The Bradley Manning Sentencing Dynamics

U.S. Army Private First Class Bradley Manning stands convicted of crimes under the Uniform Code of Military Justice (UCMJ). The convictions result from two events. The first was a voluntary plea of guilty by Pvt. Manning to ten lesser included charges in February, and the remainder from a verdict of guilty after trial entered by Judge Denise Lind on July 30.

The maximum possible combined sentence originally stood at 136 years for the guilty counts, but that was reduced to a maximum possible sentence of 90 years after the court entered findings of merger for several of the offenses on August 6. The “merger” resulted from the partial granting of a motion by Mr. Manning’s attorney arguing some of the offenses were effectively the same conduct and were therefore multiplicitous. The original verdict status, as well as the revised verdict status after the partial merger of offenses by the court, is contained in a very useful spreadsheet created by Alexa O’Brien (whose tireless coverage of the Manning trial has been nothing short of incredible).

Since the verdict and merger ruling, there have been two weeks of sentencing witnesses, testimony and evidence presented by both the government and defense to the court. It is not the purpose of this post to detail the testimony and evidence per se, but rather the mechanics of the sentencing process and how it will likely be carried out. For detailed coverage of the testimony and evidence, in addition to Alexa O’Brien, the reportage of Kevin Gosztola at FDL Dissenter, Julie Tate at Washington Post, Charlie Savage at New York Times and Nathan Fuller at the Bradley Manning Support Network has been outstanding.

All that is left are closing arguments and deliberation by Judge Lind on the final sentence she will hand down. So, what exactly does that portend for Bradley Manning, and how will it play out? Only Judge Lind can say what the actual sentence will be, but there is much guidance and procedural framework that is known and codified in rules, practice and procedure under the UCMJ.

Initially, the obvious should be stated, Bradley Manning is in front of an Army court martial process under the UCMJ, and while there is much similar to the traditional state and federal civilian trial processes covered over the years here, much is different and unique. There has been much said about the process in terms of the Manning trial in terms of the secrecy, lack of transparency in docket items and evidence and closed proceedings. Much of it is fair, some is not. Having been involved in a few UCMJ proceedings, the issues of poor access to docket items and pleadings is not unique to the Manning trial, it is inherent in the decentralized and rigid UCMJ system. That is certainly something that is an issue compared to civilian systems and needs to be improved on by the military.

By the same token, the secrecy and utilization of closed proceedings for portions of the trial were not necessarily much different than would have occurred in a federal District Court which also can utilize closed proceedings as well as the CIPA process. All in all, many defense attorneys I know that have practiced in both jurisdictions have, surprisingly, found the UCMJ process to be generally fair and protective of defendants’ rights. Certainly others may differ, but that comports with my experience as well. That is no comment on the Manning proceedings, but just a general observation.

With that overview in mind, let’s take a look at how the process looks to play out for Pvt. Manning. As stated above, the evidentiary portion of the sentencing process concluded late last week. Rule for Courts-Martial (RCM) 1001 outlines the presentation of sentencing evidence and what qualifies as sentencing evidence. Specifically, the prosecution presents personnel records which include the accused’s marital status, number of dependents, character of prior service, performance reports, prior convictions, and any other personnel records which were made or maintained in accordance with Army regulations such as prior non-judicial punishment and letters of reprimand/counseling.

Thereafter, the prosecution presents evidence in aggravation which is defined as evidence directly relating to or resulting from the offenses for which the accused has been found guilty. This may include evidence of financial, social, psychological, medical impact on victims and adverse impacts on the mission or discipline of the service units. Lastly, the prosecution may present opinion evidence as to the accused’s rehabilitative potential.

The defense then may present any matter in extenuation or mitigation that it considers favorable to the the convicted individual, in this case Bradley Manning. This includes information which may explain the circumstances surrounding why the accused committed the offenses and matters which may cause the court to lessen the punishment which may include acts of good conduct, bravery, reputation, or any other trait that is probative and favorable.

The accused has the right to make a sworn or unsworn statement during sentencing. It is not uncommon for a defendant to exercise this right and make an unsworn statement, which is exactly what Bradley Manning did. Other defense evidence frequently consists of letters of support for the accused. Military courts are required to consider all the evidence before them when determining the most appropriate sentence; however, the exact weight that the court gives to any particular piece of evidence is within the deliberative process and discretion of the court, and is not specifically delineated or disclosed with the final sentence.

