CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Friday, August 5, 2022

VanLandingham on Command Corruption of Courts-Martial

Rachel VanLandingham (Southwestern Law School) has posted Ordering Injustice: Congress, Command Corruption of Courts-Martial, and the Constitution (Hofstra Law Review, Vol. 49, No. 1, 2020) on SSRN. Here is the abstract:
Remedies in criminal procedure, Justice Cardozo lamented almost a century ago, at times require that “the criminal is to go free because the constable has blundered.” This result is premised on the theory that grave injustices in the criminal procedure arena require strong countermeasures to both deter future abuses and reinforce systemic legitimacy. In the military, fundamental structural vulnerability to command corruption of its criminal justice system has infrequently warranted reversals of otherwise valid convictions: some convicted military criminals have gone free because the command chain blundered.

While military appellate courts’ reversals of servicemember convictions due to unlawful command influence are rare, two high-profile military sexual assault convictions overturned on this basis caused much consternation.
The resultant, and understandable, teeth-gnashing about lack of justice for military sexual assault victims belied significant under-appreciation of the grave vulnerability of military justice to commanders’ whims, a structural defect strongly represented by these cases.

As Justice Holmes long ago noted, hard cases make bad law, and that is exactly what Congress did in reaction to these troubling cases: made bad law. Despite the significant due process issues at stake, in response to these cases Congress, in the 2020 military spending bill, legislatively tried to gut the military trial judiciary and appellate courts’ ability to remedy, and hence deter, the most insidious instance of command corruption of military criminal proceedings: unlawful command influence.

But Congress cannot legislate away the Constitution. This Article shows how the top military appellate court can protect the due process rights of those in uniform by reminding Congress that the statutory life preserver it deflated is constitutionally required. The military’s uniquely coercive environment remains unchanged, with its justice system swimming against the same powerful, and at times corrosive, command tide—but now with much less protection against such corruption, at least by statute, unless the military judiciary acts. The top military court should rule in fidelity to the Constitution by determining that unlawful command influence in all its forms, including the “apparent” variety, violates due process, regardless of the latest statutory changes, and therefore should grant appropriate judicial remedies—including reversals—when such violations occur.

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