FIRST PRINCIPLESConstitutional Matters: Equal Protection

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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