YOUR MONEY OR YOUR LIBERTY: CLARIFYING MILITARY CONTINGENT CONFINEMENT.

• Author: Kuersten, Andreas

1. Introduction II. The Development of Military Contingent Confinement III. The Relevant Rules for Courts-Martial A. Rule 1003(b)(3) B. Former Rule 1113(e)(3) C. When Contingent Confinement Replaces an Attendant Fine IV. Judicial Treatment A. The CMA and CAAF B. The Service Branch Appellate Courts V. Realizing Just and Effective Military Contingent Confinement A. False Starts and Misunderstandings B. Recommendations for the Use of Contingent Confinement VI. Conclusion I. Introduction

   Your money or your liberty? Barring certain limitations, monetary penalty or incarceration awaits service members who have fines and contingent confinement--i.e., sentence conditions allowing for the imposition of confinement if an individual fails to pay a punitive fine--adjudged against them under the military justice system. [1] This is the case despite recent significant changes to the Manual for Courts-Martial (MCM) and Rules for Courts-Martial (RCM) [2] and contrary interpretations of how to implement contingent confinement. [3]

   The RCM outlines military fine enforcement through contingent confinement in Rule 1003(b)(3), which states that sentences including fines "may be accompanied by a provision" providing "that, in the event the fine is not paid," the convicted individual may be "confined until a fixed period considered an equivalent punishment to the fine has expired." [4] Although another rule addressing this punishment was removed from the RCM by Executive Order 13825 in 2018--Rule 1113(e)(3), which described contingent confinement as replacing any associated fine and the manner in which this substitution must take place [5]--Rule 1003(b)(3) was left unchanged. [6] Both courts and scholars, however, have stumbled in interpreting this Rule, creating confusion as to its true legal effect and viability for achieving certain penological outcomes.

   Clear illustrations of such missteps are presented in an article by Major Daniel Murphy [7] and the opinion of the United States Navy-Marine Corps Court of Military Review (NMCMR)--the precursor to the Navy-Marine Corps Court of Criminal Appeals--in United States v. Rascoe. [8] The article and opinion incorrectly put forth that, under Rule 1003(b)(3) and former Rule 1113(e)(3), those who fail to pay fines may be subject to contingent confinement and remain liable for their original financial punishment, rather than one or the other. [9] Though the NMCMR does so expressly in dicta, [10] courts have relied on the interpretation as precedent, propagating faulty law. [11] Murphy additionally proposes problematic recommendations for the modification of Rule 1003(b)(3) and Rule 1113(e)(3). [12] In light of the aforementioned recent removal of Rule 1113(e)(3) from the RCM and inaccurate scholarly and judicial presentations, this article clarifies the law of military fine enforcement through contingent confinement and offers recommendations for its use. Part II presents an overview of the historical development of military contingent confinement prior to the promulgation of the 1984 MCM. Throughout this period, the sanction is shown to have operated to discharge attendant fines via the imposition of confinement.

   Part III examines the language of Rule 1003(b)(3), which was first published in the 1984 edition of the MCM, remained unchanged by Executive Order 13825, [13] and continues to govern the imposition of military contingent confinement. [14] Rule 1003(b)(3) directs that if confinement is imposed for failure to pay a court-ordered fine pursuant to a fine enforcement provision, the fine is discharged and any confinement contingent on nonpayment of the fine replaces the monetary penalty as punishment for the crime. [15] Part III also provides an assessment of former Rule 1113(e)(3), [16] which similarly first appeared in the 1984 MCM, [17] but was removed from the RCM by Executive Order 13825. [18] The analysis of Rule 1113(e)(3) reinforces the interpretation of Rule 1003(b)(3) advocated here. Part III further argues that Rule 1003(b)(3) requires that contingent confinement replace an associated fine when it is executed and that partial payments made prior to execution and any payments made following execution have no effect on the period of imprisonment an individual must suffer; pre-confinement, partial payments must be returned and post-confinement payments cannot be accepted. Rule 1003(b)(3) should be amended to make this process explicit and a draft Rule 1003(b)(3) is provided.

