SENTENCE REVIEW AND CLEMENCY

Another way to cut the brig population and save money and manpower for the Navy is by the exercise of clemency. In addition to reducing the term of confinement, clemency action suspends a BCD on probation; it may also save a member of the Naval Establishment both for himself and for the Navy. If rehabilitation is a success, the Navy will benefit to substantially the same extent as in the case of securing a reenlistment. Thousands of dollars invested in training and experience are saved in each successful case.

Pursuant to Article 740, UCMJ, the Secretary of the Navy has delegated to the Judge Advocate General the authority to remit, reduce, or suspend the unexecuted portion of any court-martial sentence. Prior to the time I became Judge Advocate General this authority was seldom, if ever, used. No realistic attempt had been made to look at the sentences coming in from all over the entire Naval Establishment and to take action to make them more uniform, more reasonable, and more equitable.

With this in mind I instituted as soon as practicable after becoming JAG, a Sentence Review Procedure. This type of review and the type of clemency I extend is different from the review made by the Naval Clemency Board. In addition, there are still many cases which I see that do not go before the Clemency Board. That Board is principally concerned with the record the man has made at the Retraining Command. My review looks at these sentences more from the view of uniformity, appropriateness, and equitableness. I think I can safely say that during just my first year as Judge Advocate General, I took more clemency actions than the sum total of all the clemency actions taken by all previous JAGs put together. There is absolutely no indication that these actions lessened the deterrent effect of courts-martial punishment or impaired discipline in any way.

I am pleased to note that because of a more enlightened sentence review by convening and supervisory authorities and by the boards of review, the number of cases in which I have had to take clemency action has gone down each year since 1957.

FROM NOVEMBER 1957 to May 1960 I suspended the punitive discharge in a total of 232 cases. During this same period I reduced the forfeitures and/or the confinement in a total of 258 cases. I am unable to give a "batting average" on the question of how many of these 232

restorees were successful. These figures are just not available, but I sincerely believe that it has always been over 50% successful. From piecemeal figures which are now available I can say that during the period from January to August 1959, out of 23 men I restored to duty (from Retraining Commands), 18 proved to be successful (78%).

It used to be the theory that a punitive discharge should not be suspended and the man restored to duty unless it was felt that there was almost a 100% chance that he would be successful-in other words, a "sure winner". I have never agreed with this theory as I believe that before restoring a man to duty, it is only necessary that there be a reasonable chance of success. When you consider the thousands of dollars the Navy has invested in each man, I don't think it is necessary or even good business to just restore the "sure winners". We have little to lose if a probationer does not succeed-all we need to do is revoke his probation.

As the result of my clemency actions and such indoctrination in my theories as I was able to spread to the field, other reviewing authorities began to improve their sentence reviews. To assist these reviewing authorities in exercising clemency more intelligently by giving them a more adequate basis for judging the efficacy of reducing or suspending all or part of the sentence, I urged the utilization of the Post-trial Interview in each individual case. This technique is used very effectively by the Air Force. The better the Post-trial Interview, the more the convening and other reviewing authorities have to go on, and the better their percentage of restoration success will be especially when combined with more effective leadership.

A Navy-wide acceptance and utilization of the Post-trial Interview would mean that even more young men could be salvaged. Unfortunately, the law specialist personnel shortage has hindered the Navy-wide adoption of this technique. It is being used very successfully on a limited and selected basis, especially by certain Marine Commands.

Many of these same Marine Commands were quick to pick up and utilize another probation technique which I advocated. In many cases where there is no punitive discharge, it is desirable to suspend the entire confinement portion of the sentence, plus any burdensome forfeitures which would make rehabilitation more difficult. Such a policy eliminates short-term periods of confinement in Retraining Commands which periods are inadequate to permit full utilization

of their rehabilitation techniques. It more efficiently uses our manpower and also eliminates the often undesirable influence that brigs and habitual criminals therein may have on the young and impressionable first offenders.

A SUSPENDED SENTENCE is a powerful deterrent factor and upon the commission of an additional offense, provides an expeditious method of reconfining an accused without a lengthy and expensive court-martial. There are cases, of course, where it becomes obvious maybe in a post-trial interview-that both the man and the Service would benefit from having the man serve a short period of confinement in a local brig or a longer period of confinement at a Retraining Command where he will be exposed to their specialized rehabilitation facilities.

