Bad Checks Make Bad Law and Bad Policy

[Major Earl F. Martin]{.smallcaps}[^1]

I. INTRODUCTION

On January 7, 1997, MSgt Dianne Eatmon walked into an Air Force
courtroom facing the possibility she would be sentenced to 222 years of
confinement.[^2] Given the severity of this potential sanction, one may
think MSgt Eatmon must have either killed someone or at least gone on a
violent crime spree. Neither was the case. Instead, what MSgt Eatmon had
done was write almost two hundred bad checks to various entities over
the course of nearly a year.[^3] For that misconduct, MSgt Eatmon faced
the threat of being sent to jail for the rest of her natural life.

MSgt Eatmon confronted the possibility of this lengthy term of
confinement because of *United States v. Mincey,*[^4] a decision the
United States Court of Appeals for the Armed Forces (CAAF) handed down
two years earlier. In *Mincey*, the CAAF dramatically changed the
landscape of bad check prosecutions by reformulating the calculation of
the maximum possible term of confinement in these cases. Instead of
proceeding with a maximum punishment determined by reference to the
amount of the largest single check contained in each specification,[^5]
the court cleared the way for each bad check to stand alone when
totaling potential confinement time.[^6] Thus, those accused in bad
check cases now face dramatically increased potential sentences to
confinement much greater than they would have faced in the past.[^7] It
is this dangerously expanded threat of confinement and how it impacts
both the fairness of individual proceedings and the overall perception
of the military justice system that is the focus of this article.

Part II of this article will explain why the *Mincey* approach to bad
check cases makes bad law. Since the accused in a bad check case could
not constitutionally be sentenced to the lengthy terms of confinement
like that confronted by MSgt Eatmon, to subject them to such a
possibility ignores explicit lawful direction to the contrary and
threatens them with an unlawful application of the law. Thereafter, Part
III of this article will address why the *Mincey* approach to bad check
cases makes bad policy. The *Mincey* approach conflicts with the
accepted purposes of punishment and causes the military justice system
to be perceived as unfair and foolish. Finally, the article concludes
with a suggestion for avoiding in the future the injustice that
confronted MSgt Eatmon.

II\. BAD CHECKS MAKE BAD LAW

A. *Mincey's* Potential as a Violation of Eighth Amendment

Constitutional Proportionality

*1. The Test for Constitutional Proportionality*

The Eighth Amendment to the Constitution of the United States prohibits
"cruel and unusual punishment."[^8] This proscription has full force and
effect in the military justice system.[^9] Furthermore, Article 55,
Uniform Code of Military Justice (UCMJ), provides a similar limitation
on the power of a court-martial to punish. "Punishment by flogging, or
by branding, marking, or tattooing on the body*, or any other cruel or
unusual punishment*, may not be adjudged by a court-martial or inflicted
upon any person subject to this chapter."[^10]

In *Solem v. Helm*,[^11] the Supreme Court of the United States held
that the Eighth Amendment's cruel and unusual punishments clause
requires that a "criminal sentence must be proportionate to the crime
for which the accused has been convicted."[^12] The Court said that "no
penalty is per se constitutional," but at the same time it noted that
legislatures and sentencing courts are to be accorded substantial
deference when a reviewing court considers the sentence imposed*.*[^13]
In order to ensure the proper level of deference was granted to these
earlier pronouncements, the Court said that appellate decisions
regarding proportionality should be guided by objective factors, to
include, "(i) the gravity of the offense and the harshness of the
penalty; (ii) the sentences imposed on other criminals in the same
jurisdiction; and (iii) the sentences imposed for commission of the same
crime in other jurisdictions."[^14]

The *Solem* Court acknowledged the inherent difficulties faced by
appellate judges attempting to objectively draw distinctions between
similar crimes, but went on to note there are generally accepted
criteria for comparing the severity of different crimes on a broad
scale.[^15] By way of example, criminal laws make it clear nonviolent
crimes are less serious than crimes marked by violence or the threat of
violence, and the absolute magnitude of a crime may often be relevant;
stealing a million dollars is viewed as more serious than stealing a
hundred dollars.[^16]

In *Solem*, the defendant was sentenced to life in prison without the
possibility of parole under a South Dakota recidivist statute.[^17] The
defendant's triggering conviction was for uttering a "no account" check
for \$100, and prior to this, he had been convicted over the years of
third-degree burglary (three times), obtaining money under false
pretenses, grand larceny, and third-offense driving while
intoxicated.[^18] Ordinarily, the maximum punishment for uttering a "no
account" check in South Dakota for \$100 would have been five years
imprisonment and a \$5,000 fine.[^19] However, due to the defendant's
past convictions, South Dakota's recidivist statute provided for him to
be punished as if he committed the most serious felony. As a result, the
maximum punishment was life in prison and a \$25,000 fine.[^20]

Calling the defendant's check offense "one of the most passive felonies
a person could commit,"[^21] the *Solem* Court found that the
defendant's sentence of life imprisonment was at odds with all three
objective factors used to assess proportionality.[^22] First, the
nonviolent nature of the defendant's current and past offenses
significantly mitigated the gravity of his misconduct, while the
excessive severity of the punishment was evident from a comparison with
the only punishment more extreme, capital punishment.[^23] Second, the
Court noted that the defendant's punishment put him in a league with the
likes of murderers, arsonists, rapists, and kidnappers, "criminals . . .
\[that\] ordinarily would be thought more deserving of punishment than
one uttering a 'no account' check--even when the bad-check writer had
already committed six minor felonies."[^24] Third, the Court pointed out
that only one other state would have allowed the defendant to be
sentenced to life in prison without the possibility of parole, but like
South Dakota, there was no indication that state had ever subjected any
similarly situated defendant to that extreme result.[^25]

In 1991 the Supreme Court revisited the Eighth Amendment proportionality
debate in *Harmelin v. Michigan*.[^26] In a splintered decision, the
Court held that the petitioner's sentence of mandatory life in prison
without the possibility of parole for possession of 672 grams of cocaine
did not amount to "cruel and unusual punishment" in violation of the
Constitution.[^27] In reaching this result, the Court provided three
different opinions as to the extent of proportionality review due under
the Eighth Amendment. Two Justices concluded no such review was
constitutionally required,[^28] while four others argued that the Eighth
Amendment required the full-blown *Solem* three-part analysis.[^29]
Falling in between these diametrically opposed positions, three Justices
maintained a more centrist view that stare decisis counseled adherence
to a narrow proportionality principle under the Eighth Amendment that
"forbids only extreme sentences that are 'grossly disproportionate' to
the crime."[^30]

Notwithstanding the decision of the Court in *Harmelin*, the individual
views of the Justices set forth in that case illustrate the importance
of proportionality. The centrist concurring opinion from Justice Kennedy
counseled that the *Solem* case "is best understood as holding that
comparative analysis within and between jurisdictions is not always
relevant to proportionality review."[^31] Instead, the first factor from
the *Solem* case should be seen as a threshold inquiry. Only when
comparison of the crime committed and the sentence imposed leads to an
inference of gross disproportionality should a court compare sentences
imposed on other criminals in the same jurisdiction and sentences
imposed for the commission of the same crime in other
jurisdictions.[^32] Thus, *Harmelin's* centrist opinion would, at a
minimum, use the last two factors from *Solem* as a means of validating
an initial judgment that a sentence is grossly disproportionate to the
crime at hand.[^33]

The exact fit of the *Solem* and *Harmelin* opinions remains a matter of
debate,[^34] but it is clear a majority of the Court still adheres to
the conclusion that the Eighth Amendment encompasses a proportionality
principle. The least that can be said in favor of this principle is that
seven Justices in *Harmelin* agreed that, as an initial inquiry, the
punishment imposed for a crime may not be grossly disproportionate to
the crime committed. To the extent such a determination is made, then
both intrajurisdictional and interjurisdictional analysis should be
undertaken. It is "this middle ground \[that\] seems to be the present
law of proportionality" in military courts.[^35]

*2. The Disproportionality of the* Mincey *Approach*

Taken to its extreme, the *Mincey* approach to bad check cases makes its
possible for an accused to be sentenced to an unconstitutional term of
confinement. The *Eatmon* case provides a superb real-world example. In
that case, MSgt Eatmon faced the possibility of spending 219½ years in
jail as a direct result of having uttered 197 bad checks totaling
\$11,595.84.[^36]

