United States v. Chief Warrant Officer Two LAMONT S. JESSIE

CORRECTED COPY
UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before the Court Sitting En Banc
UNITED STATES, Appellee
v.
Chief Warrant Officer Two LAMONT S. JESSIE
United States Army, Appellant
ARMY 20160187
Headquarters, 1st Cavalry Division
Rebecca Connally, Military Judge
Lieutenant Colonel Oren McKnelly, Staff Judge Advocate (pretrial)
Lieutenant Colonel Scott E. Linger, Staff Judge Advocate (post-trial)
For Appellant: Captain Heather M. Martin, JA (argued); Lieutenant Colonel Tiffany
M. Chapman, JA; Captain Joshua B. Fix, JA (on brief); Lieutenant Colonel Tiffany
D. Pond, JA; Captain Zachary Gray, JA; Captain Heather M. Martin, JA (on reply
brief); Captain Zachary Gray, JA; Captain Heather M. Martin, JA (on supplemental
brief). Lieutenant Colonel Tiffany D. Pond, JA; Major Todd W. Simpson, JA;
Captain Zachary Gray, JA; Captain Heather M. Martin, JA (on second supplemental
brief).
For Appellee: Captain Marc B. Sawyer, JA (argued); Colonel Tania M. Martin, JA;
Major Michael E. Korte, JA; Captain Marc B. Sawyer, JA (on brief); Colonel Steven
P. Haight, JA; Lieutenant Colonel Eric K. Stafford, JA; Major Hannah E. Kaufman,
JA; Captain Marc B. Sawyer, JA (on supplemental briefs).
28 December 2018
---------------------------------
MEMORANDUM OPINION
---------------------------------
This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
WOLFE, Senior Judge:
Chief Warrant Officer Two (CW2) Lamont S. Jessie asks us to find that his
sentence is inappropriate. 1 Based on matter submitted for the first time on appeal,
1
Appellant also asserts that his sentence is inappropriate because of unreasonable
(continued . . .)
JESSIE—ARMY 20160187
appellant argues that we should use our Article 66(c), UCMJ, authority to reduce his
prison sentence because of his conditions of confinement. Specifically, appellant
argues that the confinement facility’s visitation rules violate his First and Fifth
Amendment rights by depriving him of contact with his biological children. We
determine this is not an appropriate use of our Article 66(c) authority.
An officer panel sitting as a general court-martial convicted appellant,
contrary to his pleas, of two specifications of sexual assault of a child over the age
of twelve but under the age of sixteen, one specification of conduct unbecoming an
officer, and one specification of adultery, in violation of Articles 120b, 133, and
134, Uniform Code of Military Justice, 10 U.S.C. §§ 920b, 933, and 934 (2012)
[UCMJ]. The panel sentenced appellant to a dismissal from the service, confinement
for four years, and a reprimand. The convening authority approved the adjudged
sentence.
BACKGROUND
After being convicted of a sexual offense against a child, appellant has been
denied any form of contact with his children while in military confinement.
A. The Offense
In June 2012, in anticipation of deployment, appellant moved his family from
Georgia to Oklahoma. 2 To save money, appellant moved in with his close friend
Staff Sergeant (SSG) LE and her family. The family consisted of SSG LE, her
husband Sergeant First Class (SFC) SE, and their two daughters TE and ME. The
family lived in a three bedroom apartment, with the master bedroom on one side of
the apartment and the other two bedrooms next to each other on the other side of the
apartment. While staying with SSG LE’s family, appellant stayed in a bedroom next
to the children’s bedroom. During this timeframe, appellant’s daughter ZR came to
visit appellant and stayed with him at SSG LE’s house.
During appellant’s stay with SSG LE’s family, appellant began to have sex
with thirteen-year-old TE. Appellant and TE continued to communicate after TE
moved to Colorado and appellant deployed. Their communication consisted of text
messages, phone calls, and video messaging.
(. . . continued)
post-trial delay. We disagree. We have also considered the matters personally
asserted by appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.
1982), and find they lack merit.
2
Appellant is married and has two children with his wife. He also has a daughter,
ZR, from his first marriage.
2
JESSIE—ARMY 20160187
In September 2013, SSG LE discovered text messages between appellant and
TE on TE’s phone. She and her husband called appellant immediately to confront
him about the messages. He did not deny the messages but said they were being
misinterpreted. Staff Sergeant LE also confronted TE, who initially denied having
sex with appellant. Staff Sergeant LE reported the incident to the police. In the
course of the investigation, TE admitted to having sexual relations with appellant on
several occasions.
At trial, the panel rejected appellant’s argument that he was a platonic mentor
to TE. We concur with the panel’s weighing of the evidence. The panel sentenced
appellant to a dismissal from the service, confinement for four years, and a
reprimand.
B. Conditions of Confinement
In March 2016, appellant was sent to the Joint Regional Confinement Facility
(JRCF) at Fort Leavenworth, Kansas, to serve his sentence. At the time, the JRCF
policy on visitation was that inmates convicted of a child sexual offense could have
no contact with any children – to include their biological children – unless they
received an exception to policy. However, prior to an exception to policy being
considered, an inmate was seemingly required to complete a treatment program for
sexual offenders. To participate in the sexual offender treatment program, appellant
complains would require admitting the conduct underlying the offense in question.
This policy was codified in JRCF Regulation 600-1 and Military Correctional
Complex Standard Operating Procedure (MCC SOP) 310.
Effective 7 November 2018, the policy was amended to allow prisoner contact
with children under certain conditions and after an individualized assessment of the
inmate’s risk. This change in policy occurred after briefing by the parties, after oral
argument on the case, and after several rounds of both parties moving to supplement
the record with additional affidavits and evidence. We do not know whether
appellant will be allowed direct or indirect contact with his children under the new
policy.
For the purposes of considering this assignment of error, we limit our review
to the policy as it existed from when appellant arrived at the confinement facility in
March 2016 until the policy was amended in November 2018. 3
3
We see no substantive differences between the applicable versions of MCC SOP
310 during this timeframe. As such, we do not need to stratify our analysis and
assumptions.
3
JESSIE—ARMY 20160187
Within this timeframe, we will assume for our purposes that MCC SOP 310
prohibited all direct and indirect contact with appellant’s biological children. We
further assume that appellant has exhausted all administrative means of challenging
the policy. 4
DISCUSSION
A. The limits of our authority
Appellant alleges that the confinement facility policies prohibiting him from
seeing his biological children were unconstitutional, at least as applied to him. As a
preliminary matter, we briefly discuss this court’s limited remedies.
This court has no authority to direct change to the policies of military
confinement facilities. Indeed, we have no authority to supervise the practice of
military justice generally. See Clinton v. Goldsmith, 526 U.S. 529 (1999).
Regardless of how infamous or heinous the alleged constitutional violations might
be, we may not order injunctive relief directing the facility to amend its policies.
