assessment in Criminal Sentencing, in ANNU. REV. CLIN. PSYCH. (2016) (“Without at least some ability to validly estimate an offender’s risk of recidivism[,] e.g., through the use of actuarial assessment instruments[,] and hopefully to reduce that level of risk[,] e.g., through the use of evidence-based psychological interventions, there would be few positive ‘consequences’ flowing from consequential theories of sentencing.”).

95 See, e.g., PLATO, PROTAGORAS 139 (trans. W.R.M. Lamb 1952) (“No one punishes the evil doer under the notion . . . that he has done wrong, only the unreasonable fury of a beast acts in that way. But he who undertakes to punish with reason does not avenge himself for past offense, . . . he looks rather to the future, and aims at preventing that particular person and others who see him punished from doing wrong again.”).

96 Some utilitarian thinkers might even take the concept a step further, envisioning a minority report-like program that uses biological techniques to forecast and control criminal behaviors before they occur. Compare ADRIAN RAINE, THE ANATOMY OF VIOLENCE: THE BIOLOGICAL ROOTS OF CRIME (2013), with MINORITY REPORT (Dreamworks Pictures 2002).

97 See, e.g., H.L.A. HART, PUNISHMENT AND RESPONSIBILITY: ESSAYS IN THE PHILOSOPHY OF THE LAW 25-27 (2d ed. 2008).

98 See, e.g., Andrew D. Leipold, Recidivism, Incapacitation, and Criminal Sentencing Policy, 3 U. ST. THOMAS L.J. 536, 542 (2006) (“At the most basic level . . . those in prison don’t commit any new crimes . . .and so by extending the periods of imprisonment . . .we extend the period where the inmate cannot re-offend.”)

99 See, e.g., Pell v. Procunier, 417 U.S. 817, 822 (“The premise is that by confining criminal offenders in a facility where they are isolated from the rest of society, a condition that most people presumably find undesirable, they and others will be deterred from committing additional criminal offenses.”).

100 See generally Lieutenant Colonel Dru Brennerbeck, Assessing Guidelines and Disparity in Military Sentencing: Vive La Difference, 27 FED. SENT. R., 108 (2014) (discussing how the concept of good order and discipline sets apart military practice from federal practice).

101 See, e.g., Hargis, A View from the Bench: Findings, Sentencing, and the “Good Soldier”, supra note 29, at 92 (“[T]he two most frequently cited rules [are the rules admitting aggravation evidence and rehabilitative potential evidence]”).

102 Character evidence could also have rehabilitative connotations; however, the evidence only develops its full instrumental value if attached to a predictive tool. Otherwise, the value of the evidence has purely arbitrary sentencing value.

103 This point is particularly true for traditional common law crimes because they are generally thought to be morally wrong in and of themselves.

104 Russelberg, supra note 12, at 51.

105 Id.

106 Dolan, supra note 35, at 34.

107 Id. at 35 n.13.

108 Id.

109 Lieutenant Colonel Edye U. Moran, A View from the Bench, Aggravation Evidence— Adding Flesh to the Bones of a Sentencing Case, ARMY LAW., Dec. 2006, at 48, 48.

110 Id. at 50.

111 For the moment, this article sets aside the question of whether we may admit recidivism evidence under RCM 1001(b)(5) as “rehabilitation” evidence.

112 See supra part III.B.2.

113 Dolan, supra note 35, at 35 (encouraging counsel to focus on foundational elements “even if these questions do not lead to an “ultimate issue” question”).

114 In this context, substantive evidence could include an opinion on a related rehabilitative potential question, such as an opinion as to the moral fiber of the accused. Note that this is substantively different from a question as to whether the witness has known the accused long enough or in enough contexts to have formed an opinion as to his moral fiber. In any event, evidence that is relevant to the sentence rather than the admissibility of the ultimate opinion is only masquerading as foundational evidence and should be excluded.

115 See, e.g., MCM, supra note 5, R.C.M. 1001(b)(5)(C) (2016). See also Hargis, A View from the Bench: Findings, Sentencing, and the “Good Soldier”, supra note 29, at 92-93 (observing that the foundational requirement requires the trial counsel to demonstrate “sufficient knowledge” of the accused).

116 Ignoring for the moment the possibility of recidivism risk, perhaps the most useful rehabilitative sentencing evidence is opinion evidence as to whether the accused should be discharged from the military. The rules tightly control the admissibility of this evidence, with the accused himself holding the key. When the accused is seeking retention on active duty, the defense may offer evidence in the form of testimony that the witness would “serve with the accused again.” Id. Once offered, this evidence opens the door for the prosecution to rebut with witnesses who can testify that this is not the consensus view of the command. Id. Such rebuttal evidence can be disastrous to an unwitting accused and his defense counsel. Considering that the command is responsible for reviewing, recommending, and forwarding the charges in the first place rebuttal evidence will usually be damning. See generally MCM, supra note 5, R.C.M. 306, 401. Moreover, the relevance of such testimony is also self-limiting. Because the intent of this testimony is to allow the defense to argue that the sentence should not include a punitive discharge, such evidence is most effective only in those borderline cases where the question of a punitive discharge is at issue.