This same probation technique can also be effectively used in many cases where a punitive discharge is involved. This is especially true in the case of some first-time offenders who have learned their lesson just from being tried and convicted. Just recently the Bureau of Naval Personnel has approved and adopted this probation technique of suspending the entire sentence in appropriate cases and it is now included in an Instruction on Clemency Policies recently issued. (BUPERSINST 5815.1 of 30 June 1960)

This program of enlightened sentence review and more intelligent clemency action has already saved the Navy many scores of thousands of dollars by reducing the brig population and by salvaging many young men for continued service. This area remains a fertile field for even greater savings in money and manpower. (I might add that a byproduct of this program has been an improvement in public relations-both as to the general public-made up in part of the relatives of our accuseds-and Congressmen.) THE SHORT CUT FOR HOPELESS CASES

A FINAL MAJOR way to cut brig popula

tion is by the short cut of the administrative discharge. This has reduced-and can much further reduce-both the number of courtsmartial and the brig population. In many cases such discharges are the best way of ridding the Navy of the useless expense and headaches resulting from offenders who are going to remain bad citizens regardless of whether confined and/or punitively discharged.

As expected, statistics showed that the majority of our offenders were people in the low intelligence group. Cooperating with

BUPERS, a program was started to give administrative discharges and early releases to many chronic or potentially chronic offenders with an extremely low IQ and GCT. (Some selectivity had to be exercised because we do have some "good citizens" in this group-including a few gold hash-marked chiefs.) This program was somewhat similar to one carried out very successfully in the Army called "Operation Meathead".

I had a little difficulty, at first, convincing some commanders that it was still better in some cases to give an offender an administrative discharge than to go through the time and trouble of a trial. (It was formerly Navy gospel that you didn't give a man an administrative discharge if disciplinary action was pending against him.) They were worried about setting a precedent and losing the deterrent effect of bringing the offender to trial.

This latter doesn't make much sense in many cases where you have a "bum" whom you know is never going to be any good to the Navy. It is just throwing good money after bad to go to the expense and trouble of bringing him to trial and keeping him in the brig, in an attempt to retrain a man who has no potential. As far as a deterrent is concerned I do not believe the good citizens in the Navy are going to go AWOL just because we give one of our bad citizens an Undesirable Discharge rather than a Bad Conduct Discharge and six months confinement. I realize, of course, that in certain instances trial is necessary. More frequent use of the administrative discharge has helped considerably, however, to reduce our brig population and the number of our courts-martial.

Even better than getting rid of ne'er-do-wells or downright "bums", however, is not to recruit them in the first place. The Bureau of Medicine and Surgery as long ago as World War II began work on a most intelligent program of psychiatric screening of recruits. It has become more and more effective with every additional year of experience. This real "preventive medicine" program avoids both thousands of disciplinary problems and other equally expensive and unproductive emotional and psychiatric problems requiring treatment, medical discharges, and the very costly physical retirements.

Looking around the Naval Establishment for bottlenecks to break so as to speed up the course of justice, I embarrassedly discovered several in my own office. We made some changes in our processing system, and shifted some expert

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and any other witnesses developed through the trial counsel's own independent investigation. The generally accepted technique of interviewing witnesses is to first allow the witness to tell his own story in its entirety with as little interruption as possible. Thereafter the trial counsel can further develop all aspects of the witness's testimony, eliciting specific information in response to pointed questions. A trial counsel should be as amicable as possible in his pretrial dealings with the prospective witnesses for both sides. During the pre-trial interview the witness should be questioned about his statement as contained in the file (if any) to insure that it is, in all respects, accurate and true. If the statement in the file is deemed inadequate, a new statement should be taken from the witness after the oral interview has been completed and signed by that witness. This should also be done if there is no previous signed statement in existence. A trial counsel should deal as candidly with the witness as possible, be frank about the reason for calling him, and should inform the witness exactly what he expects to prove by that witness' testimony. With these basic considerations in mind, the trial counsel should proceed to interview the station investigator, the witnesses to the accused's statement, the victim of the larceny, the master at arms to

4. See: Busch, Law and Tactics in Jury Trials (1950), § 204; and Goldstein, Trial Technique (1935), 88 58-64.

whom Roe made the report that the money was missing, Samuel P. Smith (the friend of the accused), the Office of Naval Intelligence agent (the fingerprint expert), and all other prospective witnesses for both prosecution and defense. It should be borne in mind that while the trial counsel may wish to question many witnesses prior to trial, it may well be that only a few of these witnesses will be essential for the proper proof of the case.

