Tuesday, April 14, 2009

Still ranting: Revisiting the proposal to eliminate or consolidate the CCAs

I don't have much time tonight, but I wanted to add a short addendum to last night's rant calling for the elimination or consolidation of the CCAs.

Several people in the comment section wrote about whether CAAF could take up the slack if the four CCAs were eliminated. The answer is: Yes, easily.

During FY 2008, the four CCAs decided 2,515 cases. In FY 2007, they decided 3,423 cases.

Back in FY 1987, when CMA was still a three-member court, it had 3,336 docket terminations. See 26 M.J. CXVI. And in FY 1984, it terminated 4,036 cases. See 20 M.J. CXXXI. So it's apparent that CAAF could handle the current combined workload because in the past it has handled that case load.

Let's also do a bit of comparison shopping. In 2002 -- the most recent year for which I could quickly find statistics (have I mentioned I'm under the gun tonight?) -- the Fourth Circuit decided 5,356 cases. For most of that year, it had eleven judges. So CAAF has 45 percent of the judicial staffing that the 4th Circuit had. Guess what 45% of the Fourth Circuit's 2002 docket would be -- 2,435 cases, which is close to the cumulative number of cases decided by the four CCAs last year. So a five-member court could handle that level of cases, assuming it sat in three judge panels.

But in reality, the workload would be far less for CAAF than it was for the 4th Circuit. Here's something that every 4th Circuit case decided in 2002 had in common -- they all raised issues. There's no such thing as a merits submission to the 4th Circuit. Compare that to the military. Last year, 43.8% of all the cases decided by the Air Force Court were submitted on the merits. I'll bet the percentage is even higher for the Navy-Marine Corps Court. Even using that number across the four CCAs, CAAF would actually be called upon to decide only 1102 cases raising issues. It could summarily deny the rest without even cracking the ROT's cover.

But wait, there's more. No doubt some not insubstantial subset of the 56.2% of the CCA appeals with issues raised only a sentence inappropriateness claim. But CAAF doesn't have sentence appropriateness powers. If the CCAs were eliminated, sentence appropriateness would no longer be a judicial decision, but would instead be confined to CAs, discharge review and clemency and parole boards, and the President's exercise of his pardon power. So whatever percent of cases that now raise only a sentence appropriateness issue would now be no issue cases, further reducing CAAF's workload. And, of course, CAAF would no longer have to review petitions first and then rereview those cases in which it grants the petition. Rather, there would be one streamlined process that would no doubt result in summary affirmance for the great majority of cases and more searching analysis of more difficult cases, just as is now the case with the Article III courts of appeals. (Of course the factual sufficiency function would also disappear with the CCAs, but it's very rare to see a factual insufficiency claim raised that isn't accompanied by a legal sufficiency claim, so that's unlikely to change the percentage of briefed cases.)

While the legislative history of the bill that expanded CAAF's size to five judges indicated that Congress contemplated the court would sit en banc in every case, CAAF doesn't appear to actually be compelled to do so. In other words, even without a statutory change, CAAF could start sitting in panels while allowing for en banc review when appropriate -- such as to resolve splits between or among panels. If the CCAs were eliminated, CAAF should move to such a system.

So CAAF could manage its own workload simply by no longer reviewing no issue cases on its own and by moving to sit in panels.

CAAF is a highly professional court with superb resources, including an outstanding library staff, a court executive, an efficient clerk's office, a central legal staff, and a couple of in-chambers clerks and a couple of in-chambers secretaries for each judge. The court has the spare capacity to take on all of the CCAs' cases with no increase in funding.

What if, several years down the line, military justice caseloads drastically increase? That seems unlikely to happen. But if it were to happen, then we could throw money at the problem then. But the possibility of having to increase CAAF's size later (which, again, strikes me as a low-probability contingency) shouldn't lead us to waste millions of dollars annually now to preserve excess capacity. The federal government simply doesn't have the resources to do that anymore.

Finally, the issue of waivers of appellate review as a PTA term came up in the comments. As I demonstrate above, we could eliminate the CCAs and have CAAF provide appellate review for every case now reviewed by the CCAs without increasing CAAF's staffing. So it isn't necessary to allow for waiver of appellate review as a PTA term to accommodate the CCAs' elimination. That said, I favor allowing waiver of appellate review as a PTA term regardless of whether the CCAs are eliminated. And I favor eliminating the CCAs regardless of whether waiver of appellate review is allowed as a PTA term. Obviously my first choice would be a system in which waiver of appellate review is allowed as a PTA term and in which the CCAs are eliminated and all court-martial convictions can be appealed to the Court of Appeals for the Armed Forces.


Anonymous said...

I'm not sure advocating the most unrealistic of options (which would also require wholesale rewriting of the Code) serves any purpose. Among other benefits for the military and appellants, the CCAs permit each service to interpret their own regulations and customs. Shared resources (courtroom, library, location) among the CCAs, however, is a logical, financially prudent, and beneficial change which simply would require some inter-service planning.