117 United States v. Ellis, 68 M.J. 341 (C.A.A.F. 2010).

118 Id. at 343-44.

119 Id. at 344.

120 Id.

121 The Static-99 “is a ten-item actuarial assessment instrument . . . for use with adult male sexual offenders who are at least [eighteen] year[s] of age at time of release to the community.” Static 99/Static 99R, STATIC 99 CLEARINGHOUSE, www.static99.org (last visited Feb. 19, 2017). The instrument predicts recidivism risk.

122 Ellis, 68 M.J. at 346.

123 Id. at 344.

124 Id. at 344-45.

125 Id. at 347.

126 Id.

127 Id. at 344.

128 Id.

129 MCM, supra note 5, M.R.E. 702 (2016).

130 The analysis encompassed both the basis of the opinion—i.e., whether an interview of the accused was necessary to the opinion—as well as the scientific reliability of the opinion. See M.C.M., supra note 5, MIL. R. EVID. 702 (2016).

131 In an interesting concurrence, Judge Baker stated that he would limit the holding narrowly to the facts of the case. A concern was that a military panel might be improperly swayed by the rehabilitation evidence, a risk that was attenuated in this case by the fact that a military judge sat as the court-martial. Judge Baker’s major concern, however, was with the role of recidivism evidence in sentencing proceedings in general. After echoing Judge Posner’s concerns that recidivism tools may under-report the risk of recidivism, Judge Baker then went on to criticize the usefulness of over-inclusive recidivism assessments in the individualized setting of military sentencing. Ellis, 68 M.J. at 347-48.

132 MCM, supra note 5, R.C.M. 1001(b)(5)(D) (2016) (emphasis added).

133 Id., R.C.M. 1001(b)(5)(D) discussion. See also Hargis, A View from the Bench: Findings, Sentencing, and the “Good Soldier”, supra note 29 (offering a recommended foundational colloquoy).

134 The majority of the cases citing Ellis do so for its holding concerning MRE 702, and not for its value in interpreting RCM 1001(b)(5). For a non-exhaustive list of cases citing Ellis for the former proposition, see, for example, United States v. Henning, 75 M.J. 187 (C.A.A.F. 2016) (citing Ellis in the context of admissibility of expert testimony under M.R.E. 702); United States v. Bell, 72 M.J. 543 (A. Ct. Crim. App. 2013) (same); United States v. Walls, 2013 WL 3972283 (A.F. Ct. Crim. App. 2013) (same); United States v. Cannon, 74 M.J. 746 (A. Ct. Crim. App. 2015) (same); United States v. D.W.B., 74 M.J. 630 (N-M. Ct. Crim. App. 2015) (same); United States v. Palma, 2015 WL 6657365 (A.F. Ct. Crim. App. 2015) (same); United States v. Stevenson, 2015 WL 5737171 (A. F. Ct. Crim. App. 2015) (same); United States v. Walters, 2015 WL 4624880 (A. F. Ct. Crim. App. 2015) (same); United States v. Bondo, 2015 WL 1518987 (A.F. Ct. Crim. App. 2015) (same); and United States v. Wright, 75 M.J. 501 (A. F. Ct. Crim. App. 2015) (same). United States v. Merritt, 2015 WL 5737152 (A. F. Ct. Crim. App. 2015), is among the few that cites Ellis for its holding as to the admissibility of recidivism evidence.

135 See, e.g., United States v. Scott, 51 M.J. 326 (C.A.A.F. 1999) (expert opinion that the accused was at “high risk for re-offense.”); United States v. Merritt, 2015 WL 5737152 (A.F. Ct. Crim. App. 2016) (finding the trial judge did not abuse his discretion when he admitted as evidence of rehabilitative potential an expert’s opinion that the accused’s likely recidivism risk was “in his opinion, high.” The court also upheld the trial judge’s further finding that any questioning regarding the significance of paraphilia evidence was admissible as aggravating evidence, and not evidence of rehabilitative potential); United States v. McDowell 2002 WL 341268 (A.F. Ct. Crim. App. 2002) (holding admissible evidence general that certain categories of offenders have a “higher rate of recidivism.”), set aside and remanded for further proceedings on a separate issue by U.S. v. McDowell, 57 M.J. 471 (C.A.A.F. 2002).

136 Lieutenant Colonel Tiernan P. Dolan, A View from the Bench: Sentencing: Focusing on the Content of the Accused’s Character, ARMY LAW., Aug. 2012, at 34, 35 (citations omitted).

