Pena was a CAAF decision issued during the waning days of the Era of Three Part Harmony before Judges Stucky and Ryan began participating in CAAF decisions. Pena's appeal was a frontal assault on the military's mandatory supervised release program. In his opinion for the court, Chief Judge Effron discussed the limitations on CAAF's power to evaluate the manner in which the Department of Defense executes a court-martial sentence:
Our review of post-trial confinement and release conditions on direct appeal is limited to the impact of such conditions on the findings and the sentence. . . . Accordingly, our review in the present appeal focuses on whether the post-trial conditions at issue: (1) constituted cruel or unusual punishment or otherwise violated an express prohibition in the UCMJ; (2) unlawfully increased Appellant’s punishment; or (3) rendered his guilty plea improvident. To the extent that the issues raised by Appellant otherwise challenge the administration of the Mandatory Supervised Release program, those matters -- including questions regarding the underlying legal authority for the program -- are not before us on direct review.
Pena, 64 M.J. at 264.
CAAF held that Pena had not carried his burden to obtain relief on any of those three bases. As you may recall, Pena then unsuccessfully sought cert. Pena v. United States, 127 S. Ct. 2281 (2007).
Which brings us to this Monday. CAAF remanded United States v. Seawell, in which CAAF had previously granted review, 64 M.J. 317 (C.A.A.F. 2006), for the Air Force Court to consider "WHETHER THE DECISION TO DISAPPROVE TIME SERVED ON MANDATORY SUPERVISED RELEASE AND IMPRISON APPELLANT BEYOND HIS MAXIMUM RELEASE DATE INCREASED APPELLANT’S PUNISHMENT ABOVE THE SENTENCE APPROVED BY THE CONVENING AUTHORITY. SEE UNITED STATES v. PENA, 64 M.J. 259 (C.A.A.F. 2007)." United States v. Seawell, __ M.J. ___, No. 06-0502/AF (C.A.A.F. July 16, 2007).
Judge Ryan issued a provocative concurrence, questioning whether under Clinton v. Goldsmith, 526 U.S. 529 (1999), CAAF has jurisdiction to review the manner in which the Mandatory Supervised Release Program is executed or the program's collateral consequences on a particular accused. She suggests that her view is that CAAF may only consider whether the Mandatory Supervised Release Program "results in an increase in the punishment of confinement," thereby creating "an actual alteration of the adjudged sentence." (The answer to that question, of course, would almost invariably be, No.)
I suspect that these are just the first few lines in what will become an extended judicial dialogue. This should be interesting.