Anonymous said...

So just to be sure, in this proposed system...
the same defense counsel who fails to

1.properly advise an accused about collateral consequences of a guilty plea
2.investigate the evidence before pushing for a deal
3.examine possible defenses before trial

....also gets an accused to waive his appellate review options....and this makes the system better?
Would there be a remedy for appellant's who waived their appellate rights based on bad advice from their defense attorney?

Anonymous said...

"Here's something that every 4th Circuit case decided in 2002 had in common -- they all raised issues."

But what issues? From my research it appears the large, and I mean large majority of issues raised are sentencing guideline issues.

Dwight Sullivan said...

Anon 1904, why should a system that would save DOD millions of dollars a year by eliminating a redundancy be viewed as unrealistic? If we were inventing the system in these budgetary times, would we create a system with an automatic review, then a discretionary choice whether to provide further review, then further review if that discretionary choice is exercised followed by, but only if the discretionary review is exercised, the possibility of SCOTUS review? If our current system is wasting millions of dollars on redundant reviews, shouldn't it be fixed? Perhaps the Cox Commission could be a catalyst for appropriate trimming of the military appellate system.

Dwight Sullivan said...

Anon 1942--most of those appeals are probably in civil cases. And even a sentencing guidelines case is more resource intensive than a no issues case. Wholesale rewriting of the Code? What would we have to do other than delete Article 66 and revise a few provisions in Articles 67 and 67a?

Anon 1906--while I favor allowing waiver of appellate review as a PTA term, as I said, it isn't a selling point for eliminating the CCAs. So the merits of that proposal (and I think it is meritorious) are independent of the merits of consolidating or, preferably, eliminating the CCAs.

Bridget said...

I always find interesting the idea the CAAF is too "civilian" or represents the "civilianizing" of military justice. Consider the past experience of the current judges:

Effron: Former Army JA
Baker: Former Marine officer, combat arms even.
Erdmann: ANG retired
Stucky AFR retired, spent 7 years at the AF CCA
Ryan: 11 Years AD in the USMC, Aide to the Commandant.

This court does not lack a military perspective, although I suppose the Navy and Coast Guard could complain they are unrepresented.

Maybe you could get rid of the CCA's, but I still like the concept of a single CCA. But then again, I probably think more favorably of "purpling" than JO'C.

Anonymous said...

Thank you Mr. Sullivan for that information, it is very insightful.

I also want to thank the Admiral for his endorsement...I still think the solution is getting rid of BCD's and keeping the DD for the most heinous of acts and relying on Discharge Boards and 15's/Sunset discharges.

In fact, such solutions require little change in regs, code, or law.

I do not think combining CCA's is the right way to go, as stated before each service has their own norms. Of course the Navy/Marines get along fine together, but that is no reason to throw Air Force Judges deciding Navy/Marine issues or vice-versa.

...I do advocate actual uniform judgments...That is to say anyone with eyes can look at the annual reports and see that each service punishes conduct differently. But that is a side issue base on norms of the services.

Anyways, I consider CAAF the Supreme Court of the Military. In essence since SCOTUS hardly gets involved in these "silly military cases (as one author put it)" the CAAF acts as the Supreme Court of the Military...With SCOTUS getting involved largely over jurisdictional/Death Penalty issues.

Apparently some genius in Congress knew that Civilian courts would be hesitant to review military courts...Thus we have CAAF.

The System "Fundamentally" works fine as it is...The solutions to streamline it require little change.

Also, for the Admiral I think I’ll play Devil’s Advocate:

“If that's what you want, just dispense with courts-martial and try these cases in federal court and make CAAF the reviewing court. While you're at it, get rid of military trial and defense counsel as well, and replace convening authorities with special US attorneys (civilian of course) to handle military cases.If memory serves me I think Canada and/or Britain has done this (going off memory, I won’t look at Google). Does anyone have familiarity on their systems, how civilization of military courts works for them? Then again this is the US, and I am not a fan of following Europe’s example on anything....Just saying other countries have service members thrown in their state/federal systems.

Oh…And for this person:

Bravo! Too many appeals, too much time, too much money. Delayed justice for the victims. Let's have one level of appeal, then finality.The goal of improving the Military Justice System is not saving money or doing less work…The accused has rights too. I am not sure what you mean by “delayed justice”, accused serve their sentences immediately with the exception of the execution of the discharge. A balance must be struck between the needs of society, the rights of the accused, the maintenance of good order and discipline, and justice for the victims.
Having said that, I never understood how keeping a man 2-4 years on appellant leave based on petty offenses (like a drug pop) serves either in that case.
And it wasn’t always like this.
Back when I was kidnapped by the Goons at Hurlburt Field, I was thrown in Pensacola Brig (BTW, excellent accommodations) without charges for nearly two months I stumbled on their Law Library….I read cases from the onset of the CMA/CCA’s and noticed something in particular:

Over the years, particularly in the 70’s and 80’s there was a move from doing what made sense in the military, to doing what made sense in the minds of the oligarchy.
And it started with the civilization of the military justice system.