From the Supreme Court's holdings in the *Solem* and *Harmelin* cases,
the first step in Eighth Amendment proportionality review is to ask
whether the sentence is grossly disproportionate to the crime
committed.[^37] As MSgt Eatmon's check writing activities did not entail
any violence or even any hint of violence, her conduct was consistent
with the *Solem* Court's characterization of check offenses as "one of
the most passive felonies a person could commit."[^38] Her actions were
certainly nothing like the drug offenses that got Mr. Harmelin sentenced
to life in prison, and her misconduct was not part of a long criminal
history like the defendant in *Solem* brought to his trial.[^39]
Furthermore, while \$11,595.84 is not an insubstantial amount of money,
219½ years of confinement would not be necessary, in light of the
misconduct, to achieve any of the accepted purposes of punishment.[^40]

Sentencing MSgt Eatmon to effectively spend the rest of her life in jail
would negate any rehabilitative purpose of the sentence, and it would be
unnecessary from an incapacitation perspective given the absence of any
need to respond to either actual or threatened violence. One could argue
that general deterrence would be maximized by a *Mincey*-inspired
sentence in the same way that imposing life imprisonment for overtime
parking would certainly deter that behavior,[^41] but that hardly seems
like an argument upon which just punishment should be based.[^42]
Moreover, the preservation of good order and discipline in the military
would most likely be undermined by such an extreme punishment given its
inherent unfairness, to say nothing of the contempt this unfairness
would breed among the men and women in military society for a justice
system that would go to these ends. Finally, retribution would have to
be stretched to absurd lengths to say that "just desserts"[^43] demands
an offender be sentenced to one year in jail for every \$52.83 she stole
by writing bad checks.[^44] Surely our military justice system places
more value on individual liberty than to take one year's worth of
freedom for every \$52.83 an accused wrongfully takes through purely
nonviolent means.[^45]

After concluding that 219½ years of confinement would be grossly
disproportionate to the crime of writing \$11,595.84 worth of bad
checks, the aggregate of the *Solem* and *Harmelin* decisions tells us
the next step in proportionality review is to look for objective
validation of this conclusion.[^46] The first place to look for
validation lies in a comparison of the sentence at hand with sentences
imposed on other criminals in the same jurisdiction.[^47] When this is
done within the military justice system the case for gross
disproportionality becomes even stronger.

Pursuant to Article 56, UCMJ, the President set forth the maximum
punishments that may be imposed for various criminal offenses in the
military.[^48] A sampling of such punishments includes: seven years
confinement for maiming[^49] or indecent acts or liberties with a
child;[^50] ten years confinement for assault in which grievous bodily
harm is intentionally inflicted with a loaded firearm;[^51] fifteen
years confinement for robbery committed with a firearm;[^52] twenty
years confinement for aggravated arson[^53] or assault with intent to
commit murder or rape;[^54] and confinement for life for various forms
of murder and for rape and kidnapping.[^55]

Assuming that 219½ years in confinement would be at least the equivalent
of a life sentence, no persuasive argument can be made that check
offenses like those committed by MSgt Eatmon should be treated as more
serious than, or even the equivalent of, the violent crimes listed
above. And yet, by authorizing bad check offenders to receive 219½ years
in jail, the *Mincey* case, contrary to the principles of justice, puts
these nonviolent criminals into the same league as murderers, rapists,
and kidnappers, and places them above robbers, arsonists, and child
molesters. It is a gross understatement to say that violent criminals
are, within military society and elsewhere, ordinarily thought to be
more deserving of punishment than one who merely utters bad checks.

Another way to conduct an intrajurisdictional analysis is to review the
jail terms that bad check writers generally receive at courts-martial.
In the *Mincey* case, the accused was sentenced to only twenty-eight
months of confinement after having been found guilty of two
specifications of uttering bad checks with the intent to defraud,
wrongfully uttering a bad check for a past due obligation, and wrongful
appropriation.[^56] As another example, consider that even after the
members in MSgt Eatmon's case were told she was eligible for 222 years
in confinement, she was still ultimately sentenced to only six
months.[^57] The results in *Mincey* and *Eatmon* are consistent with
the military practice of punishing bad check offenders with confinement
terms measured in months or, at most, a few years[^58] versus decades or
life. Thus, we see further evidence of the extent to which the maximum
punishments allowed by *Mincey* are out of touch with traditional
military justice practice.

Following the guidance of *Solem* and *Harmelin*, the second place to
look for objective verification of an initial finding of gross
disproportionality is through an interjurisdictional analysis of the
issue.[^59] When done in the context of *Mincey*'s potential treatment
of bad check offenders, we find that other jurisdictions have judicially
recognized the threat of gross disproportionality in similar bad check
cases.[^60]

In *Faulkner v. State*,[^61] the Supreme Court of Alaska found that a
defendant's sentence of thirty-six years in prison for eight counts of
writing bad checks totaling \$1,384.35 was excessive,[^62] even though
the defendant had a long and extensive history of lawbreaking.[^63] In a
California case, an appellate court reached a similar result when it
held that a sentence of four consecutive fourteen year prison terms was
cruel and unusual punishment when imposed for the forgery of four
checks,[^64] even though the appellant also had a prior criminal
record.[^65] In that case, the court focused on the nonviolent nature of
the check offenses and the fact that the punishment being imposed on the
appellant was equivalent to what murderers, kidnappers, and rapists
could receive in California's courts.[^66] Finally, in another case
involving a repeat felon, the West Virginia Supreme Court of Appeals
held that the imposition of a life sentence for the appellant's third
felony of forging a \$43 check violated West Virginia's constitutional
proportionality principle.[^67] Like the California court, the West
Virginia court was influenced by the nonviolent nature of the
appellant's crimes and the fact that his punishment was unmatched in
that jurisdiction "except for the crime\[s\] of first degree murder,
treason, and kidnapping . . . ."[^68]

The preceding examples demonstrate that MSgt Eatmon could not,
consistent with the Constitution, have been confined for even a few
decades, much less 222 years. In fact, even though it rejected MSgt
Eatmon's appeal, the Air Force Court of Criminal Appeals said that had
MSgt Eatmon actually been sentenced to 222 years it was betraying "no
judicial confidences to predict our intervention to meliorate that
sentence in satisfaction of our responsibility . . . to approve only an
appropriate sentence."[^69] The problem with this statement is that it
fails to take into account the plain duty that is placed upon the
military judge to properly instruct on the law and the fact that the
threat of an unconstitutional punishment can, on its own, exert undue
and illegal influence on the outcome of a case.[^70] The focus of the
next three sections of this article will be on the substance of this
duty and the danger of this threat.

# B. Failing to Properly Instruct on the 

**Maximum Authorized Punishment**

Rule for Courts-Martial (R.C.M.) 1005(e)(1) provides that the
"\[i\]nstructions on sentence shall include \[a\] statement of the
maximum authorized punishment which may be adjudged . . . ."[^71] The
military appellate courts have relied upon this provision to
unequivocally hold that the military judge is required to instruct the
court members on the maximum authorized punishment.[^72] In fact,
"\[t\]he military judge bears the ultimate responsibility for
instructing the members concerning the correct maximum punishment
whether an issue is raised by counsel or not."[^73]

In *United States v. Olson*,[^74] the military judge instructed the
members that the appellant could be sentenced to four years confinement,
when in fact, because of a multiplicity issue, the true maximum term of
confinement was two years.[^75] Calling this a "one hundred percent"
overstatement of the possible term of confinement, the Air Force Court
of Military Review (A.F.C.M.R.) concluded that the error created a
"significant risk that the court members may have imposed a greater
sentence than they would have if they were properly instructed."[^76]
Accordingly, the court reassessed the appellant's sentence by
disapproving \$5000 in forfeitures.[^77]

When a military judge relies upon *Mincey* to calculate the potential
term of confinement for an accused in a bad check case and arrives at
astronomical totals, the judge does not meet his or her legally mandated
obligation to instruct the members on the lawful "maximum authorized
punishment which may be adjudged."[^78] In *Eatmon* for example, when
the military judge instructed the members that they could potentially
sentence MSgt Eatmon to over two hundred years in jail, he distorted the
amount of confinement that could be lawfully imposed under the
Constitution.[^79] If a term of two years confinement was found to be an
unlawful overstatement in *Olson*, then the difference between 222 years
and what would be a constitutional maximum term of confinement in MSgt
Eatmon's case would be an overstatement of a phenomenally unlawful
magnitude. While the maximum constitutional term of confinement for MSgt
Eatmon remains unknown, assuming it would be something less than what
murderers, rapists, and kidnappers are subjected to, this overstatement
would be in excess of at least 130 years.[^80]

**C. A Violation of Military Due Process**

A military judge who relies upon *Mincey* to calculate the maximum term
of confinement in a bad check case runs the risk of overstating the
constitutionally acceptable length of that punishment. For this reason
alone, the *Mincey* approach to bad check cases should be
abandoned.[^81] However, this is not the only problem with this approach
to these cases. Its direction also exerts undue and illegal influence on
many bad check cases by threatening an unconstitutional punishment,
which, in turn, intrudes upon fundamental rights guaranteed to a
military accused by both military due process and constitutional due
process.