This lack of authority reflects that the responsibility of administering the
military justice system is shared between commanders, staff judge advocates,
military judges, and others. See, e.g., Bergdahl v. Burke, ARMY MISC 20150624,
2015 CCA LEXIS 431 (Army Ct. Crim. App. 8 Oct. 2015); United States v. Walker,
ARMY 20160239, 2018 CCA LEXIS 506 (Army Ct. Crim. App. 22 Oct. 2018);
UCMJ arts. 26(a), 27(b)(2), 69, and 73 (responsibilities of the Judge Advocate
General in designating military judges, certifying the qualifications of counsel,
conducting appellate review, and acting on petitions for new trials); UCMJ arts. 32,
34, 60, 71, and 138 (responsibilities of convening authorities in appointing
preliminary hearings, referring cases to trial, approving and executing sentences, and
hearing complaints against commanding officers).
Our authority, which is delineated by Article 66, UCMJ, is to determine the
correctness of the case in front of us. More technically, we “may act only with
respect to the findings and sentence as approved by the convening authority.”
Article 66(c), UCMJ. Ordering a prison commandant to change a prison policy, for
example, would not be acting on the findings and sentence. We have found no
authority to the contrary. Indeed, appellant acknowledges our limitations and
instead asks this court to reduce his sentence in light of the confinement policies to
which he was subjected.
4
To our knowledge, appellant has not sought injunctive relief from a court of
competent jurisdiction.
4
JESSIE—ARMY 20160187
The November 2018 intervening change to the prison policy does not alter our
analysis. Even assuming that recent policy changes would moot appellant’s claim
going forward, appellant was subjected to the old policy for an extended period of
time. If this would warrant sentence relief, the fact that the policy has been
modified would not alter the appropriateness of appellant’s sentence.
Accordingly, we next address our authority to grant appellant’s requested
relief.
B. May we consider sentencing matter submitted for the first time on appeal?
In United States v. Gay, our sister court at Joint Base Andrews considered
whether to reduce the accused’s sentence based on post-trial conditions of
confinement. 74 M.J. 736 (A.F. Ct. Crim. App. 2015). After considering that the
accused was unnecessarily placed in solitary confinement, the Air Force Court
determined the sentence was too severe and cut it in half. Id. “A court-martial shall
not adjudge a sentence to solitary confinement . . . .” Rule for Courts-Martial
(R.C.M.) 1003(b)(7).
Upon certification, see Article 67(a)(2), the Court of Appeals for the Armed
Forces (CAAF) was asked to determine whether the Courts of Criminal Appeals
(CCAs) have the authority under Article 66 to grant sentence appropriateness relief
for post-trial confinement conditions that do not amount to cruel and unusual
punishment. United States v. Gay, 75 M.J. 264 (C.A.A.F. 2016). The CAAF
determined that the CCAs have “discretionary sentence appropriateness authority”
and may reduce a sentence based on “a legal deficiency in the post-trial confinement
conditions.” Id. at 269.
Appellant persuasively argues that under Gay we may reduce appellant’s
sentence based on legal deficiencies in his post-trial confinement conditions.
However, our understanding of Gay is shaped by a couple of other considerations.
First, in Gay, the accused’s request for sentence relief was based on matter
that was previously submitted to the convening authority. See 74 M.J. at 739-41.
An accused’s R.C.M. 1105 submissions are a proper means to place matter in the
record for a CCA to consider when conducting a sentence appropriateness review.
See United States v. Beatty, 64 M.J. 456, 458 (C.A.A.F. 2007). Here, by contrast,
none of the matter submitted for our consideration was reviewed by the convening
authority.
Second, in Healy, the CAAF stated, “Congress never intended that a Court of
Military Review would be under any duty to receive additional information on
sentencing after the convening authority had acted.” 26 M.J. at 396-97. “[A]fter the
convening authority has acted, the Code provides no way for bringing to the
5
JESSIE—ARMY 20160187
attention of the Court of Military Review information that purportedly bears even on
sentence appropriateness.” 5 Id. at 396; accord United States v. Boone, 49 M.J. 187,
193 (C.A.A.F. 1998) (“[Healy] lives in peace with our holding that consideration of
sworn affidavits from counsel is a proper fact-finding act of a Court of Criminal
Appeals.”).
We therefore understand the CAAF’s decision in Gay to be that the Air Force
Court acted within its authority when it reduced the accused’s sentence based on a
legal deficiency in the post-trial confinement conditions, but not that the Air Force
Court was obligated to reach that conclusion. Accordingly, we will assume that we
may consider appellant’s submissions.
Thus, the issue for us to determine is not whether we “must” or “must not”
consider appellant’s post-trial confinement conditions when determining appellant’s
sentence appropriateness, the question is whether we should.
C. Eighth Amendment and Article 55 cases distinguished
Before addressing whether we should consider matter submitted for the first
time on appeal regarding the appropriateness of appellant’s sentence, we first
distinguish cases that involve claims of cruel and unusual punishment.
In United States v. White, 54 M.J. 469 (C.A.A.F. 2001), the Air Force Court
had determined that it lacked jurisdiction to consider a claim that the accused was
subject to cruel and unusual punishment while confined. 6 Our superior court
disagreed and stated the “grant of authority” under Article 67 includes
“determin[ing] on direct appeal if the adjudged and approved sentence is being
executed in a manner that offends the Eighth Amendment or Article 55.” 7 Id. at 472.
The court went further and stated that Article 67 “includes authority to ensure that
the severity of the adjudged and approved sentence has not been unlawfully
increased by prison officials.” Id. The CAAF found the CCA had erred in
determining it lacked jurisdiction to consider the claim. Id.; see also United States
v. Erby, 54 M.J. 476, 478 (C.A.A.F. 2001) (finding the CCA erred when it concluded
that it “lacked authority” to review appellant’s claims of cruel and unusual
punishment).
5
And nor would it be appropriate for us to consider government submissions that
showed an accused had been violent while confined.
6
See United States v. White, ACM 33583, 1999 CCA LEXIS 220 (A.F. Ct. Crim
App. 23 Jul. 1999).
7
Because the CAAF in White found no violation, the court did not need to determine
what the appropriate remedy would be under Article 67.
6
JESSIE—ARMY 20160187
Here, appellant does not allege that he is entitled to relief for a violation of
the Eighth Amendment or Article 55. Such a claim would require appellant to
“prove, as an objective matter, that the alleged abuse or harassment caused ‘pain’
and, as a subjective matter, that the officer in question acted with a sufficiently
culpable state of mind.” White, 54 M.J. at 474 (quoting Freitas v. Ault, 109 F.3d
1335, 1339 (8th Cir. 1997)). This is an exceptionally hard standard to meet.
Nothing we have reviewed leads us to fault appellant for not raising an Eighth
Amendment or Article 55 claim.
We do not read White or Erby as establishing an exception or overruling
Healy. That is, we do not read the Article 55 cases as establishing that we must
consider all matter affecting sentence appropriateness submitted for the first time on
appeal. Specifically, we do not read White, Erby, (or Gay) as requiring this court to
consider all post-trial submissions, not part of the authenticated record, as long as
they can be framed as asserting a legal deficiency in the post-trial confinement
conditions. 8 Such an interpretation would require that we read Healy as being
implicitly overturned. This we may not do. United States v. Davis, 76 M.J. 224,
228 n.2 (C.A.A.F. 2017).
