VII. Military

For purposes of this study, the foregoing "Section VI. Federal," including the "Recommendations For Federal System" and in turn "Section V. California," including the "Recommendations For California," apply generally to the military justice system in the United States. Thus, without repeating a lot of the same material here, it is recommended that readers generally apply the same principles, concepts and recommendations in evaluating what should be done about the military justice system. In this section, however, there will be additional comments particularly applicable to that system.

For a discussion of how the military justice system dovetails into the federal system on the issues under discussion here, see footnote 234 at page 602 of my 1989 Pepperdine Law Review article¹⁹⁶and pages 458-59 of my 1993 Western State University Law Review article.¹⁹⁷ Congress passed a 1986 statute conforming military law to the insanity defense provisions of the 1984 Federal Comprehensive Crime Control Act. Thus, all of the foregoing comments regarding developments in the federal system are applicable to the military justice system.

It is of particular interest that, consistent with the position taken by Department of Justice representatives, on March 3, 1987 the President signed an Executive Order which attempted to conform military law to the "all or none" position taken by the Department to the effect that the 1984 statute drew a flat line at the insanity defense. The Executive Order said that in the military "A mental condition not amounting to a lack of mental responsibility ... [i.e. under the insanity defense] is not a defense, nor is evidence of such a mental condition admissible as to whether the accused entertained a state of mind necessary to be proven as an element of the offense." However, court opinions, including the United States Court Of Military Appeals, held that this all or none position was not intended by the 1984 Insanity Defense Reform Act. This is consistent with the extensive discussion in the foregoing Phase Two of Section VI (Federal) involving the fact that the mens rea model still exists in the federal system. See particularly note 140 and accompanying text.

See also language in the 1996 Court of Appeals for the Armed Forces case, United States v. Curtis, 44 Military Justice Reporter 106, at 149-150 which indicates that the principles in the court opinions mentioned in the immediately foregoing paragraph still apply in military cases. Also see a discussion of these developments in the military system in note 6 at pages 41-42 of the Moskovitz and Grall 1998 Pocket Part, referring to Section 64(a) of Professor Paul H Robinson’s treatise on Criminal Law Defenses (cited in note 1 in this article). It is also of interest that in support of its discussion this Moskovitz-Grall 1998 pocket part at the end of note 6 (on page 42) refers to my 1989 Pepperdine article (cited in supra note 1 and used throughout this study).

Recommendations For Military

Again, without repeating them here, the recommendations for California and the federal system, together with the related "Additional Considerations," as previously set forth in Sections V and VI, are applicable with reference to the military justice system. Of course, Congress will have to act first to see what can be done with the federal system in general, and then bring the military system into line. As previously indicated in the "Additional Considerations" points (a) and (b) at the end of the Recommendations for California and the federal system, none of this will be easy.

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 Notes

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 ¹⁹⁶ Huckabee 1989, supra note 1 at 602 n. 234.

 ¹⁹⁷ Huckabee 1993, supra note 1 at 458-59.