I'll Decide What Cases to Prosecute and You Decide What Infantry Tactics to Employ -- A Proposal to Eliminate the Commander's Power to Refer Charges to Trial by Court-Martial -- Another Step Toward Disassociating the Word 'Military' From 'Justice'

摘要

Unlike the civilian criminal justice system, 'prosecutorial discretion' in the military justice system is vested completely in the commander. When public attention has focused on the military justice system recently, most often it has centered on the question of who decides how cases are disposed of and how the decision is made. While this may not be a problem in fact, it is perceived by many as such. This thesis will examine the historical context in which 'prosecutorial discretion' was given to commanders. It will address whether the reasons for that decision enjoy continued vitality today, especially in light of the expanded jurisdiction of courts-martial. It will explore the problems created by commanders when they exert 'unlawful command influence,' both intentionally and unintentionally, during the pretrial process. The paper will also examine whether the 'checks' that Congress created within the Uniform Code of Military Justice (U.C.M.J.) successfully combat the problem of 'command control.' This thesis will propose modifications to our present system of military justice that will decrease the central role of the commander. It will argue that 'prosecutorial discretion' exercised in the decision to refer charges to courts-martial belongs not with the commander, but with the military equivalent of a civilian district attorney. It will propose a new model where commanders will retain the power to conduct 'non-judicial punishment' and summary courts, but will transfer the power to convene and refer charges to special and general courts-martial (to include 'NJP/Summary refusals') to a judge advocate.