*Judge Advocate, United States Army, Presently assigned as a Military Personal Law Attorney, Office of the Judge Advocate General, Department of the Army, Washington, D.C.; LL.M, 2016, Officer Graduate Course, The Judge Advocate’s Advocate General’s Legal Center and School, United States Army, Charlottesville, Virginia; J.D., 2005, Univ. of South Carolina; B.A., 2002, Univ. of South Carolina.  Previously assigned as Brigade Judge Advocate, 3d Brigade, 1st Armored Division, 2014–2015; Senior Defense Counsel, Fort Jackson, South Carolina, 2012–2014; Ethics Advisor, U.S. Army Europe, Germany, 2011–2012; Procurement Fraud Coordinator, U.S. Army Europe, Germany, 2010–2011; Senior Defense Counsel, Victory Base Complex, Iraq, 2009–2010; Defense Counsel, Baumholder, Germany, 2008; Trial Counsel, 8th Army, Republic of Korea, 2006–2008. 

[1]  See infra pp. 14–16.

[2]  See infra p. 30.

[3]  See infra pp. 40–41. 

[4]  The commander’s disciplinary recommendation is command’s formal position on the appropriate sentence following conviction.

[5]  UCMJ art. 37 (2016), See also Appendix A.

[6]  Mark Thompson, Military’s War on Sexual Assault Proves Slow Going, Time Magazine (Dec. 4, 2014), http://time.com/3618348/pentagon-sexual-assault-military (explaining the apparent increases in sexual misconduct from 2012 through 2014 despite numerous reforms).

[7]  UCMJ art. 37 (2016).

[8]  Robert Draper, The Military’s Rough Justice on Sexual Assault, The New York Times Magazine (Nov. 26, 2014), http://nyti.ms/1tjeRSi (discussing lost faith in commanders’ willingness to prosecute crime and quoting Sen. Gillibrand as saying, “For the past 25 years, going back to when Dick Cheney was defense secretary, we’ve had the military telling us that there’s zero tolerance for sexual assault . . . [a]nd all we’ve seen is zero accountability.”).

[9]  Craig Whitlock, General’s promotion blocked over her dismissal of sex-assault verdict, Washington Post (May 6, 2013), https://www.washingtonpost.com/world/national-security/generals-promotion-blocked-over-her-dismissal-of-sex-assaultverdict/2013/05/06/ef853f8c-b64c-11e2-bd07-b6e0e6152528_story.html (reporting that Lieutenant General Susan Helms’ promotion was held up by Senator Claire McCaskill after she exercised her authority to set aside a verdict under UCMJ Article 60, which was the second time in recent history a General’s promotion has been held up over an authorized exercise of post-trial judicial action.).

[10]  General William Westmoreland & Major General George Prugh, Judges in Command: The Judicialized Uniform Code of Military Justice in Combat, 3 Harv.. J. L. & Pub. Pol’y 1, 60 (1980).

[11]  John Lindley, A Soldier is also a Citizen:  The Controversy over Military Justice, 1917–1920, at 69 (1990).  The effect of the changes in 1916 was to give significant new statutory authority to the concept of the military law not as a system of justice akin to a court, but as an instrumentality of the executive.  Id.

[12]  The Judge Advocate General’s School, U.S. Army, The Background of the Uniform Code of Military Justice 2 (1959), https://www.loc.gov/rr/frd/Military_Law/pdf/background-UCMJ.pdf [hereinafter UCMJ Background].

[13]  John Adams, Adams Papers (Aug. 19, 1776).  Adams encouraged Congress to adopt the Articles of War, arguing,

 

There was extant one System of Articles of War, which had carried two Empires to the head of Mankind, the Roman And the British: for the British Articles of War were only a litteral [sic] Translation of the Roman: it would be in vain for Us to seek, in our own Inventions or the Records of Warlike nations for a more compleat [sic] System of military discipline: it was an Observation founded in undoubted facts that the Prosperity of Nations had been in proportion to the discipline of their forces by Sea and Land: I was therefore for reporting the British Articles of War, totidem Verbis.

Id. 