After all pre-trial interviews have been completed and the trial counsel is convinced that he has carefully investigated all the facts surrounding the commission of the offense, is thoroughly familiar with them and the scene of the crime, he has reached the point for planning the proper presentation of the case to the court. At this point he should again review the essential elements of the offense charged and determine what testimony or other evidence will prove each element as set forth in his "Proof Analysis Sheet", as mentioned above. In the case under consideration, the trial counsel should first call the victim, Richard A. Roe, who, being a shipmate of the accused, could testify to the effect that the accused present in court was, in fact, John W. Doe, Seaman, U.S. Navy, presently stationed at the U.S. Naval Air Station, Norfolk, Virginia, and point the accused out. Then Roe could testify that he placed the money in his locker on the date alleged and awakened the next morning to find it missing, having given no one permission to take this money. That he has not recovered the money and that it is still missing and unaccounted for. By this testimony, the trial counsel has proved that the offense was committed. Now to proceed to the next step, that the accused named in the specification was the person that committed the offense. The trial counsel should now call the station investigator. The investigator's testimony should establish an adequate foundation for the introduction of the accused pre-trial statement into evidence. The next logical witness for the prosecution would be Samuel P. Smith, the accused's friend, who could testify concerning the accused's impecunious state on the evening in question, his sudden financial improvement the following morning, and his actions at that time.

Next would come the fingerprint expert, who, after being properly qualified as an expert in this field, could express his opinion concerning the fingerprints found on Roe's locker. At this point, a trial counsel has proved a prima facie case of larceny against the accused.

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A Message From

THE JUDGE ADVOCATE GENERAL

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trouble shooters in to clean up backlogs fast. The results look good. Prior to 1956, the average elapsed time for processing a case through the JAG office including Board of Review action through promulgation was 28.7 days. For the first six months in 1959, we cut this to an average of 17.5 days-a better than 30% saving. The thought that the same type of cure might help others with their backlog of UCMJ cases led to the establishment of two JAG task forces one for the East Coast and one in California.

NAVY LAWYERS OPERATE on an austere basis. We have only about 500 regulars and Reserves on active duty, headed up by one flag officer, in contrast to the Army and Air Force with about 1100-1200 each, headed up respectively by 5 and 6 general officers.

Furthermore, with 65% of all activities having authorization for lawyers being manned by only one law specialist, it is self-evident that an insufficient number of lawyers is available to handle expeditiously-unpredictable surges of crime in particular areas. To relieve any unacceptable delays and to buttress the available number of lawyers, two JAG Task Forces (East and West Coasts) were established. Each is a traveling nucleus of legal talent, available for duty as trial and/or defense counsel and/or law officer-plus top-notch court reporters if needed.

This task force concept was purely an administrative solution to relieve personnel shortages-shortages based on unpredictable surges of crime in particular areas and on the unrealistic personnel ceilings placed on the number of law specialists. The circuit-riding task forces have made a material contribution to cutting down delays in processing time resulting in more speedy justice and reduced brig populations.

As Judge Advocate General I found myself in a position to take one conservation measure which had needed taking for a long time. This concerned the costly and time-consuming task of typing up records of trial which resulted in a finding of not guilty on all charges and specifications. Many acquittals result in records of trial that run to 500-600 pages. Busy commands would get 'way behind in typing up their guilty-finding cases (with men in the brig) be

cause their clerical personnel were tied up working on two or three lengthy acquittal

cases.

Obviously, the situations I have just described is utter nonsense even though the law, literally and technically interpreted, required the preparation of a complete record of trial. Without ignoring the law, I issued a JAG Instruction to all convening authorities directing that in acquittal cases it was only necessary in the first instance to type up just enough of the record to show that the court had jurisdiction over the accused and the offense-which can be done on two or three pages at the most. I then instructed them to type up the entire record when and if, they ever got completely caught up on the typing of their guilty cases. Most commands were smart enough to read between the lines.

Other programs, particularly the Pretrial Agreement, have also played a big part in reducing the processing time of our courtsmartial.

