Tuesday, December 30, 2008

JSC drops enumerated Article 134 child pornography offense from its 2008 final proposed MCM amendments

Yesterday's Federal Register includes the Joint Service Committee's post-public comment revisions to its 2008 review of the MCM. Here's a link.

We previously discussed the JSC's proposed amendments, which included creating an enumerated Article 134 offense specifically covering child pornography. That idea has been shelved, at least for now. As the JSC noted yesterday:

The JSC considered the public comments and, coupled with the United States Court of Appeals for the Armed Forces recently hearing arguments on issues of child pornography with decisions pending, decided to withdraw the proposed addition of a paragraph addressing child pornography under Article 134 in Part IV of the MCM. The child pornography proposal will continue to be considered as part of the 2009 annual review.
The JSC went forward with its other recommendations, which included providing specific guidance concerning the availability of fines in prosecutions of civilians who are subject to UCMJ jurisidiction, revising the rules governing SJARs, and increasing the maximum authorized confinement for manslaughter of someone less than 16 years old.


Anonymous said...

May I do a parody of the paranoid CAAFlog commentarian? Here goes:

"I guess the military now supports child pornography. The evil pedophiles on the defense bar must have convinced the military that child pornography should be legalized. We need to abolish our adversarial system for the sake of the children. If you don't agree with me, then you are a traitor to America and worship Satan."

How's that?

Cloudesley Shovell said...

An enumerated 134 offense is a good idea (or even better, a pure enumerated offense passed by Congress, except with a little more care than that given to Art. 120).

It was also a good idea to pass on this proposal, since it was poorly drafted.

Jason Grover said...

It is a shame they dropped it. It would have saved all the second-guessing and effort creating a spec for our many child porn cases. I wish they had done this years ago. As Cloudesley points out, they seemed to have no problem pushing out a questionable Article 120.

Dew_Process said...

Or, maybe, someone on the JSC finally got around to reading Parker v. Levy?

Only Congress can "create" military crimes, first of all. Second, Title 18, USC, amply gives the prosecution innumerable tools to prosecute. Why give the Defense even more opportunities to attack Specifications?

But, as a prior thread here noted, as long as military justice remains the Rodney Dangerfield of the law, we get junk like the current Article 120.

Anonymous said...

I would take offense that Art. 120 was drafted with little care. Please raise your right hand if you have ever been involved with statute drafting and contemplated every possible problem that could result before it actually did. It is easy to Monday-morning quaterback it, but as I recall not many folks were providing negative comment during the public comment period when the JSC was drafting the implementing regs and where were you all when Congresswoman Sanchez rolled 120 out to Congress. Last, as was previously noted the JSC did not recommend this Article 120 change, it recommended no change.

I also agree with JG that it would have assisted the administration of MJ had the child porn Art. 134 been pushed through. Instead I will continue to hear countless misinformed JAGs talk about "assimilating" 18 USC 2257 when it is actually not prosecuted under the the Assimilative Crimes Act, but as a crime not capital under clause three of Article 134.

Mike "No Man" Navarre said...

Dew has me at only COngress can create offenses! I have been arguing that for the last 5 years! Apprendi-Blakely-Cunnigham-et al. = MCM created offenses violate the Dew Process clause. thank you!

Dew_Process said...

No Man -- glad to have made your New Year Happy!!! In addition to the Apprendi line of cases, there's that little pesky thing called the Constitution, Art. I, Sec. 8, giving Congress the power "To make Rules for the Government and Regulation of the land and naval Forces."

Every now and then you get some creative Spec drafting under Arts. 133 or 134, that give rise to the issue. People really do need to re-read Parker v. Levy.

Mike "No Man" Navarre said...

Dew, dude, do not get me started on the intersection of the separation of powers doctrine and the Apprendi doctrine.

Dew_Process said...

No Man--- but, that's the very core of the premise - Congress, not the Courts legislate "elements," and thus, by implication, neither can the JSC via funky MCM amendments to the "General Articles."

Sorry . . . I've got an excuse, I've got a writ to finish and file on Monday and needed a break. With any luck, you're out having a beer!