Justice, Military

Justice, Military. This entry consists of a seven‐part examination of the system of military law and justice, the system established by Congress for the government of persons in the armed forces. The organization is topical and then chronological within each article. The entries are:Articles of War (1775–1950)Uniform Code of Military Justice (1950–Present)Military CrimesMilitary PoliceMilitary CourtsMilitary PunishmentMilitary PrisonsFor related entries involving military or war crimes, see Atrocities; Desertion; Genocide; Laws of War; Martial Law; Mutiny; Rights in the Military, Citizens’; Rape by Military Personnel; Treason; War Crimes.
Justice, Military: Articles of War (1775–1950) Articles of War was the term used to describe the statutes governing military discipline and justice in the American armed services from 1775 to 1950, when they were replaced by the Uniform Code of Military Justice.

With the outbreak of the Revolutionary War, the Continental Congress in 1775 adopted two codes of military law: the “Rules for the Regulation of the Navy of the United Colonies” and the “American Articles of War” (the latter revised in 1776). Both were written by John Adams—then an attorney, representative from Massachusetts, and chair of the Naval Committee—and both were drawn largely from the codes governing the Royal Navy and the British army.

After the adoption of the Constitution and the establishment of the federal government, the first Congress merely stated that the provisions from the earlier period would continue to apply. The U.S. Navy was expanded in the late 1790s, and in 1799, Congress adopted an Act for Government of the Navy, revising the Continental Rules. These also applied to the Marine Corps, as part of the navy. A year later, Congress passed the Articles for the Government of the Navy (1800). Within the navy, this governing statute was nicknamed “Rocks and Shoals” because that phrase was included in the provision authorizing punishment for those responsible for damage to ships due to improper navigation. The statute was amended periodically to reflect changes in the service. In one important reform of discipline, flogging (the whipping of sailors with a lash) was abolished as a punishment in 1850. An amendment in 1855 authorized summary courts‐martial, with a single officer sitting as the military tribunal. During the dramatic, if temporary, expansion of the navy in the Civil War, the Articles for the Government of the Navy were recompiled, and this compilation, as amended, remained in effect through World War II. The navy's ambitious plans to rewrite the articles after 1945 were overtaken by the drive for “unification” of the armed services and by the passage of the Uniform Code of Military Justice, which was modeled largely after the army's Articles of War.

The Articles of War governing discipline and justice in the army, first formulated in 1775 and revised in 1776, underwent minor revisions in 1806 by John Quincy Adams, son of the original drafter. The basic Articles of War remained in effect for 111 years, from 1776 to 1917. During that period, there were a number of important changes: one in 1830 regarding the appointment of courts‐martial; and several during the Civil War, primarily intended to extend courts' jurisdiction over crimes and persons. Some articles of the code were deleted, such as those relating to irreverent or indecent behavior at worship services, or the use of oaths or other offensive utterances.

The Articles of War were substantially revised to deal with the mass army of citizen‐soldiers in World War I. At the instigation of Enoch Crowder, judge advocate general of the U.S. Army, Congress passed a complete revision in March 1917. There were major problems with this revision, however. For example, in November 1917, under its wartime provisions, thirteen black enlisted men were too hastily executed after a court‐martial following a race riot in Houston. Secretary of War Newton D. Baker prohibited any further executions without express approval from Washington. During World War I, a number of other citizen‐soldiers were sentenced to long prison terms or even to death for breaches of military discipline, although these sentences were subsequently modified. Widespread complaints in the press and Congress against such mistreatment led to Senate hearings in 1919, which contributed to a revision of the Articles of War in 1920, although the liberal reforms proposed by Samuel T. Ansell, acting judge advocate general while Crowder had been provost marshal general in charge of the draft, were rejected after a heated public debate.

Similar complaints of the harshness of military discipline during and after World War II led Congress to adopt the Elston Act of 1948, modifying the code of conduct for the army and the newly independent air force. In 1950, as part of the movement toward unification as well as modernization of the postwar armed forces, Congress made the name Articles of War obsolete when it adopted the Uniform Code of Military Justice.

