Our illustrious leader recently suggested that he’d be interested in my reaction to CAAF’s decision granting Adcock credit in United States v. Williams. In the tradition of (now-retired) judicial independence, I find I disagree with both the majority and the dissent.
On the merits, I’m inclined to side with the dissent. I think AFCCA made the right call: Adcock requires a military judge to consider a servicemember’s complaints about abuse of discretion by pretrial confinement authorities and to determine whether they warrant a grant of additional confinement credit, but does not require that the military judge actually grant relief. The Air Force court found that the “award of additional confinement credit was clearly a matter within the sound discretion of the military judge and he did not abuse his discretion in refusing” to award it. On the facts as related in the opinion, I agree.
That said, I think Judge Stucky’s dissent is laden with more trepidation than the case warrants. I don’t believe that the majority has “created an automatic right” to credit “for even the slightest deviation from regulatory compliance.” They merely decided the question presented differently than he or I would have. Adcock has proven to be something of a judicial Rorshach test: reasonable people will see different things in it. As those familiar with the case (or the breakdown of the Air Force court panels when it was decided) know, it started as a 2-1 panel decision favoring award of credit. Given the significance of the issue presented, the Air Force court considered the case en banc, which led to the published 5-4 decision against granting credit. CAAF reversed, by a 3-2 margin. It’s not surprising that it would be the inspiration for another close call.
Concerns that the majority holding will “encourage appellants to look for and litigate perceived infractions of confinement regulations,” no matter how small, don’t particularly move me. The government writes its regulations and ought to be easily able to defend its compliance with them. In general, I expect that confinement officials will follow the service regulation. If they’re unable to do so, I expect the government will change the regulation, as it did in the wake of Adcock and in the wake of a similar Army court decision. The situation that presented itself in Adcock — in which the local confinement officials and at least one legal office with oversight responsibilities rejected the servicemember’s request for relief after calculating that the cost of violating the regulation was one they were prepared to accept — will, I hope, remain quite rare.
When Adcock first appeared, we wondered here whether the tsunami of litigation the dissent warned of would actually follow. Two and a half years later, I don’t have the sense that there has been much of a ripple, other than to make some officials actually read and follow their own regs. Even though I would have ruled differently in Williams, I don’t see it as a cataclysmic event, either.