[14]  C.E. Brand, Roman Military Law 59 (1968).  The iron discipline mentality of Roman commanders is epitomized by the story of Manlius Torquatus and his son Titus Manlius told by Livy, Dionysius, Cassius Dio, and other Roman historians.  Titus fell under his consul father’s command in a legion.  The young Manlius was sent with cavalry to reconnoiter the enemy.  He had strict orders not to engage.  He encountered a barbarian chieftain who challenged him to single combat.  Manlius killed the barbarian.  Upon hearing the news, his father turned away from his son and sounded the assembly.  Declaring to his legion his love for his son and his admiration of his son’s bravery, he nevertheless told his legionnaires the authority of consul required imposition of the law.  It would either be established by the execution of his son or forever abrogated by his impunity.  He then proceeded to personally behead the younger Manlius. 

[15]  Articles of War (June, 30, 1775), in 2 Journals of the Continental Congress: 1774-1789, at 111 (Worthington Chauncey Ford ed., 1905), https://memory.loc.gov/amm em/amlaw/lwjc.html.

[16]  Id.

[17]  Manual for Courts-Martial, page VI (1921).

[18]  Id.

[19]  Lindley, supra note 11, at 106.  As late as 1918, the office in charge of military justice matters in the War Department was called the Military Discipline Division vice the Military Justice Division.  Further, convening authorities with the American Expeditionary Force in France where still making significant use of their authority to reject acquittals.  During their stay in France, American General Court-Martial convening authorities returned 149 acquittals for renewed proceedings.

[20]  Letter from George Washington, to Captains of Companies, General Instructions (July 29, 1757), http://founders.archives.gov/documents/Washington/02-04-02-0223.

[21]  UCMJ Background, supra note 12, at 2.

[22]  Dynes v. Hoover, 61 U.S. (20 How.) 65 (1857).

[23]  UCMJ Background, supra note 12, at 2.

[24]  U.S. Const. amend. V (denying members of the armed forces a right to jury trial).

[25]  Dynes v. Hoover, 61 U.S. (20 How.) 65 (1857).  The case involved a seaman convicted of attempting to desert who challenged his conviction in a habeas writ.  The Court ruled a court-martial need only follow the statute governing its procedure and would not be subject to further review under Article III as the court was an executive exercise pursuant to statute and not a regular court.

[26]  Letter to General W. S. Hancock, President of Military Serv. Inst., from W.T. Sherman (Dec. 9, 1879), reprinted in William T. Sherman, Military Law 130 (1880) (quoted in David A. Schlueter, The Military Justice Conundrum:  Justice or Discipline?, 215 Mil. L. Rev. 1, 21 (2013).

[27]  See Gregory P. Downs, After Appomattox:  Military Occupation and the Ends of War (2015), 249.

[28]  See generally William Winthrop, Military Law (1886).

[29]  Edward F. Sherman, The Civilianization of Military Law, 22 Me. L. Rev. 3, 15 (1970).

[30]  Id. (noting shocking examples of severe sentences, including the summary execution of 13 black Soldiers, 40 years at hard labor for 20 days’ absence without leave and escape from confinement, 30 years for insulting a non-commissioned officer, and 10 years’ confinement for unlawful possession of a pass).  See John S. Cooke, Introduction:  Fiftieth Anniversary of the UCMJ Symposium Edition, 165 Mil. L. Rev. 1, 6 (2000). 

[31] Lindley, supra note 11, at 74.  Brigadier General Ansell was acting as the Judge Advocate General because Major General Crowder was focused on his additional duties as the Provost Marshall General.  During this time over a hundred Soldiers were court-martialed for mutiny in Houston, Texas.  Many of these African-American Soldiers were executed with no outside review of their record.  In addition a number of non-commissioned officers were court-martialed at Fort Bliss, Texas, for mutiny.  A review of the Bliss record revealed the charge of mutiny was supported by an order to drill while under arrest.  The order to drill violated a standing Army regulation that prohibited arrested individuals from drilling.  Brigadier General Ansell concluded there was no basis for the finding of guilt in the facts.  He argued to Secretary of War Newton Baker, urging him to recognize a general right of review and revision for the Office of the Judge Advocate.  Major General Crowder intervened and wrote a counter-memo to the Secretary.  The head of the Military Discipline Division initially supported the memo of Brigadier General Ansell but changed his mind after Major General Crowder became involved.  The Secretary attempted to resolve the dispute by granting clemency as to the sentence under his own authority.  Brigadier General Ansell believed very strongly that a legal system administering punishments must be accountable to the law and subject to correction on the grounds of legal error alone.  Brigadier General Ansell believed any system not subject to correction on the grounds of legal error was unjust.  He therefore continued his argument on the need for additional authority and created a rift within the Office of the Judge Advocate.  Id.