During the period 1775–1950 in which the army and navy Articles of War were in effect, they were supplemented by a number of various publications. General Orders issued by the commanding general of the army or his subordinates, particularly during the Civil War, set maximum punishments, established court‐martial procedures, and formally supplemented the Articles of War. The general regulations for the navy and Marine Corps, first published in 1841, contained provisions relating to courts‐martial. The army published its first Manual for Courts‐Martial in 1917, an amended version in 1921, and another in 1928; the last remained in effect through World War II. The navy's counterpart to the army's Manual was Naval Courts and Boards, the 1937 edition of which was used throughout World War II. These manuals provided details for the implementation in all services of the military laws designed to maintain discipline and secure justice in the armed forces.

Bibliography

William Winthrop , Military Law and Precedents, 1886; 2nd ed., 1920.
Robert Pasley and and Felix E. Larkin , The Navy Court‐Martial: Proposals for Its Reform, Cornell Law Quarterly, 33 (1947), pp. 195–234.
Frederick B. Weiner , Courts‐Martial and the Bill of Rights: The Original Practice, Harvard Law Review, 72 (1958–59), pp. 1–304.
Frederick B. Weiner , American Military Law in the Light of the First Mutiny Act's Tricentennial, Military Law Review, 126 (1989), pp. 1–88.
John M. Lindley , A Soldier Is Also a Citizen: The Controversy over Military Justice in the U.S. Army, 1917–1920, 1990.
Jonathan Lurie , Arming Military Justice: The Origins of the United States Court of Appeals, 1775–1950, 1992.
Jonathan Lurie , Pursuing Military Justice: The History of the United States Court of Appeals for the Armed Forces, 1951–1980, 1998.

Michael Noone

Justice, Military: Uniform Code of Military Justice (1950–present) The Uniform Code of Military Justice (UCMJ) is a comprehensive federal statute that established essential procedures, policies, and penalties for the military justice system. Enacted by Congress in 1950, the UCMJ continues in effect to the present with few alterations since its passage.

The UCMJ actually resulted from the confluence of two factors. First was underlying dissatisfaction with some existing practices of military justice, especially as related to courts‐martial appeals. Second was the unification of the armed forces into one Department of Defense “establishment” in 1947–48. This step rendered retention of traditional systems such as the army's Articles of War and the navy's Articles for the Government of the Navy impractical and unnecessary.

The UCMJ was essentially the work of civilian committee selected by Secretary of Defense James V. Forrestal. It included the three undersecretaries of the army, navy, and air force, with a well‐known professor of evidence from Harvard Law School, Edmund Morgan, as its chair. This committee was assisted by a “working group” that consisted of several military lawyers, as well as some civilian attorneys from the newly established Defense Department. Although the military was well represented on the working group, which undertook the initial drafting of most articles in the new code, in general the UCMJ was a civilian effort. Indeed, Forrestal made it clear that where the Morgan Committee could not agree, he would ultimately decide, and that once the proposed code was submitted to Congress, the military's role was over. Unlike earlier attempts to reform military justice, in the case of the UCMJ, although the military might discuss and even debate, it was unable to derail.

Nevertheless, Morgan's committee recognized that the two basic sources of military discipline that had effectively guided the armed services since the Revolutionary era had to be considered and to a great extent integrated into the new legislation. Indeed, its great challenge was to synthesize key provisions from both army and navy regulations into a uniform, workable system, as well as to introduce new innovations now deemed necessary. Thus, it retained—and still retains—some traditional prohibitions that had existed for almost two centuries such as the bans against “conduct unbecoming an officer and a gentlemen,” “dueling,” and “improper use of a countersign.”

Based upon plenary congressional authority to enact rules and regulations for the military, the UCMJ ranks just below the Constitution as the basis for federal military regulation. Indeed, on several occasions its provisions have been held to supersede those found in the Manual for Courts‐Martial, the detailed book of regulations supposedly issued by the president in his capacity as commander in chief, but in fact drafted largely by the military. The court that made these rulings may be the best example of innovative change produced by the UCMJ.