PROBLEMS OF DISCIPLINE AND MORALE

Leadership the Real Answer

THE MOST OBVIOUS method of conserving money and manpower in the administration of military justice is to cut down the number of offenses. This is the real way to cut down the brig population. The best answer to cutting down the number of offenses is effective leadership. It has been proved time and time again that when the caliber of leadership is raised and improved, the number of offenses drops. The higher the quality of leadership, the less need there is for the application of military law. Even the best leader must be backed up by the sanction of power, applied through an effective system of military law; but the better the leader, the more he relies on the affirmative power of his own character, and the less he needs to rely upon the negative power of the law.

I have often wondered what makes the great leader of men in the Navy-and I have almost always found the same answer. I do not mean what makes the great strategist or the great naval statesman, but what makes the great leader of men. What is the test? I finally found out that the common answer is this: the great leader is one for whom his men will cheerfully give up their lives. That is the real test of leadership.

What will induce a man to cheerfully risk his life on the word of his commander? This is one of those strange paradoxes about us humans. The only thing worth giving up your life for is to have a reason for living. These leaders are the ones who are able-by their actions, by their attitudes, and by their personalities-to project to their men the fact that they are important to the Navy and that they have an important mission in life. When, by actions as well as words, the naval officer makes them recognize their importance to the Navy and gives them their reason for living-then, they are willing to cheerfully obey his commands that take them to the risk of almost certain death.

When you get a man thus convinced of the importance of the mission of the Navy and his part in that mission, you certainly have a man who is so convinced of his importance to the Navy that he will not be absent without leave. He feels the Navy needs him.

Moral Leadership Program

THE SECRETARY OF the Navy's “Moral Leadership Program" launched by General Order 21 of 17 May 1958 has resulted in almost incredible accomplishments in developing such leadership. One index of the state of discipline and hence the effectiveness of leadership-is the incidence of general courts-martial, which in turn indicates the number of serious offenses.

In the disturbed immediate post-war years of 1946-47, this incidence reached the all time high of almost 12 per thousand men in the Navy. Now this has been cut to 1.4 per thousand. The excellence of this figure is proved by the fact that in the so-called "good old days" between World War I and World War II, under the Articles for the Government of the Navy, the best annual figures were three general courts-martial per thousand men.

CONCLUSION AND RECOMMENDATIONS

More Mast Power Needed

THE MAJOR TRIBUTE of this report of four years of improvement in the administration of justice in the Navy, is therefore due to naval leadership. The Judge Advocate General can assert with pride, however, that Navy lawyers were there to help. The Uniform Code of Military Justice is now administered as an effective instrument of discipline and morale as well as justice. All the major criticisms by command

of UCMJ have been met-but one: the Commanding Officer does not have sufficient powers of non-judicial punishment, and must too often refer minor offenses to summary courts-martial. This is one defect in UCMJ which can not be cured by administration: a change in the law is required. The proposed amendments we have pending would not increase the commanding officer's present inadequate confinement power of five days at all so far as forces afloat are concerned. It would only extend this too-limited power to commanding officers ashore. This is not enough.

I recommend instead an amendment to the law to vest in the commanding officer all the present powers of summary courts-martial, including 30 days confinement, and to abolish summary courts-martial.

Time and time again as I have discussed naval justice with groups of officers such as at the Naval War College, I have been confronted by this statement:

Admiral, as the Commanding Officer of my destroyer I have more experience, more maturity and more responsibility than any other officer on my ship. Under the law, however, I was substantially without effective power to punish any of the crew. On the other hand, I could appoint my youngest and most inexperienced LTJG as a summary court, and he could then exercise powers of punishment vastly greater than my own. Does this make sense?

I could never conscientiously answer that it does make sense. It's contrary to the great tradition of the sea that the commanding officer must not merely represent authority-he must be authority. It also runs contrary to the tradition of command that responsibility must be backed up by concomitant authority; and certainly it is the commanding officer who has the responsibility for all of his men and for their discipline and morale.

AS A MEMBER of the statutory committee

on the Uniform Code of Military Justice, I obtained the concurrence of the Judge Advocate General of the Army, the Judge Advocate General of the Air Force, the General Counsel of the Coast Guard, and all members of the Court of Military Appeals in a proposal to confer the summary court powers on the commanding officer. The Commandant of the Marine Corps also concurs and recommends the adoption of this proposal. If all the Services, together with the Judges of the Court of Military Appeals go to Congress with a unanimous request for this