[32]  Trials by Courts-Martial: Hearings on S. 5320 Before the Senate Comm. On Military Affairs, 65th Cong. 48-52 (1919) (statement of Brig. Gen. Samuel T. Ansell):

 

Army officers, acting on a mistaken sense of loyalty and zeal, are accustomed to say, somewhat invidiously, that “courts-martial are the fairest courts in the world.”  The public has never shared that view . . . . This is not a pleasant duty for me to perform.  I realize, if I may be permitted to say it, that I am arraigning the institution to which I belong, not the institution, but the system and practices under it, an institution which I love and want to serve honestly and faithfully always.  Yet an institution has got to be based on justice, and it has got to do justice if it is going to survive, and if it is going to merit the confidence and approval of the American people.  Indeed, if our Army is going to be efficient, justice has to be done within it, whether in war or in peace. 

[33]  Sherman, supra note 29, at 19.

[34]  Id. at 20.

[35]  Id. at 21.

[36]  Id.

[37]  Id.

[38]  Id. at 22–24.

[39]  Id. at 27.

[40]  Id. at 26.

[41]  UCMJ Background, supra note 12 at 2.

[42]  Id. 

[43]  Id. at 5.

[44]  Sherman, supra note 29, at 29 (“The emotions suppressed during the long, tense period of global warfare were now released by peace, and erupted into a tornado-like explosion of violent feelings, abusive criticism of the military, and aggressive pressures for reforms in the court-martial system.” (quoting Rear Admiral Robert White)).

[45]  Id. at 28 (citing Letter from New York Bar Association Committee on Military Justice, Jan. 29, 1949, at 5, in VI papers of Professor Edmund Morgan on the UCMJ, on file in Treasure Room, Harvard Law School Library).

[46]  Id.

[47]  George S. Prugh, Observations on the UCMJ:  1954 to 2000, 165 Mil. L. Rev. 21, 22 (2000).

[48]  2 Francis A. Gilligan & Fredric I. Lederer, Court-Martial Procedure § 15-80.00 (4th ed. 2015):

 

The history of military justice prior to the Uniform Code of Military Justice is filled with examples of court members attempting to comply with the real or perceived desires of the convening authority (their commander) as to findings or sentence or both.  During World War II, it was customary in many commands to sentence the accused to the maximum to permit the convening authority to do as he wished with the offender.

[49]  Id.

[50]  Beets v. Hunter, 75 F. Supp. 825, 826 (D. Kan. 1948) (Habeas relief granted following conviction at court-martial wherein defense counsel announced on record he was unqualified, unprepared, and not the choice of the accused). 

[51]  U.S. Dept. of the Navy, Congressional Floor Debate on the Uniform Code of Military Justice (1950), https://www.loc.gov/rr/frd/Military_Law/Cong-floor-debate-on-UCMJ.html.

[52]  Sherman, supra note 29, at 29.

[53]  Id.

[54] H.R. Rep. No. 80-1034 (1947) (noting General Eisenhower’s opposition to any reductions in command authority).

[55]  Staff of S. Comm. on Armed Services, Courts Martial Legislation 5 (Comm. Print 1948) (“General Eisenhower attempted to present the problem from the field commander’s point of view. . . . He was attempting to show how the military courts charged with the responsibility of trying soldiers in the battle areas were responsible only secondarily for incarcerating felons, and primarily for maintaining the morale of the men who fought.  If these military courts had . . . imposed extremely light punishment or suspended sentences, General Eisenhower’s expedition might have become an undisciplined mob instead of the fighting force with high morale which eventually defeated the Germans.”).

