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Abstract
A wealth of criminological research examines punishment outcomes in state and federal courts, but virtually no research examines the thousands of defendants punished in the military justice system each year. Military courts are characterized by unique case processing norms and distinctive socio-cultural influences that shape punitive decision-making in key ways. The current study provides a broad, systematic analysis of the correlates of criminal case processing in this rarely examined court context. It analyzes a large sample of Air Force court-martial cases, evaluating the evidence for gender and racial/ethnic disparities and the influence of military-specific considerations. Findings indicate that some factors, like offense seriousness, exert influences that are largely consistent with the civilian court literature, but others including gender, race/ethnicity and case processing decisions operate in ways that are particular to military courts. Results are interpreted in light of contemporary sentencing theoretical perspectives.
Notes
1 The summary court-martial is the least severe, is limited to enlisted members, and is akin to an administrative disciplinary action (Morris, Citation2010). In contrast, convictions in special and general courts-martial are similar to civilian convictions for misdemeanor and felony offenses, respectively, with the former limited to a maximum punishment of one year of confinement (Holland, Citation2006; Morris, Citation2010).
2 Whereas the seriousness of the current offense holds similar sway in military courts as civilian courts, prior criminal record is less important. Serious criminal records disqualify individuals from military service, so few if any defendants have extensive criminal histories.
3 Information on awards and medals was collected by hand from court-martial records for a large subset of the data. The bivariate correlation between time in service and awards/medals was r = .83, and additional investigation revealed that the awards and medals measures did not contribute to model fit beyond the time in service variable.
4 Officers, for example, cannot receive reduction in rank or hard labor without confinement (Manual for Courts-Martial [MCM], United States, Citation2012).
5 Attempts were also made to obtain comparable data from the Army and Navy-Marines but data provided by these services lacked key variables (e.g. race), excluded cases from lower courts (e.g. summary and special courts) and had large amounts of missing data for several key variables (e.g. pretrial detention). Future work is clearly needed that takes a comparative approach, replicating the current findings in other service branches.
6 In the military, the “sentencing authority” can be either a judge or a jury. In either case they determine the “adjudged sentence,” which is used to establish the maximum penalty that can be imposed on the defendant.
7 Clemency is modeled as a dichotomous outcome because only a small proportion of convicted cases received any form of clemency (7.6%, n = 188) and less than half of those cases received a form of clemency that resulted in a reduction in sentence severity (2%, n = 51). Future research is needed that collects and analyzes finer distinctions among additional types of clemency in the military justice system.
8 In contrast to civilian courts, only a small percentage of military offenders have a prior criminal record because of military entrance requirements and discharge procedures (Landis et al., Citation1997). In 2005–2006 less than 2% of Air Force offenders tried in courts-martial had a prior conviction (Breen, Citation2011).
9 Time in service is coded as 0 if the member has less than one year of service. Time in service was too highly correlated with defendant age (r = .91) to include the latter as a separate variable.
10 Pretrial agreements can be part of a negotiated guilty plea. Unlike civilian courts, the court type and type of sentencing authority can be negotiated terms of the pretrial agreement. For example, prior to pleading guilty a defendant may enter into a pretrial agreement that stipulates his charges will be referred to a special court-martial and sentenced by a jury.
11 We limit the covariates in the model to individual-level predictors for several reasons. First, consistent with civilian court research (e.g. Ulmer & Johnson, Citation2004), relatively little variation exists in our outcomes between military bases. Second, preliminary analyses including select level-2 variables (e.g. court size) did not significantly improve model fit and resulted in no significant level-2 findings. Finally, given the breadth of individual predictors already examined in the study, a full treatment of contextual effects in military case processing is simply beyond the scope of the current work.
12 Supplemental analyses were also performed using Heckman probit selection models in the sentencing and clemency decision. For the clemency decision the uncorrected estimates are reported because no viable exclusion restriction was available in the data, which resulted in a high degree of collinearity between the correction factor and other predictors in the models (see e.g. Bushway, Johnson, & Slocum, Citation2007). However, comparison of results from the corrected and uncorrected models produced similar substantive conclusions, which is not surprising given that relatively few cases in the data involved acquittals so the censoring rate is very low. These additional analyses are available from the first author by request.
13 Two variables, pretrial agreement and number of dependents, had high rates of missing data in the original data. Both court-martial and appellate court records were obtained and coded by hand to recover this information, which reduced missingness to 12% of cases for pretrial agreements and 10% for dependents. Given that it was not possible to fully recover missing data through individual case files, multiple imputations are performed.
