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The Felton opinion has me intrigued. Much of my research in my day job involves petty offenses created by local governments. Recent studies of misdemeanor criminal justice systems in the civilian world have centered on an important thesis: they system is "lawless," in the sense that the substantive criminal law does not meaningfully constrain prosecutors or police. The offense elements are basically ignored. See, e.g., Issa Kohler-Hausmann, Misdemeanorland; A. Natapoff, Punishment Without Crime. One famous example in this literature is the offense of taking up more than one seat on the NYC subway. Kohler-Hausmann discovered that while the ordinance requires that the second seat be obstructed when someone else wants to use it, police were arresting and prosecutors were charging even in the absence of this offense-element. They could get away with this because the defendant, often unrepresented, would usually plead guilty to avoid the hassle of fighting the charge. Felton is encouraging because it shows meaningful attention to the limits imposed by substantive criminal law--even for a petty offense. It reminds me of an Air Force case from a few months ago where the court vacated a conviction for disorderly conduct that was premised on a police officer's impression that the accused was a "smart aleck." The limits of substantive criminal law are enforced by the review for legal sufficiency. In this sense, legal sufficiency review is far more important than factual sufficiency review. It protects innocent conduct from punishment. Brenner FissellEIC
8 Comments
Scott
1/17/2021 08:26:28 pm
Most such offenses likely never get a look at appeal in the first place. Only reason Felton got an appeal was the BCD.
Dwight Sullivan
1/18/2021 12:38:16 pm
[Standard Disclaimer: This comment is offered solely in my personal capacity and shouldn't be imputed to anyone or anything else.] Scott, under the Military Justice Act of 2016, there is now a route for EVERY special and general court-martial conviction (as well as summary court-martial conviction) to potentially receive review in a Court of Criminal Appeals. For cases qualifying for review under the Military Justice Act of 2016's provisions, if the sentence doesn't include death, a punitive discharge, or more than six months of confinement, then following an Article 69 appeal, the accused can file a request for discretionary review by the applicable Court of Criminal Appeals. UCMJ art. 69(d)(1)(B), 10 U.S.C. 869(d)(1)(B). That is a major improvement over the previous law, where a "subjurisdictional" case could make it into the military appellate courts only if a Judge Advocate General chose to refer it. That didn't happen once in a blue moon; blue moons occur far more frequently than did such referrals. Still, I hope this proves to be an interim step and that Congress eventually grants those convicted by special and general courts-martial the same right that exists in almost every other criminal justice system in America: the right to challenge a conviction in at least one higher-level judicial forum (not merely the right to request such review on a discretionary basis). In addition to being an important matter of principle, a system in which there is either an automatic appeal or appeal-as-of-right for every case would actually be far more efficient than the current system, where a case might receive an Article 69 appeal and be subject to briefing on whether the CCA should exercise discretionary review before the case enters the military appellate courts. That said, given Congress's firm statement that a finding of guilty by a summary court-martial is not a criminal conviction, UCMJ art. 20(b), 10 U.S.C. 820(b); see also Middendorf v. Henry, 425 U.S. 25 (1976), I would extinguish the opportunity to seek CCA review of a summary court-martial conviction. That would have the effect of eliminating the military appellate courts' potential appellate jurisdiction, which currently would allow them to issue extraordinary relief in the summary court-martial context.
Gene Fidell
1/18/2021 12:48:58 pm
Of course, we could also simply abolish summaries . . .
Nathan Freeburg
1/18/2021 02:26:49 pm
Gene, I don't think the Marine Corps could exist without summary courts-martial.
Scott
1/20/2021 11:12:29 am
Sir, thanks for pointing that out.
Gene Fidell
1/18/2021 08:27:21 am
"Many deep and abiding constitutional problems are encountered primarily at a level of 'low visibility' in the criminal process—in the context of prosecutions for 'minor' offenses which carry only short sentences." Sibron v. New York, 392 U.S. 40, 52 & n.12 (1968).
Dwight Sullivan
1/18/2021 03:28:21 pm
[Standard Disclaimer Incorporated by Reference] Sabermetricians Ben Lindbergh and Sam Miller were given the opportunity to test their theories by running the Sonoma Stompers independent league baseball team. They wrote a wonderful book about the experience called, "The Only Rule Is It Has to Work: Our Wild Experiment Building a New Kind of Baseball Team." Summary courts-martial work. When I was the reserve counterpart to the Chief Defense Counsel of the Marine Corps, a number of cases that otherwise would have gone to a special court-martial were instead handled by dealing the case to a summary court-martial with a board waiver. The command was happy because the accused Marine was locked away in the brig while the paperwork was processed to separate him or her from the Marine Corps. So instead of hanging around as a distraction to the command awaiting a special court-martial, the troublesome Marine went away almost instantly. And the wayward Marine was happy because he or she avoided not only a strong possibility of more brig time and a punitive discharge, but also a federal conviction. If a procedure is available that both the accused and the command would prefer, I see no reason to deprive them of it.
Cloudesley Shovell
1/19/2021 09:47:00 am
An excellent comment, good sir DS. It is a shame that this very effective tool for the maintenance of good order and discipline is so underutilized. Your comment will be posted after it is approved.
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