Sunday, February 18, 2007

Restitution and confinement contingent on restitution are illegal sentences

I hadn't paid attention to this summary disposition from 2 February 2007 until today:

No. 06-0949/AR. U.S. v. Felecia A. JOHNSON. CCA 20040993. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, the Court notes that the military judge adjudged a sentence including the following punishment, "if you fail to tender a cashier's check in the amount of $12,960.00 in restitution to the United States Treasury within 30 days from the date of trial, that you be further confined for an additional one year." . . . Inasmuch as the President has not authorized either restitution or restitution with contingent confinement as punishments under the Uniform Code of Military Justice (UCMJ), we conclude that this portion of the sentence was unlawful. Article 18, UCMJ, 10 U.S.C. § 818 (2000); Rule for Courts-Martial 1003. . . .

But this is a case where an end that can't be accomplished directly can be accomplished indirectly. While a military judge may not impose restitution or confinement contingent on restitution, a pretrial agreement can require restitution and exact punishment on the accused if a promise to make restitution is not fulfilled. See generally United States v. Williams, 60 M.J. 360 (C.A.A.F. 2004).


egn said...

THe military judge could have achieved the same objective by adjudging a fine in the same amount (assuming this was a GCM), and hinging additional confinement upon the payment of that fine. The payments go to the US Treasury in either case -- wonder why the judge decided to get innovative with this sentence?

John O'Connor said...

Like egn said, I had a few cases where the MJ issued a sentence that included a fine that required extra confinement if it wasn't paid. I also believe I had a case where the MJ adjudged a fine with extra confinement if not paid AND a recommendation that it be disappoved if the accused repaid a civilian victim. I could be imagining that last one.

I thought I had read that there was a movement afoot to get rid of the fine as something too hard to administer. Is that true and did anything come from that effort?