[56]  Id.

[57]  UCMJ art. 31 (2016).

[58]  UCMJ art. 6 (2016).

[59]  UCMJ art. 25 (1950).

[60]  See, e.g., United States v. DuBay, 37 C.M.R. 411 (C.M.A. 1967).  DuBay involved pervasive use of ex parte command influence, which required detailed factual review years after the relevant courts-martial.  This case is more famous for the fact-finding hearings it created, now referred to as DuBay hearings.

[61]  Id.

[62]  UCMJ art. 27 (2016).

[63]  UCMJ art. 16 (2016).

[64]  Manual For Courts-Martial, United States, R.C.M. 104 (2016) [hereinafter MCM].

[65]  The Military Justice Act of 1968, Pub. L. No. 90-632, 82 Stat. 1335 (1968).

[66]  Id. (allowing accused to select a military judge).

[67]  Westmoreland & Prugh, supra note 10, at 92.  Major General Prugh notes that the period from 1969 to 1972 saw a widespread decrease in discipline and morale.  Id.

[68]  Id.

[69]  See Irvin v. Dowd, 366 U.S. 717, 722 (1960) (“[T]he right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, ‘indifferent’ jurors.”).

[70]  United States v. Redmon 33 M.J. 679 (A.C.M.R. 1991).

[71]  UCMJ art. 16 (2016). 

[72]  Gilligan & Lederer, supra, note 48.

[73]  United States v. Biagase, 50 M.J. 143 (C.A.A.F. 1999).

[74]  Gilligan & Lederer, supra, note 48.

[75]  National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66, 127 Stat. 672 (2013) (making changes to RCM 1107 that largely removed a convening authority’s ability to modify the sentence and findings in serious cases) [hereinafter NDAA FY 2014].

[76]  See supra Section II. 

[77]  United States v. Davis, 58 M.J. 100, 103 (C.A.A.F. 2003) (noting that an inflexible disposition on punishment or clemency generally disqualifies a convening authority from taking action on the case).

[78]  Model Rules of Prof’l Conduct r. 3.8 (Am.Bar Ass’n 1983).

[79]  Appendix B, Model RCM 1001B.

[80]  MCM, supra note 64, R.C.M. 1001A.

[81]  MCM, supra note 64, R.C.M. 601.  In making the referral decision, “The convening authority or judge advocate may consider information from any source.”  Id.

[82]  Westmoreland & Prugh, supra note 10 at 57-62 (indicating that fragging, drug use and war crimes all figured into the military exigencies of the Vietnam conflict and could be relevant command concerns in the future.).

[83]  Appendix C.

[84]  MCM, supra note 64, R.C.M 108 (providing authority for military judges to promulgate rules at the trial-judge level).

[85]  Currently a court-martial goes directly to sentencing.  This means many witnesses called only for sentencing are brought to court only to find they will not testify because the Soldier is acquitted of the offense they were supposed to testify about.  The proposed division of proceedings will ensure only those needed at the hearings are brought to the hearings.

[86]  Fed. R. Crim. P. 32.

[87]  See text accompanying note 77.

[88]  Gilligan & Lederer, supra note 48 (“During World War II, it was customary in many commands to sentence the accused to the maximum to permit the convening authority to do as he wished with the offender.”).

[89]  UCMJ art. 67 (2016).

[90]  United States v. Davis, 58 M.J. 100, 102 (C.A.A.F. 2003).

[91]  Id.

[92]  UCMJ art. 37 (2016).

[93]  Fed. R. Crim. P. 11.

[94]  MCM, supra note 64, R.C.M 705 (2016).

[95]  See Appendix C.

[96]  UCMJ art. 10 (2016).

[97]  See Appendix F.

[98]  Military Justice Review Group, Report of the Military Justice Review Group Part I: UCMJ Recommendations 5 (Dec. 22, 2015), http://ogc.osd.mil/images/report_part1.pdf.

