It has been a little time since my last post on my research. My foray into military justice scholarship began with a theory that the Supreme Court is largely hands off toward the military justice system because Congress has organized this jurisdiction akin to state jurisdictions, in contrast to other specialized subject areas, such as patents and trademarks. Assuming that to be true, substantial questions follow that have been largely ignored by scholars. I have chosen to start with the effectiveness and efficiency of the institutions within this jurisdiction. This begins with how the Supreme Court interacts with this community, one of three (inmates, students, military) in America that do not enjoy the full panoply of constitutional rights. After some initial background posts, here I dive into the leading case concerning the relationship between the inmate community and the Constitution.
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.
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.
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 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.
Service members in the United States military are not excluded from the constitutional protections they swear an oath to protect; it’s just that “military necessity” requires these protections be applied differently to this community. There are individual situations that arise in the general population which necessitate an exception to an otherwise constitutional requirement (a search warrant or rights advisement, for example). But “military necessity” appears different. It is essentially a blanket exception for an entire community of people.
I began researching other communities whereby some reason justified a similar blanket exception to compare how this principle is applied. I found two—inmates and students.
I published an article in the University of Memphis Law Review that examined the legal landscape in these three communities. The Supreme Court of the United States (“Court”) has held that individuals in these communities do not give up their constitutional rights simply because they belong to their respective communities. But the same general reasons require a different application to these communities: order, discipline, and safety. The gravity of these needs, and the complexity of these specialized communities, requires a somewhat substantial deference to those who administer them.
In spite of these circumstances, the Court has actively supervised and engaged with the inmate and student communities. Using a well-understood framework, it applies strict scrutiny (see here for a brief introduction) to statutes and regulations that purport to infringe upon a community member’s constitutional rights. The military community gets something less.
Unlike the inmate and student communities, in which cases and controversies arise in multiple state and federal courts, courts-martial are limited to the military justice system. Like the federal and many state systems, the military justice system has three levels of courts. The highest is the United States Court of Appeals for the Armed Forces (“CAAF”), a five member civilian Article I court. One, but certainly not the only, explanation for the Court’s substantial hands-off approach to the military community is the existence of CAAF. It arguably serves as a court of last resort, much like state supreme courts.
A second observation is the absence of any established framework to analyze constitutional questions in the military community. It isn’t defined; judges just know it when they see it.
These two observations seem a good place to start delving into deeper. After comparing and contrasting the similarities and differences in the judicial institutions in which cases and controversies in these communities arise, we’ll start a little tour of the inmate community first.
 46 U. Mem. L. Rev. 61 (2015).
My initial foray into military justice scholarship began a number of years ago with a general hypothesis:
The Supreme Court of the United States is today, in part, largely hands off toward the military justice system because of the existence of the United States Court of Appeals of the Armed Forces, a civilian court sitting atop a three-tiered judicial system. Though it is perceived, and perceives itself, as a court of last resort, it does not appear to often act like one. This is because the military jurisdiction created by the Uniform Code of Military Justice in 1950 was a compromise between those advocating for the elimination of command control of the military justice system and those advocating maintaining the existing system.
It is interesting because the military justice system is a decently sized jurisdiction compared to the fifty states. And if the United States Court of Appeals for the Armed Forces were an Article III intermediate appellate court, hearing every court-martial appeal as a matter of right, its workload would most closely mirror that of the United States Court of Appeals for the First Circuit.
Not only is it a sizeable jurisdiction, Congress used the military justice system as the framework for creating the military commissions system to prosecute certain “enemy belligerents” (think 9/11, War on Terror type folks). But Congress provided noticeably more due process to those belligerents than it provided American service members subject to military justice. Fewer than ten military commissions have reached completion in the nearly two decades of their existence, yet commissions enjoy considerably more attention in academic journals.
I have enjoyed testing this hypothesis over the past several years. I’ll be sharing that experience on these pages for a while. Some of my research culminated in published articles, some I will share for the first time here. Along the way, I’ll let my mind wander and go on a few tangents and down some rabbit holes.
United States v. Clay, 1 U.S.C.M.A. 74 (1951), held that service members are specifically excluded from the protections enshrined in the Constitution. Instead, they were solely entitled to the statutory rights granted them by Congress. These rights, referred to as “military due process,” may mirror those found in the Constitution, but they need not be. That all changed with the CAAF’s decision in United States v. Jacoby, 11 U.S.C.M.A. 428 (1960), which makes it a landmark—if not THE landmark—military justice decision.
Twenty-four judges have served on the United States Court of Appeals for the Armed Forces (CAAF) since its creation in 1950, approximately sixty-nine years ago. Of those twenty-four, two have been women. This spotlight briefly highlights the first woman to serve on the Court. Continue reading
One of the obstacles to researching military law is most of the scholarship occurred prior to the digitization of law journals. Many insightful articles are found by accident, buried in a footnote and inaccessible through research sites such as Westlaw and LexisNexis. One such article is CAPT Guy Zoghby’s 1965 article, Is There a Military Common Law of Crimes. While he focuses on civilian offenses found in the Uniform Code of Military Justice (UCMJ), Zoghy does give us at least a starting definition of military common law.
The debate over the appropriate role of the military commander in sexual assault cases remains a hotly contested issue among victim advocates, policymakers, and the military establishment. Listening to the rhetoric, one can excuse the interested reader for believing this is new—but it is not. Reformers both inside and outside the military have advocated for removing military commanders from military criminal law prosecutions for over 70 years.
For most of American history, military legal institutions have largely escaped questions of legitimacy. The little attention they have received has primarily focused on the history, and sometimes competency, of courts-martial—the name given to military criminal trials. While an argument could be made that such studies indirectly address questions of legitimacy, the fact remains that military legal institutions operate in an environment in which their legitimacy is increasingly important and largely ignored.
It’s been a few months since I’ve been able to post or otherwise update the site. I try to post monthly, typically regarding a project I’m working on (or something a project makes me think of) or something I’m reading. But the past few months have been quite busy at my day job and have also included some travel. So, I’ve been spending all the time I can spare trying to get my latest article ready for spring 2016 submission season. Now that it is done and submissions have started, I can share some thoughts on what I’ve spent the last year or so working on, here and there.