Opinion Analysis: The sentence appropriateness authority of the CCAs isn’t unlimited, but it is enough to grant relief in United States v. Gay, Nos. 15-0742/AF & 15-0750/AF
CAAF decided the certified Air Force case of United States v. Gay, 75 M.J. 264, No.s 15-0742/AF & 15-0750/AF (CAAFlog case page) (link to slip op.), on Wednesday, May 11, 2016. Recognizing that there are limits on the power of the courts of criminal appeals to grant sentence appropriateness relief, CAAF nevertheless concludes that the Air Force CCA could grant sentence appropriateness relief without first finding the existence of cruel and unusual punishment in violation of Article 55 or the Eighth Amendment.
Chief Judge Erdmann writes for a unanimous court.
After being convicted by a general court-martial, Staff Sergeant Gay received a sentence of confinement for six months, total forfeitures, reduction to E-3, and a bad-conduct discharge. He was then confined at a civilian facility where he was initially held in close proximity to a foreign national in violation of the co-mingling provision of Article 12. That provision was addressed last term in the companion 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).
Gay complained (and ultimately received nine days of confinement credit from the convening authority). But Gay was also placed in solitary confinement, seemingly to avoid further co-mingling in violation of Article 12. That solitary confinement formed the basis for a separate complaint of cruel and unusual punishment. The Air Force CCA disagreed that Gay’s solitary confinement constituted cruel and unusual punishment, however the CCA nevertheless reduced the sentence to confinement for three months, reduction to E-3, and a bad-conduct discharge.
The Air Force JAG then certified the case to CAAF, and the court subsequently granted review of a second issue:
Certified Issue: Whether the Air Force Court of Criminal Appeals (AFCCA) abused its discretion and committed legal error by reaching its decision that Article 66, UCMJ, grants it the authority to grant sentence appropriateness relief for post-trial confinement conditions even though there was no violation of the Eighth Amendment or Article 55, UCMJ, in direct contravention of this court’s binding precedent.
Granted Issue: Whether the Air Force Court of Criminal Appeals erred by failing to remand appellant’s case for a hearing pursuant to United States v. Dubay, 17 C.M.A. 147, 37 C.M.R. 411 (1967), to determine the facts surrounding appellant’s post-trial solitary confinement. See United States v. Ginn, 47 M.J. 236 (1997).
In Wednesday’s opinion CAAF finds that the Air Force court did not abuse its discretion (rejecting the certified issue) and the court does not address the granted issue (because both sides agreed that it was not error for the CCA to fail to remand).
CAAF’s decision in this case is consistent with, but not as broad as, its decision in United States v. Chin, 75 M.J. 220 (C.A.A.F. Apr. 29, 2016) (CAAFlog case page), in which the court concluded Article 66(c) commands a court of criminal appeals to conduct a plenary review of a case, including a review to determine whether to leave a trial-stage waiver of an error intact. Rather than relying on a plenary authority, Chief Judge Erdmann focuses on the existence of “a legal deficiency in the post trial conditions to which Gay was subjected.” Slip op. at 9. Specifically:
As the CCA explained, its conclusionwas based, in part, on the fact that solitary confinement was imposed for an improper purpose – Gay did not engage in behavior that would have warranted solitary placement; the conditions of confinement were more severe than what he should have experienced; and the confinement was ordered by an Air Force official to avoid Article 12 violations where an alternative solution was available. While the CCA found that the conditions did not rise to the level of an Eighth Amendment or Article 55 violation, those conditions provide support for the exercise of the CCA’s discretionary sentence appropriateness authority.
Slip op. at 9. Chief Judge Erdmann then ends his opinion for a unanimous court with something of a disclaimer:
In reaching this conclusion, we do not recognize unlimited authority of the Courts of Criminal Appeals to grant sentence appropriateness relief for any conditions of posttrial confinement of which they disapprove. Rather, we hold that the Air Force Court of Criminal Appeals’ decision to grant sentence appropriateness relief in this case was based on a legal deficiency in the post-trial process and, thus, was clearly authorized by Article 66(c).
Slip op. at 10.
• AFCCA opinion
• Blog post: The AFCCA finds that using solitary confinement to avoid violating Article 12 isn’t cruel and unusual, but deserves relief
• Blog post: The Air Force JAG certifies two cases to CAAF
• Blog post: CAAF specifies an additional issue in Gay
• Appellant’s brief (granted issue)
• Appellee’s (Government) brief (granted issue)
• Cross-appellant’s (Government) brief (certified issue)
• Cross-appellee’s brief (certified issue)
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis