FIRST PRINCIPLESConstitutional Matters: Equal Protection

2017 (October Term)

United States v. Hennis, 77 M.J. 7 (absent a suspect classification or interference with a fundamental right, all that is needed for a statute to withstand constitutional scrutiny with respect to equal protection is a rational basis for a distinction between appellant and others who are treated differently). 

(appellant’s equal protection claim that he must be treated in a similar manner to future appellants in capital cases who may be entitled to learned counsel under the provisions of the Military Justice Act of 2016 may be rejected for several reasons; first, the distinction involving the possibility of appointment of learned counsel is not based on a constitutionally suspect classification such as race, religion, or national origin; second, the distinction does not interfere with any of appellant’s fundamental constitutional rights; and third, there is a rational basis for the distinction where Congress presumably delayed the effective date and implementation of the amendments to Article 70, UCMJ, in order to provide the government with adequate time to train appellate defense counsel, write and implement regulations pertaining to learned counsel, and allocate funding to pay for the training and use of learned counsel in capital cases).   

2014 (September Term)

United States v. Akbar, 74 M.J. 364 (appellant’s Fifth Amendment equal protection rights argument that servicemembers who are death-eligible are treated differently than their similarly situated federal civilian counterparts because convening authorities do not have to comply with death penalty protocols set forth in the US Attorneys’ Manual is without merit; an equal protection violation is discrimination that is so unjustifiable as to violate due process; however, equal protection is not denied when there is a reasonable basis for a difference in treatment; no unjustifiable discrimination is found in the instant case because appellant, as an accused servicemember, was not similarly situated to a civilian defendant; in addition, the policy of the U.S. Justice Department is but an internal policy, without the force of law and subject to change or suspension at any time, and as such, it does not serve as the basis for an equal protection violation).  


United States v. Gray, 51 MJ 1 (appellant was not denied equal protection by Judge Advocate General’s decision to establish and adhere to procedures to request funding for additional appellate expert mental health assistance where:  (1) death-penalty inmates who submit requests for expert assistance after the new policy became effective were not considered a suspect class; (2) the procedures established were not unreasonable; and, (3) prior funding to other death-penalty inmates did not create any fundamental constitutional right for capital defendants to initially request the Judge Advocate General to provide such funding).

(members of the armed forces are not denied equal protection by virtue of the fact that their cases are not reviewed by an Article III court; see United States v. Loving, 41 MJ 213, 295-296 (1994), aff’d on other grounds, 517 U.S. 748 (1996)).

(rejecting claim that imposition of death penalty violated equal protection because RCM 1004 subjects appellant, as a member of the armed forces, to a penalty which is not otherwise available under the criminal code of the United States for identical criminal conduct; see United States v. Loving, 41 MJ 213, 294 (1994), aff’d on other grounds, 517 U.S. 748 (1996)).

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