Thomas: Now Here is an Apprendi Case

In what I hope to make a regular series, I will take CAAFlog's analysis of a CAAF decision and disagree with as many portions of it as possible, that's how I got the name No Man so I'll stick with it. CAAFlog writes:

The final element of each enumerated Article 134 offense is "That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces." That is ALL that is statutorily required for an Article 134(1) or (2) offense. So in promulgating Part IV's elements for Article 134 offenses, the President isn't "defin[ing] new offenses" at all - rather, he is ADDING elements to the congressional language, not modifying or expanding the congressional language. This really functions as a way to define the particular punishments that may be imposed for the various enumerated offenses, which the President may set under Article 56. . . .

As CAAF's case law clearly holds, it is the courts' role to determine the elements of an Article 112a offense, not the President's.

I could not disagree more, unfortunately the U.S. Supreme Court has sort of spoken on this front, though that may be inconsequential for everyone except Private Loving because the Supreme Court is not binding authority, at least so says CAAF lately. In Loving v. United States, The Supremes said, "Whether or not Article 36 would stand on its own as the source of the delegated power, we hold that Articles 18, 36, and 56 together give clear authority to the President for the promulgation of RCM 1004." In case anyone does not recognize RCM 1004, it contains the aggravating factors required for a capital court-martial to adjudge death.

Now how the heck is this an Apprendi issue you ask? Well, CMA in the decision that essentially led to the Supreme Court's ruling in Loving, stated, "“If ‘aggravating factors’ used in channeling the discretion of the sentencing authority in death cases were elements of the crime, we would have no choice but to hold that they must be set forth by Congress and cannot be prescribed by the President.” United States v. Curtis, 32 M.J. 252, 259-60 (C.M.A. 1991) (citing Walton v. Arizona, 497 U.S. 639 (1990)) (emphasis added), cert. denied, 502 U.S. 952 (1991)). CMA even reiterated it after the Supreme Court's decision, stating, "Neither the aggravating factors nor the Enmund/Tison culpability requirement are elements of the offense. See Walton v. Arizona." Loving v. Hart, 47 M.J. 438, 444-45 (1998). Notice the citation in that statement, Walton v. Arizona. Why is that famous? Because the Supreme Court recently overruled Walton in Ring v. Arizona on Apprendi grounds and found specifically that, "Apprendi’s reasoning is irreconcilable with Walton’s holding in this regard, and today we overrule Walton in relevant part. Capital defendants, no less than non-capital defendants, we conclude, are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment." Combine that with CMA's statements in Loving v. Hart and Curtis, and RCM 1004 violates the separation of powers clause due to Apprendi.

Does that apply to the Manual's construction of Art. 134, probably not because of the issues listed by CAAFlog (OK so we agree here). Does that apply to other articles of the UCMJ? I would say yes. And how do I disagree with CAAFlog? This whole process is not a way to define punishments under the offense, rather the Manual is defining elements as the Supreme Court has repeatedly said, and most recently in Cunningham v. California,

Under California’s DSL, an upper term sentence may be imposed only when the trial judge finds an aggravating circumstance. . . . An element of the charged offense, essential to a jury’s determination of guilt, or admitted in a defendant’s guilty plea, does not qualify as such a circumstance. . . . Instead, aggravating circumstances depend on facts found discretely and solely by the judge. In accord with Blakely, therefore, the middle term prescribed in California’s statutes, not the upper term, is the relevant statutory maximum.

Even for intermediate levels of punishments, if contingent on a finding of fact, those findings of fact are the functional equivalent of elements of an offense. And, applying Curtis and Loving v. Hart's guidance (I know it's not a holding, but they sure were clear on this point), can only be enumerated by Congress (not the President or CAAF), and interpreted by CAAF.