In a civilian court, many of the separate counts would, for final sentence calculation, be considered as either concurrent or consecutive for sentence determination and, at least in the federal system, the Federal Sentencing Guidelines would then be calculated to provide a range of sentence to guide the court. That, however, is not how it works under the UCMJ.

Under the UCMJ, once the charges and specifications are reviewed, a maximum punishment is determined by the court and, in this case, as stated above, it is 90 years confinement. The court also has available other sentencing modalities such as dishonorable discharge, reduction to the lowest enlisted grade, a reprimand, and the possibility of a fine (although a fine is uncommon in non-financial cases). At that point, the Court will review what Manning has been convicted of and the sentencing evidence to decide what punishment to impose. The Court does not impose a separate punishment for each charge or specification. The court, i.e. Judge Lind, will come up with one lump sum sentence for the entire case and impose it pursuant to RCM 1003 and 1005.

To whatever sentence Pvt. Manning is given, he will be given credit for 112 days as compensation for mistreatment in his initial pre-trial confinement period at Quantico. You would think the court should take further notice of the abuse inflicted on Bradley Manning in his confinement, but such is unlikely to be the case and, again, there will be no way to tell since the basis of the sentence is not specifically delineated by the court. Credit for time in confinement pre-trial and pre-sentence, since his arrest on May 27, 2010, will also be given.

And that is the process for the sentencing of Bradley Manning. Final statements will be given this morning and Judge Lind may well hand down the final sentence as early as this morning or afternoon; Tuesday morning at the likely latest. Once the court has issued its sentence, a host of new factors and processes, including parole and appeal considerations, that are far different from civilian courts (and arguably much more favorable), will come into play, and those will be explained in a separate post once Judge Lind has issued her sentence.

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.
25 replies
  1. Peterr says:

    Thanks for the overview, bmaz.

    In reading the Politico piece on Manning’s pretrial confinement, it seems bizarre that Lind would find that Manning was mistreated and therefore deserves a reduction in any future sentence, but that those who mistreated Manning at Quantico are excused from any liability for their actions.

    This is the ultimate example of the “mistakes were made” mentality. He *was* mistreated, but because there was no specific intent to mistreat, the officers in charge get a pass? When did incompetence in a brig commander become a virtue?

  2. Frank33 says:

    You forgot to mention this is a corrupt Kangaroo Court by a military dictatorship.

    You forgot to mention that Bradley Manning committed no crime. He did “leak”, classified information revealing war crimes by the Homeland. But the Homeland does their own “leaking”, every day to promote the wars and to conceal their genocide.

    You forgot to mention that you have slandered Manning and his supporters for the last two years.

    You forgot to mention that you are friends with the prosecutors in this Legal Farce and your friends want to murder Manning. You have no credibility to judge Bradley Manning, because you have repeatedly shown your prejudice against him.

  3. bmaz says:

    @Frank33: Leave another comment like that here, and it will be your last. Those types of lies and those types of statements are wholly unacceptable here whether aimed at me or anybody else. For the record, I do NOT know any of Mr. Manning’s prosecutors, never have known any of his prosecutors, have never advocated his murder (and it is libelous per se to say that I have), I know of no other people that want to do so and I have no prejudice against Bradley.

  4. Peterr says:

    @bmaz: I think you were pretty clear on all this in a post last February.

    there has been much good and sunshine that has resulted from Bradley Manning’s acts and, it appears, little in the way of grave harm as originally claimed. At this point, there is really not much dispute on that. Further, Manning appears to be a genuinely troubled kid who had his heart in the right place in wanting to get, at least as to the items he knew and understood, important information out to make a difference; although, it is more than a stretch to say that is credible as to the vast majority of the classified documents, which he had no idea of what was really contained therein. Most all of the documents were just an indiscriminate and petulant classified information dump by Manning.

