Having closed many of its military confinement facilities, the Air Force often relies on civilian jails and prisons to house military inmates. Two years ago, in the companion Air Force cases of United States v. McPherson, 73 M.J. 393 (C.A.A.F. Aug. 21, 2014) (CAAFlog case page), and United States v. Wilson, 73 M.J. 404 (C.A.A.F. Aug. 21, 2014) (CAAFlog case page), CAAF held that the Article 12 prohibition against confining service members in immediate association with non-service member aliens applies even when a service member is confined in a civilian facility. But CAAF also held that a service member must exhaust all administrative remedies prior to seeking judicial relief for a violation of that prohibition.

The Air Force responded to McPherson and Wilson by using solitary confinement to avoid co-mingling. That, predictably, led to other complaints. In United States v. Gay, 74 M.J. 736 (A.F. Ct. Crim. App. Jun. 12, 2015), aff’d, 75 M.J. 264 (C.A.A.F. 2016) (CAAFlog case page), the AFCCA held that solitary confinement (where the appellant was alone 23 hours per day, and suffered other administrative hardships) in a civilian facility, imposed in response to a complaint of co-mingling in violation of Article 12, was not cruel and unusual punishment but is deserving of relief under the CCA’s Article 66(c) sentence-appropriateness power, and CAAF affirmed the CCA’s grant of sentencing relief under such circumstances.

Recently, however, the AFCCA denied relief to an appellant who suffered similar deprivations because “unlike the situation in Gay, Appellant in the present case—despite having mechanisms to do so—made no complaint regarding any condition of his confinement before raising the matter on appeal.” United States v. Garcia, No. 38814, slip op. at 8 (A.F. Ct. Crim. App. Aug. 16, 2016) (link to slip op.). This is not the only factor, however, as the CCA also finds that “nothing regarding Appellant’s confinement strikes us as especially unusual or egregious.” Id.

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