This is a really thought-provoking piece about military justice. It explains the longstanding issue of relaxing military entry standards as a war drags on and the need for bodies to fill boots increases. As standards decrease, people less fit (or unfit) are nevertheless accepted into the military. There should be no surprise that crime and misconduct then rise. As season 2 of Serial pointed out, Bowe Bergdahl may be such an example - he washed out of Coast Guard basic training for a mental health breakdown only to be later let into the Army when they were desperate for soldiers in Afghanistan. Not much of a surprise that he goes off and does something crazy. And the military justice system then has to sort things out.
During the time of the draft, the results could be wildly unfair. The government relaxed its standards and forced unfit people into the military, then proceeded to court-martial them when they fail. With our post-draft era, the fairness factor has eased a bit because at least now unfit folks are agreeing to the arrangement.
But how should a court-martial panel, or the military in general, or even the United States population in general, treat a person who commits a crime under the UCMJ - perhaps even a heinous crime - when you factor in not only circumstances such as combat fatigue and post traumatic stress disorder, but also a pre-existing mental health issue that should have barred the person's entry into service? Especially if the military knew when they accepted this person into their ranks that he or she had a mental health condition and that the condition increased the risk that this person would not be able to handle combat stresses?
Where does blame really fall here? Isn't there a lot of it to go around? How harshly do we treat this type of criminal? That's a really tough call. And while this problem has been around forever, it is an important issue to consider - and consider very carefully - with all the proposed changes to the UCMJ in the works. Taking sentencing power away from a military jury and vesting it solely in the hands of a military judge, for instance, could be devastating in these types of cases because juries in general will be more likely to look at the entire picture and give a fair result than a hardened, government-appointed judge. Even worse, sentencing guidelines and mandatory minimum sentences imposed by law that give neither judge nor jury the ability to use discretion in a case could result in massively unfair results. Especially now that Congress has already cut out the convening authority's ability to grant clemency (reduce a sentence) after most courts-martial.
Bright lines and generalizations make for good politics but oftentimes bad results. Considering the amounts of rights and liberties waived by a service member when they choose to go into the military and subject themselves to the UCMJ, our country should at least give those empowered with doling out justice in a court-martial the ability to use their discretion in determining a fair sentence. No one other than those in the court-martial will see, hear or fully understand all the circumstances in any one individual case.