Choice of Prosecution: Military or Civilian

I’ve often been asked these two questions:

Why did _____ County take this case and not the military? Or,

Why did the military take this case and not ________ County?

The same also applies when you regard military vs. federal district courts.

The answer to these questions is usually one of the following: a. workload, b. law/sentencing guidelines, or c. ego.

Too often, the answer is C. Ego.

Lets start with a quick refresher on double jeopardy. Can Kansas prosecute someone twice for the same offense? Answer, generally no (the big exception being if significant new evidence emerges (very tough hurdle)). Could the Federal District Court in Kansas City do the same? Again, no. Could the federal court prosecute someone for an act of misconduct under their jurisdiction, and then Kansas takes a bite for the same misconduct? Yes. Why? The two courts operate under two different lawmaking authorities.

Military Courts-Martial are federal courts. Therefore, a person could be tried by court-martial, and then tried by a state court (provided jurisdiction exists). Granted, whichever was the latter court to prosecute would likely consider the punishment imposed by the former, but the possibility of prosecution is the same.

For the vast majority of cases that involve shared jurisdiction, one side chooses to prosecute, and the other begs-off and moves to other things.

For instance, when I was prosecuting military cases in Louisiana, a soldier was caught selling marijuana in the local community. The military had jurisdiction (because he was an active duty soldier), and the local parish had jurisdiction because the crime occurred in their territory. After discovering the crime in the parish, military authorities obtained a search authorization from proper authorities, searched his on-post government quarters, and discovered that he possessed more drugs.

I talked to the DA, and he released the case to me because we found the evidence of further drug crimes at his residence which was outside the parish’s jurisdiction and exclusively within federal jurisdiction. So, considering the law, the military could package all of his misconduct into one proceeding. The parish could deal with the distribution charge, but they had no jurisdiction over the evidence found in his residence.

The DA said something interesting when he released the soldier to us for prosecution: “Let me know if he gets less than 3 years, because we’ll prosecute him again and get about 6.” (the kid received 3 years exactly).

I’ll always remember that conversation, and it threw the idea of prosecutorial negotiations of this sort into sharp relief. Let’s now look at the 3 most common reasons that certain jurisdictions take certain matters.


Most of the time, this means that the military takes a case. Most military prosecutors balance about 20 cases at any given time. Of those, fewer than 5 are truly contested matters. At some installations, like Ft. Leonard Wood, Missouri, the 4 to 6 prosecutors balance fewer than 10 cases apiece. Compared with the average Assistant District Attorney who balances 50-80 cases, military prosecutors have much less.

The same holds true for military public defenders (called Trial Defense). A busy trial defense attorney balances 10-16 cases at one time. Compare this with a public defender who balances 50+ (especially consider that the Missouri PD system has declared itself “full” as of this writing).  Knowing this, workload favors military prosecutions. Not always, but usually.

The Law

As I mentioned earlier, the soldier in Louisiana had evidence of his criminal acts in two different places. There was distribution of drugs in the parish jurisdiction, and he had possession of drugs in the federal exclusive jurisdiction. Based on this, we felt he should only face one, consolidated trial, and the military provided him with this.

Another consideration is sentencing guidelines. The military has very few minimum sentences. Only the most severe crimes fall into this category. So, unless you have premeditated murder or felony murder on your charge sheet, the sentence range in the military will go from zero to max.

States, on the other hand, love minimum sentences. I know of someone who committed several robberies in Missouri while on active duty in the Army. In the military courts, he would probably receive around 3-5 years (average). It could be higher, or it could have been lower. However, the state has a minimum 10 year sentence for the same crime. The state took the case, and he received (shockingly) 10 years. The military merely administratively discharged him.


My favorite. It cuts both ways.

District Attorneys must file for reelection in most jurisdictions. Therefore, every 4 years they are looking to appear extra tough on crime in order to gain those precious votes. Face it, everyone wants to keep their job, and DAs are no different.

Military prosecutors are typically young, idealistic, and very motivated. They want tough, complex cases. Most have less than 18 months of experience prosecuting, and even their supervisors are limited in their overall criminal law experience. They want a big case, and they want a big sentence. If they sense the possibility of satisfying this hunger, they fight to obtain it.


Why is this important for CDLs? From all of this, we can see that a variety of legal, logical, political, and personal factors determine what courts handle cases that share jurisdictions. Consider ways to utilize this in order to possibly negotiate a better result for your client.  It may be that your work upfront in working a jurisdictional decision could save your client years. Knowledge of all the jurisdictions in play can only help your client.

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