U.S. v. Wise, 64 M.J. 468

Trial Stages: Sentence and Punishment: Cruel and Unusual Punishment

1. a prisoner must seek administrative relief prior to invoking judicial intervention to redress concerns regarding post-trial confinement conditions; absent some unusual or egregious circumstance, this means that the prisoner has exhausted the prisoner grievance system in his detention facility and that he has petitioned for relief under Article 138, UCMJ; this requirement promotes resolution of grievances at the lowest possible level and ensures that an adequate record has been developed to aid appellate review
2. exhaustion requires appellant to demonstrate that two paths of redress have been attempted, each without satisfactory result; appellant must show that absent some unusual or egregious circumstance, he has exhausted the prisoner-grievance system in his detention facility and that he has petitioned for relief under Article 138; because a prime purpose of ensuring administrative exhaustion is the prompt amelioration of a prisoner’s conditions of confinement, courts have required that these complaints be made while an appellant is incarcerated
3. notwithstanding appellant’s failure to exhaust the formal mechanisms of administrative review usually associated with permanent and established confinement facilities, he was entitled to have the merits of his claims addressed regarding his having been incarcerated in irons and in proximity to enemy POWs in Iraq, where the record did not reflect that his command had an institutionalized complaint mechanism specific to the confinement area, and his attempts to informally communicate with, and complain to, his guards were met with silence
4. Article 12, UCMJ, provides, that no member of the armed forces may be placed in confinement in immediate association with enemy prisoners or other foreign nationals not members of the armed forces; the prohibition to which Article 12 is directed is not absolute; rather, only “immediate association” is directly proscribed; based on the legislative history of Article 12, it appears that the “immediate association” language was intended to permit confinement in the same guardhouse or brig, but to require segregation
5. following his court-martial conviction, appellant was not improperly confined in immediate association with enemy POWs in violation of Article 12, UCMJ, where he was separated from the POWs by a single strand of concertina wire, and he was in a forward position in combat, where the capacity to house prisoners was limited; a single strand of wire was not an insubstantial barrier, prevented appellant’s connection or combination with captured personnel, and represented a real boundary between appellant and foreign personnel; the government’s segregation of appellant from enemy POWs by concertina wire was manifest and bona fide, and as a result, appellant was not imprisoned in immediate association with foreign personnel
6. the cruel and unusual punishment prohibitions in Article 55, UCMJ, and the Eighth Amendment were not implicated in appellant’s placement in a confinement cage in Iraq where he was separated by concertina wire from enemy POWs, because appellant failed to demonstrate (1) that the conditions of his confinement were sufficiently egregious or amounted to unnecessary or wanton infliction of pain to give rise to the presumption that he was being impermissibly punished, (2) that the government intended to punish him by confining him in a cage rather than a more formalized facility, or (3) that the government was deliberately indifferent to his well-being in doing so
7. unlike the absolute proscription in Article 55, UCMJ, against flogging and branding, the proscription against the use of irons, single or double, is qualified; the use of irons must meet two criteria -- the use of irons cannot be for punishment, and they must be employed to effectuate safe custody

Trial Stages: Appeals: Remedies › Generally

1. where, on the present record, appellant’s confinement in irons following his conviction implicated his right to be free from cruel or unusual punishment and CAAF lacks the necessary facts to determine whether the use of irons was necessary for safe custody and thus nonpunitive given the combat context presented, the record of trial must be returned to the JAG for remand to the court of criminal appeals to resolve the factual issue of why appellant was confined with irons; if necessary, that court may order a DuBay hearing; if the court of criminal appeals orders further fact-finding and the convening authority determines that such fact-finding is impracticable, the convening authority may resolve the matter and moot the necessity for further fact-finding by awarding appellant confinement credit for the period of time he was confined in irons

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. a prisoner must seek administrative relief prior to invoking judicial intervention to redress concerns regarding post-trial confinement conditions; absent some unusual or egregious circumstance, this means that the prisoner has exhausted the prisoner grievance system in his detention facility and that he has petitioned for relief under Article 138, UCMJ; this requirement promotes resolution of grievances at the lowest possible level and ensures that an adequate record has been developed to aid appellate review
2. an appellate court reviews factual findings under a clearly erroneous standard, but the ultimate determination of whether an appellant has exhausted administrative remedies is reviewed de novo, as a mixed question of law and fact
3. an appellate court reviews de novo the question of whether an appellant has been subject to impermissible conditions of post-trial confinement in violation of Article 55, UCMJ, and/or the Eighth Amendment
4. interpreting Article 12, UCMJ, is an issue of statutory interpretation, which an appellate court reviews de novo, as is the question whether Article 12, UCMJ, has been violated
5. once an appellant makes a colorable claim that he was put in irons, the burden for establishing that an exception to the prohibitions of Article 55, UCMJ, were met falls to the government

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: Generally

1. with the text of a statute indeterminate, and in the absence of case law, an appellate court turns to the primary source of the statute, its legislative history, for guidance
2. unclear language in a statute can become clear if the congressional intent behind the legislation is reviewed