   Part IV analyzes how the military appellate courts have addressed contingent confinement under Rule 1003(b)(3) and former Rule 1113(e)(3) to help determine whether and to what degree case law should be adjusted to match the interpretations of this article. Although the United States Court of Appeals for the Armed Forces (CAAF) and its predecessor, the United States Court of Military Appeals (CMA), have thus far failed to rule on the issue, the appellate courts of the service branches have weighed in. In Rascoe, the NMCMR--though expressly in dicta [19]--espoused the position that this article critiques, while the Army appellate precedent entails conclusions that substantially mirror those of this article. Air Force appellate precedent is less clear but appears congruent with that of the Army.

   Finally, Part V critiques Murphy's recommendations for the modification of Rule 1003(b)(3) and former Rule 1113(e)(3). It articulates shortcomings in the understandings of Murphy and the NMCMR with regard to the nature of the fiscal sanction an adjudged fine subjects individuals to. Part V then provides recommendations for the effective use of fine enforcement provisions at sentencing. Their employment is argued to be ineffective when the goal is the recouping of financial losses because the imposition of contingent confinement extinguishes the financial obligation and forces the government to expend additional resources on incarceration. If a debt goes unpaid, the United States has many effective avenues by which it can still collect what is owed. But when the penological goals are, wholly or in part, retribution or deterrence, such provisions give authorities more options and the chance to put the government in a better financial position without sacrificing the alternative punishment of confinement.

2. The Development of Military Contingent Confinement

   The law of military fine enforcement through contingent confinement has evolved over decades to assume its current form. From the beginning of its codified existence in the 1918 MCM to its presentation in the 1984 MCM, the history of this punishment reveals that its imposition discharged attendant financial obligations.

   Prior to its codification, as presented by the Army Judge Advocate General (Army TJAG) in 1880, contingent confinement was implemented as a matter of custom: "Sentences of imprisonment till a fine, also imposed by the sentence, is paid, are sanctioned by the usage of the service." [20] The Army TJAG went on to note that "[i]t is proper ... in such sentences to affix a limit beyond which the punishment shall not be continued in any event." [21] This explanation, while stating that some limit on possible confinement should be prescribed, indicates that such additions were discretionary and provides no guidance for determining the length of possible confinement as a result of failing to pay a punitive fine. In addition, the language, "till a fine ... is paid," does not make clear whether service of contingent confinement for the adjudged period discharged the fine.

   The discretionary nature of affixing a limit beyond which contingent confinement would not continue is illustrated in the case of "an officer[] sentenced ... to the payment of a fine and to imprisonment till the fine was paid and held for some time in confinement by reason of the non-payment of the fine...." [22] After "some time in confinement," the officer "applied to be released." [23] When the case reached the Army TJAG, he stated that official procedures for determining whether an individual is a "poor convict" be followed "before exercising any clemency in [the] case" so as "to protect the Government from fraud." [24] No set period of confinement was delineated and the officer had to apply for release after serving "some time." The Army TJAG then recommended that the officer continue to be imprisoned without a fixed end date unless he was found to be a "poor convict" warranting clemency. [25] This case also indicates that the imposition of contingent confinement did not extinguish the officer's financial obligation. That is, the conditional incarceration did not discharge the fine since the officer remained imprisoned indefinitely for not paying, and paying the fine was the key to securing his release.

   Passages from the 1896 edition of Colonel William Winthrop's influential treatise on military law expound upon these early understandings and implementations of military contingent confinement. [26] With regard to the punishment generally, Winthrop writes,

   In the military, as in the civil, procedure, where a fine is imposed, it commonly is, and in general properly should be, added in the judgment that the party shall be imprisoned till the fine is paid. But, especially as there is no process known to the military law by which a convict, destitute of means, can, because of his inability, be relieved from an imprisonment imposed for the enforcement of a fine, it is usual and proper in a military sentence to declare that such an imprisonment shall not exceed a certain term of months or years; otherwise--the pardoning power not intervening--the confinement might be indefinitely prolonged. [27] As examples of how to adjudge such confinement, Winthrop presents court language abating the owed fine at a rate of "five (or other number of) dollars per day" and imposing imprisonment of "one day for every two dollars [owed], or any part thereof that remains unpaid." [28] Contrary to the...