It may be unnecessary but I am proceeding under the presumption that some readers may not be familiar with how cases and controversies in the inmate and student communities may arise in and proceed through the federal courts, how courts-martial arise in the military community, or both. So, a summary of the systems should help put some of the follow on discussion into context.

Inmate Cases

The overwhelming majority of individuals in the inmate community arrive there through state court convictions for violations of a state criminal law. Generally, their case will travel through the state court systems. These may include an intermediate (error correction) appellate court and a supreme (law declaring) court, or a single court that serves both functions. Don’t worry, lots of discussing coming on the differences between the error correction and law declaring function. Again, generally, these courts hear issues relating to the state criminal statute or state constitution, but also can hear alleged U.S. Constitution violations as part of the state appeal. Once the individual has exhausted the state appellate process, he can petition the Supreme Court of the United States to hear any federal constitutional issues that arose in his trial and appeal.

During this process, as well as afterward, conditions experienced during an inmate’s incarceration may give rise to a claim that the institution (or a policy, statute, regulation, etc.) violates one or more of the inmate’s federal constitutional rights. Those lawsuits begin in federal district court.

United States District Courts are the trial courts in the federal system. They have jurisdiction to hear both criminal and civil cases such as, in our example, an inmate’s lawsuit. There is at least one district court in each state, and I believe ninety-four district courts in the United States. Members of the public located within the district are randomly selected for the venire (jury pool). This group is then questioned through a process called voir dire until a jury is selected. The losing party can choose to appeal his case to one of the thirteen United States Courts of Appeals. This is an appeal as of right. If the appellant chooses to appeal, the court must hear the case. The losing party at this level may petition the Supreme Court of the United States to grant review of the circuit court’s decision (called a petition for a writ of certiorari). Granting a petition is discretionary. Last I checked, the Supreme Court receives approximately 9,000+ petitions a year and grants less than 100 of them.

A recent example is Holt v. Hobbs, 574 U.S. 352 (2015). An inmate, a devout Muslim, serving his sentence in Arkansas state prison filed a suit in district court claiming the state’s policy prohibiting inmates from growing beards violated his religion. The district court ruled against him and the circuit court agreed. The inmate then filed a pro se (on his own) petition, and the Supreme Court agreed to hear his case. It ultimately concluded that Arkansas failed to prove its policy could overcome strict scrutiny review and ruled in favor of the inmate.

Student Cases

Cases and controversies in the student community arise in a similar way. They usually begin with a policy or other decision that the student believes violates a constitutional right. These claims, like inmate claims, are civil claims and travel through the federal court system.

Military Cases

Military cases are criminal prosecutions. There are basically three levels of courts in the military justice system: courts-martial, courts of criminal appeals, and the United States Court of Appeals for the Armed Forces (CAAF).

Unlike federal district courts, courts-martial are not standing courts. They are temporary tribunals formed through an order issued by the appropriate commander for the limited purpose of receiving evidence and issuing a verdict concerning criminal charges brought on the authority of that commander. Nowadays, the commander that orders the court into existence picks the venire, and the senior judge advocate of the respective service selects the presiding military judge. This power is often delegated, but the important point is the military judge is not within the chain of command. Because these are not standing courts, there is no set number of courts-martial within the military.

In contrast, there are four Courts of Criminal Appeals: Army, Air Force, Navy-Marine Corps, and Coast Guard. These tribunals are comprised of senior judge advocates selected to serve for a set period of time by the senior judge advocate of the respective service. With some recent exceptions due to the Military Justice Act of 2016, these tribunals generally must hear appeals only if an Accused (military defendant) receives a certain sentence. This is often a certain amount of confinement and/or a certain type of discharge. Like circuit courts, these are appeals as of right.

Like the Supreme Court, the CAAF has a largely discretionary docket. Appellant’s must petition the court requesting it grant review. Of the 1,500 or so (roughly) petitions received annually, the court has granted less than fifty a year for briefing and oral argument in recent years.

If the CAAF grants review and decides the case, its decision can be reviewed by the Supreme Court upon a successful petition for a writ of certiorari. Though there have been some recent exceptions, this generally happens about once a decade. If, on the other hand, the CAAF denies review, the case ends. The Appellant can seek collateral review in federal district court, but that isn’t relevant for this thread of discussion.

This is some context for the discussion that will follow along this thread. There is much more that I will flesh out as appropriate, but hopefully readers will be able to have a better understanding of some of the explanations, critiques, and analysis that will follow.