Acoustic Separation in Military Justice: Filling the Decision Rule Vacuum with Ethical Standards
Rachel Elizabeth VanLandingham
Southwestern Law School
July 20, 2013
Ohio State Journal of Criminal Law, Forthcoming
Stetson University College of Law Research Paper No. 2013-14
Commanders in the U.S. military justice system wield vast criminal prosecutorial authority, power largely unconstrained by formal standards, guiding principles, or training. While extensive regulatory guidance exists regarding most every other enterprise a military commander undertakes — from getting dressed to taking a hill — surprisingly little guides commanders as they decide which service members to prosecute for which crimes. Civilian federal prosecutors, in contrast, operate under a rubric of ethical standards, rules, and policy guidelines that at least channel, if not occasionally limit, their enormous criminal justice discretion. The absence of military professional guidelines, or standards of conduct, regarding command prosecutorial discretion contributes to the appearance of uneven treatment of sexual assault and other crimes in the military. This decisional vacuum does a grave disservice to commanders as they execute their disciplinary duties without clearly articulated decisional touchstones. This Article critically examines the lack of formal guidance regarding commanders’ exercise of their prosecutorial discretion. It first contextualizes the need for such guidance by highlighting the so-called acoustic separation typically prevalent in criminal justice systems. Such separation assumes the existence of both societal conduct rules governing behavior, and distinct decision rules for public officials enforcing the former. Since the requisite normative constraints of decision rules are largely unarticulated in the military justice system, the resultant warped acoustic separation allows for the appearance, if not the occasional reality, of arbitrary and inconsistent results. After contrasting the Manual for Courts-Martial’s decisional rule lacuna with the various Department of Justice and American Bar Association guidelines, this Article develops a tailored set of hortatory rules for the military commander to use when making disciplinary decisions. Such hortatory standards of conduct dovetail with the U.S. military’s culture of ethical professionalism, and can help better educate and guide commanders’ prosecutorial and disciplinary decisions, thus reinforcing the "justice" component of the military justice system.
Number of Pages in PDF File: 55
Keywords: Military Justice, Criminal, Prosecution, Acoustic Separation
JEL Classification: K14, K39, K49
Date posted: July 29, 2013 ; Last revised: May 5, 2015
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