The Convening Authority as an Early Appellate Authority

At the heart of the early American court-martial was the convening authority, the military commander with the legal authority to convene such a proceeding.[1] The Army and Navy of the period was not only quite small relative to today, they also existed in a world with limited communications bandwidth. Generals, Admirals, and (Navy) Captains received their general orders from the Commander-in-Chief and were delegated vast authority to otherwise act on their own pursuant to the Commander-in-Chief’s “intent.”

Courts-martial of the period were primarily the (sole) medium to imposing punishment and maintaining control over enlisted[2] men.[3] This is an important point to understand. A criminal proceeding in a regularly constituted court of competent jurisdiction is, at least in theory, intended to independently assess the facts of a case to determine whether the government has proven its case beyond a reasonable doubt and, if necessary, impose an appropriate sentence. Courts-martial by this period had a long history of being a creature of necessity outside regular law used to enforce conformity and discipline in an age before loyalty to a state, much less a constitution, while attenuating charges of arbitrary and capricious whims (which would not be the acts of an officer and a gentleman).

Under the conventional perception of courts-martial of this era, a panel of military officers heard the evidence and independently determined guilt. Likewise, this same panel independently determined the appropriate sentence. Courts-martial of the period had no maximum punishment tables nor sentencing guidelines. Sentences were determined, paraphrasing, “as a court-martial may direct.”

So, one would be fine to think the convening authority acted as an appellate authority over the independent determination of the court-martial panel.

The convening authority selected the panel of officers to determine guilt and adjudge a sentence. He also selected the prosecutor, who also spoke for the Accused. If the convening authority disagreed with a particular ruling by the panel, he could re-submit the issue for further review. Same goes for the sentence.

Oh, and he also rated each of the officers selected for the panel, meaning he was in control of their career.

As a further indication of a court-martial’s administrative hearing character, though there were no early rules of evidence or procedure, the early Articles specifically spelled out that the trial judge advocate was responsible for compiling the record of trial and forwarding it to the convening authority. He then had the authority to approve the findings and sentence, set them aside, or approve a lower sentence.

An additional copy was forwarded to the JAG Department in Washington, DC. At the time, the department had no authority to do anything to the approved findings and sentence. The most it could do was, upon review, provide recommendations to the convening authority to consider in the future. In fact, it was not until Brigadier General Samuel Ansell in the early 20th century that the JAG Department asserted Congress intended it to have jurisdiction over courts-martial.

But, that is hundreds of years away. In colonial times, the convening authority’s power was virtually absolute and he remained the only “appellate” authority in a court-martial. As you can probably imagine, this was abused, and Congress almost immediately stepped back in to require a bit more supervision.

More next time.


[1] Then, and now, there existed multiple types of courts-martial, differentiated by the type of punishment it was authorized to impose. The more serious the authorized punishment, the higher rank the convening authority needed to be.

[2] In a separate post I might venture a little more into officer courts-martial. While there are some notable cases, mostly an officer was just as likely to demand a trial by court-martial when “dishonored” as he was to face a court-martial for misconduct. And even when that happened, officers were loathe to convict one of their own.

[3] Also in a separate post, I will explore a bit more why this was so. For now, recruiting was different, military organization was different, enlisted men were different. It was just a different time and a different people, and a different need.

Wading Into the Supreme Court’s Military Law Jurisprudence

“This Court has long recognized that the military is, by necessity, a specialized society separate from civilian society. We have also recognized that the military has, again by necessity, developed laws and traditions of its own during its long history. The differences between the military and civilian communities result from the fact that ‘it is the primary business and armies and navies to fight or be ready to fight wars should the occasion arise.’”[1]

“We find nothing in the history or constitutional treatment of military tribunals which entitles them to rank along with Article III courts as adjudicators of the guilt or innocence of people charged with offenses for which they can be deprived of their life, liberty or property. Unlike courts, it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise.”[2]

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Thoughts on the Court’s Engagement with the Inmate Community

The Court’s decision in Turner v. Safely is a benchmark example of the Court’s ability to establish a framework for analyzing constitutional issues in a community with which it is not familiar with, willingness to engage with the community and apply the framework, and take a disciplined approach to its role as the court of last resort in its Congressionally-created jurisdiction.

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Competing Conceptions of Manhood and Honor in the North and the Union Army

If you are like me, there is a never ending list of books you keep adding to but can’t get to. For me, that often also leads to a similar stack of books on my bookshelf bought in excitement, just waiting to be read. The Gentlemen and the Roughs, by Professor Lorien Foote, is one of those books. I’ve finally been able to dive into it and what a consuming read it has been so far.

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The Court’s Engagement with the Inmate Community

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.

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Intro to the Courts in the Inmate, Student, and Military Communities

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.

Landmark Case: United States v. Jacoby

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.

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Another Look at the Supreme Court’s Military Justice Vagueness Doctrine

I previously explored the rule set down by the Supreme Court (“Court”) in Parker v. Levy[1] 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.”[2] After recently coming across some material on the level of scrutiny applied to criminal statutes regulating economic activity under the Commerce Clause in Article I of the Constitution of the United States, I dug a little deeper. And it surprised me.

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