Creation of an appeals court within the military had been proposed during World War I by acting Judge Advocate General (JAG) officer Samuel Ansell, but strong opposition from the army doomed both Ansell's efforts and his continued military career. He was still alive, however, in 1951 when the UCMJ, replete with not one but two levels of appellate review, became law. As submitted to Congress, the UCMJ included two separate appellate systems: an intermediate court, administered within the military; and an appellate tribunal, to consist of three judges drawn from “civilian life.” Morgan had intended the new court to have the same perquisites and benefits as other federal Courts of Appeals, including life tenure; and indeed, as passed by the House in 1949, the UCMJ so provided. But the final Congressional product rejected life tenure, and substituted limited terms of fifteen, ten, and five years. To this day, while emphasizing that its highest court for military appeals is no different from other federal appellate tribunals in terms of salary, Congress has consistently declined to give its judges life tenure.

Although justifiably described a civilian effort, the UCMJ was heavily influenced by the military viewpoint. Thus, commanders retained (and still do) authority to select members of a court‐martial. The intermediate appellate courts, controlled by the military, received greater authority than Morgan had originally intended. Moreover, the code failed to set out a clear demarcation between the JAGs and the new court concerning supervision over military justice. In spite of these possible weaknesses, the basic premises of the UCMJ—that a single military justice system can be applicable to all branches of the American military, and that its “uniformity” would not undercut its effectiveness in time of armed conflict—have been vindicated since 1951.

Bibliography

Homer F. Moyer, Jr. , Justice and the Military, 1972.
Jonathan Lurie , Arming Military Justice. Vol. 1 of Origins of the United States Court of Appeals for the Armed Forces 1775–1950, 1992.
Jonathan Lurie , Pursuing Military Justice. Vol. 2 of History of the United States Court of Appeals for the Armed Forces, 1951–1980, 1998.

Jonathan Lurie

Justice, Military: Military Crimes The Articles of War adopted by the Continental Congress in 1775 and based largely on those of the British army specified military offenses ranging from mutiny to misbehavior before the enemy. However, there was no American counterpart to a British provision which, if the offenses occurred where there were no civil courts, granted jurisdiction over soldiers who committed common law crimes (murder, theft, robbery, and rape) to courts‐martial. Congress assumed that these crimes, if committed by soldiers, would be punished by U.S. civilian courts. The navy and Marine Corps were, of course, permitted to try their overseas and afloat offenders according to naval custom. A congressional act of 1863 first gave the army concurrent jurisdiction over common law crimes, if they occurred where the civil courts were functioning; otherwise, the military had exclusive jurisdiction. Thus, any history of military crimes must distinguish between the land and sea services and between military offenses and civil offenses, while recognizing that some military offenses, such as theft of government property, will have a civil analog.

The military crimes specified in the present Uniform Code of Military Justice can be found in the 1775 articles: absence offenses, disrespect and disobedience, offenses involving military property, misbehavior (mutiny, malingering, provoking speech or gestures). The articles followed British practice and provided for the discharge of any officer convicted of “behaving in a scandalous, infamous manner, such as is unbecoming the character of an officer and a gentleman.”

In 1776, when the articles were revised, Congress added a provision that had, in various forms, been in the British code since 1686 and that prohibited “[a] 11 Crimes not Capital and all Disorders and Neglects, which Officers and soldiers may be guilty of to the Prejudice of good Order and Military Discipline, though not mentioned in the above Articles of War.” The “conduct unbecoming” provision was amended in 1806 by deletion of the phrasing “scandalous and infamous,” although the words were retained in the Naval Code. Nineteenth‐ and early‐ twentieth‐century military law treaties listed the kinds of behavior that usually involved lying or dishonorable failure to meet financial obligations but also applied to public drunkenness, bigamy, wife abuse, association with prostitutes, and mistreatment of, or undue fraternization with, enlisted men. The 1951 Manual for Courts‐Martial discussion of Article 133, where the provision is now found, acknowledged the presence of women in forces by providing that they should be held to the standards of a “gentlewoman.” In recent years, however, officer misconduct is usually charged under Article 134, as conduct prejudicial to good order and discipline.

