25 August 2007

Sentence Reassessment

In two 25 August postings, CAAFlog has interesting discussions on Navy cases concerning sentence reassessment. United States v. Ryan, No. NMCCA 200401577, slip op. at 8 (N-M. Ct. Crim. App. March 29, 2007) and United States v. Bredschneider, __ M.J. ___, No. NMCCA 200700025 (N-M. Ct. Crim. App. Aug. 23, 2007). In the past CAAFlog has criticized the so-called Sales/Peoples standard. So has Sacramentum.

I think it is time we discuss not only what the standard is, but what it should be. But first, some history might be helpful.

We start with the habeas case of Chester Jackson. Jackson v. Taylor, 353 U.S. 569 (1957). Jackson was a soldier stationed in Korea who was convicted, with two others, of premeditated murder and attempted rape. He was sentenced to life in prison, as were his co-accused. The Army Board of Review found the murder convictions unsupported in law and fact, upheld the attempted rape convictions, and affirmed sentences that included confinement for 20 years, the maximum authorized for attempted rape. The Court of Military Appeals affirmed and all three filed habeas corpus petition in federal court. The three accused were confined in separate facilities in different states. The petitioner, Jackson claimed attacked “the sentence of the board alleging that 'the action of the Review Board in reserving twenty (20) years of the life sentence imposed by the Court-Martial for the crime of murder, even though it had reserved and set aside the conviction, was null and void.'” Id. at 571. The district and circuit court of appeals rejected Jackson’s claim, but one of his co-accused prevailed on the same issue in a different circuit. The Supreme Court granted certiorari to resolve the conflict on the “gross sentence” question.

Jackson’s argument went something like this: The law officer told the members that they could sentence the accused to death or life in prison. As he was sentenced to life in prison on the murder charge, he was not sentenced on the attempted rape. As the murder charge was dismissed, he should have a rehearing on the sentence or be released because the ABR did not have authority to sentence him. The Supreme Court affirmed the lower court’s denial of his petition.
Petitioner objects, however, that the board of review should not have imposed the maximum sentence for attempted rape because the court-martial might have imposed a lesser sentence had it considered the matter initially. But this is an objection that might properly be addressed to Congress. It has laid down the military law and it can take it away or restrict it. The Congress could have required a court-martial to enter a sentence on each separate offense just as is done in the civilian courts. The board of review would then know the attitude of the court-martial as to punishment on each of its findings of guilt. But this the Congress did not do. The argument, therefore, falls since it is based on pure conjecture. No one could say what sentence the court-martial would have imposed if it had found petitioner guilty only of attempted rape. But Congress avoided the necessity for conjecture and speculation by placing authority in the board of review to correct not only the findings as to guilt but the sentence as well. Likewise the apportionment of the sentence that the court-martial intended as between the offenses would be pure speculation. But because of the gross sentence procedure in military law we need not concern ourselves with these problems. Military law provides that one aggregate sentence must be imposed and the board of review may modify that sentence in the manner it finds appropriate. To say in this case that a gross sentence was not imposed is to shut one's eyes to the realities of military law and custom.
Finally the petitioner suggests that the case should be remanded for a rehearing before the court-martial on the question of the sentence. We find no authority in the Uniform Code for such a procedure and the petitioner points to none. The reason is, of course, that the Congress intended that the board of review should exercise this power. This is true because the nature of a court-martial proceeding makes it impractical and unfeasible to remand for the purpose of sentencing alone. Even petitioner admits that it would now, six years after the trial, be impractical to attempt to reconvene the court-martial that decided the case originally. A court-martial has neither continuity nor situs and often sits to hear only a single case. Because of the nature of military service, the members of a court-martial may be scattered throughout the world within a short time after a trial is concluded. Recognizing the impossibility of remand to the same court-martial, petitioner suggests as an alternative that the case should be remanded for a rehearing before a new court-martial. He admits that it would now be impractical for such a new court-martial to hear all of the evidence, and that the court would have to make its sentence determination on the basis of what it could learn from reading the record. Such a procedure would merely substitute one group of nonparticipants in the original trial for another. Congress thought the board of review could modify sentences when appropriate more expeditiously, more intelligently, and more fairly. Acting on a national basis the board of review can correct disparities in sentences and through its legally-trained personnel determine more appropriately the proper disposition to be made of the cases. Congress must have known of the problems inherent in rehearing and review proceedings for the procedures were adopted largely from prior law. It is not for us to question the judgment of the Congress in selecting the process it chose.
Id. at 578-80 (emphasis added) (footnotes and citations omitted).

