Here’s another case that has me wondering, What would Judge Mathews the Greatest do? ACCA’s web site today loaded the published decision of United States v. Ney, __ M.J. __, No. ARMY 20080794 (A. Ct. Crim. App. Jan. 29, 2010). Judge Gifford wrote for a unanimous panel.
PVT Ney complained on appeal that after his court-martial, he was retained in a substandard local jail rather than being sent to the Naval Consolidated Brig Charleston. Army Regulation 190-47 generally requires that a Soldier be transferred to the appropriate confinement facility within 7 working days after a GCM. But it took 34 days for the Army to transfer PVT Ney to Charleston. He alleged that the civilian jail in which he was housed before his transfer had “limited recreation periods, small meals, no access to physical fitness equipment, unsuitable sleeping mattresses, and limited access to television and phones.”
ACCA quickly dispensed by an Adcock claim, holding that Adcock isn’t relevant to post-trial confinement. See United States v. Adcock, 65 M.J. 18 (C.A.A.F. 2007). ACCA says post-trial confinement claims are evaluated under the Eighth Amendment and Article 55. But ACCA immediately makes a mistake: “Both the Eighth Amendment and Article 55, UCMJ, prohibit ‘cruel and unusual punishments.'” Ney, slip op. at 3. Article 55 actually prohibits “cruel OR unusual punishment.” 10 U.S.C. § 855 (2000) (emphasis added). Logically, the use of the disjunctive provides broader protection than does the Eighth Amendment’s phrase employing a conjunctive. CAAF’s case law suggests that Article 55 is at least somewhat broader than is the Eighth Amendment. See, e.g., United States v. White, 54 M.J. 469 (C.A.A.F. 2001).
After misquoting Article 55, ACCA set out the two-step Eighth Amendment test: “1) an objectively, sufficiently serious act or omission resulting in the denial of necessities; and (2) a culpable state of mind on the part of prison officials amounting to deliberate indifference to the appellant’s health and safety.” Ney, slip op. at 3. ACCA then quoted CAAF’s decision in United States v. Avila, 53 M.J. 99 (C.A.A.F. 2000), for the proposition that violation of a service reg “may be evidence supporting” an Eighth Amendment claim, “but is not determinative of the issue of punishment.” Id. at 3-4 (quoting Avila, 53 M.J. at 102).
ACCA held, “even if the confinement conditions alleged by appellant were true and his transfer violated AR 190-47, we find that such violations do not constitute sufficiently serious deprivations to amount to cruel or unusual punishment, in violation of Article 55, UCMJ, or the Eighth Amendment.” Ney, slip op. at 5.