Article 134 serves as the legal basis for charging three classes of offenses, two found in the 1776 articles: crimes and offenses not capital, and conduct prejudicial to good order and discipline; while the third, conduct of a nature to bring discredit upon the military service, was added after World War I. The “crimes and offenses” provisions incorporate all federal crimes that are not punishable by another article. Thus, a military counterfeiter of U.S. currency would be charged under this provision. If there were a violation of a state law that had no federal counterpart, the offender could only be charged under Article 134 if the conduct was service‐discrediting. Officers who failed to pay their debts were often charged under this provision which, unlike the “conduct unbecoming” article, did not require dismissal on conviction. Gen. Billy Mitchell was court‐martialed in 1925 for service‐discrediting behavior after issuing a press release accusing the War and Naval Departments of “incompetency, criminal negligence, and almost treasonable administration of the National Defense.”

Of the three provisions, that relating to conduct prejudicial to good order and discipline is the most comprehensive and potentially the most subject to abuse; hence its traditional British nickname, “the Devil's Article.” The 1928 Manual for Courts‐Martial listed typical offenses ranging from abuse of a public animal to self‐maiming. The list was not intended to be exclusive: adultery was added in the 1951 Manual, but there had been prosecutions for adultery during and immediately after World War II. Fraternization—undue familiarity between individuals of different rank—is considered to be prejudicial to good order and discipline. However, a 1985 decision by the Court of Military Appeals, Johanns v. United States, concluded that a male officer's sexual relationship with three enlisted women in his unit was not prejudicial in the absence of an explicit prohibition in service regulations. Subsequently the services issued regulations intended to define fraternization.

Crimes that have no counterpart in civilian life—mutiny, desertion, misbehavior before the enemy—have been the subject of numerous monographs, as have war crimes. The term war crime has no legal meaning, but it is used to describe deviations from accepted standards of what used to be called the law of war and now is called international humanitarian law. General Order 100 (1863), “Instructions for the Government of Armies of the United States in the Field,” prepared by Professor Francis Lieber of Columbia College, was the first codification of these standards. War crimes encompass both offenses against a belligerent's armed forces and against the civilian population in the war zone.

Crimes committed overseas by visiting forces create particular problems because international law gives the local country the right to prosecute. When U.S. troops were first deployed overseas to France and England during World War I, Washington agreed to a distribution of jurisdiction based on the nature of the offense. Similar agreements were entered into during World War II and became formalized as Status of Forces Treaties when Cold War requirements mandated a continued U.S. troop presence in Europe and the Far East. The treaties established three categories. Behavior that was a crime in the sending state but not in the receiving state would be tried by the sender. Behavior that was a crime in the receiving state but not in the sending state would be tried by the receiver. When behavior violated both countries' laws, the receiving state had primary claim but was expected to give “sympathetic consideration” to the sender's request to try the offender. Host country waivers of jurisdiction, permitting the United States to try military rapists and murderers of local citizens, were, and continue to be, a persistent source of controversy.

Bibliography

George Davis , A Treatise on the Military Law of the United States, 1915.
Richard C. Knopf , Crime and Punishment in the Legion, 1792–1793, Bulletin of the Historical and Philosophical Society of Ohio (July 1956), pp. 232–38.
Clifton D. Bryant , Khaki‐Collar Crime, 1979.
Lawrence J. Morris , Our Mission, No Future: The Case for Closing the United States Army Disciplinary Barracks, Kansas Journal of Law and Public Policy, 6 (Fall 1996), pp. 77–98.
Gary Solis , Son Thang, an American War Crime, 1997.