*1. Military Due Process Generally*

There are fundamental rights inherent in trial by court-martial that
must be accorded an accused before the case has been fairly
adjudicated.[^82] The satisfaction of these rights in the military
justice system has come to be called "military due process," which
"means a course of legal proceedings according to those rules and
principles which have been established in our system of jurisprudence
for the enforcement and protection of private rights."[^83] This concept
does not find its power in the Constitution; rather, it draws force from
the standards of fairness laid down by those who oversee the
administration of the military justice system.[^84]

Military due process doctrine is employed to ensure that an accused
receives the benefit of the military justice system's procedural
safeguards. However, not every violation of those procedural safeguards
implicates military due process concerns.[^85] A lack of military due
process exists when two conditions are met. First, there must be, by act
of Congress or an Executive Order of the President published in the
*Manual for Courts-Martial* (*Manual*), a fundamental right granted to a
military accused.[^86] Second, that right must be denied during the
course of a court-martial proceeding.[^87]

Consistent with the requirement that military due process be used only
to remedy the denial of a fundamental right, the courts have limited
grants of relief on these claims to those situations where the basic
fairness of a proceeding has been undermined.[^88] For example, in
*United States v. Toledo*,[^89] the United States Court of Military
Appeals relied upon Article 46, UCMJ, to hold that military due process
required the government to prepare a transcript of a government
witness's former testimony in another proceeding, since that testimony
would enable the defense to attack that witness on cross-examination
based upon prior inconsistent statements.[^90] Likewise, in *United
States v. Mark*,[^91] the same court said that a staff judge advocate's
statutorily mandated posttrial recommendation is an important part of
military due process because it is "a critical factor in a convening
authority's post-trial sentence action" and because "it is the focal
point for the servicemember's efforts to secure clemency."[^92]

In addition to errors during findings and those occurring posttrial, the
courts have also employed the military due process concept to attack
violations of fundamental rights that occur in sentencing proceedings.
In *United States v. Suttles*,[^93] while fielding inquires from court
members following his sentencing instructions, the military judge called
attention to the fact that the members could not question the accused
following his unsworn statement.[^94] After having piqued the members'
interest on this issue, the judge did not follow-up by advising the
members that no adverse inferences could be drawn from the accused's
silence.[^95] The Air Force court found this omission on the part of the
judge to be a denial of military due process because it impinged upon
the accused's right under the *Manual* to make an unsworn statement
without being cross-examined.[^96] The court said this right was
undermined by the military judge's failure to explicitly tell the
members they could not draw any adverse inferences from the accused's
exercise of his right to make a statement to them in a fashion
specifically allowed by the *Manual*[^97]

The result in the *Suttles* case was not dissimilar from, and in fact
relied upon, the outcome in *United States v. Callahan*.[^98] In that
case, the Army Board of Review held that the right of an accused to
submit matters in extenuation and mitigation prior to a vote on a
sentence is an integral part of military due process.[^99] In reaching
its conclusion, the board specifically called attention to the impact
the accused's right to present such information has upon the reliability
of the overall process. The opinion noted that a court-martial could
hardly meet its statutory obligation to fix an appropriate sentence
unless it was afforded access to the "essential facts regarding \[the
accused's\] background, personal circumstances, etc., which the accused
and his counsel deem extenuating in his case."[^100] The opinion
commented further that an accused is "afforded . . . the right--not
solely the permission--to introduce such evidence at his
election\[,\]"[^101] and this right is facilitated by relaxation of the
rules of evidence for the sentencing portion of the proceedings.[^102]
The board went on to conclude that Sgt. Callahan's apparent waiver of
his right to present evidence in extenuation and mitigation was the
product of undue pressure brought to bear in the negotiation of his
pretrial agreement and that this "amounted to an unwarranted and illegal
deprivation of the accused's right to military due process."[^103]

*2. The* Mincey *Approach as a Violation of Military Due Process*

Notwithstanding the possibility that any given case could present due
process concerns, the use of the *Mincey* approach in bad check cases
clearly gives rise to military due process concerns at two points in the
proceedings. First, the possibility of receiving an unconstitutional
term of confinement severely impacts the accused's freedom to exercise
choice regarding representation, forum selection, and whether to testify
in her own defense. Second, this possibility also impacts the fairness
and reliability of the accused's sentencing hearing, if the proceedings
reach that point.

Pursuant to the Rules for Courts-Martial and the UCMJ, there are four
crucial elections the accused is empowered to make when faced with
court-martial proceedings. First, it is up to the accused to choose who
will represent her.[^104] Although the accused will be afforded a
military defense counsel at no charge, she can elect to be represented
by a civilian counsel at her own expense[^105] or an individually
detailed military defense counsel if the desired judge advocate is
reasonably available.[^106] Second, a military accused can elect to have
the case heard by court members or choose to have a military judge
sitting alone decide her fate.[^107] If the accused chooses the military
judge sitting alone, it is within the judge's discretion to grant or
deny that request,[^108] though "\[a\] timely request . . . should be
granted unless there is substantial reason why, in the interest of
justice, the military judge should not sit as factfinder."[^109] Third,
the accused in a court-martial has the responsibility and freedom to
determine her plea.[^110] This is a choice within the exclusive control
of the accused and must be accepted by the military judge absent some
very particular exigencies.[^111] Fourth, a military accused has an
absolute right to remain silent throughout a court-martial or to waive
that right and testify in her own defense.[^112] Article 31, UCMJ,
strictly prohibits anyone who is subject to the code from forcing a
military member to make a statement or answer any question, "the answer
to which may tend to incriminate \[her\]."[^113]

By allowing an accused in a bad check case to face the possibility of
incredibly lengthy terms of confinement, *Mincey* forces the accused to
make each of the four choices under the threat of an unconstitutional
punishment. The duress this threat works on the accused's elections
arguably amounts to a violation of military due process. Each of these
choices are granted to a military accused by either an act of Congress
or an Executive Order of the President, and each implicates fundamental
rights that have long been recognized in the United States. Although an
accused has no constitutional right to a particular appointed
counsel,[^114] an accused's choice of who will represent her is closely
associated with an accused's Sixth Amendment right to counsel.[^115]
Additionally, an accused's ability to elect a trial by a panel of court
members[^116] has a strong parallel to the Sixth Amendment right to a
jury trial.[^117] Finally, the right of a military accused to choose and
enter her own plea and the right of that accused to decide whether or
not to make any statements in the course of a court-martial, are both
rooted in the Fifth Amendment right to avoid self-incrimination.[^118]

The only issue remaining in a military due process analysis of
*Mincey's* impact is to ask whether an accused is effectively denied a
meaningful opportunity to make these choices in bad check cases.
However, we must remember that outright denial of a fundamental right is
not necessarily required to find a military due process violation. In
*Toledo*, the defense could still cross-examine the prosecution's
witness, but the opportunity to conduct a full cross-examination was
effectively denied by the prosecution's failure to make transcripts of
the witness's earlier testimony available to the defense.[^119]
Likewise, in *Suttles*, the accused was allowed to make an unsworn
statement, but his right to make that statement was undermined by the
military judge's failure to ensure the members understood that no
adverse inference could be drawn from the accused's actions.[^120] It is
true that individuals being tried for bad check offenses are not
absolutely precluded from choosing who represents them, who will hear
their case, how they will plead, and whether or not they will testify.
The point, however, is that the duress generated by the threat of an
unconstitutional and unconscionable jail term amounts to an effective
denial of the right to make these elections. This point is consistent
with the holdings in *Toledo* and *Suttles*, and it can be illustrated
by considering the circumstances under which these choices would have to
be made in the context of the facts presented by the *Eatmon* case.