137 See, e.g., MCM para. 88b (1984); MCM para. 88b (1969 Revised edition) (discussing rehabilitation of the accused and deterrence as factors to be considered in approving a sentence); MCM para. 88b (1951) (discussing rehabilitation of the accused and deterrence as factors to be considered in approving a sentence). See also Major Evan R. Seamone, Reclaiming the Rehabilitative Ethic in Military Justice: The Suspended Punitive Discharge as a Method to Treat Military Offenders with PTSD and TBI and Reduce Recidivism, 208 MIL. L. REV. 1 (2011) (arguing that rehabilitation has been a staple of the military justice system since before World War II).

138 See, e.g., MCM, supra note 5, R.C.M. 706 and id., R.C.M. 909 (2016).

139 This could be ordered under the power of the court-martial to gather evidence, see id. R.C.M. 801(c) (2016) however, it would be better for the rule to specify procedures.

140 See, e.g., A. Harris, A. Phenix, R. Hanson & D. Thornton, Static-99 Coding Rules Revised, STATIC 99 CLEARINGHOUSE, http://www.static99.org/pdfdocs/static-99-coding - rules_e.pdf (2003).

141 Id. at 13.

142 See, e.g., United States v. Shields, No. CIV.A.07-12056-PBS, 2008 WL 544940, at *1 (D. Mass. Feb. 26, 2008) (“The actuarial risk assessments (RRASOR, STATIC-99, and any adjusted actuarial approach, including the “guided clinical method” and the “adjusted actuarial method”) are reliable under the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc. Among other things, these assessments are generally accepted as a reliable methodology within the relevant scientific community and they have been subject to peer review.”) (citations omitted). Cf. United States v. Carta, No. CIV. 07-12064-PBS, 2011 WL 2680734, at *14 (D. Mass. July 7, 2011), aff'd, 690 F.3d 1 (1st Cir. 2012) (finding that while “[t]he Static–99R is peer-reviewed actuarial instrument,” the court would consider it as one of several factors in determining a sentence).

143 Nancy Ritter, Predicting Recidivism Risk: New Tool in Philadelphia Shows Great Promise, 271 NATL INST. OF JUST. J. 4 (Feb. 2013), https://www.ncjrs.gov/pdffiles1/nij/ 240695.pdf. Random forest modeling is a relatively recent algorithmic model for relating large numbers of input and output variables. See generally Leo Breiman, Statistical Modeling: The Two Cultures, 16 STAT. SCI. 1, 199 (2001). Random forest modeling is among the most accurate of a number of algorithmic methods. See Rich Caruana & Alexandru Niculescu-Mizil, An Empirical Comparison of Supervised Learning Algorithms, in PROCEEDINGS OF THE 23D INTERNATIONAL CONFERENCE ON MACHINE LEARNING 161 (2006).

144 Id.

145 Political factors may decrease the reliability of a recidivism instrument. For example, an instrument might demonstrate a high correlation between race or gender and recidivism risk. However, it may not be politically—or perhaps constitutionally—tenable to use such factors in determining recidivism risk. An ideal model must still have strong predictive value even if it excludes problematic classifications.

146 Ritter, supra note 143. In other words, the model gets it right 66% of the time--better than chance. In any event, the mere fact that a model can produce a known error rate helps the fact finder calibrate the appropriate weight to be given the model.

147 See, e.g., Amy E. Street et. al., Developing a Risk Model to Target High-risk Preventive Interventions for Sexual Assault Victimization among Female U.S. Army Soldiers, 4 CLINICAL PSYCHOL. SCI. 939, 940 (2016) (discussing the “extensive series of administrative databases available” that were used to complete the study).

148 A.J. Roselini et. al., Predicting non-familial major physical violent crime perpetration in the US Army from administrative data, 46 PSYCHOL. MED. 303 (2015).

149 Amy E. Street et. al., supra note 147.

150 A.J. Roselini et. al., supra note 148 (discussing follow-on studies to be conducted with the same databases).

151 The National Crime Information Center contains centralized data maintained by the FBI in twenty-one different files. [S]even property files containing records of stolen articles, boats, guns, license plates, parts, securities, and vehicles. There are 14 persons files, including: Supervised Release; National Sex Offender Registry; Foreign Fugitive; Immigration Violator; Missing Person; Protection Order; Unidentified Person; Protective Interest; Gang; Known or Appropriately Suspected Terrorist; Wanted Person; Identity Theft; Violent Person; and National Instant Criminal Background Check System (NICS) Denied Transaction. See National Crime Information Center, FED. BUR. OF INVEST., https://www.fbi.gov/services/cjis/ncic (last visited Apr. 20, 2017).

