Ban on Women in Combat Lifted: Is the Military Ready?

This week, Defense Secretary Leon Panetta announced that the military’s ban on women in combat will be lifted.  According to the Department of Defense, 14.6% of the nation’s military is made up of women; according to The N.Y. Times and Huffington Post, more than 280,000 of them were deployed during the Iraq and Afghanistan wars.  While those women were banned from combat, they often saw combat action nonetheless, as they were attached to battalions in positions that sometimes came under fire.  Of the more than 6,600 troops killed in Iraq and Afghanistan, 152 of them have been women

There may still be some combat positions that women will not be allowed to fill; however, the presumption seems to be that all combat positions are open to women unless a particular branch of the military requests an exception and presumably has the burden to prove why women should not be so allowed.  Previous opposition to women in combat often revolved around concerns about women’s strength and whether their presence might hurt unit cohesion.  Clearly, not all women will be physically capable of certain assignments. But then again, neither are all men.  At least now, those women who are capable and who want to fill those assignments will have the opportunity to do so.  The argument about unit cohesion is also one that had long been made against allowing gays—and African Americans before them—to serve in the military.  That argument, too, has been debunked, and since 2012, LBGT soldiers can serve openly.    

Allowing women in combat opens up hundreds of thousands of new jobs for women and allows women the opportunity to climb the ranks in the military.  Without combat leadership experience, military advancement, regardless of the soldier’s gender, is limited.  In the past, this limitation disproportionately stifled women’s military careers.  No longer. As The New York Times reported, General Martin E. Dempsey, the chairman of the Joint Chiefs of Staff, stated in a letter that the lifting of the ban ensures “that women as well as men ‘are given the opportunity to succeed.’”

Despite the public support for allowing women in combat, there are those who oppose the idea, with one retired army general calling it “a vast social experiment in which hundreds of thousands of men and women will be the guinea pigs.” The decision, he maintains, is ideologically based and not militarily based.

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Bond’s Back: SCOTUS to Take Another Look at Case on Federalism and Criminal Law

The recent suicide of Aaron Swartz has provoked a great deal of public discussion of what many consider to be overreaching by federal prosecutors in his case.  In the view of some critics, Swartz’s theft of academic articles from JSTOR would have been more properly handled as a minor property offense in state court.  Instead, Swartz found himself in federal court facing a possible 35 years in prison and a set of charges invoking a variety of obscure federal criminal statutes.

Whatever the merits of the criticisms, they have served to draw public attention to the extraordinary power exercised by federal prosecutors and the uncertain line between what is most appropriately handled in state court and what is most appropriately handled in federal.

Although the Swartz litigation is now presumably over, another case that has provoked similar charges of prosecutorial overreaching is now on its way to the Supreme Court . . . for a second time.  

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New Essays on Restitution and Sentencing Commissions

I have two new essays on SSRN assessing the history and future prospects of restitution and sentencing commissions, respectively. These essays will be published later this year in the Encyclopedia of Criminology and Criminal Justice.

The restitution essay covers such topics as Randy Barnett’s proposal that restitution be used in lieu of imprisonment as our basic form of criminal punishment, debates regarding which types of victims should be able to recover for which types of injuries, and the question of whether victims seeking restitution should be given a right to legal representation.

The sentencing commissions essay focuses particularly on the Minnesota and federal sentencing commissions. In considering these case studies, as well as the experience with sentencing commissions in a few other states, my primary theme is the relationship between sentencing commissions and legislatures. (As I point out in the essay, although sentencing commissions are predominantly legislative creations, commissions have often struggled to maintain their relevance in the face of ongoing legislative policymaking in the sentencing area, which frequently takes the form of harsh statutory responses to the “crime du jour.”) A secondary theme is the relationship between commissions and judges—another relationship that has sometimes proven quite challenging for the commissions to manage effectively.

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