CAAF decided the Air Force case of United States v. Wilson, No.s 13-0157/AF & 14-5003/AF, 73 M.J. 404 (CAAFlog case page) (link to slip op.), on Thursday, August 21, 2014. Wilson is a companion case to United States v. McPherson, No. 14-0348/AF & 14-5002/AF, 73 M.J. 393 (C.A.A.F. Aug. 21, 2014) (CAAFlog case page) (link to slip op.), and echoes the holdings of McPherson that Article 12 applies to service members confined in civilian facilities within the United States and that service member must exhaust all administrative remedies prior to seeking judicial relief for a violation of Article 12. But CAAF finds that Article 12 was not violated in this case because Technical Sergeant Wilson was confined alone. The court answers the certified issue in the negative and affirms the decision of the Air Force CCA.
Judge Stucky writes for the court, joined by all but Chief Judge Baker who dissents with a single sentence that refers to his separate opinion in McPherson.
Appellee was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of one specification of violating a lawful order in violation of Article 92 (he was acquitted of numerous other charges). He was sentenced to reduction to E-2, confinement for three months, and a bad-conduct discharge. He served the entire sentence to confinement in a local civilian jail because there was no nearby military confinement facility. Pursuant to a standing policy, the jail segregated Appellee from the other prisoners in order to avoid housing him with foreign nationals. Appellee complained about this segregation in his post-trial submission to the convening authority, and then again to the Air Force CCA where he alleged that being held in isolation at the civilian jail constituted cruel and unusual punishment in violation of Article 55. The CCA rejected Appellee’s claim, finding that TSgt Wilson failed to show that jail officials were deliberately indifferent to his health and safety, and noting: “To the contrary, the evidence shows that jail officials segregated military prisoners from the general population to prevent commingling with foreign nationals in violation of Article 12, UCMJ.” United States v. Wilson, No. 37897, slip op. at 2 (A.F. Ct. Crim. App. Oct. 12, 2012).
CAAF then summarily remanded the case for the CCA to consider whether Article 12 applies, which the court did in a published opinion issued in January, concluding that there is no geographical limitation to Article 12. United States v. Wilson, 73 M.J. 529 A.F. Ct. Crim. App. 2014). The Judge Advocate General of the Air Force then certified the case to CAAF with the exact same issue as the one certified in McPherson:
Whether Article 12, UCMJ, applies to the circumstance where an accused and/or convicted member of the armed forces is confined in immediate association with foreign nationals in a state or federal facility within the continental limits of the United States.
But because Appellee never raised an Article 12 claim – he actually specifically rejected it during oral argument at the CCA – he asserted that CAAF lacked jurisdiction to consider the certified issue. Judge Stucky’s majority opinion rejects the assertion, finding that CAAF can consider the certified issue because “there is a justiciable case and controversy . . . [t]he CCA has rendered a “final action” in Appellee’s case . . . the applicability of Article 12 to TSgt Wilson is interwoven with the resolution of his complaints about confinement conditions.” Slip op. at 5. Appellee’s efforts to obtain further review of the actual circumstances of his segregated confinement is also rejected in a short footnote. Slip op. at 2 n.1.
Judge Stucky’s majority opinion is short – just barely over five pages – making it the shortest opinion of the court this term, and it avoids considering whether the segregation of Appellee in order to avoid a violation of Article 12 resulted in a violation of some other legal right. At the CCA, Appellee complained about his segregated confinement as cruel and unusual punishment, in violation of Article 55. The CCA’s analysis of that claim – now dispositive in this case – is somewhat unsatisfying:
The appellant’s claim fails because he has not established that jail officials were deliberately indifferent to his health and safety. To the contrary, the evidence shows that jail officials segregated military prisoners from the general population to prevent commingling with foreign nationals in violation of Article 12, UCMJ. Such routine conditions of administrative segregation do not constitute cruel and unusual punishment under an Eighth Amendment analysis absent deprivation of life’s necessities or infliction of unnecessary pain. Avila, 53 M.J. at 101-02. Although the appellant questions the management decisions of the local jail, his questions are insufficient to show the required culpable state of mind.
United States v. Wilson, No. 37897, slip op. at 2 (A.F. Ct. Crim. App. Oct. 12, 2012). There is a wide range of possible deprivations that a service member might suffer between segregation to prevent commingling and deliberate indifference to health and safety.
In the conclusion of my analysis of McPherson I doubted that CAAF’s decision about the applicability of Article 12 would portend a flood of Article 12 claims. Wilson reinforces that conclusion because the segregation of Appellee from the rest of the jail population avoided the Article 12 issue altogether. But segregation also involves deprivation; of social interaction with other people and potentially of privileges (e.g., Appellee’s segregation meant that he did not have television privileges). The Government may avoid Article 12 claims by segregating military prisoners when they are held in civilian facilities, but it will invite a multitude of claims about the conditions of that segregation.
Case Links (Wilson):
• AFCCA opinion (2012)
• AFCCA opinion (73 M.J. 529)
• Blog post: The back-to-the-future theory of certification?
• Appellant’s (Government) brief
• Appellee’s brief
• Appellant’s (Government) reply brief
• Blog post: Argument preview
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis