Parker v. Levy is a seminal decision in military law that I have written about in previous posts. That decision upheld two rather sweeping criminal statutes that criminalize, by way of a conviction in a federal court, any conduct by a military officer or enlisted person that other military officers think is unbecoming of an officer and a gentleman (gentlewoman), or is prejudicial to good order and discipline or otherwise brings discredit to the armed forces. For those trained in the law or eerily erudite in the law absent training, these statutes appear unconstitutionally vague. But in his majority decision, then-Justice Rehnquist wrote that “the proper standard of review for a vagueness challenge to the articles of the Code is the standard which applies to criminal statutes regulating economic affairs. I have since wondered what that meant, and whether this view is worth re-assessing.

First, in an effort to keep each post a standalone work product, some background on Parker v. Levy is necessary. Captain (“CPT”) Howard Levy served as Chief of the Dermatological Service in the United States Army where he trained Special Forces personnel during the Vietnam War, to include enlisted members. CPT Levy did not support America’s involvement in that war and refused to train his soldiers as required. In response to his commander’s written order to conduct the required training, CPT Levy acknowledged that he understood but “declared that he would not obey it because of his medical ethics.”

CPT Levy also made several comments toward enlisted personnel regarding the war that his superiors found troubling and ultimately criminal. The following is but one example:

The United States is wrong in being involved in the Viet Nam War. I would refuse to go to Viet Nam if ordered to do so. I don’t see why any colored soldier would go to Viet Nam: they should refuse to go to Viet Nam and if sent should refuse to fieght because they are discriminated against and denied their freedom in the United States, and they are sacrificed and discriminated against in Viet Name by being given all the hazardous duty and they are suffering the majority of casualties. If I were a colored soldier I would refuse to go to Viet Nam and if I were a colored soldier and were sent I would refuse to fight. Special Forces personnel are liars and thieves and killers of peasants and murderers of women and children.

For these actions, the Army criminally prosecuted CPT Levy. The court-martial convicted CPT Levy of, among other offenses, violating Articles 133 and 134 of the Uniform Code of Military Justice (“UCMJ”).  The Army Board of Review affirmed CPT Levy’s conviction, devoting a single sentence to his overbreadth and vagueness challenge: “Articles 133 and 134 have too many times withstood the overbroadness and vagueness attacks to warrant again a defense.” The then-United States Court of Military Appeals (“CAAF”) denied his petition for review.

CPT Levy then sought federal habeas corpus in federal court. The District Court denied relief, but the Court of Appeals for the Third Circuit reversed. It “found little difficulty in concluding that as measured by contemporary standards of vagueness applicable to statutes and ordinances governing civilians, the general articles do not pass constitutional muster.” Though “it acknowledged that different standards might in some circumstances be applicable in considering vagueness challenges to provisions which govern the conduct of members of the Armed Forces, the Court saw in the case of Arts. 133 and 134 no countervailing military considerations which justify the twisting of established standards of due process in order to hold inviolate these articles, so clearly repugnant under current constitutional values.”

The Supreme Court of the United States (“Court”) disagreed. I’ve written elsewhere about the Court’s manipulation of precedent, use of military history, and the military deference doctrine. For this post, I’d like to focus on the Court’s rationale for upholding the constitutionality of Articles 133 and 134. It explained why these statutes are not void for vagueness and then announced a different standard that lower courts should apply to vagueness challenges to military statutes. The following collection of quotations is a bit long, but they best encapsulate the Court’s reasoning:

Each of these articles has been construed by the United States Court of Military Appeals or by other military authorities in such a manner as to at least partially narrow its otherwise broad scope.

The United States Court of Military Appeals has stated that Art. 134 must be judged not in vacuo, but in the context in which the years have placed it . . . Article 134 does not make every irregular mischievous, or improper act a court-martial offense . . . but its reach is limited to conduct that is directly and palpably – as distinguished from indirectly and remotely – prejudicial to good order and discipline.

The Manual for Courts-Martial restates these limitations on the scope of Art. 134.

The Court of Military Appeals has likewise limited the scope of Art. 133.