A “legal deficiency” may be constitutional, statutory, or regulatory. We have
found no case where our superior court, outside of Article 55 claims, has ever stated
that we are required to determine the appropriateness of a sentence based on a claim
of a legal deficiency: (1) following the convening authority’s action; and (2) based
on matters submitted for the first time on appeal.
8
All manner of problems can be framed as a legal deficiency, and have included the
following (in just one case): (1) inadequate cell ventilation; (2) improper cell lock-
down averaging 9 1/2 hours per day; (3) presence of lead paint; (4) unsanitary food
preparation, storage, dining, and dishwashing; (5) crowded and noisy dining area;
(6) insufficient time to consume meals; (7) improper cell assignment with inmates
known to be violent; (8) housing with inmates who are known to have tuberculosis
or HIV; (9) requirement for military haircuts; (10) excessive scrutiny while using
bathroom, showering, and changing clothes; (11) the requirement to stand at
attention and render formal military courtesies; (12) the inability to refuse to take
prescribed medication; (13) medications dispensed by unqualified and untrained
personnel; (14) mattresses not cleaned or sterilized between users; (15) insufficient
smoke or fire detection equipment; and (16) excessive USDB phone call rates.
Marrie v. Nickels, 70 F. Supp. 2d 1252, 1255-56 (D. Kan. 1999).
7
JESSIE—ARMY 20160187
D. Should we consider appellant’s post-trial submissions and claims?
If we may consider appellant’s claims for post-trial sentencing relief, but are
not required to, the question next becomes whether we should. For several reasons,
we think not in this case.
Starting broadly, the Supreme Court of the United States has stated “courts
are ill equipped” to review problems regarding prison administration, and that it is
not “wise for [a court] to second-guess the expert administrators on matters on
which they are better informed.” Bell v. Wolfish, 441 U.S. 520, 531, 544 (1979)
(quoting Wolfish v. Levi, 573 F.2d 118, 124 (2nd Cir. 1978)); see also Jones v. North
Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 128 (1977); Procunier v.
Martinez, 416 U.S. 396, 404-05 (1974); Cruz v. Beto, 405 U.S. 319, 321 (1972);
Meachum v. Fano, 427 U.S. 215, 228-29 (1976). “Prison administrators therefore
should be accorded wide-ranging deference in the adoption and execution of policies
and practices that in their judgment are needed to preserve internal order and
discipline and to maintain institutional security.” Bell, 441 U.S. at 547.
Courts do sometimes review conditions of confinement – and sometimes must.
The Supreme Court’s guidance cited above is a call for caution, not abdication. But
we nonetheless think this case remains unsuitable for an Article 66(c) sentence
appropriateness assessment.
Were we to find appellant’s claim meritorious, we would then need to
determine whether to reduce appellant’s sentence. That is, we would need to
determine not only that the previous version of MCC SOP 310 was wrong, but also
weigh the degree of wrong. We would essentially determine (even if left unstated in
the opinion) what the confinement facility policy for child sex offender contact with
children should be. The effect, and perhaps the intended effect according to the
dissent, would be for this Article I Court to use our authority to lower sentences to
force (or at least heavily incentivize) a change in policy we find offensive. Our
Article 66(c) sentence appropriateness power is a poor tool for such an endeavor.
Additionally, this case is distinguishable from Gay. In Gay, the Air Force
Court was not asked to review the correctness of published policies and regulations.
The evidence in Gay was that the accused was placed in solitary confinement, at the
direction of Air Force personnel, “without explanation” and for “[n]o valid reason.”
74 M.J. at 739, 743. And since a court-martial may not sentence an accused to
solitary confinement, R.C.M. 1003(b)(7), the Air Force Court did not have to think
too hard in resolving the matter. Gay is a case where procedures were not followed.
Thus, while a CCAs sentence appropriateness power might have been the appropriate
tool in Gay, that does not mean it is the right one here.
8
JESSIE—ARMY 20160187
Relatedly, there are four Courts of Criminal Appeals. Assuming we weighed
in (to whatever greater or lesser extent) as to what is an appropriate policy for child
sex offender contact with children, our opinion would be co-equal with the appellate
judges of our sister courts. A prison official should not be expected to respond to
four different courts or operate different policies for prisoners depending on their
service.
And then, even were we to attempt to use sentence appropriateness review to
effect policy change, it is a blunt tool. Were we to reach appellant’s claim, the
legality of MCC SOP 310 would be only a small part of our overall sentence
appropriateness review. We must first consider appellant’s crimes and the
sentencing evidence introduced at trial. If we determined that appellant’s adjudged
sentence was lenient, we might approve appellant’s sentence notwithstanding that we
agree with his claims about his post-trial confinement conditions.
We must also give some consideration to the statutory limits of our authority.
Were we to act on appellant’s claim, we would be at the outer edge of our
authorizing statutes. Consider the following textual limitations:
(1) Article 54(a), UCMJ, states that each court-martial “shall keep a separate
record” and that “the record shall be authenticated by the signature of the military
judge.” Here, we are being asked to reduce a sentence based entirely on a record
that was never authenticated by the military judge, based on information that was
neither adversarially tested nor admitted under the Military Rules of Evidence.
(2) Article 66(c) requires that when “considering the record” to determine
whether a sentence “should be approved,” we must recognize that the trial court saw
and heard the evidence. Here, we are asked to determine whether the sentence
should be approved based on information that neither the convening authority nor
the trial court ever saw.
(3) And, our authority under Article 66(c) is limited to the findings and
sentence as approved by the convening authority. But here, we are asked to provide
relief based on conduct that happened after the convening authority approved the
sentence.
Now, Gay can be understood as extending our authority to consider such
matter. 9 If correct, then these considerations are not dispositive nor jurisdictional.
9
It is not clear whether the CAAF’s decision in Gay would be different if the
evidence of the accused’s solitary confinement had been submitted for the first time
on appeal, rather than, (as it appears from the CCA opinion), having been submitted
to the convening authority.
9
JESSIE—ARMY 20160187
But to the extent that we have discretion, the farther we get from our core function
under Article 66(c), the greater the argument for demurral.
Lastly, appellant’s claim inevitably involves determining the outer limits of
what is an acceptable prison policy for familial contact by convicted child sex
offenders. That we might consider the claim does not mean we should. This is a
claim we are poorly positioned to consider, and that within the structure of the
military justice system is better entrusted to a determination by persons other than
this Article I court.
Setting aside the broader policy concerns and looking more narrowly at the
facts of this case, we reject appellant’s claim that the record shows he poses no
threat to his children and that he therefore should have a reduced sentence. We find
as fact 10 that appellant committed a sexual crime against a close family friend. We
further find that appellant used the excuse of babysitting his daughters to invite Ms.
TE to Texas where he intended to continue his sexual exploitation. That is,
appellant attempted to use his daughters to play some role in a plan for the continued
sexual exploitation of Ms. TE. Appellant’s daughters are now (or soon will be)
about the same age as Ms. TE was when appellant acted on his sexual attraction
towards a minor.
