CAAF’s decision in Loving denying relief on the Ring v. Arizona issues based on Teague v. Lane keeps alive an issue that has not been fully litigated in the military, does the Apprendi doctrine apply to the military? Every other American criminal justice system has squarely resolved the issues of applicability of Apprendi and Ring to their system. However, the military lags behind on the issue. Two unpublished Court of Criminal Appeals cases tangentially, and poorly, discussed the issue (United States v. Williams (N-M Ct Crim App Sep. 14, 2005) and United States v. Lewis (Army Ct Crim App Apr. 29, 2004)). However, no court has looked at the Supreme Court’s opinion in Loving addressing sentencing factors and harmonized the language in Apprendi, Ring, and Booker. CAAF’s pre-Apprendi statement on the issue would seem to suggest there is an issue:
If “aggravating factors” used in channeling the discretion of the sentencing authority in death cases were elements of the crime, we would have no choice but to hold that they must be set forth by Congress and cannot be prescribed by the President.
United States v. Curtis, 32 M.J. 252, 260 (C.M.A. 1991) (citing Walton v. Arizona, 497 U.S. 639 (1990), which was specifcially overruled by Ring v. Arizona). Maybe someone should publish an article on the issue of whether the military capital sentencing procedure complies with Ring and whether the President’s creation of additonal elements for offenses in the Maximum Sentence table in the MCM raises any Apprendi or Ring issue? I think I’ll work on that.