[99]  See Appendix D.

[100]  David R. Snyder, Sex Crimes Under the Wehrmacht 72-81] (2007).  This study of punishment in the German army during World War II explores the Reich’s use of deferred confinement to maintain maximum manning right up until total surrender. The decision to avoid the use of prisons was made at the General Headquarters of the Armed Forces and then delegated to field commanders.  Id.

[101] UCMJ art. 74 (2016). The present article allows for immediate remission and suspension of sentences in most cases, but currently there is no delegation to commanding officers in the field.  Snyder reveals through a close analysis how Germany used a suspension of normal punishment processing to maintain the fight on the German Eastern Front.  Snyder, supra note 100 at 72.  Id.

[102]  See Appendix E.

[103]  While the convening authority would still select panel members, these members would no longer control the sentencing.  Their vote would be limited to the matter of guilt or innocence.  Any attempt to wrongly convict an individual is already a crime and would remain criminalized under these proposed reforms.

[104]  Gilligan & Lederer, supra at note 48.

[105]  See Appendix A.

[106]  Id.

[107]  Model Rules of Prof’l Conduct (Am. Bar Ass’n 1983).

[108]  UCMJ art. 37 (2016).

[109]  Military Justice Review Group, supra note 98.

[110]  Approximately seventy percent of Army General Courts-Martial from 1995 to 2015 ended with guilty pleas (Notes on file with the Clerk of the United States Army Court of Criminal Appeals).

[111]  MCM, supra note 64, R.C.M 1107 (2012).

[112]  United States v. Davis, 58 M.J. 100, 103 (C.A.A.F. 2003) (indicating that an inflexible disposition on punishment or clemency generally disqualifies a convening authority from taking action on the case.).

[113]  NDAA FY 2014, supra note 75.

[114]  United States v. Martinez, 42 M.J. 337 (C.A.A.F. 1995).

[115]  United States v. Hawthorne, 22 C.M.R. 83 (C.M.A. 1956).

[116]  Lindley, supra note 11, at 37.  The expression of desired punishments by senior leaders was common at least as late as the World War I.  So also was a harsh stance on sexual assault.  Following a 30-year sentence of an American private convicted of rape in France, Brigadier General Ansell, the Acting Judge Advocate of the War Department, told the New York Times the Army believed death would be the sentence for rape going forward.  30-Year Sentence for U.S. Soldier in France, N.Y. Times Mag., Sept. 30, 1917, at 3.   Further in approving the sentence of 30 years, the Soldier’s commander noted the sentence was necessary to uphold “that standard of honor and chivalrous conduct which it has always been the glory . . .  of American Soldiers to maintain.”  Id.  It would certainly be helpful now if Department of Defense leaders could clearly and openly express their views of deterrence to the representatives of the American people and make it clear opinions on sexual assault remain largely unchanged over the last 100 years.

[117]  Westmoreland & Prugh, supra note 10, at 51 (The decisive consequence of misconduct must be such as to reinforce with unmistakable clarity a conscious decision for proper conduct.)

[118]  Sherman, supra note 29, at 15.

[119]  Id.  This is what Brigadier General Ansell envisioned nearly 100 years ago with his 1919 reform proposals.

[120]  Fed. R. Crim. P. 32.

[121]  David Biles, Australia, in Bureau of Justice Statistics, The World Factbook of Criminal Justice Systems (1993), http://www.bjs.gov/content/pub/ascii/WFBCJAUS .TXT.

[122]  Correta Phillips, G. Cox, & K. Pease, England and Wales, in Bureau of Justice Statistics, The World Factbook of Criminal Justice Systems (1993), http://www. bjs.gov/content/pub/ascii/WFBCJENG.TXT.

[123]  Debra Cohen &Sandra Longtin, Canada, in Bureau of Justice Statistics, The World Factbook of Criminal Justice Systems (1993), http://www.bjs.gov/content /pub/ascii/WFBCJCAN.TXT.

[124]  Ilya Nikiforov, Russia, in Bureau of Justice Statistics, The World Factbook of Criminal Justice Systems (1993), http://www.bjs.gov/content/pub/ascii/WFBCJRUS .TXT.