These findings do not mean that appellant has forever forfeited all rights to
familial association. But it does mean that we should not presume how appellant
would fare when given an individualized risk assessment. If an assessment reveals
that appellant should be denied all access to his children, then appellant has suffered
no prejudice under any policy.
In other words, the amount of any sentencing relief appellant might be due
will likely turn on whether he would be allowed to have contact with his children
under the new policy. (And of course appellant may then complain that the new
policy is also unconstitutional or is being unconstitutionally applied). To grant
relief today would require us to either speculate about the outcome of the
confinement facility’s resolution of appellant’s future individual assessment, 11 or
delay making a decision until the record is more developed. If there was no other
10
We may make factual findings based on the record. See Article 66(c), UCMJ. We
may not make credibility determinations based on post-trial affidavits. See United
States v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997). Our findings here are based on
the evidence that was litigated at trial, and therefore fall outside of Ginn.
11
Our superior court has stated that we may not order relief to avoid determining
whether there is error. See United States v. Fagan, 59 M.J. 238 (C.A.A.F. 2004).
10
JESSIE—ARMY 20160187
forum for appellant to seek relief from a policy he claims is unconstitutional, this
latter course of action might be appropriate.
But here, to the extent that appellant’s claims are meritorious, there exists a
court that has the authority to order actual (i.e., injunctive) relief. The Tenth Circuit
has determined that military prisoners at Fort Leavenworth may file suit in U.S.
District Court seeking injunctive and declaratory relief for oppressive prison
conditions. See Walden v. Bartlett, 840 F.2d 771, 774-75 (10th Cir. 1988) (finding
such requests are not specifically barred by Feres v. United States, 340 U.S. 135(1950)). And the ability to grant injunctive and declaratory relief are not the only
benefits. Our jurisdiction over this case exists only during the snapshot in time
between when the convening authority acts and when we issue our judgment. A U.S.
District Court is not so constrained. Likewise, similar claims for prisoners of
different services can be considered by a federal district court, rather than by four
different service courts of criminal appeals. And, to the extent that the CCAs and a
federal district court are asked to address the same issue, this might invite
confusion. 12
Accordingly, we determine that in this case we should not consider
appellant’s post-trial submissions in his claim for sentencing relief. Our decision
today is case specific, and should not be understood as prohibiting or
disincentivizing similar (or dissimilar) requests. 13 Article 66(c) requires individual
consideration of each case.
Nor should our conclusion be in any way interpreted as a validation (tacit or
otherwise) of the previous version of MCC SOP 310. Those in command of military
prisons should execute their duties faithfully, regardless of the presence or absence
of any judicial finger-wagging.
12
In at least one case, we have found ourselves in a do-loop with the federal court;
each court not acting because the other had not yet acted. Gray v. Belcher, No.
5:08-cv-03289-JTM, 2016 U.S. Dist. LEXIS 149574 (D. Kan. 26 Oct. 2016)
(declining to consider coram nobis claim because ACCA had not yet acted); Gray v.
United States, 76 M.J. 579 (Army Ct. Crim. App. 2017) (declining to grant relief
because of the availability of relief in the Kansas district court). The do-loop was
only terminated when our superior court declared Gray’s military appeals complete.
United States v. Gray, 77 M.J. 5 (C.A.A.F. 2017).
13
We specifically commend appellate defense counsel for the stellar quality of their
representation.
11
JESSIE—ARMY 20160187
CONCLUSION
Upon reconsideration by the court en banc, the parties’ motions to attach
documents that relate to MCC SOP 310 and the restrictions on appellant’s familial
visitation rights are DENIED. 14
Upon consideration of the record, the findings of guilty and the sentence are
AFFIRMED.
Senior Judge MULLIGAN, Judge FEBBO, Judge SALUSSOLIA, Judge
ALDYKIEWICZ, and Judge FLEMING concur.
14
Our reconsideration on the motions does not remove the documents from the file,
nor do we seek to prevent our dissenting colleagues from referring to documents that
they would both admit and consider.
12
JESSIE—ARMY 20160187
Judge FEBBO, concurring:
I fully concur with the majority’s result. I write separately to raise my
concern that we would actually go beyond the outer edge of our Article I authority if
we were to reduce appellant’s sentence because, for the first time on appeal,
appellant challenges the constitutionality of the prison’s sexual offender treatment
and child access policy.
Given the historic lows in the number of courts-martial cases, I am not
worried about flooding the appellate process nor the sky falling. See Hagler, J.,
dissenting, infra. Instead, I am concerned that we are entertaining crossing the
horizon of our Article I jurisdiction as outlined in Clinton v. Goldsmith, 526 U.S.
529 (1999). If we have jurisdiction to reduce appellant’s sentence, based on matter
that was never raised at trial and was never presented to the convening authority, it
is difficult to see how anything but the exercise of our own discretion (i.e. the
measure of our own feet) limits the reach of our review under Article 66(c), UCMJ.
This new frontier of prisoner litigation could include, among other areas of
the law, addressing 42 U.S.C. § 1983 civil rights claims, family custody and child
welfare laws, and navigating the limits and rules that Congress established under the
Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996). As
military prisoners are sometimes kept in non-military facilities, our opinions in this
area could purport to reach prison policies in the Federal Bureau of Prisons and state
agencies.
Perhaps most troublesome, were this court to adopt an expansive view of what
matter is properly before us, our decisions could also impact the government’s
legitimate interest in the safety and welfare of civilian children. In deciding family
custody and visitation issues, our opinion could be misinterpreted. Social workers,
family law attorneys, and others might not see that our opinion is technically limited
to determining the appropriateness of appellant’s sentence. There is some danger
that such a decision by us could be misread by practitioners who are unfamiliar with
military justice. After all, most courts do not go about declaring prison policies
unconstitutional unless they have the authority to do something about it.
I believe that United States v. Gay, 75 M.J. 264 (C.A.A.F. 2016), is
distinguishable in two significant ways from the facts of this case. First, Gay was a
case in which the accused’s conditions of confinement were directly raised to the
convening authority. That is, the matter considered by the Air Force Court of
Criminal Appeals in Gay was part of the sentence as approved by the convening
authority. This is not the case here. Second, the policies at issue in this case are not
comparable to the issues in Gay. Appellant asks us to go well beyond the authority
to decide solitary confinement issues addressed in Gay with the potential to impact
the safety and welfare of civilian children.
13
JESSIE—ARMY 20160187
Our court has the wisdom and experience to make sentence appropriateness
determinations of military courts-martial under Article 66(c). Our wisdom does not
extend into this new horizon. Article III courts give us deference to decide military
matters. Similarly, we should not reach into an area of the law that is the province
of another court system.
Appellant’s primary avenue of relief has always been in the more appropriate
forum of an Article III court. Once raised, the federal court may or may not
conclude that the prison policy is unconstitutional. Similarly, the federal court may
also enjoin the prison from implementing its policy and therefore allow alternative
telephonic and letter contact with children. However, before deciding the issue, the
Article III court would have the benefit of depositions, civil discovery between the
parties, and possibly a full evidentiary hearing. The Article III court would also
have the benefit of having authority to order injunctive relief, enforce consent
decrees between the parties, consider the wide-range application and consistency of
Federal Bureau of Prison regulations, and order an agency to actually change its
policy if unconstitutional.