Yes, Military prosecutors starting acting like their counterpart District Attorneys: BIG sentences for small offenses. No budgets, throw unlimited resources and time at an accused. Take 8 months to prosecute a drug pop (like they do at Hurlburt).

I remember a few cases in the late 50’s were BCD’s were disapproved even when it was the accused third court-martial !!!:

UNITED STATES v CHARLES (n) RANERI 4541201, Parachute-Rigger Airman, U.S. Navy

NCM 56 02053

United States Navy Board of Review

22 C.M.R. 694; 1956 CMR LEXIS 333
“The second defense assignment which we find to have merit is that the sentence is inappropriate as too severe. While we are ordinarily reluctant to differ with reviewing authorities in the field as to the appropriateness of a sentence, we do have a statutory duty in that connection which we cannot dodge nor rely on others to perform. U.S. v Cavallaro (No. 2774), 3 USCMA 653, 14 CMR 71; U.S. v Lanford (No. 6540), 6 USCMA 371, 20 CMR 87. There are a number of factors in this case which lead us to believe that a punitive discharge not suspended on probation is too severe. This accused's two previous convictions are for relatively minor offenses and were punished [*696] as such. The offenses in the case at hand are not extremely serious in their [**5] settings: a missing of a muster because of attendance at the station movie, tardiness in relieving a watch because a friend failed to awaken the accused in time, a late return from lunch because of an unauthorized trip to the station legal office, a disappearance instead of sweeping down, and a disrespectfully heated refusal to obey an illegal order. Further, on the face of it, there may have been a possible unexplained "saving-up" of offenses (despite Articles 30 and 98, Uniform Code of Military Justice, and paragraph 25, Manual for Courts-Martial, 1951), for the muster and fire watch offenses occurred on 6 March, the lunch hour lateness on 16 March, the sweeping offense on 27 March, and the disrespect offense on 2 April. Lastly, we set aside the most serious offense on the charge sheet, an offense which involved a face to face disrespectful refusal to obey, and this action would appear to call for considerable reduction in the sentence. Since we do not have the power to suspend the discharge ourselves (U.S. v Simmons (No. 940), 2 USCMA 105, 6 CMR 105), we have no alternative to disapproving it under the present state of military law except the long and ordinarily impracticable [**6] method of returning the case to the court.”
Yes, there was a time were sane JAGs and CA’s looked at the cost and time when dishing out punitive discharges. Also I remember reading on a private who was court-martialed during WWII on desertion (he had joined the Canadian army to get into WWII quicker – the US had not joined the fight yet) and on the same day received a battlefield commission – he would then go one to receive the Medal of Honor and retire a Colonel.

What would happen if today someone disserted the Army to join the IDF, then frequently reenlist back into the Army?

- Tony C.

Anonymous said...

* I meant Fraudulently reenlist, and I do notice other typoes. stupid spell check.

The point is cases should be handled like they used to: with the interests of everyone in mind. Not spend thousands of dollars and keep people on excess leave for an entire enlistment period just because "it looks good to get a BCD".

I notice the Punitive Discharge is the holy grail to any military prosecution. Not sure why, I never understood it.

I was always told that the legal office would take a Punitive rather than any time in confinement (i.e. a BCD, no jail-time is better than a no-BCD 11 months). Again, this is cultural preference which escapes me.

It's a strange little one eyed purple monster which origins are unknown. Where did it come from?

John O'Connor said...

Anon 2201:

TCs want a BCD because then they can tell the commander they got rid of the accused without the delays involved in an admin separation. The accused either has a PTA that requires him to take volunary appellate leave, or he'll take voluntary appellate leave, or he won't and then the command will have him fill sandbags until he sees the virtues of voluntary appellate leave (this takes about 5 hours).

I never got a call when an accused got the boomer but not that much confinement. I did get calls when the accused got healthy confinement but no boomer.

Bridget said...

JO'C: -BCD avoiding the "delay" of an ad sep, but triggering the lengthy appeal process, which has the accused/convicted still collecting gov't benefits? Hmm. interesting.

John O'Connor said...


Commanders don't care about the appellate process. That's why they don't mind going there as long as they get the boomer. Once the accused is on appellate leave, he is somebody else's problem in the eyes of the command. It's like the accused no longer exists.

Of course, I have some ideas that would eliminate or truncate the appellate process involved . . .

Anonymous said...

Most commanders (military members period) are ignorant of the system. I remember talking to my unit commander about what kind of discharge I can get at court-martial and he told me, "I don't know anything about that, hopefully an honorable."

I know in the AF it's wing supervision/majcom command that makes the decision, not the unit command.