FIRST PRINCIPLES: Constitutional Matters: Cruel and Unusual Punishment
2014 (September Term)
United States v. Akbar, 74 M.J. 364 (three discrete classes of offenders are exempt from execution under the Eighth Amendment: (1) those who are insane (and being insane is not the same as having a mental illness); (2) those who suffer from intellectual disability; and (3) those who were under the age of eighteen when they committed their crimes).
(appellant’s contention that his death sentence violates his Eighth Amendment rights because his mental illness renders the punishment disproportionate to his culpability is without merit; first, courts have uniformly determined that there is no constitutional impediment to imposing a capital sentence where a criminal defendant suffers from a mental illness; second, appellant’s specific mental illness did not make his death sentence highly disproportionate to his culpability; the Eighth Amendment prohibits punishments, including the death penalty, that are greatly disproportionate to the culpability of the accused, and thus individualized consideration is constitutionally required in imposing the death sentence; here, the record demonstrates that individualized consideration did occur in the instant case; most of the mental health experts who examined appellant concluded that although he suffered from some form of mental illness, he was mentally responsible at the time he committed the offenses; further, the panel members not only determined that appellant had the requisite mental ability to form the premeditated intent to kill when he committed the offenses, they also determined that he deserved the punishment of death for those offenses; and third, to the extent appellant claims that his mental illness presently rises to the level of insanity, once again the record does not support such a conclusion; although an accused’s earlier competency to be held responsible for committing a crime and to be tried for it does not foreclose a later determination that he or she is presently insane and cannot be executed, in this case, prior to and during the court-martial proceedings, mental health experts determined that appellant was mentally responsible at the time of the offense and mentally competent to stand trial; as such, there is no basis in the record to conclude that appellant is presently insane and therefore, appellant’s Eighth Amendment challenge premised on a claim of mental illness must be rejected).
United States v. Pena, 64 M.J. 259 (the Eighth Amendment prohibits cruel and unusual punishments; similarly, Article 55, UCMJ, prohibits cruel or unusual punishment; Article 55, UCMJ, also prohibits specified punishments, such as use of irons except for the purpose of safe custody).
(in an appellate court’s evaluation of both constitutional and statutory allegations of cruel or unusual punishment, it applies the Supreme Court’s Eighth Amendment jurisprudence in the absence of legislative intent to create greater protections in the UCMJ).
(the Eighth Amendment prohibits punishments that are incompatible with the evolving standards of decency that mark the progress of a maturing society, or which involve the unnecessary and wanton infliction of pain).
(the conditions of mandatory supervised release that required appellant to participate in a sex offender treatment program, to have no contact with the victims without the prior approval of his probation officer, to abstain from the use and possession of pornography, to consent to periodic examinations of his computer, to abstain from locations that act as a sexual stimulus, to register as a sex offender, to participate in alcohol and narcotics abstention meetings, to waive confidentiality in his relations with the sponsor of the treatment program, and to abstain from consuming alcohol did not constitute cruel or unusual punishment within the Eighth Amendment standards articulated by the Supreme Court).
United States v. Lovett, 63 M.J. 211 (punishments violate the Eighth Amendment when they are incompatible with the evolving standards of decency that mark the progress of a maturing society, or which involve the unnecessary and wanton infliction of pain).
United States v. Brennan, 58 MJ 351 (the Eighth Amendment to the Constitution prohibits the infliction of cruel and unusual punishment; Article 55, UCMJ, states that various specified punishments, as well as any other cruel or unusual punishment, may not be adjudged by a court-martial or inflicted upon any person subject to the UCMJ; the Supreme Court’s interpretation of the Eighth Amendment applies to a claim under Article 55 that confinement was administered in a cruel or unusual manner, subject to certain exceptions).
(under Supreme Court jurisprudence, misconduct by prison officials does not constitute cruel and unusual punishment unless it falls within the Eighth Amendment standards established by that Court; the Supreme Court has held that the Eighth Amendment prohibits punishments which are incompatible with the evolving standards of decency that mark the progress of a maturing society or which involve the unnecessary and wanton infliction of pain; in the context of a challenge to the conditions of confinement, the Court has observed that the Eighth Amendment does not mandate comfortable prisons but neither does it permit inhumane ones).