Although the dissent recognizes our court does not have jurisdiction to control
prison policy, it is clear that a change in policy would be the outcome of their
ruling. Furthermore, the dissent’s conclusion is reached on a limited appellate
record with no evidentiary hearing, conflicting affidavits from experts, no actual
exhaustion of administrative remedies, and not knowing the actual impact on the
prison resources to screen telephone calls or letters.
Turner v. Safley provides a four part test, but it is a test best designed for a
court that can actually grant injunctive relief. 482 U.S. 78 (1987). I think it highly
unlikely that when writing Turner, the Supreme Court considered how an Article I,
lower-intermediate appellate court would apply Turner in determining whether
appellant’s sentence should be approved.
It is true that our superior court has recognized our court as “the proverbial
800-pound gorilla” when protecting the rights of soldiers. See Schasberger, J.,
dissenting, infra (citing United States v. Parker, 36 M.J. 269, 271 (C.M.A. 1993)).
However, in comparison to our ability to grant appellant actual relief, an Article III
court is the proverbial M1A2 Abrams tank. For the purpose of providing appellant
with the most appropriate relief, it is a tank loaded with the authority to potentially
determine all of appellant’s complaints in his favor. As an Article I court, we
should let Congress decide whether to “uncage” our authority and allow us to wade
into the constitutionality of prison regulations for sex offender treatment, scope of
child sex offender communication with children, risk assessment for child sex
offenders, and whether association and communication is in the best interest of
protecting civilian children.
14
JESSIE—ARMY 20160187
Our Article 66(c) authority is indeed broad, powerful, and may sometimes be
the last safeguard in providing a just military criminal justice system for an accused.
But we should not fly too far from our statutory Article 66(c) authority. If we
exceed our authority and fail to exercise restraint, we may instead have our wings
clipped.
15
JESSIE—ARMY 20160187
Judge SCHASBERGER, dissenting, joined by Chief Judge BERGER, Senior Judge
BURTON, and Judge HAGLER:
I respectfully dissent.
In reviewing Article 66(c), our superior court has described our court as “the
proverbial 800-pound gorilla when it comes to their ability to protect an accused.”
United States v. Parker, 36 M.J. 269, 271 (C.M.A. 1993). I do not believe we
should lock this gorilla in a cage when it comes to potential violations of an
appellant’s constitutional rights.
We have an obligation under Article 66(c), UCMJ, to only affirm “the
sentence or such part or amount of the sentence as [we find] correct in law and fact
and determine[], on the basis of the entire record, should be approved.” That record
primarily consists of evidence admitted at trial and prior to action, but we may also
consider evidence of post-trial confinement conditions as part of our sentence
appropriateness determination if there is a legal deficiency in those conditions.
United States v. Gay, 75 M.J. 264, 267 (C.A.A.F. 2016). 15
15
The majority overstates the relevance and effect of United States v. Healy, 26 M.J.
394 (C.M.A. 1984), and ignores the underlying analysis in both White and Erby.
First, in Healy, our superior court concluded that we have “no duty to receive
information or data that purports to be relevant only to clemency.” Id. at 397
(emphasis added). This is not a clemency case. Unlike Healy, appellant is seeking
sentence appropriateness relief based on “a legal deficiency in the post-trial
confinement conditions.” Gay, 75 M.J. at 269. The court in Healy perfectly
explained the difference: while “clemency involves bestowing mercy – treating an
accused with less rigor than he deserves,” “sentence appropriateness involves the
judicial function of assuring that justice is done and that the accused gets the
punishment he deserves.” 26 M.J. at 395.
Second, in both White and Erby, the CAAF rejected the Air Force Court’s conclusion
that it lacked jurisdiction. 54 M.J. 469, 472 (C.A.A.F. 2001); 54 M.J. 476, 478
(C.A.A.F. 2001). Notably, in reaching this conclusion, the Air Force Court relied on
its prior decision in United States v. Haymaker, 46 M.J. 757 (A.F. Ct. Crim. App.
1997). See United States v. White, ACM 33583, 1999 CCA LEXIS 220, at *2-3
(A.F. Ct. Crim. App. 23 Jul. 1999); United States v. Erby, ACM 33282, 2000 CCA
LEXIS 120, at *3 (A.F. Ct. Crim. App. 14 Apr. 2000). The analysis in Haymaker is
strikingly similar to the majority’s analysis in this case. Among other things,
Haymaker stated “we are not the appropriate forum for this complaint,” “the
conditions of confinement are . . . not in the record of trial,” “the question of
matching the remedy to the specific injury alleged is by no means incident to our
discussion as to the appropriateness of our consideration of appellant’s complaint,”
(continued . . .)
16
JESSIE—ARMY 20160187
I agree with the majority that Gay does not require that we review every
possible post-trial submission. I respectfully disagree with the majority, however,
that we should ignore appellant’s claims that violations of his First and Fifth
Amendment rights have led to an increase in his sentence. 16
In Overton v. Bazzetta, 539 U.S. 126 (2003), the Supreme Court addressed a
prison regulation which limited visitation. The Court acknowledged the Constitution
protects certain relationships and, “outside the prison context,” the right to maintain
certain familial relationships. Id. at 131. Though the Court acknowledged that
“[s]ome curtailment of [the freedom of association] must be expected in the prison
context,” the Court also carefully explained, “We do not hold, and we do not imply,
that any right to intimate association is altogether terminated by incarceration or is
always irrelevant to claims made by prisoners.” Id.The fact that some right of association for prisoners survives was made clear
by Overton applying the four factors from Turner v. Safley, 482 U.S. 78 (1987),
which are used to determine “whether a prison regulation affecting a Constitutional
right that survives incarceration withstands constitutional challenge.” Overton, 539
U.S. at 132. The Turner factors are: “whether the regulation has a ‘valid, rational
connection’ to a legitimate governmental interest; whether alternative means are
open to inmates to exercise the asserted right; what impact an accommodation of the
(. . . continued)
and “to achieve a remedy tailored to the specific inadequacy alleged, the complaint
should be brought to the forum or tribunal best positioned to do so.” 46 M.J. at 760-
61. While White and Erby involve Eighth Amendment and Article 55 claims (and
are therefore not necessarily dispositive in this case), the CAAF’s rejection of their
reliance on Haymaker is noteworthy and lends strength to the notion that we should
consider appellant’s claim.
16
As outlined below, I would find that appellant’s First Amendment rights were
violated. I would not, however, find that the policy violated appellant’s Fifth
Amendment rights. In McKune v. Lile, the Supreme Court noted that though the
privilege against self-incrimination “does not terminate at the jailhouse door,”
choices that might infringe those rights outside the prison context “fall within the
expected conditions of confinement of those who have suffered a lawful conviction.”
536 U.S. 24, 36 (2002) (Kennedy, J., plurality opinion). Given that courts have
found no Fifth Amendment violation in policies that are stricter than the one in
question here, I would conclude that appellant’s Fifth Amendment rights were not
violated.* See, e.g., Roman v. Diguglielmo, 675 F.3d 204 (3rd Cir. 2012); Ainsworth
v. Stanley, 317 F.3d 1 (1st Cir. 2002).