14 Clemency had a relatively uniform distribution across Air Force bases.
15 Among the enlisted category, 77% are junior enlisted and 19% are senior enlisted (i.e. non-commissioned officers).
16 See R.C.M. 1301 in conjunction with the definition of “minor offenses” in Part V of the MCM.
17 Although the consent requirement for the summary court-martial is a limitation on the convening authority’s discretion, if the defendant rejects the forum, the convening authority has the ability to then pursue the more severe court-types which carry more severe punishments and collateral consequences.
18 Additional analysis (not reported) found that the effect for military offenses is driven largely by Absence without Leave (AWOL) offenses (b = 4.5; SE = .31 for AWOL offenses). The probability of confinement for these cases was greater than 80%, which is not surprising given that these crimes, by definition, entail high flight risk.
19 Summary courts-martial are only available to enlisted personnel. Because the legal structure restricts the summary court forum to enlisted defendants, the dummy variable for officers that was used in the pretrial confinement model is replaced in these models with a new dummy variable for junior enlisted (coded 1) vs. senior enlisted (non-commissioned and commissioned officer ranks coded 0).
20 This effect may reflect data limitations because the discipline history measure tends to be dominated by non-judicial punishment actions (Article 15’s) which are reserved for only minor infractions.
21 The “Officer” variable is omitted from the Type of Court Martial model because it lacked variation on this outcome—in our sample of court-martial cases, all officers were referred to a general court-martial (even though by statute they could be referred to a special court-martial).
22 To ensure that our results were not being driven by nuances in the sentence severity scale, we conducted various sensitivity analyses using alternative versions of the scale (e.g. varying the intervals, weighting intervals at the high end of the scale more heavily, and including different types of punitive discharges in different categories). In all cases, the findings were remarkably consistent. The only exception was that the time in service variable, which was negative in all models, became statistically significant when smaller intervals were used for shorter periods of confinement. Full results for alternative versions of the sentencing severity scale are available by request.
23 The pretrial agreement variable is omitted from the clemency model because it is perfectly correlated with the outcome. This reflects a data limitation in which it is not possible to identify sentence reductions due to clemency decisions in cases that involved a pretrial agreement. Discussions with practicing judge advocates indicated that clemency is extremely rare in cases with pretrial agreements, so it was coded 0 in these cases. To test the robustness of our findings, we reexamined the clemency model using the subsample of cases without pretrial agreements. This substantially reduced the sample size (n = 934) but the findings remained substantively the same with a few minor exceptions. The significant trial and general court effects and the marginally significant race differences between blacks and whites failed to reach statistical significance after removing the large number of guilty plea cases with pretrial agreements. All other findings remained robust.
24 As one anonymous reviewer pointed out, because we control for prior case processing outcomes in our statistical models (i.e. we control for pretrial confinement in analyses of court martial type, etc.), our estimates of racial disparity are conditional and do not capture the total cumulative impact of race across all decision points. To investigate this issue, we reexamined our models without controls for prior outcomes (i.e. examining type of court marital without including a control for pretrial confinement, etc.). Contrary to findings in the civilian court literature (e.g. Kutateladze et al., Citation2014), we found little evidence of cumulative race effects in court type, sentence severity or post-sentence clemency in these supplemental analyses which are available from the first author by request.
25 Additional evidence for these claims comes from social research that shows the military possesses higher rates of interracial marriage (Jacobson & Heaton, Citation2003), fewer disparities in promotions (Daula, Smith, & Nord, Citation1990), and higher workplace satisfaction among racial minorities. Work and living environments are racially-integrated in the military, social hierarchy tends to emphasize rank rather than race, and there is more racial diversity in the military population than the general public (Lundquist, Citation2008).
26 These findings are also consistent with discussions the first author held with some military defense counsel who used the phrase, “litigate to mitigate” to describe the selection of a trial to achieve more favorable punishments.
Additional information
Notes on contributors
Patricia D. Breen
Patricia D. Breen received her PhD from the Department of Criminology & Criminal Justice at the University of Maryland and her JD from the University of South Carolina. She is a former judge advocate officer with the U.S. Air Force and served as a Consortium Research Fellow with the U.S. Army Research Institute for the Behavioral and Social Sciences.
Brian D. Johnson
Brian D. Johnson is Associate Professor of Criminology and Criminal Justice at the University of Maryland. His areas of expertise involve social inequality in the justice system, with a particular focus on racial disparities in criminal case processing and sentencing. Much of his research examines contextual influences in punishment as well as the use of advanced statistical modeling techniques to study the criminal process. He is the recipient of the 2008 ASC Ruth Shonle Cavan Young Scholar Award and the 2011 American Society of Criminology, Division on Corrections and Sentencing New Scholar Award. The views expressed in this article are those of the authors and do not reflect the official policy or position of the U.S. Air Force, Department of Defense, or the U.S. Government.