Some numbers

During Fiscal Years 2005, 2006, and 2007, 11,072 servicemembers were convicted by general and special courts-martial. During those same combined three years, 8,648 cases were received by the Judge Advocates General for appellate review, leaving a difference of 2,424.

Now, that doesn't mean there were exactly 2,424 subjurisdictional cases, because the two figures in the paragraph above refer to slightly different populations of cases. We know precisely how many trials were held during each fiscal year and the number of resulting convictions. But we don't know precisely how many of each year's annual total went on to appellate review. Rather, we know the number of cases actually received for appellate review in those years. But a record of trial received for appellate review in November 2007 was tried in Fiscal Year 2006, not Fiscal Year 2007. This slight disconnect is demonstrated by the fact that in FY 06, the Judge Advocate General of the Navy actually received 46 more cases for appellate review than total of Navy and Marine Corps GCM and SPCM convictions during that fiscal year. (That probably means that some review shop found a couple of seabags full of ROTs from 1985 and shipped them all to NAMARA.)

But the effects of this slight population difference should be minimized by looking at a three-year time span. So while we can't absolutely conclude that 22% of all GCM and SPCM convictions over the last three fiscal years resulted in subjurisdictional sentences, that's probably pretty close.

With all that as prelude, WHY IS IT OKAY THAT SOMEWHERE IN THE NEIGHBORHOOD OF 800 SERVICEMEMBERS PER YEAR ARE CONVICTED BUT HAVE NO RIGHT TO APPEAL THEIR CASES IN A JUDICIAL SYSTEM?

I don't think of myself as a cheerleader for the military justice system, but I often opine that on average, it does a better job of handling the run-of-the-mill criminal case than does the typical state court system. And one important reason for that is that unlike in state systems -- where criminal defendants often go unrepresented because they earn too much money to qualify for a public defender but have insufficient discretionary income to afford to hire a lawyer -- almost every defendant in the military justice system is represented by counsel. (On the other hand, for a lot of reasons, I think the military justice system does a poorer job of handling extremely serious or complex cases than does the typical state court system.)

But it seems a serious deficiency that unlike in state or federal criminal justice systems, there are a substantial number of GCM and SPCM convictions -- which carry the lifetime stigma of a federal conviction -- that can never receive judicial appellate review.

We can do better and we should do better. Congress should amend the UCMJ to provide that every general court-martial or special court-martial resulting in an approved finding of guilty is eligible for review by the Court of Criminal Appeals. That would be a much more important reform than broadening military appellants' right to file an unsuccessful cert petition with the Supremes.