The first of the four choices made by an accused in a bad check case
concerns representation. When MSgt Eatmon first learned she was facing
the possibility of going to jail for over two hundred years, any concern
she might have had about the skill, caliber, an independence of the
military counsel offered to defend her would have been justified. Given
that offered counsel wore the uniform of the service prosecuting her,
MSgt Eatmon may very well have believed that counsel employed by a
service seeking such a draconian sanction for nonviolent thefts is no
counsel at all. Accordingly, an accused in a bad check case may feel the
only real choice available to her is to hire a civilian attorney
untainted by the specter of this unjust punishment scheme--assuming the
accused could afford the fees. In this way, that accused's fundamental
right to choose between a free military lawyer versus costly civilian
representation is compromised in a very significant way; perhaps so much
so that this choice is effectively denied to that accused.

The second choice such an accused faces concerns the forum. Even more so
than in electing representation, the *Mincey* regime makes this choice
very problematic for an accused like MSgt Eatmon. An accused facing the
frightening prospect of going to jail for the rest of her life would
feel compelled to forgo the right to a trial by members for two reasons.
First, the threat of such an extreme punishment would make it far more
likely the accused would seek a pretrial agreement with the government,
and these agreements can, and often do, insist upon the accused waiving
her right to have members decide the case.[^121] Second, to the extent
the protection of a pretrial agreement is unavailable or not sought, an
accused would feel compelled to choose a judge alone trial for fear of
getting members who see no injustice in putting someone behind bars for
decades for passing bad checks. Although most panels would probably find
this prospect absurd, *Mincey* makes it possible for an improperly
motivated panel to adjudge a nonsensical amount of confinement in a bad
check case. This is why *Mincey* is so problematic. Normally, the law
and the rules of procedure prevent misguided panels from rendering
decisions at odds with the American tradition of justice. But now, in
bad check cases, the *Mincey* decision sweeps aside those protections
and gives panels complete freedom to adjudge sentences that could turn
justice on its head.

As the proceedings unfold, the next choice concerns the plea. Again, for
reasons similar to those given concerning forum selection, under
*Mincey*, an accused would feel driven to waive her right to put the
prosecution to its proof. While a guilty person has the full right to
insist upon the prosecution proving her guilt, such a person would
nevertheless feel compelled to propose a guilty plea. In such cases, a
plea would be necessary to secure the protection of a pretrial agreement
or to demonstrate remorse and rehabilitative potential in front of a
panel that will have the opportunity to put the accused in jail for
hundreds of years.[^122] Of greater concern is the innocent military
member. In the face of a possible term of confinement like that which
applied to MSgt Eatmon, the innocent military member would feel
compelled to plead guilty in order to avoid the possibility of a
"crushing sentence."[^123] Of course, such a result would be
unconscionable.

Assuming the accused resisted the pressure to forgo the right to a trial
on the charges, the final decision is whether to testify. The impact
*Mincey* has upon this choice is twofold. First, *Mincey* raises the
stakes to such an extreme level, the accused might very well be
intimidated and decline to testify altogether. Given that this pressure
is based upon an unlawful application of the law, such an outcome would
truly be a denial of the right to make a choice whether or not to
testify. Second, if the accused does decide to take the stand burdened
by the stress associated with the possibility of going to jail for a
lifetime, any testimony could come across in a way that would undermine
the accused's credibility. This outcome might not seem to be a denial of
the right to avoid self-incrimination, but like the results in *Toledo*
and *Suttles*, the net effect of the unlawful pressure generated by
*Mincey* is the unjust interference with the accused's ability to speak
to the factfinders. This creates a roadblock that effectively denies the
accused the option of choosing to waive her right to remain silent and
speak to those who have been appointed to decide her fate.

In light of the primary focus of a sentencing hearing, which is to
determine whether an accused will be incarcerated or, in some other way,
punished,[^124] the *Suttles* and *Callahan* holdings stand for the
proposition that an accused has a fundamental right to insist that this
decision be made fairly and be based upon reliable information.
Furthermore, an accused's liberty interest is implicated by the
possibility of facing both confinement and the imposition of a punitive
discharge.

> While not literally involving "liberty" in the sense of bars on the
> windows and doors, \[a punitive discharge\] certainly has certain
> points of comparison \[with confinement\]. . . . \[F\]or instance, . .
> . a punitive discharge might lawfully be commuted into some length of
> confinement, so in that regard it is quite closely akin to a liberty
> interest. Further, . . . such a discharge--which can result only from
> the sentence of a court-martial--carries with it "the stigma and
> hardships of a criminal conviction . . . ."[^125]

Through the Rules for Courts-Martial, the President has generally called
for just determinations in court-martial proceedings[^126] and has
specifically mandated that court members be properly instructed on the
maximum authorized punishment an accused may receive for her
crimes.[^127] Protections like these are in place to ensure fair
sentencing hearings and cannot, consistent with the holdings of
*Suttles* and *Callahan*, be abrogated without a finding that an accused
has been denied military due process of law.

Requiring a military judge to instruct court members properly on the
maximum authorized punishment is a procedural safeguard that contributes
significantly to the protection of the fundamental right not to have our
personal liberty taken away arbitrarily.[^128] Like the protection the
*Suttles* case extends to an accused to speak directly to the members in
a sentencing hearing free of the threat of cross-examination,[^129] an
accused in a bad check case has the fundamental right to present and
argue the case free of the threat of having her fate influenced by the
specter of an unlawful sentence. Like the protection the *Callahan* case
extends to an accused concerning the presentation of evidence in
extenuation and mitigation,[^130] an accused in a bad check case has the
fundamental right to protect the reliability of her proceedings by
insisting the members be accurately instructed upon the maximum sentence
that could be adjudged. Unfortunately, the *Mincey* approach to bad
check cases results in the denial of both of these fundamental rights.

As the *Eatmon* case demonstrates, when court members in a bad check
case are instructed that an accused can be sent to jail for an
exorbitant number of years, the sentencing process breaks down in two
ways. First, assuming the prosecution exercises even a modicum of
restraint and does not argue for anything approaching the maximum
sentence, the prosecution is granted the unfair advantage of being able
to trumpet as eminently reasonable whatever sentence it chooses in light
of the maximum allowed by law. In MSgt Eatmon's case the prosecution was
able to cast its requested punishment of a dishonorable discharge and
three to five years confinement as a seemingly benign result when
compared with over two hundred years behind bars.[^131] Second, the
*Mincey* approach compromises the reliability of the sentencing process
in bad check cases by giving court members an artificial and incorrect
perception of how the law views the nonviolent acquisition of other
people's money by uttering bad checks. This perception, in turn, creates
the unacceptable risk the accused will receive a sentence greater than
she would have received if the members had been properly instructed. In
the military sentencing process, the maximum is always a strong
reference point and in the instant case that number was an
unconstitutional 222 years. Therefore, since military members vote on a
sentence as a total package,[^132] it became emotionally, logically, and
intuitively much easier for MSgt Eatmon's members to justify not only
six months confinement, but also the very harsh result of a dishonorable
discharge. This latter sanction certainly appeared to be a reliable
characterization of the severity of the conduct given the number of
years "the law" would allow MSgt Eatmon to be locked behind bars.

Just as it effectively denies an accused in a bad check case the
opportunity to make choices regarding four crucial issues in her case,
*Mincey* also denies the accused fundamental rights once a case makes
its way into the sentencing stage. In a case like *Eatmon*, the *Mincey*
decision ensures that the accused's personal liberty is unjustly put at
risk by making it far more likely the accused will be deprived of that
liberty, either in terms of physical confinement or through the
imposition of a punitive discharge. This result is not only against the
law, it also makes for very bad policy. However, before addressing this
latter point, let us first consider the application of constitutional
due process to the *Mincey* scenario.