Michael Noone

Justice, Military: Military Police Military forces have always assigned some personnel to ensure that order was maintained, stragglers or deserters were brought under control, and prisoners of war taken into custody. In the Revolutionary War, the Continental army in 1778 adopted British practice by creating a provost unit, but calling it by the French name, the Marechaussée Corps. From 1783 to 1861, however, the U.S. Army simply detailed regular troops to perform military police functions when necessary.

The Civil War led to the creation of a massive if temporary system of provost marshals. The huge armies of citizen‐soldiers proved unruly in camp and field. Consequently, in 1861, the Union army established regimental provost marshals assisted by designated enlisted personnel to serve as a permanent police force, with the duties of preventing riotous conduct, controlling stragglers, and preventing looting and personal violence against civilians as the army advanced into the South. In March 1863, the army created a Provost Marshal Department, which, with congressional authorization, extended the role of the provost marshals from controlling undisciplined Union troops and guarding Confederate prisoners of war to including operation of the system of conscription even at the local level, as well as control of local government in occupied Southern states.

In World War I, a temporary Military Police Corps was created, with assigned soldiers wearing “MP” armbands. It garnered soldiers absent without leave (AWOL), guarded prisoners of war in France, and investigated desertion, draft evasion, and related military offenses, as well as policing military prisons and prisoner‐of‐war camps in the United States. In 1920, Congress refused a permanent MP corps, but authorized reserve MP units.

Similarly, for most of its history, the navy relied primarily upon temporary assignment of regular personnel to maintain order and discipline. The navy assigns sailors to duty as a shore patrol (with “SP” armbands) to prevent disorder between crew members on liberty and local civilians. Longer‐term security is provided by naval masters‐at‐arms or by Marines, who are assigned to guard naval “brigs” aboard ship or ashore.

With the United States mobilization for World War II, Secretary of War Henry L. Stimson, on 26 September 1941 authorized a Military Police Corps, and it has remained a permanent part of the U.S. Army ever since. Nearly 210,000 officers and enlisted personnel served in the army's MP Corps in 1941–45, and an MP school was established, first in Arlington, Virginia, and after the war in Fort McClellan, Alabama. During World War II and the wars in Korea, Vietnam, and the Persian Gulf, MPs secured movement in and out of theaters of operation, processed and guarded thousands of prisoners of war, and in war and peace provided protection for military facilities.

During the guerrilla‐style Vietnam War, MP units sometimes engaged directly with the enemy, securing lines of communication by preventing Viet Cong roadblocks, ambushes, and attacks on U.S. facilities. Such active participation in tactical operations led to the redesignation of the Military Police Corps as an arm and a service with a primary mission of combat support. In Kuwait during the Persian Gulf War, the MPs processed and secured nearly 70,000 Iraqi prisoners of war.
[See also Prisoners of War: Enemy POWs.]

Bibliography

Brent L. Richens and and Russell B. Shor , 18th Military Police Brigade, Three Years in Vietnam, Military Police Journal, 19 (September 1969); p. 5.
Mary R. Hines , Military Police Duties in the Federal Army, Military Police Journal, 11 (Summer 1984), p. 20.
Thomas J. Johnson and and Mary R. Himes , The Battle of the American Embassy, Military Police Journal, 11 (Summer 1984), p. 6.
U.S. Army Military Police School , Military Police Corps Regimental History, 1986.

John Whiteclay Chambers II

Justice, Military: Military Courts Military courts can be classified by the persons over whom they exercise their jurisdiction. Courts‐martial and military courts of inquiry are concerned with members of the armed forces. Military commissions and provost courts (operated by officers of the provost marshal general) exercise their power over civilians who, although not affiliated with the military, may face a military court in time of war or rebellion. In the early days of the republic, the distinction was not as clearly drawn. Winthrop's Military Law and Precedents remarks on the courts‐martial of civilians for collaboration with the traitor Benedict Arnold in 1780, for spying on New Orleans in 1815, and for inciting and supplying the Creek Indians in Florida in 1818.

