Argument Preview: Should a CCA consider confinement conditions as part of its sentence appropriateness review, in United States v. Jessie, No. 19-0192/AR
CAAF will hear oral argument in the Army case of United States v. Jessie, No. 19-0192/AR (CAAFlog case page), on Tuesday, November 5, 2019, at 9:30 a.m. The court granted review of three issues involving a policy (since rescinded) of the Joint Regional Confinement Facility (JRCF) at Fort Leavenworth, Kansas, whereby prisoners convicted of child sex offenses were prohibited from having any contact with children, including their own biological children:
I. Whether the Army court erred by considering military confinement policies but refusing to consider specific evidence of Appellant’s confinement conditions.
II. Whether the Army court conducted a valid Article 66 review when it failed to consider Appellant’s constitutional claims.
III. Whether Appellant’s constitutional rights were violated by a confinement facility policy that barred him from all forms of communication with his minor children without an individualized assessment demonstrating that an absolute bar was necessary.
Chief Warrant Officer (CW2) Jessie was convicted contrary to his pleas of not guilty, by a general court-martial composed of members, of two specifications of sexual assault of a child in violation of Article 120b, and was sentenced to confinement for four years, a reprimand, and to be dismissed. The Army CCA affirmed the findings and sentence in an unpublished en banc opinion, available here.
In that opinion, the CCA discussed Jessie’s complaint about a confinement policy that prohibited him from having any contact with children, including his own biological children. The CCA held that it could consider the complaint, but it declined to do so observing, in part:
[A]ppellant’s claim inevitably involves determining the outer limits of what is an acceptable prison policy for familial contact by convicted child sex offenders. That we might consider the claim does not mean we should. This is a claim we are poorly positioned to consider, and that within the structure of the military justice system is better entrusted to a determination by persons other than this Article I court.
United States v. Jessie, No. 20160187, slip op. at 10 (A. Ct. Crim. App. Dec. 28, 2018). CAAF then granted review.
Jessie’s brief summarizes the policy at issue as follows:
Military Correctional Complex Standing Operating Procedures 310 (the “policy”), dated 2015 and 2017, precluded all inmates at the Joint Regional Correctional Facility (the “facility”) convicted of sexual offenses with minors from having any written, telephonic, in-person, or indirect contact with any minor without prior approval from the facility’s commanding officer. (JA 102–05, 184). This one-sized-fits-all policy did not distinguish between inmates who offended against their own children and inmates who offended against non-family members nor did it provide for an individualized determination of the risk an inmate posed to his children. (JA 102).
Inmates who desired to contact their own minor children had to request an exception to policy and were required to have “completed” Sex Offender Treatment (SOT). (JA 102). As a prerequisite to even beginning SOT, the policy required an inmate to admit guilt for the conduct for which he was imprisoned. (JA 110–11, 194). Inmates who had not completed SOT were uniformly denied an exception to policy and informed that they must complete SOT prior to consideration for an exception to policy. (JA 103). If an inmate’s request was denied, the inmate was barred from requesting an exception to policy for one calendar year from the date the request was denied. (JA 105).
App. Br. at 4-5.
His brief chides the Army CCA for considering new evidence (submitted at the appellate stage) that supported the Government Division’s position while refusing to consider evidence that he offered, App. Br. at 21, and for abstaining from addressing his claim with the observation that “The Army Court may call balls and strikes, but it cannot decide it no longer wants to umpire the game,” App. Br. at 23. Jessie also argues that the confinement policy lacks a valid purpose, conceding that “protection of children and rehabilitation of inmates are valid penological interests” but asserting that “simply invoking these phrases provides no rational basis for why the facility draws the line where it does.” App. Br. at 41 (marks omitted).
The Government Division responds that the CCA “was not required to attach or consider material beyond the record of trial in appellant’s case,” and so it had the discretion to select which (if any) materials it would consider. Gov’t Div. Br. at 7. It also asserts that the CCA had no obligation to consider Jessie’s complaints about his confinement conditions “because those claims do not relate to a legal deficiency in his sentence and the service courts lack authority to grant appropriate relief.” Gov’t Div. Br. at 13. As for the substance of the policy, the Government Division defends it as “crafted to serve the interests of protecting children and rehabilitating child sex-offenders . . . [and as] reasonably related to these penological interests in that it creates a safeguard against those convicted of preying sexually on children until such time as they have taken both responsibility and meaningful steps to examine their mindset with respect to minors.” Gov’t Div. Br. at 33.
Jessie’s reply brief emphasizes that his claim is an invocation of the CCA’s Article 66 sentence appropriateness power:
the Government argues this case is not really a case about sentence appropriateness case but is instead akin to Healy, which was a clemency request disguised as sentence appropriateness . . . Appellant’s sole claim was, and continues to be, that he has been confined in a manner that violated his fundamental constitutional rights and the nature of that confinement increased “the severity of the adjudged and approved sentence[.]” White, 54 M.J. at 472.
Reply Br. at 4-5.
“A Court of Criminal Appeals must determine whether it [personally] finds the sentence to be appropriate.” United States v. Baier, 60 M.J. 382, 384 (C.A.A.F. 2005). Three years ago, in United States v. Gay, 75 M.J. 264 (C.A.A.F. 2016) (CAAFlog case page), CAAF reviewed the Air Force CCA’s grant of sentence appropriateness relief (for the use of solitary confinement to avoid an Article 12 violation) without a finding of cruel and unusual punishment in violation of Article 55 or the Eighth Amendment. CAAF unanimously held that while a CCA does not have unlimited power to grant such relief, it was within its discretion to grant relief in that case.
Jessie presents something of the opposite question: whether (and when) a CCA is within its discretion to refuse to grant relief.