* Corrected
17
JESSIE—ARMY 20160187
right would have on guards and inmates and prison resources; and whether there are
‘ready alternatives’ to the regulation.” Id. (quoting Turner, 482 U.S. at 89-91).
To properly apply the Turner factors, one must take a closer look at the
relevant facts in this case. 17
In March 2016, appellant was sent to the JRCF at Fort Leavenworth, Kansas,
to serve his sentence. At the time, the JRCF policy on visitation was that inmates
convicted of a child sexual offense could have no contact with any children – to
include their biological children – unless they received an exception to policy.
However, prior to an exception to policy being considered, the inmate was required
to admit guilt and complete a treatment program for sexual offenders.
This policy was codified in MCC SOP 310 and JRCF Regulation 600-1. The
MCC SOP 310 explained the policy was designed to preclude any “written,
telephonic or in-person contact with any minor child” without the necessary
exception to policy. JRCF Regulation 600-1 clarified this restriction precluded
having contact “in-person, written, telephonic, directly or indirectly with any child
under the age of 18 years old.” (emphasis added).
In March 2017, appellant submitted an MCC Form 510 asking for information
on how he could have contact with his children. In response to his request, appellant
was told that “[f]acility protocol” precluded such contact, as “individuals with child
victims in sex offense cases are not permitted contact with children until they
complete sex offender treatment. You are not currently eligible for sex offender
treatment as you do not take responsibility for your confining offense.”
In June 2017, appellant submitted a request for redress under Article 138,
UCMJ, stating that he had not been allowed to speak to his children. In denying this
request, appellant’s commanding officer cited JRCF Regulation 600-1, noting that
the regulation precludes inmates convicted of sexual offenses with children from
having any direct or indirect contact with minor children unless they have prior
approval of the Deputy to the Commander. Appellant’s commanding officer also
concluded that filing an Article 138 complaint was inappropriate since appellant
could submit a request for exception to policy. The commanding officer did not
explain how an exception to policy could ever be approved, as it required completion
of the sex offender treatment for which appellant was “not currently eligible.”
17
I do not read Healy (or any other case) to preclude attachment of the documents
submitted by the parties in this case. In order to properly conduct our Article 66(c)
review for sentence appropriateness, I find it necessary to consider many of the
documents that were previously attached to the record.
18
JESSIE—ARMY 20160187
In his appeal to this court, appellant submitted a sworn affidavit. As
attachments to his affidavit, appellant included his MCC Form 510, his Article 138
request for redress, and a letter from the mother of his oldest daughter which
requested appellant be able to contact his daughter for the benefit of the child.
In its response, the government included an affidavit from Lieutenant Colonel
(LTC) GW, the Director of the Directorate of Treatment Programs (DTP) for the
MCC, cosigned by Ms. RJ, the Chief of the Rehabilitation Division. In his affidavit,
LTC GW stated the government’s basis for the policy. According to LTC GW, the
policy was “created through consultation with expert leaders in the field of sex
offender management and is in accordance with generally accepted best practices.
MCC SOP 310 aligns with practice standards and guidelines of the Association for
the Treatment of Sexual Abusers (ATSA) . . . .”
In response, appellant submitted an affidavit from Ms. MC, the Executive
Director of ATSA. She stated that as part of their mission, ATSA produces practice
standards and guidelines for the treatment and management of adult male sex
abusers. In these guidelines, ATSA did not provide policy guidance for contact or
visitation in an institutional setting. Instead, the guidelines state “unilateral
strategies to manage the risk of individuals who may be at risk of offending do not
meet best practice guidelines that promote community or institutional safety.” As
part of his filings, appellant also submitted evidence that he is able to sit in close
proximity to children of other inmates in the JRCF visiting area, but he cannot
similarly sit near his own children.
Following briefing and oral argument in this case, the applicable policy was
amended. I agree with the majority that, for purposes of this assignment of error, we
should limit our review to the policy as it existed from when appellant arrived at the
confinement facility in March 2016 until the policy was amended in November 2018.
Unlike the majority, however, I would specifically apply the Turner factors to
determine whether the policy constituted a legal deficiency in appellant’s post-trial
confinement conditions. When considering these factors, courts accord “substantial
deference to the professional judgment of prison administrators.” Beard v. Banks,
548 U.S. 521, 528 (2006) (quoting Overton, 539 U.S. at 132). However, “a
regulation cannot be sustained where the logical connection between the regulation
and the asserted goal is so remote as to render the policy arbitrary or irrational.”
Turner, 482 U.S. at 89-90. Further, the prison regulations cannot represent an
“exaggerated response” to a security objective. Id. at 97-98.
In weighing the Turner factors in this case, I find they overwhelmingly favor
appellant.
19
JESSIE—ARMY 20160187
The first Turner factor, whether the regulation has a valid rational connection
to a legitimate governmental interest, is admittedly a close call. The government put
forth two objectives for the challenged policy: (1) the safety of children; and (2)
rehabilitation of the offender. Both of these objectives are clearly valid penological
and governmental interests. I also do not find either rationale remote. I am,
however, concerned that the policy represented an “exaggerated response” to the
stated objectives.
Unlike similar policies in other cases, the challenged policy precluded all
forms of contact to include indirect contact. See Overton, 539 U.S. at 133-35(biological children allowed to visit and inmate can speak with nieces and nephews
by phone or mail); Pell v. Procunier, 417 U.S. 817, 824-25 (1974) (inmates
permitted to, among other things, communicate with those who cannot visit by
sending messages through those who can visit). Furthermore, appellant can sit in
close proximity of other inmates’ children, but he cannot sit in close proximity to his
own children. 18 Under the facts of this case, I find the MCC policy represented an
exaggerated response.
The second Turner factor, whether there are alternate means open to exercise
the right, also weighs against the government. Critically, in analyzing this factor in
Overton, the Court stated, “Alternatives to visitation need not be ideal . . . they need
only be available. Here, the alternatives are of sufficient utility that they give some
support to the regulations, particularly in a context where visitation is limited, not
completely withdrawn.” 539 U.S. at 135. On the other hand, the Court stated,
“Were it shown that no alternative means of [exercising the circumscribed right]
existed . . . it would be some evidence that the regulations were unreasonable.” Id.Here, visitation was completely withdrawn and the government did not put
forth any alternative means of contact. Instead, the government argues that an
inmate had the alternative of admitting guilt, completing a sex offender treatment
program, and then submitting a request for an exception to policy. The government
emphasized that regardless of completing the program, an exception to policy may
not have ever been granted. I find the combination of the amount of time this
alternative would take and the speculative nature of whether an inmate would ever
be able to receive an exception renders this a false alternative. Requiring an
exception to policy is not demonstrating that the policy has an alternative; on the
contrary, it is an acknowledgment that no alternative existed.
In its brief, the government put forth a second alternative: that appellant could
contact his children through their adult mothers. The government cites Samford v.
