FIRST PRINCIPLESConstitutional Matters: Equal Protection

2022 (October Term)

United States v. Jeter, 84 M.J. 68 (equal justice under law requires a criminal trial free of racial discrimination in the jury selection process).

(Fifth Amendment equal protection includes the right to be tried by a jury from which no cognizable racial group has been excluded).

(neither in civilian courts nor in a court-martial does the Fifth Amendment guarantee an accused jurors or members who are of the same race).

(the Equal Protection Clause forbids the States to strike black veniremen on the assumption that they will be biased in a particular case simply because the defendant is black; the statement is no less true as it pertains to the military justice system when the convening authority is allowed to add some arbitrary number of African-American members because they and the accused share the same race or ethnic group).

United States v. Anderson, 83 M.J. 291 (courts-martial defendants do not have a right to a unanimous guilty verdict under the Sixth Amendment, the Fifth Amendment Due Process Clause, or the Fifth Amendment component of equal protection).

(the Equal Protection Clause of the Fourteenth Amendment prohibits denying to any person the equal protection of the laws; the ‘right to equal protection is part of due process under the Fifth Amendment, and so it applies to courts-martial, just as it does to civilian juries; equal protection does not prohibit all classifications; indeed most laws differentiate in some fashion between classes of persons).

(the threshold question in equal protection analysis is whether the groups treated differently by the law are similarly situated; distinctions between similarly situated groups must satisfy the rational basis test unless the distinction implicates either a suspect class or a fundamental right, in which case strict scrutiny applies).

(military and civilian defendants are not similarly situated for equal protection purposes; event though the military justice system’s essential character is judicial and the procedural protections afforded to military defendants are virtually the same as those provided to civilian criminal defendants, to the extent there are similarities between the two systems, it is because Congress, in its discretion, struck a balance between the interests of justice and the distinct purposes of the military, not because accused service members and civilians are alike before the law). 

(two groups are similarly situated if they are ‘in all relevant respects alike). 

(the differences between the military and civilian communities result from the fact that it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise; that primary business does not disappear when a servicemember is charged with a crime, and it prevents servicemember and civilian defendants from being in all relevant respects alike; the three principal differences between the systems still remain true today: servicemembers facing courts-martial still have no constitutional right to: (1) a trial by jury; (2) before an independent Article III judge; and (3) after an indictment by a grand jury; the similarities in the two criminal systems do not render servicemember and civilian defendants similarly situated).  

(under the rational basis test in an equal protection analysis of Article 52, UCMJ, an appellate court must presume that Article 52, UCMJ, is constitutional and the burden falls on appellant to rebut every conceivable basis which might support it).  

(even if appellant were similarly situated to a civilian criminal defendant, he has no fundamental right to a unanimous verdict in the military justice system where he failed to rebut the rational basis for the nonunanimous provision of Article 52, UCMJ, that it serves the legitimate government purposes of promoting efficiency in the military justice system and of guarding against unlawful command influence in the deliberation room; these justifications for nonunanimous verdicts in courts-martial are rationally related to legitimate state interests and do not violate appellant’s Fifth Amendment right to equal protection). 

2020 (October Term)

United States v. Begani, 81 M.J. 273 (the federal government is prohibited from violating a person’s due process rights by denying him the equal protection of the laws; the core concern of equal protection is to act as a shield against arbitrary classifications; that is, the government must treat similar persons in a similar manner). 

(the initial question on any equal protection challenge is whether the groups are similarly situated, that is, are they in all relevant respects alike). 

(it does not violate the equal protection component of the Fifth Amendment to subject members of the Fleet Reserve, but not retired reservists, to military jurisdiction where the two groups are not similarly situated; members of the Fleet Reserve receive retainer pay, are subject to recall at any time, and are required to maintain military readiness; retired reservists, on the other hand, receive no pay until they reach statutory eligibility at age sixty, are not required to maintain any level of readiness, and can be recalled only in the event of a declaration of war or national emergency by Congress, and even then, only if other tiers of available manpower have been exhausted).   

2019 (October Term)

United States v. Bess, 80 M.J. 1 (while racial discrimination is clearly unconstitutional, absent intentional racial discrimination or an improper motive or criteria in the selection of members, the mere fact a court-martial panel fails to include minority representation violates neither the Fifth Amendment nor Article 37, UCMJ ‘s prohibition against unlawful command influence). 

(there is no constitutional or statutory right to have members of your own race (or any other) included on either a court-martial panel or a civilian jury). 

(neither in civilian courts nor in a court-martial does the Fifth Amendment guarantee an accused jurors or members who are of the same race; what the Fifth Amendment provides is not a promise to include, but rather protection against intentional racial discrimination through exclusion). 

(in this case, the convening authority’s selection of members did not violate the equal protection requirements of the Fifth Amendment for failing to include African-American on appellant’s court-martial where (1) the court-martial questionnaires failed to include information about race and appellant, an African-American, did not inquire about race during voir dire, (2) there is no constitutional or statutory right to have members of your own race (or any other) included on a court-martial panel, and (3) there was precisely zero evidence that the convening authority knew or had reason to know the race of the persons he detailed to the court-martial or engaged in any impropriety). 

(an accused has an absolute right to a fair and impartial panel, guaranteed by the Constitution and effectuated by Article 25, UCMJ’s member selection criteria and Article 37, UCMJ’s prohibition on unlawfully influencing a court-martial; neither of those articles requires affirmative inclusion). 

(if a convening authority, in selecting the members to detail to a court-martial, intentionally excluded potential members on the basis of race, the convening authority’s actions would be unconstitutional under the Fifth Amendment; but that is entirely different than a mere failure to include, which is insufficient to support a Fifth Amendment claim).    

(under the Equal Protection Clause, peremptory strikes of an African-American from the jury venire may establish a prima facie case of purposeful discrimination, and once that prima facie case is established, the burden shifts to the government to provide a race-neutral explanation for the strike; just as the Equal Protection Clause forbids the States to exclude black persons from the venire on the assumption that blacks as a group are unqualified to serve as jurors, so it forbids the States to strike black veniremen on the assumption that they will be biased in a particular case simply because the defendant is black; the core guarantee of equal protection, ensuring citizens that their State will not discriminate on account of race, would be meaningless were a court to approve the exclusion of jurors on the basis of such assumptions, which arise solely from the jurors’ race). 

(the Constitution prohibits all forms of purposeful racial discrimination in selection of jurors; a defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor’s exercise of peremptory challenges at the defendant’s trial).

(even if appellant’s allegations that within a one-year period, the convening authority in this case detailed all-white panels in his case and three other cases constituted competent evidence, one year is not a significant period of time and would not establish a prima facie case for systematic discrimination in the selection of members in violation of appellant’s Fifth Amendment equal protections rights; the absence of minorities on a single panel does not make out a prima facie case of systematic exclusion and this is likewise true if there are allegations concerning several panels over a short period of time; even if no African- American members were included in appellant’s case, a fact that is unknown, and even if this fact is combined with the other anecdotal allegations raised by appellant, a prima facie case of exclusion based on race is not established; without contrary indication, the presumption of regularity requires an appellate court to presume that the convening authority carried out the duties imposed upon him by the UCMJ and the MCM; thus it is presumed that the convening authority acted in accordance with Articles 25 and 37, UCMJ, where in this case, the military judge stated that she had not seen any indication of any pattern of discrimination by excluding minority members in prior panels, or any indication of impropriety by the convening authority).

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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