# D. A Violation of Constitutional Due Process

The due process hierarchy in the military justice system dictates that
the more protective source of due process must prevail.[^133] This means
that between the United States Constitution, the UCMJ, the *Manual*,
military regulations, and military case law, an accused must receive the
benefit of whichever source offers the most protection.[^134] This
hierarchy is followed so that "the military justice system will be
applied in a consistent and . . . fair fashion"[^135] and to avoid the
appearance that "military tribunals will interpret the rules in such a
way that the offender is disciplined, if necessary, at the cost of
justice."[^136]

As we have already seen, when a trial judge instructs court members that
an accused in a bad check case could be confined for hundreds of years,
that judge violates the express requirement of R.C.M. 1005(e)(1) to
instruct the members on the correct maximum authorized punishment the
accused could receive.[^137] Furthermore, that same erroneous
instruction raises two military due process concerns. First, the
instruction may unlawfully preclude an accused from making crucial
elections in the course of the accused's case regarding who will hear
the case, who will represent the accused, how she will plead, and
whether or not the accused will take the stand.[^138] Second, the
instruction compromises the fairness and reliability of the accused's
sentencing hearing by providing the prosecution with the unfair
advantage of being able to cast its requested punishment in terms that
appear reasonable and by giving the members an inaccurate perception of
how the law views nonviolent check offenses.[^139]

Both of the preceding problems provide ample grounds for treating bad
check cases in a way other than that required by *Mincey*. However,
these are not the only troubling issues that are created by the *Mincey*
approach to bad check cases. As we are about to see, telling court
members that a writer of bad checks can be put behind bars for over two
hundred years also offends a basic requirement of fairness, and thus
runs afoul of constitutional due process.

*1. Constitutional Due Process Generally*

Unlike military due process which depends upon an act of Congress or the
President for its power, constitutional due process derives its power
from the Fifth Amendment to the United States Constitution.[^140]
Although military members are denied certain constitutional rights
possessed by civilians,[^141] this is not the case with Fifth Amendment
due process. "It has been settled for nearly \[two\] decades that a
citizen in uniform is as 'entitled to the due process of law guaranteed
by the Fifth Amendment' as is his civilian counterpart."[^142] This
means military members are entitled to be treated fairly when the
government attempts to court-martial them.[^143] This includes, more
specifically, fairness both in terms of the procedures used to carry out
that prosecution and in terms of the government's conduct as it seeks to
put a military member behind bars. The latter concern is called
substantive due process, and it is this requirement that is ignored by
the *Mincey* approach to bad check cases.

Unlike the alternative procedural due process claim,[^144] a substantive
due process argument is not concerned with what process is
provided;[^145] rather, it focuses on preventing the government from
engaging in conduct that "shocks the conscience"[^146] or interferes
with rights "implicit in the concept of ordered liberty."[^147] In order
to give these phrases definitive meaning, the courts have devised a
two-part test to determine if a substantive due process violation has
taken place. The first step involves an assessment of the importance of
the interest at stake, while the second concerns an evaluation of the
reasons given by the government to justify its conduct.

Analysis of a substantive due process claim must always begin with a
careful articulation of the asserted right because these claims can only
prevail if the government is infringing upon a fundamental liberty
interest.[^148] Determining whether such an interest is at stake
requires consideration of past and current practices dealing with the
right being claimed[^149] in an effort to ascertain whether the interest
is "so rooted in the traditions and conscience of our people as to be
ranked as fundamental."[^150] While this investigation is frequently
carried out on a case-by-case basis over time, certain interests are
intrinsically entitled to substantive due process protection because of
the elevated status they hold within society. One of the most revered
interests is the right to be free of bodily restraint, which "has always
been at the core of the liberty protected by the Due Process Clause from
arbitrary governmental action."[^151] This liberty interest includes
freedom from "incarceration, institutionalization, or other similar
restraint of personal liberty . . . even if the conditions of
confinement are liberal." [^152]

If the government has interfered with a fundamental liberty interest,
then the second step of the analysis requires investigation of the
reasons given for that interference. In the context of the civilian
world, for its action to survive constitutional challenge, the
government must show its infringement is narrowly tailored to serve a
compelling state interest.[^153] By contrast, when assessing the
lawfulness of government interference with a military member's
fundamental liberty interest, the standard is significantly
relaxed.[^154] Because the Constitution "contemplates that Congress has
plenary control over rights, duties, and responsibilities in the
framework of the Military Establishment . . . \[j\]udicial deference . .
. is at its apogee when reviewing congressional decision making in this
area."[^155] It has been held, therefore, that the appropriate standard
to be applied when judging a due process challenge to a facet of the
military justice system is to ask whether the factors militating in
favor of the asserted liberty interest are so extraordinarily weighty as
to overcome the balance struck by Congress or the President.[^156]

*2. The* Mincey *Approach as a Violation*

*of Constitutional Due Process*

The first prong of a substantive due process attack requires a showing
the government is infringing upon a fundamental liberty interest. The
*Mincey* approach to bad check cases satisfies this requirement in two
different ways. First, it infringes upon a right inherently entitled to
due process protection. Second, the historical and current practices of
the military justice system amply support the conclusion that to protect
personal liberty trial judges are legally bound to instruct accurately
the members on the amount of confinement that may be adjudged.

When the military judge in the *Eatmon* case told the members MSgt
Eatmon could be sent to jail for over two hundred years, he infringed
upon an interest that "has always been at the core of the liberty
protected by the Due Process Clause from arbitrary governmental
action."[^157] By presenting the members the option to physically
restrain MSgt Eatmon for an unconstitutional period of time, the
military judge greatly increased the odds she would face jail time well
in excess of what she would have received had the members been properly
instructed. Additionally, by this same conduct, the military judge
greatly increased the odds the members would adjudge a punitive
discharge in the case.[^158] Even though a punitive discharge does not
involve bodily restraint, the courts have long recognized the effect can
be equated to confinement,[^159] and thus, freedom from the arbitrary
imposition of this type of a discharge is "implicit in the concept of
ordered liberty"[^160] within the military justice system.

Given the military justice system's long tradition and current practice
of insisting upon accurate sentencing instructions regarding
confinement, even if the freedom from arbitrary bodily restraint did not
have its long pedigree, an accused like MSgt Eatmon would still be able
to show infringement upon a fundamental liberty interest when threatened
by a *Mincey*-mandated sentence. As required by both case law and the
Rules For Courts-Martial, the current practice in military courtrooms is
for military judges to ensure that all parties to the case are
accurately informed of the maximum term of confinement that could be
legally imposed. As we have already seen, R.C.M. 1005(e)(1) explicitly
requires the military judge to accurately instruct the members on the
"maximum authorized punishment that may be adjudged,"[^161] and one of
the most widely used components of punishment is confinement.[^162]
Furthermore, this requirement is nothing new. The lineage of R.C.M.
1005(e)(1) can be traced back at least as far as the 1969 version of the
*Manual*.[^163] For the past three decades, a mandate from the President
has required military judges to properly and accurately instruct on the
length of time the accused may be confined against her will.

Military courts have also long made a point of requiring trial judges to
calculate correctly the length of time an accused may be sent to prison.
As noted earlier in the discussion of the *Olson* case, a failure on the
part of a military judge to properly instruct the members on the
potential maximum term of confinement is error that will not be ignored
on appeal.[^164] Additionally, a similar obligation is well recognized
in a slightly different context. When a military judge is conducting a
*Care*[^165] inquiry in order to accept a guilty plea, the judge has the
obligation to ensure that the accused is properly advised as to the
maximum term of confinement the accused could receive as a result of the
plea. For example, in *United States v. Castrillon-Moreno*,[^166] the
Court of Military Appeals found an accused's guilty pleas to be
improvident. The military judge, with the concurrence of both trial and
defense counsel, had advised the accused incorrectly that the maximum
authorized punishment included ten years of confinement, when in fact
the correct amount was only two years.[^167] The court said that as a
matter of "fundamental due process" the accused was entitled to
"substantially correct advice as to the maximum authorized period of
confinement . . . ."[^168]