(the Supreme Court has identified two elements of an Eighth Amendment claim concerning confinement conditions: (1) an objective test – whether there is a sufficiently serious act or omission that has produced a denial of necessities; and (2) a subjective test – whether the state of mind of the prison official demonstrates deliberate indifference to inmate health or safety).
(applying the Supreme Court’s Eighth Amendment test, numerous federal courts, including CAAF, have held that to sustain an Eighth Amendment violation, there must be a showing that the misconduct by prison officials produced injury accompanied by physical or psychological pain; the proof required to establish the unnecessary and wanton infliction of pain varies according to the nature of the alleged constitutional violation).
(as a general matter, verbal harassment, even when accompanied by physical contact, is insufficient without evidence of physical or psychological injury to prove that the misconduct constitutes an Eighth Amendment violation).
United States v. Smith, 56 MJ 290 (pretrial confinement, imposed and administered in a lawful manner, is not per se cruel or unusual punishment under either Article 55 or the Eighth Amendment, and no constitutional violation arises from failure to give credit for pretrial detention unless there is a violation of the Equal Protection Clause of the Fifth Amendment).
United States v. Baldwin, 54 MJ 308 (appellant failed to demonstrate that the averred conditions of her post-trial confinement amounted to a violation of Article 55 where there was an absence of a showing of pain or injury, as well as an absence of a showing of punitive intent on the part of prison officials).
(appellant’s claim of improper punishment under Article 55, UCMJ, and under the Eighth Amendment was rejected because appellant did not demonstrate that the conditions of her confinement were more adverse than those faced by civilian prisoners whose claims of cruel and unusual punishment have been rejected by other courts).
United States v. Erby, 54 MJ 476, (the Courts of Criminal Appeals have authority under Article 66(c), UCMJ, to determine whether a sentence is correct in law, and that authority includes determining on direct appeal if the adjudged and approved sentence is being executed in a manner that offends the Eighth Amendment or Article 55, UCMJ).
(in the absence of findings of fact, appellant’s allegations of cruel and unusual punishment required remand to the Court of Criminal Appeals for factfinding where: (1) Court of Appeals for the Armed Forces could not determine on this record whether any of the asserted facts, individually or in conjunction with other evidence, provided a basis for deciding whether appellant exhausted available administrative remedies; and (2) the court could not determine without further clarification whether the alleged mistreatment amounted to a violation of Article 55, UCMJ, or the Eighth Amendment).
United States v. White, 54 MJ 469 (whether facts asserted by an appellant constitute a violation of Article 55, UCMJ, or the Eighth Amendment to the Constitution is reviewed de novo).
(in seeking to obtain judicial review of prison conditions, an appellant must establish a clear record of both the legal deficiency in administration of the prison and the jurisdictional basis for the action).
(Court of Appeals for the Armed Forces has jurisdiction under Article 67(c), UCMJ, to determine on direct appeal if the adjudged and approved sentence is being executed in a manner that offends the Eight Amendment or Article 55, UCMJ; Article 67(c) grants the authority to ensure that the severity of the adjudged and approved sentence has not been unlawfully increased by prison officials, and to ensure that the sentence is executed in a manner consistent with Article 55, UCMJ, and the Constitution).
(a prisoner must seek administrative relief prior to invoking judicial intervention and must show, absent some unusual or egregious circumstances, that he has exhausted the prisoner-grievance system and that he has petitioned for relief under Article 138, UCMJ).
(except in those circumstances where there is a legislative intent to provide greater statutory protections than the Eighth Amendment, the Supreme Court’s interpretation of the Eighth Amendment is applied to claims raised under Article 55, UCMJ).
(the standard applicable for determining what constitutes cruel and unusual punishment is that the Eighth Amendment prohibits punishments which are incompatible with the evolving standards of decency that mark the progress of a maturing society, or which involve the unnecessary and wanton infliction of pain).
(there are two factors that are necessary for an Eighth Amendment claim to succeed regarding conditions of confinement: (1) objectively, an act or omission must result in the denial of necessities and be sufficiently serious; (2) subjectively, there must be a culpable state of mind by prison officials, which is one of deliberate indifference to inmate health or safety – a conscious awareness of the risk or danger to the inmate and a choice to ignore it).