18
Given appellant’s conviction for sexual assault of a friend’s thirteen-year-old
daughter, this seems counterproductive to the facility’s goal of protecting children.
20
JESSIE—ARMY 20160187
Dretke for the proposition that this form of indirect contact suffices. 562 F.3d 674,
680-681 (5th Cir. 2009). Even assuming such contact would suffice, this argument
fails because appellant was permitted neither direct nor indirect contact with his
children. In fact, if appellant attempted to use this purported alternative, he would
have been in violation of the regulations and subject to administrative action.
The third Turner factor, what impact an accommodation of the right would
have on guards and inmates and prison resources, weighs against the government.
While a complete reversal of the challenged policy would potentially have a
significant impact on the guards and prison resources, allowing an inmate to send or
receive letters does not appear to add substantially to the burden of the correctional
facility.
For the final Turner factor, we look to see if there are reasonable alternatives
which accommodate appellant’s request at a de minimis cost to the valid penological
goal. This factor again weighs against the government. Appellant put forth
telephone calls or letters as reasonable alternatives. The government argues that
these would have more than a de minimis impact on the goals of safety and
rehabilitation. Such an argument remains unpersuasive, particularly in light of the
analyses in several cases upholding limitations on contact policies after finding that
either telephone calls or letters were reasonable alternatives which precluded the
conclusion that the policies in those facilities overreached. 19
I agree with the majority that our court does not have the authority to dictate
MCC policies. Instead, our authority is limited to ensuring appellant’s sentence is
appropriate. So the question becomes how the MCC policies play into our sentence
appropriateness review. By abstaining from answering this question, the majority:
(1) adopts an unnecessarily restrictive view of Article 66(c); and (2) fails to
appreciate the effect of its abstention when addressing sentence appropriateness and
post-trial delay.
19
See, e.g., Overton, 539 U.S. at 135; Wirsching v. Colorado, 360 F.3d 1191, 1200-
01 (10th Cir. 2004) (appellant’s ability to “maintain contact with his children
through means other than visitation supports the reasonableness of the CDOC
policy”); Simpson v. Cty. of Cape Girardeau, 879 F.3d 273, 280-81 (8th Cir. 2018)
(appellant could send postcards and receive collect calls as part of “alternative
means of communication”); Royer v. Fed. Bureau of Prisons, 933 F. Supp. 2d 170,
186 (D.D.C. 2013) (appellant retained right to make phone calls, write letters, and
have noncontact visits); Vega v. Tegels, 2018 U.S. Dist. LEXIS 118801, at *18
(W.D. Wis. July 17, 2018) (“[D]efendants have provided plaintiff with other means
of communication, including unlimited phone calls, messaging, and mail.”).
21
JESSIE—ARMY 20160187
First, in failing to determine whether a constitutional error exists in this case,
the majority adopts an unnecessarily restrictive view of Article 66(c). For example,
in White, the concurring judge stated the opinion “squarely held” that “the lower
courts have the duty . . . to review whether the sentence imposed by a court-martial
is being unlawfully increased by prison officials.” 54 M.J. at 475 (Sullivan, J.,
concurring) (emphasis added).
While this duty will normally relate to assessing alleged violations of Article
55 and the Eighth Amendment, it may also arise in other unique contexts. As our
sister court recently stated, “Only in very rare circumstances do we anticipate
granting sentence relief when there is no violation of the Eighth Amendment or
Article 55, UCMJ.” United States v. Ferrando, 77 M.J. 506, 517 (A.F. Ct. Crim.
App. 2017). This case presents such circumstances. Appellant provided ample
documentation to support his First Amendment claim, and I believe we should
address this error and weigh its effect on sentence appropriateness. 20
Second, the majority fails to appreciate the effect of its abstention. More
specifically, by failing to address the alleged error, the majority conducts a flawed
review of sentence appropriateness and post-trial delay. Critically, while the
majority assumed the facts underlying the first alleged error, it did not analyze the
alleged error itself. The difference matters, particularly in the context of sentence
appropriateness.
For example, a service court could find that the post-trial confinement
conditions – when exacerbated by dilatory post-trial processing – change appellant’s
sentence from one that is appropriate to one that is inappropriately severe. Put
another way, an individual error may not warrant the same relief as its cumulative
effect. Notably, in Gay, our sister court concluded the sentence was inappropriate
“on the basis of his post-trial confinement conditions and the government’s delay in
forwarding the record of trial for [its] review.” 74 M.J. at 745 (emphasis added).
Furthermore, in conducting a due process analysis for post-trial delay, one of
the relevant sub-factors for prejudice is “directly related to the success or failure of
20
I have also considered whether we are required to remand this case for a DuBay
hearing. I agree with the majority that no post-trial hearing is necessary, though for
different reasons. When applying the factors outlined in United States v. Ginn, no
hearing is required if the government does not contest the relevant facts. 47 M.J.
236, 248 (C.A.A.F. 1997). Here, the government did not dispute the relevant facts
and agreed the policy deprived appellant of an opportunity to have contact with his
children unless he received an exception to policy. Additionally, in one of its briefs,
the government expressly stated there were no substantial contradictions between its
appellate exhibits and appellant’s.
22
JESSIE—ARMY 20160187
an appellant’s substantive appeal,” since “[i]f the substantive grounds for the appeal
are not meritorious, an appellant is in no worse position due to the delay.” United
States v. Moreno, 63 M.J. 129, 139 (C.A.A.F. 2006) (citation omitted). Under such
circumstances, it becomes even more important to carefully analyze the validity of
an appellant’s substantive claims. The majority, however, elected to abstain and
then did not provide any analysis of the effect of its abstention.
Finally, the MCC policies present several unique considerations related to
post-trial delay. One is that an appellant’s ability to make choices on whether and
when to waive his right to self-incrimination can be impacted by the state of his
appeal. As such, any post-trial delay has a potential impact on an appellant’s
choices and when his assignments of error will be considered by this court. At a
minimum, these are valid considerations in determining whether relief is warranted
under Article 66(c). See United States v. Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002)
(CCAs can grant relief for post-trial delay without material prejudice if relief is
“appropriate under the circumstances.”).
In sum, we should address both alleged errors when conducting our sentence
appropriateness review in this case. To this extent, I would find that the post-trial
confinement conditions and dilatory post-trial processing change appellant’s sentence
from one that is appropriate to one that is inappropriately severe. 21
Conclusion
Over thirty years ago, our court stated, “The Supreme Court’s approach in
Turney v. Safley may be paraphrased as follows: A court should inquire whether a
particular restriction or condition that burdens a prisoner’s rights is ‘reasonably
related’ to legitimate penological objections, or whether it represents an
‘exaggerated response’ by the prison authorities to those concerns.” United States v.
Austin, 25 M.J. 639, 642 n.3 (A.C.M.R. 1987) (emphasis added).
I believe we should follow this advice and therefore I dissent.
21
The majority would have it too difficult to determine an appropriate sentence. Yet
that is what Article 66(c) mandates we do in every case. I see no reason why we
cannot “bring to bear [our] wisdom, experience, and expertise” in determining an
appropriate sentence. United States v. Hutchison, 57 M.J. 231, 234 (C.A.A.F. 2002).