[125]  Jianan Guo et al., China, in Bureau of Justice Statistics, The World Factbook of Criminal Justice Systems (1993), http://www.bjs.gov/content/pub/ascii/WFBCJCHI .TXT.

[126]  See James G. Apple & Robert P. Deyling, A Primer on the Civil-Law System 28 (1995).

[127]  See Major Christopher Behan, Don’t Tug on Superman’s Cape:  In Defense of Convening Authority Selection and Appointment of Court-Martial Panel Members, 176 Mil. L. Rev. 190, 243 (2003).

[128]  See id. at 293.

[129]  UCMJ art. 26 (2016).

[130]  Id.

[131]  United States v. Martinez, 19 M.J. 652 (C.M.R. 1984) (Applying Article III judicial standards when evaluating the impartiality of a military judge.). 

[132]  But see Fredric I. Lederer & Barbara S. Hundley, Needed: An Independent Military Judiciary—A Proposal to Amend the Uniform Code of Military Justice, 3 Wm. & Mary Bill Rts. J. 629 (1994) (arguing the inadequacy of current protections for the military trial judiciary).  While no court has ruled courts-martial to be inherently unfair, Lederer and Hundley call for more insulation of the military trial judiciary.  Id.

[133]  United States v. Fisher, 45 M.J. 159, 161 (C.A.A.F. 1996).

[134]  United States v. Gilley, 56 M.J. 113, 125 (C.A.A.F. 2001).

[135]  UCMJ art. 67 (2016).

[136]  Fed R. Crim. P. 32.

[137]  Erik Luna, Misguided Guidelines: A Critique of Federal Sentencing, in Go Directly to Jail: The Criminalization of Almost Everything 119 (Gene Healy ed., 2004) (noting the whole federal sentencing regime is “a convoluted, hypertechnical, and mechanical system that saps moral judgment from the process of punishment”).

[138]  Fines can be ordered in most federal cases.  See 18 U.S.C. § 3571 (2012); Fed R. Crim. P. 32.  Unlike fines under RCM 1003(b), federal fines are not generally limited to circumstances of unjust enrichment.

[139]  18 U.S.C. § 3571 (2012) (providing that anyone convicted of a felony in a federal district court may be fined up to $250,000, with lesser fines authorized for those convicted of a misdemeanor).

[140]  42 U.S.C.A. § 10601 (West 2013 & Supp. 2017).

[141]  U.S. Dep’t of Justice, A Guide to Equitable Sharing of Federally Forfeited Property for State and Local Law Enforcement Agencies 31 (2009), https://www.justice.gov/criminal-afmls/file/794696/download [hereinafter DOJ Forfeiture Guide].

[142]  UCMJ art. 57 (2016).

[143]  See DOJ Forfeiture Guide, supra note 141 at 31.

[144]  See id..

[145]  See Appendix H.

[146]  The Graduate Course is a specializing judge advocate training program that runs nine months and results in the granting of an LL.M.   It is attended by active duty Army judge advocates following their selection for promotion to the rank of major (syllabus on file with the Judge Advocate General’s Legal Center and School).

[147]  The Military Justice Manager’s Course is a 40-hour block of instruction administered by the Judge Advocate General’s Legal Center and School in Charlottesville, VA (syllabus on file with the Judge Advocate General’s Legal Center and School).

[148]  MCM, Preamble, I-1, para. 3 (2016).

[149]  See generally supra Section II.

[150]  See generally supra Section II.

[151]  UCMJ art. 60 (2016).

[152]  Steven D. Levitt & Stephen J. Dubner, Freakonomics:  A Rogue Economist Explores the Hidden Side of Everything (2005).

[153]  Daniel Kessler & Steven D. Levitt, Using Sentencing Enhancements to Distinguish Between Deterrence and Incapacitation, 42 J.L. & Econ. 343, 343 (1999).    

[154]  Id. at 345.

[155]  Brand, supra note 14 at 59.

[156]  MCM, R.C.M. 305 (2016).

[157]  UCMJ art. 56 (2016).