    It is easy to admire Bradley Manning, in a way, for his righteous ideals, and to feel pity and sorrow for the pain and lot in life he has experienced emotionally and physically both before, and after, his acts leading to his charging and incarceration. And I feel that for him. But such a feeling does nothing to detract from the fact he appears to quite clearly have committed clear offenses as to data transfer and information protection, not to mention conduct unbecoming, all in direct contravention of the UCMJ. You can quibble about whether Manning’s conduct constitutes “aiding the enemy”, and while that may seem to be an extreme reach to many, the technical elements can be argued by the government and sent to a jury. The remainder of the charges, however, appear clear cut if the government’s evidence is what it appears to be and is properly adduced at trial.

    Yep. Looks like the words of a prejudiced, string-him-up kind of guy.

    Or, you know, not.

  5. peasantparty says:

    The kicker is:

    Our Govt is guilty of the same crimes it is accusing Manning of doing. I am still angry that the prosecution’s evidence for the other offenses not pled to are held in secret. Evidence, should be clear and defined. Also, not some preconceived event that may never happen.

  6. scribe says:

    The UCMJ is the product of reforms instituted after World War II and during the Cold War. In short, Congress took the many, many complaints about the military-justice system – both substantive and procedural – as it existed during WWII, and the best legal thought and scholarship then available about creating a legal system fair to the accused and to the military, espeically its mission, and put it into law. During WWII, the military justice system was rife with abuse. Commanders frequently were capricious in their charging and sentencing, prosecutorial abuse – particularly “command influence” – was common, and defendants’ rights were close to non-existent.

    The situation had been even worse during WWI. The Articles of War which applied to the millions of conscripted servicement in WWI was essentially the same code as enacted in 1775 by the Continental Congress. Describing matters as they stood then and arguing in favor of reform, the Acting Judge Advocate General of the Army stated:

    under such a theory, a commander exercises almost unrestrained and unlimited discretion in determining: who shall be tried, the prima facie sufficiency of proof, sufficiency of the charge, all questions of law arising during the progress of the trial, the correctness of the proceedings and their sufficiency in law and fact. Under such a theory all these questions are controlled not by the law but by the power of the military command.

    Following the debates during and immediately after WWI, there were some reforms but most of the power over courts-martial remained in the hands of commanders, most particularly the power to affect an officer’s evaluation reports (at the time, all court-martial jurors were officers) based upon how he performed as a court-martial attorney (prosecution or defense) or voted as a court-martial juror.

    There were significant reforms in substance and procedure after the experience of WWII and the unification of the armed services in the Department of Defense, resulting in the actual UCMJ in 1951, replacing the old “Articles of War”.

    There were further, farther-reaching reforms in the 1968 Military Justice Act, most particularly taking the JAGs – both prosecution and defense – out of the “rating chain” and command of local commanders and placing them under the Judge Advocate General for both command and evaluation purposes. Defense lawyers got their own “rating chain” to further insulate them and their evaluation reports from retribution for doing too good of a job. You’ll recall that during the Bush/Cheney Administration, there was no small amount of controversy over the lawyers for Gitmo defendants getting hosed on their evaluations, denied promotion and run out of the service, usually in direct proportion to their zeal in representing their clients.

    As it stands now, and making accommodations for the unique nature of military service, the military justice system is fairer to defendants than the ordinary federal system. For one, AFAIK, there is little to no chance of prosecutors amping up charges as retribution for the accused declining to take a plea. That, in and of itself, is a big improvement.

  7. Adam Colligan says:

    @bmaz: I’m wondering if you could comment on what I have for some time perceived as an asymmetry in military punishment but have some trouble articulating or supporting with evidence.

    Essentially: are two similar offences — one committed in the context of over-zealous, inappropriately gung-ho action, and the other committed in the context of self-doubt about what a unit is doing — likely to be treated differently?

    On the side of the very grave, for example, I have concerns about whether someone like Nadal Hassan would face a different kind of scrutiny than was faced by the soldiers who committed the Haditha massacre. To the extent that it makes sense to compare murders at all, I think there are people who could make a reasonable case that that what happened to civilians at Haditha was more wanton and evil than what happened to soldiers and civilians at Fort Hood. I’m also thinking about comparisons between the cases of, say, Hasan K. Akbar (the Kuwait fragger) and Robert Bales (the Kandahar spree killer).

