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Journal of Law and Policy

Abstract

The National Defense Authorization Act for Fiscal Year 2022 required the military to restructure its court-martial sentencing procedures to more closely resemble those utilized in federal civilian court. Previously, either judges or court-martial panel members themselves determined an appropriate sentence based on their collective intuition without the aid of specific guidelines. Critics have argued that leaving sentencing in the hands of inexperienced panel members has led to large disparities between servicemembers, especially compared to federal court where the United States Sentencing Guidelines are the lodestar. All the while, no comprehensive dataset exists for researchers to determine the extent of variation across courts-martial. This Article is a first step toward solving these problems and informing policymakers in the Pentagon. Using data obtained via a Freedom of Information Act request to the Navy, this Article analyzes sentences for servicemembers charged with child pornography and drug offenses. The Article then compares these results to the applicable sentencing ranges under the Sentencing Guidelines, as well as under the new military sentencing parameters. Generally, the results show that military sentences are closely comparable to those a defendant would receive in federal civilian court based on the Sentencing Guidelines. Therefore, this Article argues that the military’s now-promulgated sentencing parameters may not decrease disparities and could lead to greater sentences, particularly given the large variances within the military sentencing parameters themselves. Accordingly, this Article adds crucial empirical analysis to the discourse.

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