Tuesday, March 25, 2008

Brief new CAAF opinion on illegal pretrial confinement

CAAF issued a unanimous opinion by Judge Stucky today in United States v. Harris, __ M.J. ___, No. 07-0508/MC (C.A.A.F. Mar. 25, 2008). Judge Stucky wrote in his customary (and most welcome) BLUF format, so I'll let him deliver the bottom line:
We granted review to consider whether the United States Navy-Marine Corps Court of Criminal Appeals erred by failing to award Appellant sufficient additional pretrial confinement credit for unduly rigorous brig conditions and improper denial of necessary medical care, and whether the relief the court ordered was meaningful. We hold that Appellant failed to meet his burden to establish his entitlement to additional confinement credit, and any meaningful relief would be disproportionate to any harm that Appellant may have suffered.

Id., slip op. at 2.

The most interesting portion of the opinion isn't its synopsis of PFC Harris's litany of complaints about his pretrial confinement. Rather, the most interesting portion deals with the meaningless relief that NMCCA awarded. Judge Stucky explains, "By the time the Court of Criminal Appeals granted him the additional 186 days of credit, Appellant had served the full term of his confinement and been
out of confinement for over two years. There was no pending confinement against which the credits could be applied." Id., slip op. at 8. PFC Harris therefore complained that NMCCA "failed to grant him appropriate relief." Id. CAAF's response is, basically, "tough." CAAF suggests that awarding relief that would be meaningful at this point would "be disproportionate to any harm he may have suffered." Id., slip op. at 9. So it appears that the end result of United States v. Harris is that PFC Harris will receive no compensation for being unlawfully subjected to six months of confinement. Whether legally correct or not, that outcome certainly doesn't seem fair.


Anonymous said...

Wait a minute. Can't an appellate court reduce the amount of the sentence, via confinement credits, so at least the ex-prisoner, now free, can say: "I received a sentence of 60 days"...or what have you...vice saying "2 years." That's something. And its far from "disproprtionate" relief.

This issue was decided once it was framed. ("The appellant hasn't proved he is entitled to confinement credit" is a tautology). In social science, they call this "framing bias."

Anonymous said...

He only had 149 days to serve when his court-martial was completed. It would be quite a feat to get to CAAF by that time.

Anonymous said...

Right. I get it. Too late for actual "release" from confinement. But my point goes to the "official sentence" or appearances. Even though it seems like phantom relief, can't the ex-prisoner report to his employers, friends, family...the world...that his "sentence" was NOT 149 days...but instead the lesser number (after the credits), say, 30days?

Maybe this seems like putting lipstick on a pig. But at least it is some relief.

Readers & posters please jump in...because I'm probably missing some obvious point.

Anonymous said...


I don't think it changes the official sentence. Article 13 goes to "credit," not a reduction in sentence. For example, if you get sentenced to a year in jail and get released 100 days early because of good conduct time, you can't say you only were sentenced to 265 days. Similarly, NMCCA's awarding 186 days of confinement credit doesn't change the actual sentence adjudged. NMCCA's "relief" affects nothing except the calculation of a release date -- a date that came and went years ago.

Anonymous said...

Doesn't appellant receive 186 days of back pay for this good time?

No Man said...

Anon #4 may have it. If the accused should have been released from jail 186 days earlier, the 186 days he served in jail, "on active duty" so to speak, might be compensible. However, it probably depends on where in his enlistment he stood. If he was beyond his EAOS than the time would probably have been considered appellate leave or something and not compensible. If he wasn't beyond his EAOS than the time would be active time for which he should be paid because automatice forfeitures would not apply (minus total/partial forfeitures if they were adjudged). Someone smarter than I needs to do the math, but it seems unlikely that this accused gets any money in light of the total frfeitures awarded.

Anonymous said...

Moreover, even if entitled to some back pay, good luck getting that from DFAS (or even getting ahold of someone to talk to at DFAS).

Anonymous said...

If somebody is beyond their EAOS, are they still Feres-barred from claiming civil damages against the Government for brig conditions that violated their civil & religious rights? Or does the Government win both ways?