A service member convicted by a court-martial and serving a sentence to confinement in a military brig can earn various confinement credits including earned time (ET), good conduct time (GCT), and special acts abatement (SAA). GCT is the most common, and is earned automatically at the rate of 5 days of GCT credit for each month served, pursuant to Department of Defense Instruction (DoDI) 1325.07. The credits are applied against the time to serve, and the prisoner is normally informed of a computed “minimum release date” that can be significantly ahead of the end of the full term of confinement.
For example, an accused sentenced in 2003 to an unsuspended term of confinement of ten years might reach his minimum release date just six years later, in 2009, and then be released from confinement. Such was the case for one Mr. James Banks, who “served nearly twenty years in the Air Force before authorities learned that he had sexually abused his young daughter. When they did, the authorities initiated a court martial proceeding. The court ultimately found Mr. Banks guilty of various sex crimes, sentenced him to ten years in confinement, and he was dishonorably discharged. Following his court martial, Mr. Banks waived his right to appeal through the military court system and began to serve his sentence at Fort Leavenworth.” Banks v. United States, 431 F.App. 755, 756 (10th Cir. 2011) (slip op. avail. here).
The 10th Circuit considered Mr. Banks’ case because when he reached his minimum release date in 2009, he was released from Fort Leavenworth under the mandatory supervised release (MSR) program. MSR is an involuntary parole under the supervision of a U.S. Probation Officer. Military prisoners selected for MSR who refuse to participate in the program may forfeit all earned confinement credits, and could even face additional punitive action. Conversely, participation in the program constitutes acceptance of its terms and a waiver of all earned confinement credits. See DoDI 1325.07, para. 20.b.(4) and (5).
In other words, the prisoner who expects release at the “minimum release date” may instead be surprised by the choice of either more confinement or a close working relationship with a federal probation officer.
Mr. Banks wasn’t exactly thrilled with these options.
So Mr. Banks filed a habeas suit challenging the decision placing him on MSR. But Judge Richard Rogers of the District of Kansas dismissed the case with prejudice, citing his own prior published opinion in Huschak v. Gray, 642 F.Supp.2d 1268 (D.Kan., August 6, 2009) (link to slip op.). We discussed the Huschak decision shortly after it was released (link to CAAFlog post), and noted that “Huschak raised a number of challenges to the MSR program, all of which failed.”
Mr. Banks then appealed, and the 10th Circuit remanded the case for a number of reasons, including the absence of a detailed record and the fact that the case was dismissed with prejudice when it should have been dismissed without prejudice, if at all. Additionally, the 10th Circuit specifically asked the District Court to consider whether Mr. Banks’ claim is a proper basis for a habeas petition, or whether a Bivens action (a civil rights suit against a federal official for a constitutional violation) is more appropriate.
On remand, in an order dated November 25, 2013, and available at this link, Judge Rogers again dismisses Mr. Banks’ petition. After reviewing the history of the case, Judge Rogers finds that a habeas petition is appropriate:
because petitioner challenges the legality of his release on MSR and the conditions imposed on that release, and because petitioner’s release on MSR at his minimum release date is a quantum change from his continued confinement for the duration of his sentence, the court finds habeas corpus is the appropriate remedy on petitioner’s third claim.
Order at 7. However, similar to other habeas challenges, Mr. Banks’ challenge requires that he first exhaust all available military remedies, and Mr. Banks withdrew his case from consideration by the military appellate courts. But it’s not that withdrawal that causes Judge Rogers to dismiss Mr. Banks’ petition. Rather,
The Service Clemency and Parole Boards, however, can hear a prisoner’s request for reconsideration of the MSR decision or the MSR conditions imposed. Petitioner failed to do so in this case, believing it would be futile to try. This is insufficient to satisfy the requirement that petitioner fully exhaust available remedies before seeking federal habeas corpus review.
Order at 7-8.
This time Judge Rogers dismisses the case without prejudice. Of course, since the sentence was adjudged in 2003, Mr. Banks may now (or very soon) be free from the MSR program, likely mooting the habeas petition.
It’s worth mentioning that CAAF considered and rejected challenges to the MSR program in United States v. Pena, 64 M.J. 259 (2007) (link to slip op.).