Why is military justice different than civilian? Military justice isn’t all that different than that of the civilian world, given the unique purpose and climate that the military functions in.
Even though the basic objectives of any criminal law system is to discover the truth, acquit the innocent without unnecessary delay or expense, punish the guilty proportionately for their crimes, and prevent and deter future crime. The military justice system shares each of these objectives, with the added purpose of enhancing good order and discipline within the military.
Now that we understand that there are two systems, why is it really all that necessary to have separate systems?
This isn’t an unusual question, particularly when a newsworthy or high-interest case shows up in the public news. The best summary statement I have heard is that the military is, by their
nature, a specialized society apart from the civilian world. It’s also important to consider that the military demands and depends on disciplined personnel.
I tend to consider the issue of having disciplined personnel the most important of the reasons why the military justice system is different than the civilian system.
How are they really different? Military personnel are stationed or deployed worldwide and they have to be instantly mobile and available to relocate. This affects anyone that’s accused as well as having a potentially adverse effect because witnesses may be here today and gone tomorrow. In a world where justice is dependent on political interests and religious whims, it’s important for the military member and their commander to have a method to maintain and ensure the equitable discipline of the military members. It’s equally important for the member to know what is expected of him.
Members of the Armed Forces are subject to rules, orders, proceedings, and consequences different from the rights and obligations of their civilian counterparts. In a world where the hazards of combat place everyone in situations where they have to depend on their comrades more than civilians ever do, means it’s important to be able to depend on the guy/gal next to you. Discipline can and usually is viewed as being every bit as important as individual liberty interests.
Several aspects affect and greatly influence discipline in the military. One aspect is the kind of discretion that a commander has. Commanders have a wide variety of options available to them to deal with disciplinary problems. These options include administrative actions ranging from an informal counseling, extra training, withdrawal or limitation of privileges, and administrative separations, to punitive options such as punishment under Article 15, UCMJ, and trial by courts-martial.
That commander’s discretion is broad and affects many aspects of the military justice system. Of course, there is prosecutorial discretion and to a great degree, this is a result of the commander’s discretion. To decide to prosecute someone in the military is an action that lies with the commander. The civilian system is accustomed to having a prosecutor made decisions about whether to prosecute someone. The military relies on the Commander to make this decision. Of course, there is an interaction between the commander and the Judge Advocate in deciding how the case is to be handled, but the decision is ultimately the Commanders. Technically, it is the commander who approves and signs the charging document and who ultimately makes the decision whether a case is to be referred to a trial by court-martial.