During the sentencing phase of a court-martial, trial counsel has broad latitude to argue for an appropriate punishment based on the evidence in the record. That latitude is not unlimited. When an argument reaches outside the case and invites the panel to compare the accused’s situation to civilian sentences, the law of improper sentencing argument comes into play. The Court of Appeals for the Armed Forces has repeatedly held that arguments asking members to abandon their disinterested impartiality or to sentence on matters unrelated to the accused’s own culpability are improper. References to civilian punishments sit squarely in that danger zone.
The governing principle
The core rule is that a court-martial must sentence the accused based on the evidence presented and the offense committed, not on external benchmarks or pressures. CAAF has explained that a sentencing argument is improper when it encourages the panel to abandon impartiality or asks members to consider facts or opinions unrelated to the accused’s culpability. An argument that says, in effect, that civilian courts would impose a harsher penalty for the same conduct, or that the military must match what civilians do, pulls the panel toward an external comparison rather than an individualized judgment about the person in front of them.
A second foundational limit is that trial counsel may not argue for a punishment greater than the court-martial may adjudge, may not purport to speak for the convening authority or any higher authority, and may not invoke command or departmental policy on punishment. A comparison to civilian punishments can edge into this prohibition if it implies that an outside standard or authority demands a particular result.
Why civilian-comparison arguments are risky
The problem with a civilian-comparison argument is that the civilian sentence is not evidence about this accused and this offense. It is information from outside the record. CAAF has been firm that members should not draw on information not in evidence to reach a sentence. In United States v. Frey, 73 M.J. 245 (2014), the court found error where trial counsel asked members to rely on their own knowledge of the “ways of the world” rather than the evidence. An argument that asks the panel to import what a civilian jurisdiction would do commits the same basic flaw: it substitutes outside knowledge for record evidence.
Inflammatory comparisons carry an additional hazard. In United States v. Marsh, 70 M.J. 101 (2010), the court found an argument unduly inflammatory and obvious error where it invited members to imagine themselves as future victims with no rational connection to the evidence. A civilian-comparison argument framed to inflame, such as suggesting the military would look soft compared to a tough civilian court, risks the same conclusion that the argument sought to inflame passion rather than inform judgment.
What is permitted and what is not
Not every reference to the wider world is forbidden. CAAF has recognized that some contextual material is fair game. In United States v. Barraza-Martinez, 58 M.J. 173 (2003), the court explained that referencing contemporary history or matters of common knowledge within the community is proper, while reference to departmental or command policies can create the appearance of unlawful command influence. The line therefore runs between general context that helps the panel understand the seriousness of an offense and a specific external benchmark that displaces the panel’s own judgment.
General deterrence is also permitted within limits. In United States v. Akbar, 74 M.J. 364 (2014), the court held that trial counsel may make general deterrence arguments when they are not the government’s only argument and when the military judge properly instructs the members. A civilian comparison that functions as a deterrence point may survive if it stays general, remains tied to legitimate sentencing goals, is not the sole thrust of the argument, and is accompanied by proper instructions. The moment the comparison becomes a demand that the panel match a civilian outcome, or implies that an outside authority expects a particular sentence, it crosses into improper territory.
There is one more boundary worth naming. Trial counsel may not comment on the accused’s exercise of constitutional rights as a basis for a harsher sentence. United States v. Paxton, 64 M.J. 484 (2007), holds that argument commenting on an accused’s exercise of constitutionally protected rights is beyond the bounds of fair comment. A civilian comparison should never be used as a vehicle to penalize the accused for asserting a right.
How courts evaluate a challenged argument
When an argument is challenged, appellate courts do not read a single sentence in isolation. They view the argument within the context of the entire court-martial and assess whether it adhered to the standards of proper argument. If improper argument occurred during sentencing, the reviewing court asks whether it can be confident the accused was sentenced on the basis of the evidence alone. A prompt defense objection and a curative instruction from the military judge can blunt the prejudice; their absence makes reversal more likely if the comparison was both improper and significant.
Practical takeaways
For trial counsel, the safe course is to ground the sentencing argument in the facts of the case, the impact of the offense, and legitimate sentencing principles, while avoiding any suggestion that the panel should track what a civilian court would do. For defense counsel, a civilian-comparison argument is a cue to object, to ask for a curative instruction, and to preserve the issue for appeal. For the accused, the assurance is that the sentence is supposed to reflect the individualized judgment of the panel on the evidence, not a borrowed measure from outside the courtroom. Because the propriety of any specific argument turns on its exact wording and the full trial context, a member who believes an improper comparison influenced a sentence should raise it with qualified appellate defense counsel.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how the Uniform Code of Military Justice (UCMJ), the Rules for Courts-Martial, the Military Rules of Evidence, and related military administrative processes work as a matter of public legal education. It does not constitute legal advice, a legal opinion, or a recommendation about any particular case, and it is not a substitute for advice from a qualified military defense attorney who can evaluate the specific facts and command, service, and jurisdictional circumstances involved.
Reading this article, or contacting any website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author. Every court-martial, nonjudicial punishment action, administrative separation, and security-clearance matter turns on its own facts, the charged articles, the convening authority, the service branch, and the evidence, and outcomes vary widely from one case to another.
Military law also changes over time. The Military Justice Act of 2016 (effective January 1, 2019) and subsequent National Defense Authorization Acts renumbered and rewrote many punitive articles, revised the Article 32 preliminary hearing, and altered sentencing, clemency, and appellate procedures. Statutes, regulations, executive orders, the Manual for Courts-Martial, and decisions of the service Courts of Criminal Appeals and the Court of Appeals for the Armed Forces may have been amended, superseded, or reinterpreted after this article was written, and article numbers or procedures cited here may have changed.
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