Having found a government infringement upon this fundamental liberty
interest, the final step in a substantive due process attack on *Mincey*
is to assess the strength of the government's justification for its
conduct. This is a bit of a fanciful exercise because the government has
never been called upon to defend the process. We can only speculate as
to what justification the government might assert if required to do so.
Indeed, even though the government has the benefit of a very deferential
standard of review, it is hard to imagine any attempt to defend this
conduct.[^169] When striking a balance with the right to be free from
bodily restraint, what rationale could the government possibly offer in
support of a position that exposes bad check writers to a lifetime in
jail? Certainly, any desire to achieve an advantage in pretrial
negotiations or in sentencing hearings would be rejected as simply using
dubious means to accomplish undeserved ends. Furthermore, it is beyond
imagination that some military member could ever commit such an
egregious case of passing bad checks that she would deserve to spend
decades, much less centuries, behind bars. This has not been the case in
the past and there is no reason to believe it will be the case in the
future. If courts would require the government to articulate a
justification for this maximum sentence, the arbitrary approach to bad
check cases in the military justice system would be fully exposed. Until
that time, judicial inaction in the face of this ongoing due process
violation "drastically undermines \[the\] authority and responsibility
\[military judges have\] to ensure a military accused a fair
court-martial . . . ."[^170]

# III. BAD CHECKS MAKE BAD POLICY

Notwithstanding the foregoing legal critique of the *Mincey* approach to
bad check cases,[^171] the military justice system's treatment of these
cases is flawed from a policy perspective. For a number of reasons, the
potential punishment *Mincey* makes possible is inappropriate because it
detracts from some of the underlying policies of our military justice
system. A *Mincey*-type sentence is entirely inconsistent with bedrock
principles of punishment. In fact, a sentence of over two hundred plus
years for MSgt Eatmon's crimes furthers no recognized punishment
principle. To the contrary, such a sentence actively undermines these
principles.

Sending MSgt Eatmon to jail for the rest of her natural life is not
necessary to deter other potential bad check writers. In other words,
some amount of time in confinement well short of the maximum possible
under *Mincey* would be sufficient to achieve the optimal level of
deterrence. Any jail time beyond that point offers no necessary
benefit.[^172] Likewise, neither incapacitation nor specific deterrence
of the wrongdoer justifies the sentences *Mincey* makes possible, given
that bad check offenses do not involve violence or even any threat of
violence.[^173] True, these offenders may need to be removed from
society for some short period of time to break them of their offending
pattern or to impress upon them the error of their ways, but a short
period of time does not begin to approach *Mincey* maximums.

A *Mincey*-based sentence also misses the mark on other goals of
sentencing. A lifetime sentence to confinement for MSgt Eatmon could not
have as an underlying goal rehabilitation. That draconian result could
not legitimately claim to offer an accused any inspiration or motivation
to improve herself. Also, the cause of good order and discipline in the
military would be undermined by the message a *Mincey* sentence would
send to the military community at large. If MSgt Eatmon's court-martial
panel had sentenced her to over two hundred years of confinement, you
can bet the old cliché about "military justice" being an oxymoron would
have been heard aplenty.[^174] Finally, as mentioned earlier, a "just
desserts" conception of retribution would be thwarted by the application
of *Mincey*[^175] under any imaginable circumstances. To put it plainly,
a military member could not write enough bad checks for enough money
that the system would be justified in locking that member up for the
rest of her life in order to achieve just desserts.[^176]

Even if one conceives of retribution as an expression of society's
outrage at particular criminal acts,[^177] this facet of that principle
is also compromised by a *Mincey*-inspired sentence, and victims of more
serious crimes are hurt in the process. Assuming this idea means
expressing an appropriate level of outrage given the seriousness of the
offense, a lifetime in jail for a bad check writer would amount to
nothing more than exacting an extreme form of vengeance.[^178] This
would hardly be appropriate for a system that strives to achieve
justice.[^179] Additionally, to the extent we would choose to express
our rage against bad check writers by locking them up in prison for
life, what might that say to the victims of crimes like rape,
kidnapping, and murder, whose perpetrators get the same or even less
time in jail? Will we not be demeaning the experience and trauma of
these victims when we choose to treat nonviolent bad check writers in
the same way we treat rapists, kidnappers, and murderers?[^180]

*Mincey's* approach also makes for bad policy because of its effect on
individual accuseds. The duress that the threat of a lifetime in jail
creates significantly impacts an accused's ability to make reasoned
choices regarding representation, forum, type of plea, and whether or
not to testify. Additionally, one does not have to try very hard to
imagine the effect a *Mincey*-inspired sentence has on a accused's sense
of the fairness of the military justice system. When an accused learns
that passing bad checks means facing the possibility of spending the
rest of her life in jail, that accused must question whether she should
have ever chosen to serve her country. An accused like MSgt Eatmon must
perceive he or she is caught in a system that is long on punishment and
short on justice.

An additional policy failure lies with the absurd disparities created
between various offenders.[^181] Since a writer of bad checks who
intentionally steals \$4,000 accomplishes more societal harm than one
who intentionally steals \$125,[^182] it is just and appropriate to
punish the first offender more than the second. However, under a
military justice system guided by *Mincey*, this is not necessarily the
case. If these two offenders each wrote a single check to accomplish
their crimes, they each face a maximum of five years in
confinement.[^183] Similarly, a military member who intentionally steals
\$12,000 by passing a single bad check would also face a maximum term of
confinement of only five years.[^184] When compared to the two hundred
plus years MSgt Eatmon faced after she stole just under \$12,000, it
becomes apparent the system is out of balance. While it may be that an
offender who stole \$12,000 with a single check has not caused as much
societal harm as someone like MSgt Eatmon who passed almost two hundred
bad checks, the qualitative difference between the harm caused by these
two offenders does not even come close to justifying their
*Mincey*-inspired disparate treatment.

Finally, *Mincey's* approach is infirm from a policy perspective because
it makes the military justice system look foolish to those who become
aware of its treatment of bad check cases. First, the individuals
working within the system, such as judges, trial counsel, and defense
counsel, know an accused like MSgt Eatmon is never going to spend the
rest of her life in jail. As a result, they view these potential
*Mincey*-inspired sentences as an oddity or annoyance that is part of
the script, but out of touch with reality. Second, the nonlawyer
participants in the system, especially court members, must sit in wonder
and disbelief at the very notion that they have the option of sentencing
an accused in a bad check case to spend the rest of her existence in
confinement. The absurdity of this possibility, when juxtaposed against
reality, is illustrated nicely by MSgt Eatmon's sentence of six months
in confinement, notwithstanding the instruction to the court members
that she could be sentenced to 222 years behind bars.[^185] Finally, all
others who learn of the possible sentence such an accused faces in the
military would likely scratch their heads and ask what kind of justice
system provides for such a Draconian sanction. When observers to a
court-martial first hear that an accused is facing over two hundred
years in confinement, they must immediately think, "I wonder who she
killed?" not, "I wonder how many bad checks she wrote?"

# IV. A SOLUTION

Since the *Mincey* approach to bad check cases makes for bad law and bad
policy, the only remaining question is what changes need to be made to
fix the problem. The first change requires punishment of bad check
offenders based primarily upon how much money they stole in the
aggregate instead of punishing them based upon the amounts of the
individual checks. One proposal envisions an ever increasing maximum
term of confinement based upon the aggregate amount of money stolen by
passing bad checks, with a hard ceiling of confinement time that would
apply beyond a certain amount.[^186] For example, the punishment scheme
could be arranged as follows based upon aggregate amounts stolen:

> > Up to and including \$100 --- 6 months maximum confinement
>
> More than \$100 and up to
>
> and including \$1000 --- 2 years maximum confinement
>
> More than \$1000 and up
>
> to and including \$5000 --- 5 years maximum confinement
>
> More than \$5000 and up
>
> to and including \$10,000 --- 10 years maximum confinement
>
> More than \$10,000 --- 20 years maximum confinement

If it is necessary to allow the system to respond more severely to those
offenders who pass bad checks over a greater period of time, a provision
could be included that would place a time limit on the above maximums.
For example, it could be required that the aggregate be determined by
grouping checks in 180-day increments.[^187] If the time between the day
the offender wrote her first bad check to the day the offender wrote her
last bad check is less than or equal to 180 days, then the above
guidelines would limit the prosecution's effort. However, if the
offender's misconduct spanned a period of time in excess of 180 days but
less than or equal to 360 days, the offender would face two separate
specifications, each reflecting the maximum terms of confinement.[^188]

