Argument Preview: Suddenly realizing that maybe there’s no such thing as negligent dereliction of duty, in United States v. Blanks
CAAF will hear oral argument in the Air Force case of United States v. Blanks, No.17-0404/AF (CAAFlog case page), on Wednesday, January 24, 2018, at 9:30 a.m. The court granted review to determine whether:
In light of this Court’s decision in United States v. Haverty, 76 M.J. 199 (C.A.A.F. 2017) [CAAFlog case page], did the military judge err when he instructed the members Appellant could be convicted of negligent dereliction of duty?
Article 92(3) addresses one who “is derelict in the performance of his duties.” Twenty-four years ago, CAAF explicitly held that “simple negligence is the proper standard for determining whether the nonperformance of military duty is derelict within the meaning of Article 92(3).” United States v. Lawson, 36 M.J. 415, 416 (C.M.A. 1993). But forty years before that – and only two years after the UCMJ took effect – the court first acknowledged that “when the nonperformance [of a duty] is the result of a lack of ordinary care, the omission is negligent,” and that such negligence can violate Article 92(3). United States v. Grow, 3 U.S.C.M.A. 77, 86-87 (C.M.A. 1953) (quoting Manual for Courts-Martial (1951 ed.), ¶ 171c).
Recently, however, CAAF repeatedly addressed mens rea (the mental state required to commit an offense), and the subject was the #8 Military Justice Story of 2017. It got such attention in part because a functionally-unanimous decision in United States v. Haverty, 76 M.J. 199, (C.A.A.F. Apr. 25, 2017) (CAAFlog case page), applied the Supreme Court’s decision in Elonis v. United States, 135 S. Ct. 2001 (2015), to find that recklessness is the minimum mens rea adequate to sustain a conviction of hazing in violation of Army Regulation 200-20 paragraph 4-20.
Armed with that precedent, Senior Airman (E-4) Blanks challenges his conviction (for the first time on appeal) of negligent dereliction of duty adjudged as a lesser included offense of the charged offense of willful failure to provide adequate financial support to his wife. App. Br. at 2. The underlying facts include that Blanks falsely told his command that he was married to the mother of the child (in order to obtain 10 days of parental leave after the child was born), when Blanks was really married to someone else. Blanks’ brief also offers a soap opera’s worth of additional facts. App. Br. at 3-9.
CAAF’s review, however, will focus on the law. Specifically, Blanks asks CAAF to overrule Lawson and apply Haverty to hold that “recklessness is the lowest mens rea which is necessary to separate wrongful conduct from otherwise innocent conduct,” and therefore “Blanks’ conviction for negligent dereliction of duty must be set aside.” App. Br. at 9 (marks and internal citations omitted).
It has the markings of a tough sell.
Blanks’ asserts that:
The two main reasons offered in Lawson to support its conclusion were that (1) earlier cases had approved of the simple negligence standard, and (2) the legislative history of Article 92(3) was predicated on the mens rea of simple negligence. Lawson, 36 M.J. at 419-22. Each basis must now yield and, therefore, so must Lawson.
App. Br. at 13. The reasons these bases are inadequate after so many years is that:
Lawson’s reliance on cases that were built on the MCM’s guidance endorsing a simple negligence mens rea is called into question. Elonis, Haverty, and Gifford cast significant doubt on the criminal negligence mens rea, which should exclude simple negligence as a viable mens rea for a criminal offense altogether. See Elonis, 135 S. Ct. at 2011; Gifford, 75 M.J. at 147; Haverty, 76 M.J. at 204.
App. Br. at 16. In other words, our understanding of the law gradually evolved to the point that, now, the statute can no longer be read to criminalize mere negligence.
The Air Force Government Appellate Division responds with the argument that recent developments don’t change the existing interpretation of Article 92(3):
The Supreme Court’s holding in Elonis, as well as this Court’s opinions in Haverty and Gifford, do not impact this Court’s well-established view of Article 92(3). While Elonis does establish an analytical framework to determine mens rea in statutes that are silent on the matter, this Court followed such a framework over 30 years before Elonis in Lawson when it definitively ruled that Congress’ intent for mens rea as it relates to Article 92(3) included simple negligence. Moreover, as noted above, this Court has repeatedly found throughout the 70-plus year existence of Article 92(3) that simple negligence was a proper mens rea for a dereliction of duty offense.
Gov’t Div. Br. at 8-9. The Government Division also argues for application of stare decisis to affirm the existing interpretation of Article 92(3), Gov’t Div. Br. at 12-13, though it then goes to some length to show that the existing interpretation is the correct one (making stare decisis immaterial). See Gov’t Br. at 15-25.
Blanks’ reply brief returns to the theme of new-developments-means-new-interpretation:
The government’s brief does not appear to dispute the statute at issue is an outlier in that “Article 92(3) does not expressly require scienter or mens rea[.]” United States v. Ferguson, 40 M.J. 823, 828 (N.M.C.M.R. 1994). And the parties appear to agree the statute is partially rooted in the Articles for the Government of the Navy (AGN), (Gov’t Br. at 6), which did not include a mens rea requirement for crimes such as rape, drunkenness, or neglect of duty. Lawson, 36 M.J. at 420. But that is where SrA Blanks parts ways with the government.
The long-abandoned AGN, which unlike the Articles of War remained largely unchanged since the summer of 1862, are of little assistance in interpreting statutes in the 21st Century where normally “wrongdoing must be conscious to be criminal.” Gifford, 75 M.J. at 144 (quoting Morissette, 342 U.S. at 252.). And aside from Lawson’s discussion of that Civil-War-era relic, the Court’s discussion of the legislative history of Article 92(3), which the government describes as “an extensive review,” (Gov’t Br. at 6), is better described as two sentences, one acknowledging the naval origins of Article 92(3) and the other addressing the actus reus for “neglect” in Army practice. Lawson, 36 M.J. at 419, 421 (citations omitted).
Reply Br. at 2.
Mens rea is an ancient concept, not a 21st Century innovation, and the edict that wrongdoing must be conscious to be criminal is about as old as the UCMJ itself. See Morissette v. United States, 342 U.S. 246, 252 (1952). It’s entirely possible that Blanks’ interpretation of Article 92(3) is the correct one – and that mere negligent dereliction of duty does not violate the Article – but his counsel is likely to face a skeptical bench tomorrow.