Though [the act] need not amount to a crime, it must offend so seriously against law, justice, morality or decorum as to expose to disgrace, socially or as a man, the offender, and at the same time must be of such a nature or committed under such circumstances as to bring dishonor or disrepute upon the military profession which he represents.

The effect of these constructions of Arts. 133 and 134 by the Court of Military Appeals and by other military authorities has been twofold: It has narrowed the very broad reach of the literal language of the articles, and at the same time has supplied considerable specificity by way of examples of the conduct which they cover. It would be idle to pretend that there are not areas within the general confines of the articles’ language which have been left vague despite these narrowing constructions. But even though sizable areas of uncertainty as to the coverage of the articles may remain after their official interpretation by authoritative military sources, further content may be supplied even in these areas by less formalized custom and usage.

After this series of statements, the Court concluded, “[b]ecause of the factors differentiating military society from civilian society, we hold that the proper standard of review for a vagueness challenge to the articles of the Code is the standard which applies to criminal statutes regulating economic affairs.”

This last statement is the purpose of this post.

Articles 133 & 134, UCMJ

Articles 133 (10 U.S.C. § 933) and 134 (10 U.S.C. § 934) are unique military crimes. They originate from the earliest of American military codes. These codes did not enumerate criminal offenses, as is common today. In fact, these codes specifically prohibited only a few offenses, such as swearing, missing church services, firing a weapon absent an order, desertion, etc. The rest was left to the customs of a rather small military society steeped in class and tradition. The codification of common law and common law offenses did not occur until the 19th century in the civilian world, and the 20th century in the military. So for most of American military history, most of military criminal law and discipline was governed by these two broad offenses.

Article 133 prohibits “conduct unbecoming an officer and gentleman.” Specifically, the statute states “[a]ny commissioned officer, cadet, or midshipman who is convicted of conduct unbecoming an officer and a gentleman shall be punished as a court-martial may direct.” This criminal offense has two elements:

• An accused did or omitted to do a certain act or acts and,
• That under the circumstances, these acts or omissions constituted conduct unbecoming an officer and gentleman.

In an apparent attempt to provide some limiting language to a patently vague (by today’s standards) statute, the Manual for Courts-Martial (“MCM”) includes the following guidelines:

Conduct violative of this article is action or behavior in an official capacity which, in dishonoring or disgracing the person as an officer, seriously compromises the officer’s character as a gentleman, or action or behavior in an unofficial or private capacity which, in dishonoring or disgracing the officer personally, seriously compromises the person’s standing as an officer. There are certain moral attributes common to the ideal officer and the perfect gentleman, a lack of which is indicated by acts of dishonesty, unfair dealing, indecency, indecorum, lawlessness, injustice, or cruelty. Not everyone is or can be expected to meet unrealistically high moral standards, but there is a limit of tolerance based on customs of the service and military necessity below which the personal standards of an officer, cadet, or midshipman cannot fall without seriously compromising the person’s standing as an officer, cadet, or midshipman or the person’s character as a gentleman. This article prohibits conduct by a commissioned officer, cadet, or midshipman which, taking all the circumstances into consideration, is thus compromising. This article includes acts made punishable by any other article, provided these acts amount to conduct unbecoming an officer and a gentleman. Thus, a commissioned officer who steals property violates both this article and Article 121. Whenever the offense charged is the same as a specific offense set forth in this Manual, the elements of proof are the same as those set forth in the paragraph which treats that specific offense, with the additional requirement that the act or omission constitutes conduct unbecoming an officer and a gentleman.

The MCM also includes examples of such offenses:

Instances of violation of this article include knowingly making a false official statement; dishonorable failure to pay a debt; cheating on an exam; opening and reading a letter of another without authority; using insulting or defamatory language to another officer in that officer’s presence or about that officer to other military persons; being drunk and disorderly in a public place; public association with known prostitutes; committing or attempting to commit a crime involving moral turpitude; and failing without good cause to support the officer’s family.

Little attention has been paid to the parameters of Article 133. But the CAAF has provided more guidance regarding the parameters of Article 134, the General Article.

In its most general sense, Article 134 states “[t]hough not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.” That articulation seems broad, and this view is supported by the MCM’s articulation of its elements:

• That the accused did or failed to do certain acts; and
• That, under the circumstances, the accused’s conduct was prejudicial to good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.

There is a third option in Article 134 that allows the military to assimilate state statutes into military jurisdiction, i.e., the drinking age of a state can be incorporated into the exclusive federal jurisdiction of a military installation in that state. In addition, it also allows for the prosecution of certain federal offenses regardless of where they occurred.

But for the two more common theories of criminality, conduct prejudicial to good order and discipline and conduct of a nature to discredit the armed forces, the MCM provides guidance concerning what makes the conduct criminal. For conduct prejudicial to good order and discipline:

To the prejudice of good order and discipline refers only to acts directly prejudicial to good order and discipline and not to acts which are prejudicial only in a remote or indirect sense. Almost any irregular or improper act on the part of a member of the military service could be regarded as prejudicial in some indirect or remote sense; however, this article does not include these distant effects. It is confined to cases in which the prejudice is reasonably direct and palpable. An act in violation of a local civil law or of a foreign law may be punished if it constitutes a disorder or neglect to the prejudice of good order and discipline in the armed forces.

The MCM also defines what it means to engage in conduct of a nature to bring discredit to the armed forces. “’Discredit’ means to injure the reputation of the armed service. This clause of Article 134 makes punishable conduct which has a tendency to bring the service into disrepute or which tends to lower it in public esteem.”

The CAAF has held that Article 134 (or, as inaccurately popularized in the movie A Few Good Men, Conduct Unbecoming a Marine…) is not limited to the specified offenses listed within the MCM. Currently, the MCM lists approximately sixty-one specific examples of offenses that are crimes under Article 134. For example, possession of child pornography is not a separate, articulated offense under the UCMJ like larceny, which is punishable under Article 121, or 10 U.S.C. § 921. Instead, it is essentially an example of an Article 134 offenses, or an example of a violation of 10 U.S.C. § 934 (2012).

However, there must be some notice in military law, federal law, or state law that the alleged conduct was criminal. In addition, the third clause, or criminal theory, within Article 134 also expands the potential offenses punishable under the statute. The military may prosecute a service member for a range of civilian federal crimes not articulated within the UCMJ regardless of where committed. So, as Justice Douglas noted in O’Callanan v. Parker, a service member can be prosecuted for tax evasion, for example, in a court-martial regardless of where he committed the act. The MCM also states the military may also prosecute certain state criminal offenses not otherwise prohibited by the UCMJ or existing federal law, so long as the offense occurred where the military retained exclusive or concurrent jurisdiction—basically, a military installation.

Sources of notice may also come from military custom. The MCM provides some guidance on the definition of a custom of the service the violation of which constitutes a criminal offense:

In its legal sense, “custom” means more than a method of procedure or a mode of conduct or behavior which is merely of frequent or usual occurrence. Custom arises out of long established practices which by common usage have attained the force of law in the military or other community affected by them. No custom may be contrary to existing law or regulation. A custom which has not been adopted by existing statute or regulation ceases to exist when its observance has been generally abandoned. Many customs of the service are now set forth in regulation of the various armed forces. Violations of these customs should be charged under Article 92 as violations of the regulations in which they appear if the regulation is punitive.

This articulation is particularly interesting. Historically, customs ruled military life. Today can hardly compare outside traditional ceremonial customs and courtesies, such as saluting a superior officer. One would be hard pressed to find a custom not encapsulated into some sort of written regulation today.

Not only is the category of offenses rather large, senior military personnel decide the civilian public’s perceptions. In United States v. Phillips, the CAAF held that the military need not prove that members of the public knew of such behavior or could have known of such behavior prosecuted under Article 134. All that is required under the article is, had that the factfinder, a senior military officer or a panel of senior military officers (or, more rarely, combination of senior military officers and enlisted persons) determined that had the public known of the behavior, it would have thought less of the armed service—thus transferring the members’ perceptions and opinions into the minds of a general public the members have long not been a part of—that is sufficient for a conviction.

