31 May 2007

Additional Pretrial Confinement

United States v. Adcock, No. 06-0714/AF (C.A.A.F. May 3, 2007)

No person, while being held for trial, may be subjected to punishment or penalty other than arrest or confinement upon the charges pending against him, nor shall the arrest or confinement imposed upon him be any more rigorous than the circumstances require to insure his presence . . . .
Article 13, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 813 (2000). "Article 13, UCMJ, prohibits two things: (1) the imposition of punishment prior to trial, and (2) conditions of arrest or pretrial confinement that are more rigorous than necessary to ensure the accused’s presence for trial." United States v. King, 61 M.J. 225, 227-28 (C.A.A.F. 2005).

Air Force Lieutenant Heidi Adcock received a pretrial restraint order restricting her to the confines of Travis Air Force Base. She violated the order and was subsequently ordered into pretrial confinement. Because Travis AFB did not have a confinement facility, Lt Adcock was confined in a local civilian confinement facility pursuant to a memorandum of agreement with the local sheriff. During her pretrial confinement, Lt Adcock was housed in two facilities. She was housed with other prisoners, including some who had been convicted but not sentence, was required to wear a jumpsuit whose color was based on security classification rather than whether she was a pretrial or post-trial inmate. During her pretrial confinement, Lt Adcock never protested the conditions of her confinement.

Lt Adcock pled guilty and was sentenced to a dismissal and confinement for 15 months. The military judge granted Lt Adcock confinement credit for the 157 days she spent in pretrial confinement. Lt Adcock asked the judge to grant her an additional 157 days credit because the conditions of her confinement violated the terms of Air Force Instruction 31-205. That instruction provides that (1) inmates in military or nonmilitary confinement institutitions are subject to that institution's rules; (2) the standards of confinement and treatment of inmates must meet or exceed what would be provided in DoD facilities; (3) pretrial confinees in civilian facilities be treated at least as well as they would in military facilities; (4) pretrial confinees are to be housed in separate cells, separated by sight from post trial inmates; and (5) pretrial detainees are to continue to wear the BDU (battle dress uniform).

The military judge found that the conditions of Lt Adcock's confiement violated the provisions of AFI 31-205, but declined to grant her additional credit. Lt Adcock did not appeal this finding. Nevertheless, the Air Force Court of Criminal Appeals raised it and specified the issue. In a 5-4 decision, the court sitting en banc, held the military judge did not abuse his discretion in not granting Lt Adcock additional pretrial confinement credit.

In a 3-2 decision, the CAAF held the military judge abused his discretion by not granting her 157 days of additional pretrial confinement credit. The majority opinion, authored by Judge Erdmann seems to rely on the following logic:

(1) In R.C.M. 304(f), the President prohibited pretrial restraint to be used as punishment, prisoners can't be required to wear the same uniforms as sentenced prisoners, and "[p]risoners shall be afforded facilities and treatment under regulations of the Secretary concerned."

(2) The Secretary of the Air Force promulgated mandatory rules in AFI 31-205 that were not followed in Lt Adcock's case.

(3) The Government is required to follow its own regulations.

(4) "The military judge may order additional credit for each day of pretrial confinement that involves an abuse of discretion or unusually harsh circumstances." R.C.M. 305(k). We are now creating a new rule -- the 1998 amendment to R.C.M. 305(k) established an additional basis for credit.

(5) The failure of Air Force confinement officials to follow their own regulations was an abuse of discretion.

(6) The military judge abused his discretion in not granting additional credit.
Judge Stucky, joined by Judge Ryan dissented. The dissent concedes that Air Force officials failed to follow their own regulation, but did not find that dispositive to Appellant's claims. Instead, it focuses on a more comprehensive analysis of R.C.M. 305 and the law of pretrial confinement. The reasoning is as follows:
(1) A violation of Article 13 requires a finding of intent to punish --the military judge correctly found there was no evidence of such an intent in this case. R.C.M. 304(f) and R.C.M. 305 are the President's implementation of Article 13, UCMJ.

(2) R.C.M. 305(k) provides the military judge with the discretion to grant additional confinement credit for abuses of discretion and unduly harsh circumstances of confinement.

(3) The phrase abuse of discretion must be read in conjunction with R.C.M. 305(j) which requires the military judge, on motion of the defense, to review the placement and retention of the accused in pretrial confinement for an abuse of discretion. If the military judge (or the appellate courts) conclude there was an abuse of discretion in any decision to place or retain the accused in pretrial confinement, the judge may grant additional pretrial confinement credit.

