Monday, July 16, 2007

Is the fix in?

We previously examined CAAF's opinion in United States v.Adcock, 65 M.J. 18 (C.A.A.F. 2007). Justice Erdmann's opinion for the court awarded extra confinement credit where Travis Air Force Base officials deliberately violated an Air Force reg by arranging for airmen to be held pretrial in a civilian confinement facility that commingled sentenced prisoners with pretrial detainees.

I have it on very good authority that the Air Force, like the Army before it in the wake of ACCA opinions awarding extra credit due to violations of Army pretrial confinement regs, changed the reg (AFI 31-205) rather than changing the pretrial confinement practice. Can anyone in the Air Force confirm this news and tell us what the revised reg says? Fitz?

10 comments:

John O'Connor said...

And so goes the future of "Aldock Credit." Pretty soon, the regs will simply state that commanders must abide by Article 13 and RCM 305. Period. End of reg.

Sacramentum said...

Your intelligence is accurate. See AFI 31-205, 6 July 2007.

http://www.e-publishing.af.mil/pubfiles/af/31/afi31-205/afi31-205.pdf

or my collection of the applicable changes.

http://militaryjusticeblog.blogspot.com/2007/07/pretrial-confinement-revisited.html

CAAFlog said...

Thanks, Sacramentum. The post on your site is very enlightening, especially since I find it far more difficult -- and sometimes impossible -- to find Air Force materials online. For example, one time I needed to consult the rules of professional conduct for each of the services. I easily located the Army and naval rules online. I struck out searching for the Air Force rules and finally had to have an Air Force paralegal get them for me from some password protected site. Why would the Air Force want to keep its ethics rules under close hold?

Sacramentum said...

I don't know. I can't get to the password protected site either.

Guert Gansevoort said...

I am still not sure that this solves the Adcock problem. While Adcock relied primarily upon regulations, the majority clearly suggested that Article 13 would be violated by the Air Force's attempt to circumvent Article 13 and sixty-year-old cases such as Bayhand. The cookie claim lives JOC.

Christopher Mathews said...

I'm inclined to agree with Guert that Adcock lives, despite the change to the AFI. Whether commingling under the circumstances presented in that case amounts to an Article 13 violation is, as Guert pointed out, still an open question, regardless of the change to the regulation.

Just as importantly, changing the AFI doesn't mean confinement officials are free to once again ignore their service secretaries' directives whenever it seems convenient. The underlying principle of Adcock -- that government officials must abide by the law in their treatment of detainees, and that failure to do so is an abuse of discretion -- remains, as does the potential remedy for such an abuse: additional confinement credit.

John O'Connor said...

Right, but my point is that the result from Adcock seems to be lessening the regulatory controls on pretrial detainees so as to avoid having judges create enfroceable court-martial credits. If commingling is an Article 13 violation, then there would have been Suzuki credit even if Adcock had never been decided. For pure Adcock credit, you need to find a regulation that has been violated and the Air Force experience suggests that there will be a greater reluctance to promulgate such rules because it in effect puts the military couerts in the role of micromanaging prison conditions allegedly in violation of such regs.

Christopher Mathews said...

You may be right, John. I'm not sure I'd put money on it -- it seems to me the people who write such regulations tend to add layers of specificity rather than remove them -- but in this instance, they may feel compelled to just give the confinement officials unfettered discretion within the confines of the UCMJ and MCM.

Still ... if the service secretaries want to grant such discretion, that's their prerogative. What was intolerable in Adcock's case was that the base officials arrogated it to themselves.

Sacramentum said...

I doubt the changes made by the Air Force to the pretrial confinement regulation signals the demise of Adcock. That decision basically created a new right to confinement credit when a service violates its own reg. The Air Force just made it more difficult for anyone in the exact position that Adcock was in. But I have no doubt that the Air Force and the other services will try to overturn the decision by clarifying RCM 305 to say that the "additional credit" is for abuses of discretion that only pertain to the decision to place or retain a person in pretrial confinement. Expect in the Analysis of the change to the rule to say that the change is specifically intended to overrule Adcock. As this will take several years to accomplish, I expect in the meantime we shall see someone arguing JOC's cookie claim.

John O'Connor said...

Sacramentum, et al.,

To clarify, I don't see the change to the Air Force reg as overruling Adcock in any way. My observation is that the reg was changed to remove the factual underpinning for a claim for Adcock credit based on commingling, as there is now no reg to be violated. Adcock only lives to the extent that there are service regs that are being violated and the ironic result of Adcock might be regs that leave more to the local command's prerogative, which probably makes things worse for all of the pretrail detainees (well, except for Adcock himself).