TRIAL STAGES: Sentence and Punishment:  Cruel and Unusual Punishment


United States v. Wise, 64 M.J. 468 (a prisoner must seek administrative relief prior to invoking judicial intervention to redress concerns regarding post-trial confinement conditions; absent some unusual or egregious circumstance, this means that the prisoner has exhausted the prisoner grievance system in his detention facility and that he has petitioned for relief under Article 138, UCMJ; this requirement promotes resolution of grievances at the lowest possible level and ensures that an adequate record has been developed to aid appellate review). 

(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). 


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). 

(in the absence of evidence showing that prison officials knew of and disregarded risks to inmate health or safety, appellant failed to demonstrate that prison officials were deliberately indifferent to confinement conditions that might have constituted cruel and unusual punishment in violation of the Eighth Amendment).

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