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), CAAF held that the Article 12 prohibition against confining service members in immediate association with non-service member aliens applies when a service member is confined in a civilian facility within the United States. CAAF also held that a service member must exhaust all administrative remedies prior to seeking judicial relief for a violation of that prohibition. CAAF then denied relief in both cases, holding in McPherson that the appellant failed to exhaust his administrative remedies, and finding no violation of Article 12 in Wilson because the appellant was confined alone.

Notably, both cases were certified to CAAF by the Judge Advocate General of the Air Force in order to define the reach of Article 12 (in part because of the Air Force relies heavily on civilian confinement facilities). And a curious twist to Wilson was that the appellant never asserted a violation of Article 12. Rather, he asserted that he was subjected to cruel and unusual punishment, in violation of Article 55, UCMJ, and the Eighth Amendment, because he was segregated from other inmates while confined in a civilian facility (presumably to avoid any Article 12 issue).

The Air Force CCA rejected Wilson’s claims for relief (twice). But now that CCA revisits the issue raised in Wilson. In United States v. Gay, 74 M.J. 736, No. 38525 (A.F. Ct. Crim. App. Jun. 12, 2015) (link to slip op.), the AFCCA holds that the appellant’s confinement in solitary confinement (where he was alone 23 hours per day, and suffered other administrative hardships) in a civilian facility, imposed after he complained of an Article 12 violation, was not cruel and unusual punishment, but is deserving of relief under the CCA’s Article 66(c) sentence-appropriateness power.

Rejecting the appellant’s claims under the Eighth Amendment and Article 55, UCMJ, the CCA concludes:

Both our superior court and federal civilian courts have held that solitary confinement, per se, does not constitute cruel and unusual punishment. Rather, we review the specific conditions of solitary confinement to determine whether the confinement involved deprivation of basic needs or unnecessary infliction of pain. The appellant’s complaint does not amount to a serious act or omission resulting in a denial of necessities, and he claims no infliction of pain on him. . . .

In short, the appellant has not established that he was subject to cruel or unusual punishment. Solitary confinement per se is not incompatible with the evolving standards of decency that mark the progress of a maturing society, and there is no evidence of the unnecessary and wanton infliction of pain.

Slip op. at 7-8 (citations omitted). Nevertheless:

Under the facts of this particular case, we elect to grant sentence appropriateness relief even though the appellant’s treatment does not constitute an Eighth Amendment or Article 55, UCMJ, violation. . . . The following facts inform our decision that the appellant’s post-trial treatment has rendered his sentence inappropriately severe:

1. No valid reason has been offered for placing the appellant in solitary confinement. The chief of military justice’s memorandum did not indicate the appellant was placed in solitary confinement for discipline, safety, or any other legitimate reason.

2. If the appellant was placed in solitary confinement solely to prevent him from being housed with a foreign national, this does not constitute an acceptable reason for placing the appellant in solitary confinement. See United States v. McPherson, 73 M.J. 393 (C.A.A.F. 2014) (Baker, C.J., concurring in part and dissenting in part) (generally noting the concern that servicemembers could be placed in solitary confinement regardless of their behavior to avoid giving rise to relief under Article 12, UCMJ, for confining them in association with foreign nationals).

3. The unrebutted assertion in the appellant’s superintendent’s affidavit indicates that some Air Force official directed the appellant to be placed in solitary confinement.

4. When unit leadership complained to MCCI officials, the appellant was easily transferred to another pod that did not contain foreign nationals.

Under these particular facts, we find the appellant’s approved sentence is not appropriate for this appellant and his offenses.

Slip op. at 9-10 (emphasis added). The CCA also finds unreasonable post-trial delay that is deserving of relief.

The CCA grants relief, but unfortunately it is not particularly meaningful relief. A general court-martial composed of officer members sentenced the appellant to confinement for six months, total forfeitures, reduction to E-3, and a bad-conduct discharge. The convening authority reduced the confinement to 5 months and 21 days.

The CCA approves “a bad-conduct discharge, confinement for 3 months, and reduction to E-3.” Slip op. at 12.

That the appellant already served all of the adjudged confinement is only one factor when considering the lack of meaningfulness in the relief granted; there’s also the collateral consequences of the punitive discharge (recently discussed here).

2 Responses to “The AFCCA finds that using solitary confinement to avoid violating Article 12 isn’t cruel and unusual, but deserves relief”

  1. Weirick says:

    Disclaimer: Weirick is on record supporting changes to CA making determinations regarding felony crimes proceeding to courts-martial.
    Does it strike anyone else as odd that commanders/convening authorities maintain that they must maintain central role in the military-justice system; yet they are increasingly willing to allow civilian authorities incarcerate servicemembers?  Brigs and stockades are being turned over to civilians at a rapid pace, e.g., Quantico no longer has a brig.  Quantico Marines are now housed at the Rappahannock Regional Jail. 

  2. k fischer says:

    I don’t find it too strange in that pretrial incarceration by the civilians is almost a necessity because Post and Base Military Police no longer maintain brigs for pretrial confinement.  As a TC at Benning in 2002-2003, the unit had to supply their own guards 24/7 to watch the pretrial confinee outside the two cells they had at the MP station.  That created quite a burden for the unit, and it was a blessing when Sheriff Mike Jolley of Harris County got a contract with Ft. Benning to provide pretrial confinement for Soldiers at approximately $50 per day.  I still did not get any relief for my client who was housed with a post-trial military confinee who was housed there awaiting orders to a military confinement facility.  Also, back then, there were two guys at big Army confinement who took a week to figure out where the post-trial confinee would be going after his court-martial, so this contract was huge in that the unit did not have to guard post-trial confinee until they could figure out where decided to throw the dart at the map of the United States and pick the confinement facility farthest from Ft. Benning.  I don’t know if the Marine Corps was plagued by such inefficiency, but it was very frustrating on this former Army TC.
    I agree with The Weirick on said changes, as well, as it is high time Staff Judge Advocates accept sole accountability on the decision to refer cases to GCM, thereby alleviating issues, both apparent and actual, created by Senator Claire McCaskill holding up the promotion of any CA who does not act in accordance with her wishes.