Nearyly 30 years later, in United States v. Suzuki, 20 M.J. 248, 249 (C.M.A. 1985), Chief Judge Everett wrote the following:
However, when prejudicial error has occurred in a trial, not only must the Court of Military Review assure that the sentence is appropriate in relation to the affirmed findings of guilty, but also it must assure that the sentence is no greater than that which would have been imposed if the prejudicial error had not been committed. Only in this way can the requirements of Article 59(a), UCMJ, 10 U.S.C. § 859(a), be reconciled with the Code provisions that findings and sentence be rendered by the court-martial, see Articles 51-52, UCMJ, 10 U.S.C. §§ 851 and 852, respectively.
The following year, writing for Court, Chief Judge Everett said the following:

Although reassessment does not provide the accused an opportunity to be present or to offer new evidence in mitigation and extenuation, this procedure complies with constitutional requirements, see Jackson v. Taylor, 353 U.S. 569 (1957) and it has often been employed by Courts of Military Review without criticism from this Court. Of course, if the error at trial was one of constitutional magnitude, then it would seem necessary that the Court of Military Review should be persuaded beyond a reasonable doubt that its reassessment has rendered harmless any error affecting the sentence adjudged at trial. Cf. United States v. Ramai, 19 M.J. 229(C.M.A. 1985); see Chapman v. California, 386 U.S. 18 (1967).
United States v. Sales, 22 M.J. 305, 307 (C.M.A. 1986).

So there must be some ideas out there. Should every case in which the sentence needs to be reassessed be sent back to a trial court? Is that a good reason to go to judge alone sentencing? Should we just keep on with the Suzuki/Sales doctrine? Should we adopt the Jackson v. Taylor doctrine? Or is there some better idea out there?


Phil Cave said...

Not reason to go judge alone sentencing. But perhaps a reason to revisit a proposal some years ago, giving the accused a choice after members findings to have MJ sentencing. But that doesn't address the issue of what to do if there is a change in the findings on appeal.

Sentence reassessment at the CCA level isn't altogether bad. There are many cases where there need not be a new hearing. For example, the 10 specifications of sexual assault, fraternization, and of course adultery; and the adultery gets set-aside. Does anyone really think there's going to be a significant change in sentence on rehearing. But there are also cases where there is a substantial difference as a result of an appeal. For example, two rape specifications, and one is set-aside for insufficiency of proof. Why should that case not get a new sentencing hearing, minus all the aggravating evidence of the rape that was set-aside? Does it matter if the guy got life, or that the sentence for the two rapes was two years? Does it matter in this second example if it were MJA or members for findings? Either way, the fact finder (according to the appellate court) erroneously convicted on one of the rapes.

Perhaps the first circumstance for a rehearing vice a reassessment is whether or not the accused plead not guilty, and was found guilty. Presumably there is a lot of evidence that would not be admissible on rehearing, that won't be considered by the new panel/MJ, and which isn't in the minds of the appellate court.

And then perhaps we look at the reasons the initial sentence was set-aside?

Or can we take "evidence" from what the Clemency & Parole Board did, or didn't do. While the appeal is ongoing, the person may have been released on parole? Could we just say "time served," and leave it at that? There is a benefit to the appellant -- doesn't have to continue either parole or supervised release?

I can see some value in the Jackson approach. We'll have to have even more TC training on sentencing worksheets. It might also be educational for SJA's, CA's, and TC's, during the charging process -- a little idea of what it's worth. To go back to an earlier example. We have five specifications of sexual harassment, fraternization, and adultery. We spend two hours of court time on the serious offenses, and five hours on the adultery. And then when the members announce sentence specification by specification, and keep getting zero for the adultery, well ... pigs may fly. But the relationship between charging decisions and the end result is a different topic.

Anonymous said...

So if I understand this correctly, the CMA ordered the CCAs to apply a test to reassess sentences that the Supreme Court specifically rejected.

Why am I not surprised.

Sacramentum said...

Phil Cave wants to rewrite the UCMJ. we can take that on too, but maybe in my next post.

Anonymous is correct. CMA adopted a test that the Supreme Court had specifically rejected in Jackson v. Taylor. The Supremes suggested certainly that the board of review panel would decide what an appropriate sentence was after reviewing the whole record, without reference to what court members did or would do except as a cap on the maximum sentence the board of review could approve.

I think the current system is somewhat of a fraud. As the Supreme Court said, there is no way of knowing what the trial court would have done absent the error. There seems only 2 answers to this problem: congressional action or judges on CAAF willing to relook at the issue. I don't foresee either event as being likely.