Thus, the CAAF has construed Article 134 broadly with a minor limitation regarding sources of notice.

Now that we have a bit of an understanding of the two statutes, we can turn to the vagueness doctrine before returning to Justice Rehnquist’s Levy decision.

Void For Vagueness Doctrine

The vagueness doctrine serves two basic due process purposes: fair notice and non-arbitrariness. As Professor Batey explains:

First, the Due Process Clause ensures that criminal statutes provide fair notice to the populace by voiding impermissibly vague statutes because they do not clearly define the prohibited conduct. Second, by voiding impermissibly vague statutes, courts reduce the potential for arbitrary and discriminatory enforcement of the laws by both police officers and prosecutors.

But, Professor Batey argues, “legal analysts, especially judges, focus too much on the first policy and not enough on the second.” This “reliance produces false analytic scents.” Professor Batey explains that “[a] naïve applier of the fair notice rationale might focus on what a particular defendant knew about the law being enforced.” Did he know it existed? Was he trained on it? Should he have known because of his life experience? All these questions are wrong. The focus is supposed to be on what “a hypothetical ordinary person” would know, not what an individual person knew or should have known.

McCarl’s description of the Court’s explanation for this second purpose should result in much wider application than actual experience has shown. In Papachristou v. City of Jacksonville, a seminal vagueness decision decided in 1979, the statute at issue prohibited the following:

Rogues and vagabonds, or dissolute persons who go about begging, common gamblers, persons who use juggling or unlawful games or plays, common drunkards, common night walkers, thieves, pilferers or pickpockets, traders in stolen property, lewd, wanton and lascivious persons, keepers of gambling places, common railers and brawlers, persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers, disorderly persons, persons neglecting all lawful business and habitually spending their time by frequenting house of ill fame, gaming houses, or places where alcoholic beverages are sold or served, persons able to work but habitually living upon the earnings of their wives or minor children shall be deemed vagrants and, upon conviction in the Municipal Court shall be punished as provided for Class D offenses.

The Court has stated that criminal statutes will receive more stringent scrutiny under the vagueness doctrine, particularly if such statutes do not include an element of intent, or scienter. But the vagueness doctrine is rarely applied outside the First Amendment context. It has been applied to a small subset of cases outside that context, such as “status” or “vagrancy” offenses challenged in Papachristou. And McCarl provides a possible explanation for why:

[V]agrancy laws, and other laws seemingly designed to cast a large net permitting law enforcement officers to target “undesirables” – that is, socially stigmatized persons – would be scrutinized much more closely than other statutes for purposes of the vagueness doctrine. But the Justices’ singling out of vagrancy laws seems to reflect a substantive distaste for such laws: neither linguistic vagueness nor the rule of law concerns articulated by the Papachristous court are unique to vagrancy statutes.

The Court rarely, if ever, strikes down criminal statutes regulating economic affairs. McCarl explains that “legislatures and agencies are given virtually free reign to regulate activity, so long as that activity is deemed ‘economic’ in nature. Hence, legislatures may freely create new crimes, so long as the activity criminalized does not involve the exercise of a ‘fundamental right.’” Why, “because business, which face economic demands to plan behavior carefully, can be expected to consult relevant legislation in advance of action.”

A defendant may always challenge that a constitutional statute is unconstitutionally vague as applied to him, known as an as-applied challenge. This is difficult to do in light of the opportunity for the Defense to file a Request for a Bill of Particulars, filing requesting the Government clarify the exact conduct at issue. But it is even more difficult to prove a statute unconstitutional on its face (outside the First Amendment context), the primary (if not exclusive) purpose of a vagueness challenge. To challenge a statute as facially unconstitutionally vague, as was the case in Levy, one must demonstrate there exists no set of circumstances in which the statute could be valid or, as McCarl states, the statute is so vague that “persons of common intelligence must necessarily guess at [their] meaning and differ as to [their] application.”

