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.

9 Responses to “Musings on U.S. v. Williams”

  1. Phil Cave says:

    Good, like it. The government is bound by its own regulations, and as we say in orders violation cases, ignores them at its peril (maybe).

  2. Anon says:

    As the dissent in Adcock pointed out, abuse of discretion is not a phrase that stands on its own. It must refer to something and that something is the propriety of the decision to put or retain an accused in pretrial confinement. See RCM 305(j)(2). But I suppose if the services want to fix the problem they can get the President to modify that sentence in RCM 305(k) to read: “The military judge may order additional credit for each day of pretrial confinement that involves (1) an abuse of discretion in placing or retaining an accused in pretrial confinement, or (2) unusually harsh circumstances.” As the accused has already received credit for the pretrial confinement itself (Allen credit), the military judge should have discretion to order any appropriate additional credit because of (1) or (2) above.

  3. Anon says:

    The problem with the Adcock/Williams solution was duly noted by Col Mathews. It just causes the services to retract some of the protections they put in regulations. The solution recommended by Anon 1635 would hopefully leave those regulations in place while still protecting the accused from abusive pretrial confinement.

  4. Christopher Mathews says:

    Anon 1640, I’d rather see the services leave their regulatory protections in place and actually comply with them.

    If they literally can’t comply, I don’t see much point to leaving the reg on the books.

  5. Anon says:

    Just because some bases can’t comply with the regs doesn’t mean that others would not try. In saying that, I have to admit that it seems the staff who prepared the confinement reg for the Secretary of the Air Force were totally clueless as to how civilian confinement facilities worked. And although the dissenters may have overestimated the reach of the majority opinion in both Adcock and Williams, it is pretty difficult to understand how the majority could have read the confinement reg as they did in Williams.

  6. Christopher Mathews says:

    Anon 1734, somehow I keep hearing the voice of Mr. Gibbs, the first officer on the Black Pearl, saying “Well, they’re more sort of actual guidelines, really.”

    I agree that the drafters of AFI 31-205 could have spent more time looking at how civilian confinement facilities work. If the Secretary is unwilling to accept the level of treatment provided to detainees at such facilities, however, then it’s incumbent on the service to either fund local facilities or pay to move the detainee to a facility that complies with the regulation. Doing so was considered in Adcock, but rejected by local officials who decided that following the Secretary’s mandate would force them to reorder their spending.

    I agree with you about both the majority and the dissent in Williams.

  7. Dwight Sullivan says:

    Thanks, JMTGst! Reading your analysis once again makes me regret that you are no longer on the bench and regret the “Baum Amendment” to Article 142(b), which prevents a President from nominating you to a CAAF judgeship. But help me out here: was the “Black Pearl” reference what I think it was? Did you just cite a Disney movie?

  8. Christopher Mathews says: