Recent Develapments-Instructions an the sentence

• Author: Lieutenant Allan B. Adkins
• Pages: 04

I. ISTRODUCTION

Chapter XXV of the Manual for Courts-Martial' is entitled "Punishments." It contains, within its twenty-four pages, descriptions of no less than twenty-one distinct types of permissible punishment and prescribes maximum limits for their imposition Pursuant to the authority vested in the President by Article 56 of the Uniform Code of Jlilitary Justice.z Several of the farms of punishment are reserved to particular ser~ices,~some are deemed lesser forms of other punishments named,' and many are purportedly limited by provisions deacribing the manner in which they may be imposed in conjunction with other types.s The sum total of these provisions is a comprehensive scheme of punishment covering almost all of the principles necesaary for consideration in arriving at the permissible punishment in any case. The chapter also represents a considerable backlog of military custom and tradition with respect to bath civilian-type and peculiarly military forms of punishment.

Article 51 (c) of the Codee requires the law officer or president of a special court-martial to instruct the court members an the iaw applicable to the case prior to their vote on the findings. There is no such codal requirement with respect to the presentencing Portion of the trial. The Manual does contain a loosely worded statement that the law officer or president "may" instruct the

*The o ~ m o n a and concluiimi presented herern are those of the author

and da not necessarily repre~ent the views of The Judge Advocate General's School DT m y orher garernmental agency.

** JAGC, US. Arm?; hlember of Faculty Judge Advacate General's School. US. Arms, Chariotteswlie, Va : MembLr of Texal Bar; LL.B., 19E8, University of Texas Law School.

'Chap. XXV, U.S. Dep't of Defense, Manual far Courts-Martial, Cnmd States, 1911 (~peelfic references heremafter cited Para. ~, IICI,18611.

'hifarm Code of Military Jurtiee, art. 66 10 U.S C. 4 856 (1958) ("e-elfie references hereinafter emd Art.

-: UCIJ).'Far example, IDISof numbers is reserved to the Navy Para. 126%. YC>l, 1851.

'Far example, detention of pay IS B lesser form wlhm forfeiture. Para. 126h(4). MCM 1851a Far example, para. 12ib. \lCM 1961. provide8 that confinement may not exceed SIP manrhs If there 13 no punitive discharge. Thx pm\.irion wa! declared void in rnired States Y ramadare, 8 USCPA 471, 26 CMR 251 (1958)

'Art 5l(cd UCMJ.

AGO lima 109

court on the maximum permissible punishment.' This requirement was almost universally interpreted to encompass the three "basic" elements of the normal general court-martial maximum sentence, is.. punitive discharge or dismissal, confinement, and forfeitures. Despite the fact that there appeared to be no absolute requirement for instructions on the sentence, it was established early in operations under the Code that if erroneous instructions on the maximum sentence were actually given, prejudicial error could result.e Instructions on the many less severe forms of punishment available as substitutes for the basic elements of the maximum were never required 5x5 sponte. Two justifications for this are apparent: first, an extensive narration of these forms af punishment would be very time consuming and tedious; second, the court members were allowed to use the Manual in their deliberations and, if they felt that a leas severe form of punishment were appropriate, they could shuffle through Chapter XXV and arrive at a proper sentence. The validity of this second justification could be argued at length because of the complicated nature of the Manual provisions, but later decisions of the Court of Military Appeals have made such a discussion unnecessary. In llnited States 2.. Rinehart,@ the Court ruled that court-martial members were not permitted to use the Manual in their deliberations. This left the court wholly without guidance on the sentence if the law officer or president decided not to invoke the permissive Manual authorization for instructions. The Court af Military.4ppeals filled this gap with its decision in U'nited States v, Turner1n in which it held that the law officer or president is required to instruct on the maximum permissible punishment

~ 7 ~ 5

sponte. This decision was generally interpreted, in accordance with the earlier practice, to require instructions only on the maximum limits of discharge, confinement, and forfeitures.

In Cnited States D. Crawford" the Court was called upon to interpret the Turner requirement and the extent to which the usual three-element instruetion meets its demands. Crawford involved a Navy special court-martial in which the president instructed the court correctly as ta the three normal portions of the sentence. He made no mention of reduction. When the president announced the sentence, he included reduction to the lowest enlisted grade in addition to punitive discharge, confinement, and forfeitures. Reduction is not automatic in the Navy despite

. Para 76). MCP. 1851. In defining the duties of the lax' ameer, para. 38b. MCM, 1951. States that he "rhould" inform the eavrt of the msximurn punishment.

% United State. Y. Purgau. 2 USCX4 369, 8 CMR 169 (1953).* 6 DSCil.4 102, 24 CYR 212 119571

a 8 USC31A 124, 25 CXR 396 (1956)

1 12 uscm 203. 30 CMR 203 ( ~ 6 1 )

INSTRUCTIOYS ON THE SEXTENCE

Article 58(a) of the Code.lz A divided board of review affirmed the sentence against the challenge that the reduction portion exceeded the instructions and thereby violated the Turner rule.13 The Judge Advocate General of the Navy certified the question of the legality of the reduction, possibly because another Navy board had reached exactly the opposite Chief Judge Quinn, with Judge Ferguson concurring, wrote the majority opinion in the Court of Military Appeals and held that the president's instructions marked the limits of the sentence and that therefore the reduction was invalid. The effect of the error was cured by disapproving the reduction. Judge Latimer dissented. The majority opinion is very brief, although undoubtedly sufficient to answer the narrow question certified.

The Air Force presented a similar case to the Court in Cnited States v. Powell.'6 A special court-martial imposed a reduction not supported by instructions in conjunction with a bad conduct discharge, forfeiture and confinement at hard labor. The eon-vening authority approved this sentence. Unlike the Navy case, the accused here was reduced to the lowest enlisted grade by operation of law under Article 58(a) of the Code upon the convening authority's approval of the sentence. Thus, the additional problem of the effect of the statute on this sentence was presented to the Court. The result was the same and the Court set aside the portion of the sentence calling for reduction. Here, Judge Fer-g u m wrote the majority opinion and found that the statute did not present any reason for departing from the Crswford decision. The Chief Judge concurred. Judge...