McCarl confirms the difficulty in such challenges. Writing in 2014, he noted “[t]he Supreme Court has struck down criminal laws as unconstitutionally vague on their face only four times outside of the First Amendment context since the New Deal.”

“The Supreme Court has struck down criminal laws as unconstitutionally vague on their face only four times outside of the First Amendment context since the New Deal.” This is largely due to “principles of judicial restraint and respect for legislative enactments.”

In his excellent book (introduced to me by one of my most respected law professors; you know who you are but I respect your privacy), Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices,–and others—Noah Feldman explores the existential threats from the Great Depression to democracy, capitalism, and the liberal order that served as the background to a series of Supreme Court decisions striking down and then ultimately upholding a series of statutes intended to reorganize American society to overcome this threat. It is highly likely this existential threat was the impetus to the Court’s extensive deference to Congress’s criminalization of economic affairs.

Vagueness, Articles 133/134, and the Levy Doctrine

This brings us back to Justice Rehnquist and the decision in Parker v. Levy to assess military criminal statutes under the same standard as economic crimes as opposed to traditional criminal offenses infringing fundamental rights and individual liberty. On the one hand, Levy may simply be an example of Rehnquist’s deep devotion to federalism. Unlike other specialized communities such as the student and inmate communities, the military community contains a court of last resort—at least in structure—that can be counted upon to address the concerns of that community.

But Levy left, and the Court’s reluctance to wade into military criminal law continues to leave, a number of unanswered questions. What exactly is the vagueness doctrine as applied to economic crimes? Why does it exist? Do those same reasons exist in the military community? Is Justice Rehnquist’s majority decision an example of the naïve applier of the fair notice rationale? Does the decision ignore the second purpose of the vagueness doctrine? Does Articles 133 and 134 allow for the arbitrary and discriminatory enforcement of the law by judge advocates? Do these statutes resemble the “status” or “vagrancy” statutes challenged in Papachristou? Are these otherwise vague statutes applied to individuals targeted as “undesirable” in the contemporary military community and thus socially stigmatized, for various reasons? How does the historical and sociological evolution of military society influence the application of these statutes? And what relation do civilian standards have to military law? Article 36, UCMJ, requires military courts to follow federal procedure to the maximum extent practicable in the face of military necessity? What military necessity is sufficient to deviate from this standard?

It is an interesting question to ask whether it is time to re-evaluate Levy with the assistance of social history and other relevant evidence to test its continued validity. It is perhaps one of the best examples of the need to incorporate an inter-disciplinary approach to the understanding of military law, history, and society.

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Selected Cases and Law Review Articles

O’Callahan v. Parker, 395 U.S. 258 (1969), overruled by Solorio v. United States, 483 U.S. 435 (1987)

Parker v. Levy, 417 U.S. 733 (1974)

Papachristou v. City of Jacksonville, 405 U.S. 156 (1979)

United States v. Phillips, 70 M.J. 161 (C.A.A.F. 2011)

United States v. Warner, 73 M.J. 1 (C.A.A.F. 2013)

Robert Batey, Vagueness and the Construction of Criminal Statutes: Balancing Acts, 5 Va. J. Soc. Pol’y & L. 1 (1997)

William W. Berry III, Criminal Law: Criminal Constitutional Avoidance, 104 J. Crim. L. & Criminology 105 (2014)

Stuart Buck, Salerno vs. Chevron: What To Do About Statutory Challenges, 55 Admin. L. Rev. 427 (2003)

Carissa Byrne Hessick, Vaguness Principles, 48 Ariz. St. L.J. 1137 (2016)

Andrew E. Goldsmith, The Void-for-Vagueness Doctrine in the Supreme Court, Revisited, 30 Am. J. Crim. L. 279 (2003)

David H. Hans, Strategic Facial Challenges, 85 B.U.L. Rev. 1333 (2005)

Ryan McCarl, Incoherent and Indefensible: An Interdisciplinary Critique of the Supreme Court’s “Void-for-Vagueness” Doctrine, 45 Hastings Const. L.Q. 73 (2014)