The same confusion attended courts of inquiry, authorized by the Articles of War, and considered to be quasi‐judicial boards of investigation; yet it was such a court, convened by Gen. George Washington, which recommended that Maj. John André of the British army be treated as a spy and executed. Courts of inquiry were common in the 19th century, when one was used to inquire into the conduct of Major Reno at the 1876 Battle of the Little Bighorn. However, they came to be replaced by less formal administrative boards. Still authorized by the Uniform Code of Military Justice, they have in recent years only been utilized by the U.S. Navy, for example, to deal with the losses of vessels such as the USS Scorpion, and in the Pueblo incident (1968).

Similarly, military commissions (established to try civilians for criminal offenses) and provost courts (intended to resolve civil disputes) are still authorized by the Uniform Code. When established in occupied territory and utilized to try cases involving local residents, these courts derive their authority from international law. Their authority over U.S. citizens was challenged in Ex parte Milligan (1866) and Duncan v. Kahanamoku (1946), in which majorities of the Supreme Court held that jurisdiction could not be exercised in areas where U.S. civil courts were open and functioning. However, in Ex parte Quirin (1942), a case involving Nazi saboteurs, a majority of the Court approved of a commission that tried alien enemies found in the United States. The Court similarly approved their use to try war crimes overseas, for example, in In re Yamashita (1946), which led to the execution of the Japanese general in charge of Manila in 1945.

Courts‐martial are the best known military courts. The 1775 Articles of War, following British practice, established three categories of such courts for the army: general, for the most serious offenses and for cases involving officers; regimental; and detachment or garrison courts. The so‐called inferior courts were limited in their jurisdiction to noncapital offenses, to offenders who were enlisted men (and, in the case of regimental courts, to enlisted personnel who were members of that unit), and by the kinds of punishment they could impose. The Naval Rules made no such distinction and relied on naval custom. Military law treatises uniformly state that courts‐martial were always composed of officers; had to consist of at least three members; and that there was no American equivalent of the English “Drum Head” court‐martial, where punishment was summarily imposed. However, Stephen Ambrose's account, in Undaunted Courage (1996), of the Lewis and Clark Expedition (1804–06) reports instances where enlisted men were appointed as the court‐martial to decide what punishment should be imposed on a fellow soldier, and one case in which the joint commanders appointed themselves as the court. The punishments imposed (typically flogging) were within statutory limits. The history of such informal courts remains to be written, as does the use of these courts to try prisoners of war (POWs). During World War II, seven German POWS in the United States were convicted of murder of fellow prisoners and were executed at the U.S. Disciplinary Barracks at Fort Leavenworth.

Nonjudicial punishment, permitted by naval custom (called in the navy, “Captain's Mast,” and in the Marine Corps, “Office Hours”), was prohibited in the army, whose statutes and regulations required a court‐martial composed of at least three officers. During the Civil War, single officer field officer's courts were permitted but ceased at the war's end. In 1890, the first single army summary courts were established by regulation; it was not until World War I and congressional passage of Article 104 that army commanders were permitted to impose minor punishments without trial. Even as army commanders' authority was thus enhanced, it was also curtailed by legislation which required that courts‐martial convictions be scrutinized by Boards of Review. With the passage of the Uniform Code of Military Justice (1950) that practice was extended to the air force, Coast Guard, the navy, and the Marine Corps. Board decisions could be reviewed by the Court of Military Appeals, subsequently renamed the U.S. Court of Appeals for the Armed Forces, as the boards became known as Military Courts of Appeal. Thus, for the past half century, the organization of courts‐martial has remained unchanged.

Bibliography

William C. Dehart , Observations on Military Law, and the Practice of Courts‐Martial, with a Summary of the Laws of Evidence, as Applicable to Military Trials; Adapted to the Laws, Regulations and Customs of the Army and Navy of the United States, 1846, reprinted in Vol. XVIII, Classics in Legal History, ed. Roy M. Mersky and J. Myron Jacobstein, 1973.
Edward M. Byrne , Military Law: A Handbook for the Navy and Marine Corps, 1970.
Richard Whittingham , Martial Justice: The Last Mass Execution in the United States, 1988; repr. 1997.
David J. Danecski , The Saboteurs Case, Journal of Supreme Court History (1996), pp. 61–82. The Army Lawyer: A History of the Judge Advocate General's Corps, 1993.

