Sitting in judgment
Archived article from Nov 18, 2002
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Hillman is in a good position to evaluate the current state of military justice. From 1989 to 1996, she served a seven-year tour in the U.S. Air Force as a captain and an instructor at the Air Force Academy and also clerked during the summer of 1997 for the U.S. Court of Appeals for the Armed Forces.
Then, in spring 2001, she assisted the National Institute of Military Justice when its Commission on the 50th Anniversary of the Uniform Code of Military Conduct, often referred to as the Cox Commission, convened to suggest changes to the current system of military tribunals.
The Uniform Code of Military Conduct, which has governed military justice for more than 50 years, needs substantial updating, says Hillman, who guided discussions at the commission's hearings and produced the official report recommending reforms that would align military justice more closely with its civilian counterpart.
The military, Hillman points out, is the only federal agency with its own criminal law. "Military justice is substantively different from the civilian legal system. Civilian oversight of the law is fundamental to our nation's core beliefs. State and federal legislative review, executive oversight and public scrutiny through political concerns and media coverage all help to keep our civilian criminal justice system accountable. Those constraints are largely missing in the military justice system.
"The military emphasizes obedience to authority," she continues. "That's just the nature of the institution. Unfortunately, this subservience does not serve a defendant well in the courtroom. The military justice system, by its very nature, effectively works against the accused who, in all likelihood, is of low military rank and probably is unaware of his or her rights."
One change to the manual for courts-martial, which has already received presidential approval, is the move to 12-person juries in capital cases in place of the military juries that with as few as five members previously could impose the death sentence.
Other areas, however, are still in need of reform. Currently, the same authority investigating and prosecuting a military defendant selects the individuals who will determine guilt or innocence; such action, argues Hillman, is rife with potential for undue juror influence.
Sexuality is another area of distinction between civilian and military trials. Adultery and homosexuality can be considered criminal by military judgment. With discrimination and harassment issues on the rise within the armed forces, Hillman believes that the military courts need to clarify their positions on these matters.
"The military world is very insular, and most of the individuals who go into its criminal justice system do so without much protection," says Hillman. "Some awfully young citizens are at the mercy of a specialized regime of justice, and that regime wields power that demands public scrutiny."
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