(4) If an accused wishes to contest the conditions of her confinement, it is under the unduly harsh circumstances prong of R.C.M. 305(k), not the abuse of discretion prong.

(5) The Secretary of the Air Force has means of enforcing his regulation other than granting additional confinement credit. If he wanted a pretrial detainee to be granted additional confinement credit for violations of his regulation, he would have said so.
Every military justice practitioner should read this case. It shows how differently judges can read the same rules and regulations. Some of my thoughts concerning this case:
(1) The Secretary of the Air Force certainly knows there are many Air Force bases without confinement facilities. He also knows, or should know, that no civilian confinement facility is going to follow military confinement rules or regulations. So what was he or his staff thinking when they signed off on this regulation. What was the attorney who signed off on this regulation thinking. It will be interesting to see if the Secretary of the Air Force does anything to revoke parts of the regulation or specifically state that it shall not be the basis for additional confinement credit under R.C.M. 305(k).

(2) After reading Article 13, R.C.M. 304(f), and R.C.M. 305, I am certain that by changing R.C.M. 305(k) to permit the military judge to grant additional pretrial confinement credit, the President did not intend to promulgate a new rule by which an accused would be granted additional confinement for any violation of a service regulation.

(3) From now until the President clarifies the rule -- which I have no doubt he will do (although such changes usually take 3 or more years to coordinate through DoD, DOJ, OMB, etc.) -- trial judges should expect to litigate claims that the service failed to follow its own regulation. You have to wonder how small the violation can be and still warrant invocation of the R.C.M. 305(k) remedy.

The New Article 120, UCMJ

In the National Defense Authorization Act for Fiscal Year 2006, Congress enacted sweeping changes to Article 120, UCMJ. Pub. L. No. 109-163, sec. 552 (2006). The changes become effective 1 October 2007 and represent an attempt to consolidate into one statute most of the sexual offenses currently prosecuted under the UCMJ.

There are several interesting aspects to the new rules:

(1) The statute looks more like federal criminal statutes contained in Title 18 of the United States Code than of other offenses listed in the UCMJ -- the definitions are contained in the statute itself, not left for definition by the President.

(2) Consent is no longer an element of the offense of rape. "An expression of lack of consent through words or conduct means there is no consent. Lack of verbal or physical resistance or submission resulting from the accused's use of force, threat of force, or placing another person in fear does not constitute consent." Article 120(t)(14), UCMJ.

(3) Currently, if the child with whom the accused had sexual intercourse was at least 12 years old, it is an affirmative defense to the offense of carnal knowledge that the accused believed the person was at least 16 years of age. The new Article 120 extends the defense to aggravated sexual assault of a child, abusive sexual contact with a child, and indecent liberty with a child. Article 120(o)(2), UCMJ.

(4) Mistake of fact as to consent is an affirmative defense. Article 120(t)(15), UCMJ. "The accused has the burden of proving the affirmative defense by a preponderance of evidence." Article 120(t)(16), UCMJ.

(a) It is unclear whether the President will amend R.C.M. 701(b)(2) to require that the defense give notice of intent to raise mistake of fact as to consent, but I would bet he will.

(b) Article 120(t)(16) also states that: "After the defense meets this burden, the prosecution shall have the burden of proving beyond a reasonable doubt that the affirmative defense did not exist." This makes no sense. If the evidence does not raise the issue of mistake of fact as to consent, the military judge should instruct on the elements of the offense. If mistake of fact as to consent is raised, the judge should first instruct that on the elements of the offense and that the members must be convinced beyond a reasonable doubt of each and every element of the offense before they can convict. The judge should further instruct that if they find the accused guilty beyond a reasonable doubt, they should then consider whether the accused has proven by a preponderance of the evidence that he had an honest and reasonable mistake as to the consent of the victim. If they find he did have such a mistake of fact, then they must acquit.

Changes to the MCM

The changes to the Manual for Courts-Martial promulgated by the President in Executive Order 13430 on 18 April 2007 went into effect 18 May 2007. Of course, nothing in the amendments shall be construed to make punishable any act done or omitted prior to the effective date that was not punishable when done or omitted.

The following is a summary of the major changes:

(1) R.C.M. 703, 804, 805, and 914A are amended to provide the opportunity for employing video teleconferencing in a wide variety of situations in a court-martial.

(2) Minor changes to paragraph 35, covering Article 111, UCMJ.

(3) A new paragraph 44a, covers the new Article 119a offense -- Death or injury to an unborn child.

(4) A new paragraph 45a covers the new Article 120a offense -- Stalking.
The official version of the Executive Order, 72 Fed. Reg. 20213 (23 April 2007), is posted at