Guest Column
The military justice system has problems. Here’s how to fix them. | Column
If Congress intends for the military justice system to actually administer justice, then it must empower it to do so.
The U.S. Capitol Dome
The U.S. Capitol Dome [ YURI GRIPAS | Abaca Press ]
Published Oct. 30, 2021

The military justice system is resource-starved. Talk to any person who has experience with this system, and most have an opinion on how to fix it — but all will agree that something needs to change. In fact, Congress discusses the issues plaguing our system almost daily. But even if Congress addresses some of these issues through policy changes, one looming problem will remain: The military justice system is underfunded and under-resourced, especially when compared to the federal justice system. Just as rearranging furniture in a room does not create a bigger room, changing policy cannot solve systemic military justice issues.

Steven Arango
Steven Arango [ Provided ]

At first glance, this issue may seem niche and unimportant. But if we care about national security, or basic notions of fairness and justice for those who secure it, the military justice system should receive as much attention and support as its civilian parallel. Compared to federal courts, the military justice system is an afterthought. Congress can no longer treat it this way.

So how does the military justice system differ from the federal justice system? First and foremost, it has two missions. In addition to being a system of justice, it is also a system that must ensure the “good order and discipline” of America’s military. For that reason, it must provide for the prosecution and defense of crimes that do not exist in the civilian world (for example, not showing up to work or being insubordinate) while also handling a significant load of more traditional and quite serious crimes.

Brandon Essig
Brandon Essig [ Provided ]

In spite of this dynamic, the staffing for judges, prosecutors and defense counsel in the military pales in comparison to their civilian counterparts. Federal judges generally have two full-time law school graduates at their disposal to provide legal research, writing, and in-depth thought analysis for the judge’s caseload. These “clerks” and their ability to provide accurate and timely information enables the judge to make decisions and operate their courtroom efficiently.

Federal judges also employ a large administrative staff who help with court notifications, emails, scheduling and any other administrative tasks necessary to maintain efficiency in the court. In contrast, military judges have access to almost none of these resources. As an example, Marine Corps’ military judges do not have anyone to help them with legal research or writing, nor their myriad administrative tasks.

The same is true — and in our experience even more pronounced — for the military prosecutors and defense counsel who make the system work every day. Beyond the good-order-and-discipline docket, their caseload includes serious matters you would find in any federal courtroom — child pornography, rape, assault and sophisticated frauds. Yet the resources available to a U.S. attorney or federal public defender’s office dwarf those of their military counterparts — indicative of their importance in Congress’ eyes.

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Federal prosecutors have access to paralegals, an alphabet soup of federal agencies, and victim/witness coordinators. Federal public defenders do not have federal agents at their disposal, but they employ experienced, competent investigators in addition to full-time social workers to help their clients and families navigate a federal criminal case. Both offices have paralegals to help with coordinating all aspects of trial preparation. These resources enable the civilian system, as imperfect as it sometimes might be, to achieve the basics of justice — efficiency, fairness, and true access to the court process. Their absence from the military justice system burdens these same fundamental principles.

For a snapshot of this dynamic, consider that military prosecutors must handle even the most mundane of trial logistics, such as ensuring jurors have pens and paper for taking notes, witnesses travel is arranged for the trial, and even ensuring the proper uniform is available for the accused during the trial. While the burden on the defense counsel is less logistically intensive, they still must handle all the administrative tasks a public defender’s office would assign to support staff. In other words, military lawyers — the only individuals who can work on substantive legal issues in a case — spend time on tasks that non-lawyers could do.

Military lawyers are trained to practice law, but their ability to do so in a timely and efficient manner is hindered when they are overburdened with ministerial matters. This is not to say that these tasks are beneath military lawyers or that lawyers are somehow better than those who work on these issues. In fact, the enlisted service members who support military justice are motivated and competent, but the nature of the military’s promotion-and-move system means they can only advance their careers by serving temporarily in such roles. As a result, it’s difficult to develop the type of career expertise that exists among support staff in the civilian legal world.

As legal work is pushed aside, current cases sit idly while more cases pour in. To survive professionally, military lawyers and enlisted support work overtime, which most do without hesitation. But this overtime is not enough to administer justice to cases that require it. As caseloads build, military trial offices become more focused on disposition — that is, resolving cases through means other than trial, such as a plea deal or non-legal action. Who can blame this mentality shift though? When time is short and resources are scarce, offices have to prioritize some cases over others. But when this disposition-mindset occurs, the system loses focus of one of its primary goals: justice.

In a time of need for ever-evolving military weapon systems to answer ever-evolving threats from our adversaries, we recognize that raising concerns about funding for military justice may seem trifling. But the cost of the changes we contemplate here are miniscule in comparison, and an improved system of military justice furthers the core values of our nation — the reason the weapons systems exist in the first place. In our view, it’s a matter of first principles, and if Congress intends for the military justice system to actually administer justice, then it is time for Congress to empower it to do so.

Steven Arango (@stevenjarango) is a Judge Advocate in the Marine Corps and serves as a prosecutor at Marine Corps Base Quantico. He is a former federal law clerk for U.S. District Judge Fernando Rodriguez Jr. Brandon Essig (@brandon_essig) is a partner in the Birmingham, Ala., law firm Lightfoot, Franklin, & White, where he primarily practices white collar criminal defense. He’s also a former federal prosecutor and Marine. The views expressed in this article are those of the authors and do not necessarily represent the views of the Marine Corps, Department of the Navy, Department of Defense or the U.S. government.