There are two criticisms of this approach that should be addressed.
First, this type of scheme arguably does not account for the increased
societal harm occasioned by the offender who passes a number of smaller
checks in contrast to the offender who passes a single check in a larger
amount. Second, it may be argued that the hard confinement ceiling means
there is a point beyond which an offender might be viewed as getting a
free pass, in that an offender will face the same term of maximum
confinement whether she writes bad checks totaling \$10,001 or
\$1,000,000. The response to both of these criticisms is the same. Since
the terms of confinement that will be selected for the various aggregate
amounts are maximums, they allow the system, if necessary, to respond to
both types of offenders more severely than it responds to less egregious
misconduct that still falls under the same maximum punishment ceiling.
As evidenced by the historical response of the military justice system
to bad check offenders,[^189] very few of these offenders receive
significant jail time, and it is to be expected that very few of these
offenders would come anywhere near the maximums set out above.
Therefore, the proposed scheme retains sufficient flexibility to respond
appropriately to the more serious bad check offenders, but not with the
excesses and dangers of the present *Mincey*-inspired system. The
offender who writes \$1,000,000 in bad checks would be expected to come
much closer to the twenty year maximum confinement term than the
offender who passes \$10,001 in bad checks, and neither has to face a
ridiculous maximum term of confinement to accomplish this appropriate
and just result.

Finally, it is possible for reasonable minds to disagree about the
length of the various maximum terms of confinement and the amount of
time that should serve as the hard ceiling. However, on the latter
point, this author is not willing to concede much ground. Stealing money
through purely nonviolent means is not, on the grand scale of offenses,
worthy of an extreme response. It is qualitatively different from
perpetrating violence upon another or threatening another with violence
and should not be treated in the same fashion as those types of crime.
No matter how many checks were written or how much money was stolen, a
bad check case is still, fundamentally, a nonviolent property offense.
It demands attention and a punitive response, but that response must be
a balanced one that treats the offender according to the harm she has
perpetrated upon society. That harm could not, under any circumstances,
justify a term of confinement much greater than twenty years.

**V. CONCLUSION**

When the law would allow a defendant like MSgt Eatmon to face the
possibility of spending the rest of her life in jail because she wrote
some bad checks, it is obvious that something is amiss. There is no
valid reason for confining nonviolent property offenders for anything
near what is allowed by our present *Mincey*-inspired system.

On the other hand, there are good reasons, both based in law and policy,
to take affirmative efforts to undo *Mincey*'s error. First, a
punishment similar to what is being proposed above would avoid the legal
pitfalls that plague *Mincey*. It would not raise constitutional
proportionality concerns and, thus, would not offend either military or
constitutional due process. Second, such a regime would be consistent
with the bedrock principles of punishment, would at least attempt to
treat like offenders alike, and would not fly in the face of common
sense notions of fairness. This latter point is particularly important
to a military justice system that is in place to promote justice and
maintain good order and discipline in the armed forces. Both of these
worthy goals are hard enough to attain without the unnecessary and
damaging effects of the *Mincey* approach to bad check cases.

[^1]: ^^ *Major Martin (B.A., University of Kentucky; J.D., University
    of Kentucky; LL.M., Yale Law School) is a reserve appellate defense
    counsel, Appellate Defense Division, Air Force Legal Services
    Agency, Bolling Air Force Base, Washington DC. He is an Associate
    Professor of Law at Texas Wesleyan University School of Law, Fort
    Worth, Texas. He is a member of the Kentucky State Bar.*

[^2]: *See* United States v. Eatmon, 47 M.J. 534 (A.F.C.C.A. 1997),
    *aff'd*, 49 M.J. 273 (1998).

[^3]: *See* Eatmon, 47 M.J. at 536. MSgt Eatmon was charged with four
    violations of Article 123a, Uniform Code of Military Justice (UCMJ),
    for writing bad checks with the intent to defraud, and two
    violations of Article 134, UCMJ, for failing to maintain sufficient
    funds in her account to cover the checks. Additionally, MSgt Eatmon
    was charged with misusing a government credit card in violation of
    Article 92, UCMJ, and dishonorably failing to pay a debt to American
    Express in violation of Article 134, UCMJ. *Id*. *See also* [Manual
    For Courts-Martial]{.smallcaps}, United States, Part IV, ¶¶ 16, 49,
    68, 71 (1998 ed.) \[hereinafter MCM\].

[^4]: 42 M.J. 376 (1995).

[^5]: Prior to Mincey, the normal practice in bad check cases was to
    arrange the disputed checks into separate logical groups (for
    example, one group included checks written to the commissary, a
    second group would include checks written to the Army and Air Force
    Exchange Service, and a third set might consist of checks written to
    the noncommissioned officers' club). Each individual grouping would
    then be charged as a separate violation of the charge. Each such
    violation is called a specification. A specification is "a plain,
    concise, and definite statement of the essential facts constituting
    the offense charged." MCM, *supra* note 2, Rule For Courts-Martial
    307(c)(3) \[hereinafter R.C.M.\]. The maximum punishment would then
    be calculated based upon the amount of the largest single check
    charged in each specification. *See* United States v. Poole, 24 M.J.
    539 (A.C.M.R. 1987), *aff\'d on other grounds*, 26 M.J. 272 (C.M.A.
    1988). *See also* United States v. English, 25 M.J. 819, 822
    (A.F.C.M.R. 1988) (adopting, in part, the rationale of the Army
    Court of Military Review in the *Poole* case). As a result, a
    specification alleging a violation of Article 123a, UCMJ, for
    writing eight bad checks in excess of \$100, but with no single
    check of a value greater than \$100, allowed for a maximum possible
    sentence of only six months confinement. *See, e.g.,* United States
    v. Reed, 26 M.J. 891, 894 (A.F.C.M.R. 1988).

[^6]: The court stated, in no uncertain terms,

    > We now . . . hold that in bad-check cases, the maximum punishment
    > is calculated by the number and amount of the checks as if they
    > had been charged separately, regardless whether the Government
    > correctly pleads only one offense in each specification or whether
    > the Government joins them in a single specification as they have
    > here.

    Mincey, 42 M.J. at 378.

[^7]: *See, e.g.,* United States v. Foster, No. ACM 32197, 1997 CCA
    Lexis 97 (A.F.C.C.A. Mar. 12, 1997) (involving the possibility of
    21½ years in confinement versus the six months the accused would
    have faced under the previous method of handling bad check cases).
    *See also* United States v. Towery, 47 M.J. 514 (A.F.C.C.A. 1997)
    (applying the principle to a forgery case to increase the maximum
    confinement 105 years).

[^8]: [U.S. Const.]{.smallcaps} amend[. VIII]{.smallcaps}.

[^9]: *See, e.g.,* United States v. Ingham, 42 M.J. 218, 230 (1995).

[^10]: Uniform Code of Military Justice [\[]{.smallcaps}hereinafter
    [UCMJ\]]{.smallcaps} art. 55, 10 U.S.C.A. § 855 (1998) (emphasis
    added).

[^11]: 463 U.S. 277 (1983).

[^12]: *Id*. at 290.

[^13]: *See id*.

[^14]: *Id*. at 292. This test, in form and substance, came directly
    from an earlier dissenting opinion written by Justice Powell. *See*
    Rummel v. Estelle, 445 U.S. 263, 295 (1980) (Powell, J.,
    dissenting).

[^15]: *See* Solem, 463 U.S. at 292.

[^16]: *See id*. at 292-93. *See also* Hart v. Coiner, 483 F.2d 136, 140
    (4^th^ Cir. 1973) ("In assessing the nature and gravity of an
    offense, courts have repeatedly emphasized the element of violence
    and danger to the person.").

[^17]: *See* Solem, 463 U.S. at 282-83.

[^18]: *See* *id*. at 279-80. A third offense of driving while
    intoxicated is a felony under South Dakota law. Id. at 280 n.4.

[^19]: *See id*. at 281.

[^20]: *See id*.

[^21]: *Id*. at 296 (citing State v. Helm, 287 N.W.2d 497, 501 (S.D.
    1980) (Henderson, J., dissenting)).

[^22]: *See* *id*. at 303.

[^23]: *Id*. at 296-97.