[158]  UCMJ art. 71, (2016).

[159]  UCMJ art. 57 (2016).

[160]  Andrew D. Leipold, Recidivism, Incapacitation, and Criminal Sentencing Policy, 3 Univ. St. Thomas L.J., 536–58, 546 (analyzing studies of recidivism demonstrating that offenders as a group are much more likely to commit crime than non-offenders).

[161]  Although incapacitation through discharge no doubt aids the military in accomplishing its mission by isolating criminals from the military community, it must be admitted discharge does nothing to prevent the discharged from committing crimes in the civilian community. 

[162]  Kessler & Levitt, supra note 153 at 348.    

[163]  Id.

[164]  Leipold, supra note 160 at 539.

[165]  Kessler & Levitt, supra note 153, 352-59.

[166]  Id.

[167]  Id. at 348.

[168]  Westmoreland & Prugh, supra note 10, at 51 (The decisive consequence of misconduct must be such as to reinforce with unmistakable clarity a conscious decision for proper conduct.)

[169]  See Michael Allingham, Choice Theory: A Very Short Introduction (2002).

[170]  See Francesco Drago, The Deterrence Effect of Prison: Evidence from a Natural Experiment, 117 J. Pol. Econ. 257 (2009)  (showing that after individuals in Italy who were released early from prison were told they would suffer greatly increased penalties if they committed any new offenses, their recidivism rate was much lower than expected).

[171]  Military Justice Review Group, supra note 98, at 503.

[172]  See id. at 32.

[173]  See Kessler & Levitt, supra note 153 at 350; see also Tamasak Wicharaya, Simple Theory, Hard Reality:  The Impact of Sentencing Reforms on Courts, Prisons, and Crime 157 (1995) (“The nominal goal of sentencing reform legislation in the United States [is] to deter crime by increasing the rates of incarceration for a variety of high priority crimes”).

[174]  See Westmoreland & Prugh, supra note 10 at 40.

[175]  See Wicharaya, supra note 177 at 167 (1995) (“Removal of human elements in decision making—that is, official discretion in sentencing—requires remarkable effort and a body of knowledge theorists have not yet discovered.”).

[176]  See Douglas C. McDonald & Kenneth E. Carlson, Sentencing in the Federal Courts: Does Race Matter?: The Transition to Sentencing Guidelines, 1986–90, at 177 (1993), https://www.ncjrs.gov/pdffiles1/bjs/145332.pdf (indicating that the application of the guidelines drove black/white sentencing disparity from 8% to upwards of 40%); see also Joshua B. Fischman & Max M. Schanzenbach, Racial Disparities under the Federal Sentencing Guidelines: The Role of Judicial Discretion and Mandatory Minimums, 8 J. Empirical Legal Stud. 729 (2012) (noting ongoing racial disparity despite numerous alterations to sentencing laws and guidelines and suggesting restoration of judicial discretion as the remedy).

[177]  See id. at 164 (“[T]he assumption that a statute can turn judges into mindless robots, who can be programmed in advance to do what legislators tell them to do with strict obedience, is naïve.”)  In analyzing all jurisdictions in the United States that had implemented sentencing guidelines, the author found wide variance in the application of even the presumptive guidelines in the statistical data.  Id.

[178]  U.S. Sentencing Commission, Federal Sentencing Guidelines Manual (1987).

[179]  U.S. Sentencing Commission, Federal Sentencing Guidelines Manual (2015).

[180]  UCMJ Background, supra note 12 at 2.

[181]  Id.

[182]  Schlueter, supra note 26.. 

[183]  Id.

[184]  H.R. Rep. No. 80-1034 (1947).

[185]  Top Brass Reject Overhauling Military Justice System to Reduce Sexual Assault, PBS NewsHour (Jun. 4, 2013), http://www.pbs.org/newshour/bb/military-jan-june13-sexualassaults_06-04 (presenting Gen. Raymond Odierno, U.S. Army Chief of Staff, discussing his belief that commander involvement is the solution to indiscipline and that removal of commanders will worsen the sexual assault problem).

[186]  Id.