Michael Noone

Justice, Military: Military Punishment Few punishments were specified in the American Articles of War of 1775. The death penalty was limited to specified offenses—“nor shall any punishment be inflicted at the discretion of a court‐martial, other than degrading, cashiering, drumming out of the army, whipping not exceeding thirty‐nine lashes, fine not exceeding two months pay of the offender, imprisonment not exceeding one month.” The articles' naval counterpart similarly relied on custom rather than specifying punishments. The most noticeable characteristic of the “old” (pre–Civil War) army and navy is the fact that deterrence seems to have been punishment's only goal. This policy is exemplified by the navy's practice of summarily executing seamen who left their posts in battle. Because a jailed soldier or sailor was considered to be evading the hardships of military life, commanders relied on flogging as the punishment. The maximum number of lashes allowed to army courts‐martial was increased to 100 in the 1776 articles and then curtailed to 50 in 1806. In 1812, Congress eliminated flogging as a permitted punishment in the army, reinstated it for desertion in 1833, and finally abolished it in 1861.

Flogging and “colting” (striking with a rope end) were the main punishments used in the navy. Naval regulations permitted up to 12 lashes as nonjudicial punishment; naval courts‐martial awarded 100 lashes for drunkenness and mutinous behavior. Branding with a hot iron or tattooing was permitted until Congress forbade the practice in 1872. Army records confirm the wearing of irons, placarding, gagging, standing on or wearing a barrel, and tarring and feathering. The navy imposed similar punishments after flogging was abolished by Congress in 1850 following a campaign waged by the author Herman Melville, who had served on the “hell ship” United States. Sweatboxes, dousing with bilge water, tricing to the rigging, or hanging from a boom were other naval punishments. Not all punishments were, to modern eyes, barbaric: dismissal or dishonorable discharge; demotion, fines, or forfeitures (the last from pay prospectively due); confinement; and, for officers, suspension from command or active command or active service were also permitted.

The military courts' discretion, in noncapital cases, to impose punishment was gradually curtailed. In 1855, when Congress established naval summary courts‐martial, limits on minor punishments—confinement and re‐duced rations—were included in the statute. In 1862, PresidentAbraham Lincoln issued a list of maximum pun ishments that could be imposed for various offenses, and in 1890, Congress ordered that, where an article provided that punishment would be left to the discretion of the court, the punishment could not exceed that directed by the president.

The army and navy codes limited the death penalty to specified offenses, or those made capital by local state law, and required a higher percentage of the court members to agree on the sentence than was required for lesser punishments. Statutes required presidential approval of the penalty if it had been imposed by a court‐martial within the United States; when, in 1849, Commodore Thomas Jones of the Pacific Squadron permitted the hanging of two mutineers in California, he was court‐martialed and received five years' suspension from duty. Nineteenth‐century army tradition dictated that capital military offenses, with the exception of desertion, be punished by shooting, while hanging was dictated for civilian capital crimes, or for desertion or spying. Naval tradition called for hanging from the fore yardarm of the vessel. The 1917 Texas Mutiny Cases, in which black American soldiers were hastily hanged after their court‐martial, led to a revision of the 1916 Articles of War, as the World War II execution of Private Eddy Slovik after the Battle of the Bulge led to postwar reform efforts, although the death penalty is still permitted by the Uniform Code of Military Justice.

After 1916, the army articles, unlike those of the navy, required a Board of Review if the sentence included the death penalty or dismissal of an officer (which required presidential approval in the navy) or dishonorable discharge (there was no similar provision in the navy). However, in the post–World War II period, when manpower requirements exceeded enlistments, prisoner rehabilitation units were established in each of the armed services. With the advent of the All‐Volunteer Force in 1973 and its higher standards of pay and performance, such units were disbanded.