(verbal harassment, intimidation, or abuse, standing alone, does not constitute a constitutional violation, unless there is well-established and clinically diagnosed evidence of psychological pain and evidence that the officer in question acted with a sufficiently culpable state of mind).
(denial of adequate medical attention can constitute an Eighth Amendment or Article 55, UCMJ, violation; failure to provide basic psychiatric and mental health care can constitute deliberate indifference; however, an inmate is entitled to reasonable health care - it is not required that inmate health care be perfect or the best obtainable).
(assertion that two other inmates – one white and one “white-Hispanic” – were allowed to participate in a program, even if true, was insufficient, standing alone, to raise an issue whether appellant was denied similar participation because of his race).
United States v. Avila, 53 MJ 99 (a servicemember is entitled, both by statute and the Eighth Amendment, to protection against cruel and unusual punishment; the court will apply the Supreme Court’s interpretation of the Eighth Amendment to claims raised under Article 55, UCMJ, except in circumstances where there is a legislative intent to provide greater protections under the statute).
(in order to find a violation of the Eighth Amendment, two requirements must be met: (1) viewed objectively, a deprivation must be “sufficiently serious” to result in the denial of “the minimal civilized measure of life’s necessities”; and (2) prison officials must have a “sufficiently culpable state of mind”, one of “deliberate indifference” to inmate health and safety).
(appellant’s status as a maximum custody confinement or segregation prisoner, alone, did not per se violate the Cruel and Unusual Punishment Clause; this status was a factor to consider, but appellant failed to demonstrate that the conditions of his confinement were more adverse than those faced by civilian prisoners whose claims of cruel and unusual punishment have been rejected by other courts).
(the fact that confinement regulations were not followed does not,
demonstrate that the actual conditions of confinement rose to a level
and unusual punishment under the Eighth Amendment).
United States v. Sanchez, 53 MJ 393 (appellant, a victim of ongoing verbal sexual harassment by other inmates while confined in the brig, did not suffer cruel and unusual punishment as contemplated by the Eighth Amendment and Article 55, UCMJ, and the record did not establish the requisite state of mind for an Eighth Amendment violation).
(not only is the Eighth Amendment designed to prevent barbaric and torturous forms of punishment, it also prohibits “punishments which are incompatible with ‘the evolving standards of decency that mark the progress of a maturing society,’… or which ‘involve the unnecessary and wanton infliction of pain[.]’” Estelle v. Gamble, 429 U.S. 97, 102-03 (1976)).
(two factors must be present for an Eighth Amendment claim regarding conditions of confinement to succeed: (1) objectively, the acts or omissions must result in the denial of necessities and be sufficiently serious; and (2) subjectively, there must be a culpable state of mind, one of deliberate indifference to inmate health or safety).
(sexual harassment may, in some circumstances, rise to the level of cruel and unusual punishment).
(while psychological pain might be actionable under the Eighth Amendment, it seems that any such claim would have to be based upon a well-established and clinically diagnosed anxiety or depression).
(even under a flexible standard of what constitutes pain for purposes of cruel and unusual punishment under the Eighth Amendment, appellant failed to show that sexual harassment directed at her by other inmates while in the brig resulted in any physical harm or clinically documented psychological trauma).
(the state of mind component of the test for cruel and unusual punishment requires deliberate indifference to the victim’s fear and pain; prison guards and officials must be consciously aware of the risk or danger to an inmate and choose to ignore it; they must have been aware of the harm or risk of harm caused the inmate, and continued anyway; the officials must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and they must also draw the inference).
(appellant did not demonstrate the requisite deliberate indifference
fear and pain resulting from sexual harassment by other inmates while
in the brig: (1) she did not tell the guards or supervisors that
being offended and harassed by other inmates; (2) officials were not
facts and, thus, could not have drawn inference that a substantial risk
serious harm existed; and (3) once appellant did report the harassment
commanding officer, the commander instituted a full investigation).
United States v. Reed, 54 MJ 37 (there is a two-pronged analysis for determining whether a loss will fall within the Excessive Fines Clause of the Eighth Amendment: (1) was there a fine that was punishment for some offense; and (2) if there was a fine, was that fine excessive? See United States v. Bajakajian, 524 U.S. 321 (1998)).
United States v. Gray, 51 MJ 1 (death sentence per se does not violate Eighth Amendment as cruel and unusual punishment).