May a military judge impose a fine for an offense for which there is no unjust enrichment?
The answer is yes, and I and my colleagues have occasionally argued for just that.
See, United States v. Stebbins, 61 M.J. 366 (C.A.A.F. 2005); United States v. Murphy, No. S32629, 2021 CCA LEXIS 402 (A. F. Ct. Crim. App. August 10, 2021).
Consistent with his pleas, Staff Sergeant John Stebbins was found guilty of rape of a child under the age of twelve on divers occasions and sodomy of a child under the age of twelve, in violation of Articles 120 and 125 of the Uniform Code of Military Justice (UCMJ). He was tried and convicted by a military judge sitting as a general court-martial and sentenced to a dishonorable discharge, confinement for thirty years, reduction in rank to E-1, a $ 75,000.00 fine, and confinement of an additional five years if he failed to pay the fine. The convening authority approved the sentence as adjudged, except that he did not approve the additional confinement contingent on failure to pay the fine. The United States Army Court of Criminal Appeals subsequently affirmed the findings and sentence.
61 M.J. at 366-67. The CAAF went on to hold that a fine may be imposed in a case even though there is no evidence of unjust enrichment. Keep in mind that a fine becomes due when the CA acts while forfeitures come out of future pay (if there is any to be had). In both cases the money remains either in the DoD pay account or goes to the Treasury.
May a military judge impose a fine and then make a clemency recommendation along the lines of
"I have concluded based on the evidence before me and the victim impact statements that CW was required pay $X.00 for [medical] [mental health] [door locks] [lost wages], etc., etc., etc.
Seaman Able, this court sentences you to X, X, a fine of $3,056.33, and in the event you do not pay the fine, you shall be confined for an additional [X], and to be discharged.
I make the following recommendation, that if Seaman Able pays CW, as restitution, the full amount, that the sentence to confinement be suspended in excess of [X]. In the event Seaman Able is not able to pay the full amount as restitution, but is able to pay some amount, that [X] be suspended for [X]."
And, might not a concerned GCMCA agree to that. As his SJA I'd be inclined to recommend that even if just for the optics.
Yes, I understand it may be a pyrrhic effort because the accused may not have the money. But, it at least creates an incentive to pay the right person (or public fund) if there is money.
How about it, thoughts people?
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