    In short, I have this perception that I can’t shake that there is some double standard in military justice between crimes committed against those (even innocent civilians) associated with “them” and crimes against those people or ideas associated with “us”. I’m not looking to litigate the Manning case in any depth here (I don’t think he’s a hero *or* a depraved traitor). But I’m wondering if in the culture of military justice, leaking classified information that makes the US military look bad (like the so-called “collateral murder” video) is treated fundamentally differently than leaking classified information that may have even greater tactical value to the enemy but that makes the US military look cool (like, say, the bin Laden raid memoirs).

    Bmaz, do you or your friends with UCMJ experience have thoughts on whether there is an explicit (five extra years because you’re stabbing your brothers in the back) or implicit (the people you murdered were “them”ish, so your PTSD is more of an excuse) asymmetry between these two vaguely-defined types of cases?

    To the extent that “A Few Good Men” was most people’s introduction to courts martial, that story portrayed a culture in which there was tension between protecting the military’s integrity through deference to even manically overzealous officers and protecting the military’s integrity through demands that common soldiers must act to protect the weak, even in the face of orders from above that go too far. What does the culture of military justice look like in the real world?

  8. scribe says:

    What does the culture of military justice look like in the real world?

    Not like the movies. The usual case is a commander exasperated with a bad soldier who, finally, has screwed up enough and clearly enough to justify bringing a case. The usual case is a dope violation, occasionally a theft of government property or violent crime – rape, murder. The usual result is a conviction because the mope got caught with the goods.

    Cases like Manning’s are the once-in-a-generation exceptions to the rule.

  9. bmaz says:

    @scribe: When Scribe says this:

    As it stands now, and making accommodations for the unique nature of military service, the military justice system is fairer to defendants than the ordinary federal system. For one, AFAIK, there is little to no chance of prosecutors amping up charges as retribution for the accused declining to take a plea. That, in and of itself, is a big improvement.

    I think it is spot on. There is a far greater flexibility inherent in the system, and I think there are arguably better due process and evidentiary rights as well.

  10. Adam Colligan says:

    @scribe: I guess that what I had in mind was really a subset of cases that deal with activity apparently motivated by something beyond simple poor discipline, petty criminal gain, or personal grudge. When there is some identifiable context to a crime that lends it an air of “breaking the faith” versus an air of “going too far”, does that case then go into one of two different cultural grooves in the military justice system? Or does the system actually effectively focus on the details of the act (how evil or destructive it is) and therefore treat deliberately murdering an innocent woman the same, whether she’s an Iraqi or a Texan? Doubtless, as you’ve pointed out, most offences don’t fall into either category, or they’re ambiguous (rape of fellow soldiers is a terrible betrayal of your military, but hanging you out to dry for it also for some reason seems to break an implicit code?) but my curiosity is about those that do.

  11. Frank33 says:

    I had thought Bmaz had made a comment that he personally knew some of the Prosecutors of the Kangaroo Court. I apologize if this is not the case. But Bmaz did claim inside knowledge of the prosecution evidence.
    http://www.emptywheel.net/2011/12/24/on-the-manning-art-32-court-secrecy-and-nat-sec-cases/#sthash.OOdIihrt.dpuf

    However, from my understanding, the prosecution has a whole lot more evidence directly linking Manning that has not been made public

    This suggests some inside information. And it may have been of the “Top Secret” variety. Did the Manning prosecutors “leak” to Bmaz?

    You call it “abuse”. I call it torture. And I am not surprised by any abuse inflicted on Manning by this Kangaroo Court.

    You would think the court should take further notice of the abuse inflicted on Bradley Manning

  12. scribe says:

    @Adam Colligan: The subset of cases you describe is too small to admit of generalization. I will say, though, that the fact Manning declined a jury trial in favor of a judge-trial should speak volumes.

    More years ago than I’d like to admit, the officers of the battalion I served in felt obliged to hold in high regard, if not buy beers for, the one captain who got every officer in the battalion excused from jury duty on peremptory challenges for over 2 years. Given jury duty was viewed as something on the order of root canal, this was understandable. The reason? He was chosen for jury duty. On viewing the defendant diddy-boppin’ on his way in to a session of his trial, from the jury box this officer exclaimed “sit that guilty motherfucker down.” Immediate mistrial. Until defense counsel rotated out on the end of their tours, no officer from our battalion was a juror….

