The Case for a Gap between Verdict and Sentencing at Court-Martial

Abstract

The military is the only American jurisdiction that nearly always proceeds immediately from a verdict of guilt to the imposition of punishment. This compressed timeline produces a self-reinforcing dynamic: Because counsel lack the time to develop detailed factual records and mitigation evidence between conviction and sentencing, the military’s new sentencing guidelines remain rudimentary—and their rudimentary character is then cited to justify maintaining the very procedural constraints that stunted their development. Recent legislative and regulatory reforms—specifically the mandate for judge-alone sentencing in noncapital cases and the introduction of sentencing parameters and criteria—have dismantled the historical justifications for immediate sentencing and made this cycle both more visible and more consequential. A comparative analysis of federal and state sentencing practices demonstrates that a default, waivable interval between conviction and sentencing in contested cases would break this cycle. To implement one, specific amendments should be made to the rules for courts-martial.