152 See, e.g., Barun Kumar Nayak, Understanding the Relevance of Sample Size Calculation, 58 INDIAN J. OPTHALMOL. 469 (2010) (discussing the importance of sample size in scientific research and stating the ideal—and usually unattainable—research situation is one in which the entire population can be studied).

153 See, e.g., Christopher Slobogin, Prevention as the Primary Goal of Sentencing: The Modern Case for Indeterminate Dispositions in Criminal Cases, 48 SAN DIEGO L. REV. 1127, 1148-49 (2011) (proposing a “subject first” rule for the introduction of the less reliable clinical recidivism assessment).

154 See, e.g., Monahan & Skeem, supra note 94 (“[G]roup data theoretically can be, and in many areas empirically are, highly informative when making decisions about individual cases, including decisions about sentencing.”).

155 See MCM, supra note 5, R.C.M. 703(d) (2016).

156 Id. R.C.M. 1001(e) (2016) (detailing procedures for the production of sentencing witnesses).

157 E. Ann Carson, Bureau of Justice Statistics, Prisoners in 2013, BUR. OF JUST. STATS BULL. 8 (Sept. 2014), https://www.bjs.gov/content/pub/pdf/p13.pdf.

158 Inclusion of such factors may be less problematic than many might assume. Compare Sassman v. Brown, 99 F. Supp. 3d 1223 (2015) (finding an equal protection violation when gender was used inappropriately to determine eligibility for California’s Alternative Diversion Program), with Michael Tonry, Legal and Ethical Issues in Prediction of Recidivism, 26 FED. SENTENCING R. 3, 167, 169 (finding few jurisprudence constraints on recidivism evidence).

159 A causal risk factors is one that, by definition, may be changed through intervention.

See, e.g., Monahan & Skeem, supra note 94.

160 Id.

161 See, e.g., VA. CODE ANN. § 37.2-900 passim (2013) (Virginia Sexually Violent Predators Act). Similar statutes have been challenged but ultimately upheld in the Supreme Court. See, e.g., Kansas v. Hendricks, 521 U.S. 346 (1997).

162 See, e.g., 2014 Annual Report, VIRG. CRIM. SENTG COMMN (2014), http://www. vcsc.virginia.gov/2014AnnualReport.pdf; 2014 Annual Report, UTAH SENTG COMMN (2014), http://justice.utah.gov/Sentencing/AnnualReports/Sentencing2014.pdf; Justice Reinvestment Initiative in Kansas, KAN. SENTG COMMN (2015), http://www.sentencing.ks.gov/docs/default-source/publications-reports-and-presentations/ksc_jri_report.pdf?sfvrsn=2.

163 See, e.g., Monahan & Skeem, supra note 94. A fixed marker is a risk factor that cannot be changed (e.g., early onset of antisocial behavior). In contrast, both variable markers and variable risk factors can be shown to change of time. Change can be rapid (e.g., substance abuse can change daily), or slow (e.g., criminal behavior and antisocial traits change over years). Variable markers (like age) cannot be changed through intervention, unlike variable risk factors (like employment problems). Causal risk factors are variable risk factors that, when changed through intervention, can be shown to change the risk of recidivism. Id.

164 See R. Karl Hanson & Kelly Morton-Bourgon, The Accuracy of Recidivism Risk Assessments for Sexual Offenders: A Meta-Analysis of 118 Prediction Studies, 21 PSYCHOL. ASSESSMENT 1 (2009) (concluding that actuarial risk assessments—including the Static-99—are the most reliable predictors of recidivism).

165 Even assuming the convict commits new offenses while in confinement, those would go to a new risk assessment that could be performed at the time of sentencing for the new offense.

166 The proposals, which were not adopted by the FY 2017 NDAA, would have resulted in the creation of a sentencing panel that would have determined guideline sentences. See supra note 26 and accompanying sources.

167 See, e.g., MODEL PENAL CODE § 305.7. The Model Penal Code is produced by the American Law Institute.

168 One of the criticisms of the sentencing disparity between crack and cocaine offenses in the Federal Sentencing Guidelines has been that it was motivated by political considerations, and not criminological, or even moral ones. Cf. Michael Tonry, Remodeling American Sentencing: A Ten-Step Blueprint for Moving Past Mass Incarceration, 13 CRIM. & PUB. POLY, 8, 14-15 (noting the “ham fisted” nature of many mandatory minimum laws passed in the 1980s and 1990s).

169 See MJRG, supra note 26, § 801(c)(2) (“[I]n a general or special court-martial in which the accused is convicted of an offense with a sentencing parameter . . . the military judge shall sentence the accused for that offense within the applicable parameter.”).

170 These contexts include weather forecasting, insurance, and even medical diagnosis and treatment. John Monahan & Jennifer L. Skeem, supra note 94.

171 Russelberg, supra note 12, at 50.