2007
(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).
(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).
(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).
(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).
(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).
(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).
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).
(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).
2006
United
States v. Lovett, 63 M.J. 211 (to support his claim that the
conditions of
his confinement violated the Eighth Amendment, appellant must
show: (1)
an objectively, sufficiently serious act or omission resulting in the
denial of
necessities; (2) a culpable state of mind on the part of prison
officials
amounting to deliberate indifference to appellant’s health and safety;
and (3)
that he has exhausted the prisoner-grievance system and that he has
petitioned
for relief under Article 138, UCMJ, 10 USC § 938).