I know that United States v. Junior was published because of its discussion of Adcock, which we’ll get to. But I’m amused by the first issue in the case. See United States v. Junior, __ M.J. ___, No. ACM S31054 (A.F. Ct. Crim. App. Oct. 19, 2007).
By now we have all seen SJAs’ penchant for screwing up the language in CAs’ actions. In Junior, the trial counsel decided to beat the post-trial rush by screwing up the charge sheet instead. Yes, you see, A1C Junior was charged with that most heinous military offense: failure to keep a pit bull in his barracks room. (Whoops, sorry, A1C Junior was in the Air Force. Not a barracks room — his charge sheet actually says, and I quote, “dorm room.”) Now A1C Junior was stationed at Elmendorf Air Force Base, Alaska. So perhaps to stave off the cold and the boredom of six months of perpetual darkness, the base really does have a policy requiring airmen to keep grouchy animals in their quarters. But the Air Force Court assumes that the TC meant to charge Junior with dereliction of duty for keeping a pit bull in his room, not for failing to do so. The Air Force Court concludes that a specification charging an airman with failing to keep a pit bull in his dorm room “fails to state an offense on its face and is therefore dismissed.” Id., slip op. at 3. But the Air Force Court applies the dreaded Peoples and affirms the sentence as adjudged. Id., slip op. at 8. Rex ipsa loquitur. (That may be my worst pun yet on CAAFlog.) Dog gone it!
So much for fun; now onto the important part. Junior spent 7 days in pretrial confinement at the civilian Cook Inlet Pretrial Facility (CIPT), then was transferred to an Air Force confinement facility at Malstrom AFB in Montana for 33 days, and then returned to CIPT for his final 5 days before trial. He challenges his time in the CIPT under United States v. Adcock, 65 M.J. 18 (C.A.A.F. 2007).
[I was initially confused by the Air Force Court’s use of “CIPT” as the abbreviation for the Cook Inlet Pretrial Facility. But the Alaska Department of Corrections seems to use this abbreviation as well. Apparently the “PT” portion of “CIPT” stands for Pre-Trial.]
You will probably recall that Adcock was a 3-2 CAAF decision in which a majority granted sentence relief where officials at Travis Air Force Base sent pretrial confinees to a civilian confinement facility that fell well short of meeting Air Force pretrial confinement standards. It was a Mathews Month opinion in which CAAF sided with Judge Mathews the Greatest’s dissent from the Air Force Court’s en banc opinion. United States v. Adcock, 63 M.J. 514 (A.F. Ct. Crim. App. 2006). In dissent at CAAF, Judge Stucky posited this slippery slope:
[The majority’s opinion] will encourage servicemembers to spend their time in pretrial confinement poring over service regulations, cataloging every possible discrepancy to raise as a reason for additional confinement credit, even if the actual conditions of confinement are not unduly harsh. At trial, military judges will face protracted litigation concerning the minutiae of confinement programs and whether a particular facility or guard violated some provision of a service regulation. Appellate court dockets will be flooded with pleas that military judges abused their discretion in not granting additional credit. Ultimately, this Court may find itself the de facto supervisor of substantive conditions of confinement involving members of the armed forces — a function that we are exceedingly ill suited to perform.
United States v. Adcock, 65 M.J. 18, 29 (C.A.A.F. 2007) (Stucky, J., dissenting).
The Junior case was tried well before Adcock — in December 2005. So Adcock didn’t encourage the pretrial confinement litigation in that case. But the Air Force Court’s handling of the issue suggests that the Adcock slope may be more sticky than slippery.
Air Force regs provided that if the Air Force used a civilian confinement facility, a memorandum of agreement between the Air Force and the confining officials was required. Elmendorf had no pretrial confinement facility and used the civilian pretrial confinement facility, but without the benefit of a memorandum of agreement concerning confined airmen’s treatment. Instead, the confinement facility was given a memorandum from Air Force Security Forces requesting that certain standards be observed.
While at CIPT, Junior was required to wear a yellow jumpsuit. Both convicted felons and those in pretrial confinement for felony charges were required to wear yellow jumpsuits. Unlike the Taj Mahal of a pretrial confinement facility at Malstrom AFB, the CIPT didn’t have a work program, drug treatment, library, or exercise facility, though Junior did receive yard time while at CIPT. Unclear from the opinion is whether dogs were either required or prohibited in the cells at either CIPT or Malstrom.
In the first published opinion to construe Adcock, the Air Force Court wrote:
In light of Adcock, the question now becomes: When do violations of service regulatory confinement standards amount to an abuse of discretion because they demonstrate a disregard by the Air Force of the duty to ensure that servicemembers who are in pre-trial confinement are treated in a manner that recognizes the presumption of innocence? Clearly not every regulatory violation equals an abuse of discretion undermining the presumption of innocence. The court in Adcock was particularly concerned that Air Force officials were long aware of the regulatory violations and that the duration amounted to a “knowing and deliberate violation of the [Air Force’s] confinement regulations.” [61 M.J.] at 28. So, courts must look to the types of regulatory violations and the duration of the Air Force’s awareness of the regulatory violations to determine when a regulatory violation becomes an abuse of discretion.
Junior, ACM S31054, slip op. at 6.
The Air Force Court found that the CIPT facilities fell below the standard required by Air Force regulations by failing to provide a work program, drug treatment program, a library, or a gym. But the court declined to grant relief due to the brevity of Junior’s confinement there. “Deprivation of services like those complained of here, for short confinement durations, simply do not rise to the level of being an abuse of discretion by Air Force officials even when they knowingly permit them to occur in short term confinement facilities, whether civilian or military. When pretrial confinement is for a limited duration, these types of violations, without more, do not undermine the appellant’s presumption of innocence.” Id.
The defense also sought relief because the Air Force had failed to enter into a Memorandum of Agreement with CIPT for 8 months. The Air Force Court declined to grant relief on this basis, holding “that the failure of Air Force officials to complete a MOA with the facility, without more, did not amount to an abuse of discretion, in light of the clear efforts by the Air Force to reach a MOA, the existence of an interim memorandum designed to address the treatment of pre-trial confinees, and the fact that the Air Force only used the CIPT as a temporary transition facility.” Id. at 7.
Finally, the Air Force Court declined to order relief because Junior, like all convicted felons and all detainees held at CIPT for felony trials, was required to wear a yellow jump suit.
My guess is that CAAF will grant review of this one, which will lead to greater clarity for all of the services concerning Adcock‘s implementation. If CAAF were to affirm this holding, then Adcock will likely have little effect beyond the aberrant — and quite disturbing — situation at Travis AFB from which it arose.