23
JESSIE—ARMY 20160187
Judge HAGLER, joined by Chief Judge BERGER, dissenting:
I join Judge Schasberger’s dissent and would affirm the findings while
reducing the sentence. I write separately to comment on the MCC policies (i.e.,
MCC SOP 310 and JRCF Regulation 600-1) and the majority opinion.
It is true this court has no directive authority over the MCC, and we cannot
grant injunctive relief, yet that does not mean we should give tacit approval to
poorly justified policies that continue to violate appellant’s constitutional rights.
While we do not have “unlimited authority . . . to grant sentence appropriateness
relief for any conditions of post-trial confinement of which [we] disapprove,” this
case presents the exact type of “legal deficiency in the post-trial process” that
authorizes relief under Article 66(c). United States v. Gay, 75 M.J. 264, 269
(C.A.A.F. 2016). Not only do the previous MCC policies on inmate contact fail the
Turner criteria (two of these are epic fails, in my view), they were also administered
in a manner that made them both inflexible and arbitrary.
First, the government offers no convincing, or even reasonable, explanation
why the MCC needs policies that, to my knowledge, are more restrictive than any
other federal or state jurisdiction. I have not found any case addressing a policy
that, among other things: (1) bans all direct and indirect contact with a non-victim
biological child, when the child’s custodian approves the requested contact; (2)
requires admission of guilt as a precondition to sex offender treatment; and (3)
requires treatment that may take years to complete before even requesting an
exception to the policy (ETP). 22
While we must give “substantial deference to the professional judgment of
prison administrators,” such deference is not wholly unfettered. Beard v. Banks, 548
U.S. 521, 528 (2006) (quoting Overton v. Bazzetta, 539 U.S. 126, 132 (2003)). In
fact, it is difficult to defer to the judgment of prison officials on a policy that
purports to be in the best interest of children and an inmate’s rehabilitation, when in
practice, they take neither of these into account on an individualized basis. Of
course, “protection of children” and “rehabilitation of inmates” are valid penological
interests, but simply invoking these phrases provides no rational basis for why the
MCC draws the line where it does, or why these interests should apply differently
22
The cases cited by the government are readily distinguishable. In Mondonedo v.
Roberts, the policy did allow sex offenders mail and phone contact with their
“children or immediate family members,” as long as no such children or family
members were a victim. 2013 U.S. Dist. LEXIS 35178, *2 (D. Kan. March 14,
2013). In Fuller v. Werholtz, the plaintiff challenged whether he should be
classified as a sex offender under the policy, not whether the policy violated his
right to familial association. 2005 U.S. Dist. LEXIS 48368 (D. Kan. July 11, 2005).
24
JESSIE—ARMY 20160187
within military facilities. Similarly, the MCC claimed its challenged policies align
with ATSA standards and guidelines, and that it evaluates contact with children on
an individual basis, but this does not mean the MCC’s policy and practice actually
do so. The documents before this court clearly show otherwise. Simply put, the
walk does not match the talk.
Second, the policies provide no alternative means of contact. In my view,
Overton was very clear on this point: “Alternatives to visitation need not be
ideal . . . they need only be available.” 539 U.S. at 135. Here, none are. The MCC
approach is simple: child sex offenders can have no contact—in-person, telephonic,
or written, direct or indirect—with children. Thus, the “alternative” proposed in the
government’s brief (i.e., contact through the child’s mother) is expressly prohibited
by the MCC policy. The government’s claim that this policy provides another
alternate means—namely, requesting an ETP—is dubious at best. 23 Under the terms
of the challenged policy, a request for ETP will not be considered until an inmate
admits responsibility and completes sex offender treatment. 24 According to the
affidavits provided by MCC personnel, appellant remains ineligible for such
treatment due to 25 his “denial of his contact sexual offenses and statements of victim
blaming and questioning the victim’s creditability [sic].”
In practice, appellant’s experience shows the process to obtain an ETP is as
inflexible as the policy itself. Appellant filed an MCC Form 510, requesting
“information for exception of policy. I am asking if and when I can see my chidren
[sic].” In response, appellant was informed, “You are not currently eligible for sex
23
The idea that an exception to policy is, in fact, the key protection provided by the
policy is “doublethink” worthy of George Orwell’s Nineteen Eighty-Four. It is even
more problematic that the decision to grant an exception is completely discretionary
and the overall policy remains—in the majority’s view—not suitable for review by
this court.
24
The government submitted a revised MCC SOP 310 (with an effective date well
after oral argument in this case), which allows an inmate to submit a request for ETP
before completing the treatment. After reviewing the SOP, however, I remain
convinced it allows appellant no alternative means of contact that would satisfy
Turner. First, the SOP does not say appellant would be eligible to begin treatment
without first admitting guilt—a precondition noted in the MCC’s own affidavits.
Second, it is not apparent how a unit SOP signed by a chief of staff affects JRCF
Regulation 600-1, which still expressly prohibits all direct and indirect contact.
Thus, the SOP revision appears to have no impact on appellant’s situation and the
viability of any alternative means of contact available to him.
25
Corrected
25
JESSIE—ARMY 20160187
offender treatment as you do not take responsibility for your confining offense.”
Later, in response to an Article 138 complaint, appellant’s commander informed him
the request was “inappropriate” because he could apply for an ETP—for which he
was previously told he was ineligible. I cannot view this process as a viable
alternative means to exercise what the Supreme Court has recognized as a
constitutional right.
Despite the majority’s implication, our position is not an attempt to effect
policy change or to dictate the most “appropriate” prison policy. We have only
reviewed the policy, as applied to appellant, under the prevailing legal standard.
This is routine practice for our court. The majority’s hesitancy to address the matter
is even more perplexing based on the clear framework of the Turner factors. Simply
put, we have the test. We need only apply it. On this point, I note that our sister
courts have capably applied the Turner factors in cases involving prison policies and
regulations. See United States v. Green, ACM 36664, 2007 CCA LEXIS 475, at *6-
12 (A.F. Ct. Crim. App. 12 Oct. 2007); United States v. Felicies, NMCCA 9900206,
2005 CCA LEXIS 124, at *36-41 (N-M. Ct. Crim. App. 27 Apr. 2005). We should
join them.
Finally, I recognize the majority’s apparent concern with flooding the
appellate process with complaints of post-trial confinement conditions, but I cannot
accept it as a justification for inaction in this case. Given the legal deficiency of the
MCC policy, we have the authority to grant sentencing relief. This relief would be
meaningful as it would allow appellant an earlier opportunity to exercise a right the
MCC’s policy continues to deny him. If our consideration of post-trial submissions
in this case increases the frequency of similar complaints, so be it. The sky will not
fall. It is a sad day for justice when this court is presented with strong evidence of a
constitutional infringement yet declines to address it—not because we find no
prejudice or lack authority to grant meaningful relief—but because we fear the
consequences. Even if such consequences do come to pass, I would still fulfill our
statutory duty. Fiat Justitia Ruat Caelum.
FOR THE COURT:
.
JOHN P. TAITT
Acting Clerk
JOHN of Court
P. TAITT
26