Bibliography

John S. Hare , Military Punishments in the War of 1812, Journal of American Military History, 4 (Winter 1940), pp. 225–29.
Leo F.S. Horan , Flogging in the United States Navy, Unfamiliar Facts Regarding Its Origins and Abolition, United States Naval Institute Proceedings, 76 (1950), pp. 969–75.
Frederick B. Wiener , Crime and Justice in the Days of Empire, History, Numbers, and War, 2 (1980), pp. 23–28.
Robert I. Alotta , Civil War Justice, Union Army Executions Under Lincoln, 1989.
Mark A. Vargas , The Military Justice System and the Use of Illegal Punishments as Causes of Desertion in the U.S. Army, 1821–1835, Journal of Military History, vol. 55, no. 1 (1991), pp. 1–19.

Michael Noone

Justice, Military: Military Prisons For short‐term confinement for purposes of discipline or criminal proceedings involving their own military personnel (prisoners of war fall into a separate category), the armed forces have used various temporary and long‐term facilities. Temporary arrangements range from the U.S. Navy's brigs (restraining cells aboard ship or guardhouses ashore) to the U.S. Army's stockades at particular posts or camps or holding cells in nineteenth‐century fortresses. Some of the short‐term facilities were subsequently expanded for long‐term use. The navy established prisons at Portsmouth, New Hampshire, and later on Treasure Island near San Francisco. The army long maintained a prison at Fortress Monroe, Virginia. Most famously, the army created a prison on Alcatraz Island in San Francisco Bay, where a wooden stockade added to the fort there in 1861 was replaced by a modern concrete cell block in 1909. In 1934, the military prison on Alcatraz became a federal civil penitentiary (nicknamed “the Rock”), which it remained until closed in 1963.

The first federal military prison was the U.S. Military Prison, established at Fort Leavenworth, Kansas, in 1875, in response to complaints of varied and often harsh treatment of military prisoners at post stockades and state penitentiaries. In 1873, Congress had approved a military prison, but directed that it be constructed near the federal arsenal at Rock Island, Illinois, to employ prison labor. After the Ordnance Department and the secretary of war protested that prisoners could not be trusted to work with munitions, Congress passed an 1874 amendment to locate the prison at Fort Leavenworth, a military post dating from 1827.

The Leavenworth facility, about twenty miles from Kansas City, later also served as a federal prison for civil offenders. In 1895, it was transferred to the U.S. Department of Justice, but returned in 1906 to the army and renamed in 1915, the U.S. Disciplinary Barracks. During World War I, a number of conscientious objectors were confined there along with uniformed personnel. In 1929, the facility was again transferred to the Department of Justice and designated the Leavenworth Penitentiary Branch.

In November 1940, it was returned to the army and redesignated the U.S. Disciplinary Barracks. Since then, it has been operated by the army. Today, it is the only long‐term maximum security facility operated by the Department of Defense, and includes inmates from each of the armed services.

Although the maximum housing capacity is 1,500, the average population in the 1990s was 1,350 inmates. These men and women, officers and enlisted personnel, were serving terms from a few years to life imprisonment; half a dozen were serving death sentences. The average sentence length is fourteen years; most inmates were first‐time offenders.

In the 1990s, approximately three‐quarters of the inmates at the U.S. Disciplinary Barracks were confined for crimes against persons—from assault to murder. Nearly half were convicted of sexually related offenses. Slightly more than 10 percent also involved drug‐related offenses. Another 10 percent had committed property crimes. In the 1990s, only 1 percent of inmates were confined for strictly military‐related offenses. Nearly 96 percent were sentenced to punitive discharge. In addition to the military prison, a civil prison, the U.S. Penitentiary, Leavenworth, is also located on the grounds of Fort Leavenworth.
[See also Conscientious Objection; Justice, Military: Military Crimes; Justice, Military: Military Police.]

Bibliography

United States Disciplinary Barracks: Fort Leavenworth, Kansas, n.d.

John Whiteclay Chambers II