    Also, one of the 1968 reforms to the UCMJ was the provision that enlisted soldiers could sit as jurors in cases involving enlisted defendants (the overwhelming majority of cases). This right is almost never exercised because the enlisted jurors are almost always senior enlisted soldiers – lifers – who are even less sympathetic to defendants than officer jurors might be.

  13. Adam Colligan says:

    @scribe: It’s interesting that the feature you picked out where a bias or asymmetry would be found is in the jury pool. In my mind, I was picturing an environment where it would have a lot more to do with the prosecutors’ decisions on what charges to lay and judges’ decisions about how harsh the penalty should be, how compelling the mitigating factors are, etc.

  14. orionATL says:

    excellent expert commentary. informative in a major way to this NAA.

    comments are also very informative.

    tx.

  15. What Constitution says:

    This man has suffered more than enough. We, by any measure, have benefitted as a nation by his actions. Let him go now. And upon further reflection, pardon him and thank him.

  16. Frank33 says:

    Captain Kangaroo Joe Morrow is a genuine ratfucker. Captain Kangaroo declared that there may not be a soldier in the history of the US Army that displayed such extreme disregard for the soldiers above him and the president of the United States.

    Hey, Captain, there are at least two generals who have, McChrystal and Petraeus.

    And the Captain wants to steal $100,000 from Manning. Any money Manning might have will be stolen by the Homeland. So Manning cannot get adequate legal representation. Or fight the Homeland further with appeals.

    The terrorist David Headley was sentenced to 35 years for helping murder 160 people in Mumbai. But Headley might even be free now, as everything about Headley remains secret. The other US government terrorist Ali Mohamed received no punishment for the African Embassy Bombing. He has remained free.

    The Obama Wars escalate against American citizens.

  17. orionATL says:

    some factors i hope the judge is considering:

    1. manning was an extremely competent soldier at his assigned work, analysis of enemy activity – testimony was he saved lives. testimony was that he was the most competent in his unit.

    2. manning expressed to his commanding officer (or nco) his concern that some iraqui individuals were being imprisoned unfairly.

    3. manning was mentally ill for some part of his iraq tenure.

    4. manning’s mental illness was known to his commanding officer (or nco) who retained him in his position because manning was the best in his unit and because that unit was short handed.

    5. military discipline in manning’s unit was lax.

    6. computer security concerns in manning’s unit were lax and nearly non-existant.

    7. computer security within dod was lax and remained that way for years after manning’s release of docs. security problem may have been due to the need to communicate with a vast array of military units.

    8. film of american apache helicopters murders of 12 iraqui citizens, including journalists, was a novel insight into the war for american citizens who had never served in armed forces there.

    9. manning clearly said in chat room talks after the fact that he was doing this out of public interest and out of his concern that the american people needed to know what was really going on.

    what will the judge make of these facts.

    against them are mannings guilty plea, his various infractions of law,

    and, most importantly, the loud, angry, silent cry from military and civilian authoritarians for revenge against manning for showing others of his fellow citizens what the war in iraq involved in terms of real human beings.

  18. orionATL says:

    @orionATL:

    i should add one consideration more that i believe a wise judge would consider:

    manning has been through a lot for a very young man. he has shown intellectual talent in his soldierly work and he has shown high moral sensitivity and i telligence in releasing some of the us gov documents he released.

    such talent is unusual enough that it would be a horrendous waste to lock this individual away for much of his life simply to meet the baying cry for retribution for revealing details of an exceptionally tawdry era in ametican policy.

  19. orionATL says:

    @orionATL:

    i should add one consideration more that i believe a wise judge would consider:

    manning has been through a lot for a very young man. he has shown intellectual talent in his soldierly work and he has shown high moral sensitivity and i telligence in releasing some of the us gov documents he released.

    such talent is unusual enough that it would be a horrendous waste to lock this individual away for much of his life simply to meet the baying cry for retribution for revealing details of an exceptionally tawdry era in ametican policy.

  20. Q says:

    What is model for parole in U.S. military justice? If Manning were to get the maximum 90 years, would he be eligible for early release? What is the likely amount of time he would serve on a 90 year sentence?

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