[^24]: *Id*. at 298-99. *See also* Hart, 483 F.2d at 142 (referring to
    the appellant's convictions for writing a check on insufficient
    funds for \$50, transporting forged checks in the amount of \$140
    across state lines, and perjury, the court wondered whether it could
    "be rationally urged that Hart is as dangerous to society and as
    deserving of punishment as the murderer, rapist, and kidnapper").

[^25]: *See* Solem, 463 U.S. at 299-300.

[^26]: 501 U.S. 957 (1991).

[^27]: *See id*.

[^28]: *See id*. at 961-94. Justice Scalia, who wrote the opinion of the
    court, and Chief Justice Rhenquist, who joined that opinion, shared
    this view.

[^29]: *See id*. at 1009-29 (White, J., dissenting). Justice White
    adopted this position in his dissent. He was joined by Justices
    Blackmun and Stevens. Justice Marshall agreed with Justice White's
    position concerning the need for a three-part analysis, but he wrote
    a separate dissent to discuss the implications of the death penalty.

[^30]: *Id*. at 1001 (Kennedy, J., concurring in the result). Justice
    Kennedy espoused this centrist position in his concurring opinion,
    which was joined by Justices O'Connor and Souter. Although they
    joined the judgment of the court concerning the result, they
    disagreed with the lead opinion's reasoning and analysis of the
    Eighth Amendment.

[^31]: *Id*. at 1004-05 (Kennedy, J., concurring in the result).

[^32]: *See id.*

[^33]: *See* Harmelin, 501 U.S. at 1005. *See also* Larry Alexander,
    *The Supreme Court, Dr. Jekyll, and the Due Process of Proof*, 1996
    [Sup. Ct. Rev]{.smallcaps}. 191, 216 n.76 (1997) (discussing the
    various positions on proportionality review endorsed by the Court's
    members in *Harmelin*); Steven Grossman, *Proportionality in
    Non-Capital Sentencing: The Supreme Court's Tortured Approach to
    Cruel and Unusual Punishment*, 84 [Ky. L.J.]{.smallcaps} 107, 153-59
    (1996) (analyzing Justice Kennedy's *Harmelin* opinion); Adam Scott
    Tanenbaum, *Twenty-Fourth Annual Review of Criminal Procedure:
    United States Supreme Court and Courts of Appeals 1993-1994 --
    Appellate Review of Sentences*, 83 [Geo. L.J.]{.smallcaps} 1374,
    1387-89 (1995) (pointing out the conflicting treatments of
    proportionality review in *Harmelin*).

[^34]: *See, e.g.,* United States v. Kratsas, 45 F.3d 63, 67 (4^th^ Cir.
    1995).

[^35]: United States v. Maxwell, 45 M.J. 406, 427 (1996). This same
    middle ground has found great support in courts across the country.
    "\[M\]any courts faced with challenges to the proportionality of a
    sentence after the decision in *Harmelin* have adopted Justice
    Kennedy's approach." Grossman, *supra* note 32, at 156.

[^36]: *See* Assignment of Errors and Brief on Behalf of Appellant at
    20, United States v. Eatmon, 47 M.J. 534 (A.F.C.C.A. 1997) (No. ACM
    32664) (on file with the author). The military judge instructed the
    members that the maximum term of confinement in MSgt Eatmon's case
    was 222 years. *See* Eatmon, 47 M.J. at 538. Two years and six
    months of this time was the possible punishment for the charge of
    misuse of the government credit card, and the rest, 219½ years,
    related to the bad checks. *See* Assignment of Errors and Brief on
    Behalf of Appellant at 13, *Eatmon*, (No. ACM 32664).

[^37]: *See supra* notes 31-34 and accompanying text.

[^38]: Solem, 463 U.S. at 296.

[^39]: Some courts have tested for gross disproportionality by comparing
    the facts of their case with the facts of cases the Supreme Court
    reviewed when the Court established the parameters of
    proportionality review. *See, e.g.,* United States v. Prior, 107
    F.3d 654, 659 (8^th^ Cir. 1997); Smallwood v. Johnson, 73 F.3d 1343,
    1347-48 (5^th^ Cir. 1996) (citing Duhr v. Collins, 20 F.3d 469
    (5^th^ Cir. 1994); McGruder v. Puckett, 954 F.2d 313 (5^th^ Cir.
    1992)); United States v. Easter, 981 F.2d 1549, 1556 (10^th^ Cir.
    1992).

[^40]: Some courts have tested claims of gross disproportionality based
    upon whether the punishment handed out was justified by a
    retributive theory of punishment. *See, e.g.,* United States v.
    Harris, 154 F.3d 1082, 1083 (9^th^ Cir. 1998); Rice v. Cooper, 148
    F.3d 747, 752 (7^th^ Cir. 1998). There are five principal reasons
    for sentencing offenders in the military: protection of society from
    the wrongdoer, punishment of the wrongdoer, rehabilitation of the
    wrongdoer, preservation of good order and discipline in the
    military, and the deterrence of the wrongdoer and of those who know
    of the crime and the sentence from committing the same or similar
    offenses. *See* United States v. Ohrt, 28 M.J. 301, 305 (C.M.A.
    1989). *See also* United States v. Varacalle, 4 M.J. 181, 182
    (C.M.A. 1978) ("There are three reasons for prescribing punishment
    for those acts declared to be criminal by society. These are the
    protection of society, the rehabilitation of the offender, and
    example. The concepts of deterrence and example are not synonymous;
    instead deterrence comes about because of example."). *Cf.* [Wayne
    R. LaFave & Austin W. Scott, Jr., Criminal Law]{.smallcaps} § 1.5,
    at 23-27 (1986) (identifying the purposes of the criminal law as
    prevention (particular deterrence), restraint (incapacitation),
    rehabilitation, deterrence, education, and retribution).

[^41]: *See* *generally* Rummel, 445 U.S. at 274 n.11 (rejecting a
    proportionality claim in the precursor to *Solem* and *Harmelin*,
    the Court conceded that "a proportionality principle \[might\] come
    into play . . . if a legislature made overtime parking a felony
    punishable by life imprisonment").

[^42]: "\[G\]eneral deterrence is much criticized and cannot justify
    mechanistic imposition of stiff sentences . . . ." United States v.
    Lania, 9 M.J. 100, 103 (C.M.A. 1980) (citing United States v.
    Miller, 589 F.2d 1117, 1139 (1^st^ Cir. 1978)).

[^43]: *See* [United States Sentencing Guidelines Manual]{.smallcaps},
    ch. 1, pt. A, intro. cmt., at 3 (1998) ("Under this principle,
    punishment should be scaled to the offender's culpability and the
    resulting harms.").

[^44]: Another way to look at the issue is to consider that 219½ years
    confinement for 197 bad checks works out to 1.11 years per check.

[^45]: For further elaboration on these arguments see *infra* notes
    171-79 and accompanying text.

[^46]: *See supra* notes 31-34 and accompanying text.

[^47]: *See* Harmelin v. Michigan, 501 U.S. 957, 1004-5 (1991) (Kennedy,
    J., concurring in the result).

[^48]: *See* [UCMJ]{.smallcaps} art[.]{.smallcaps} 56, 10 U.S.C.A. § 856
    (1950).

[^49]: *See* [MCM,]{.smallcaps} *supra* note [2]{.smallcaps}, Maximum
    Punishment Chart, Appendix 12, at A12-4.

[^50]: *Id*. at A12-5.

[^51]: *Id*. at A12-4.

[^52]: *Id*. at A12-4.

[^53]: *Id*.

[^54]: *Id*. at A12-3 to A12-6.

[^55]: *Id*. at A12-4, A12-7.

[^56]: Mincey, 42 M.J. at 376. The rest of the appellant's sentence
    included a bad-conduct discharge, forfeiture of \$350 pay per month
    for twenty-eight months, and reduction to the lowest enlisted grade.
    *Id*.

[^57]: Eatmon, 47 M.J. at 536. The rest of her sentence included a
    dishonorable discharge and a three grade reduction in rank to Senior
    Airman). *Id*.

[^58]: *See, e.g*., United States v. Hamilton, 41 M.J. 22 (C.M.A. 1994).
    In that case,

    > \[the a\]ppellant was tried by a general court-martial composed of
    > officer members at Soesterberg Air Base, The Netherlands, in
    > January and February 1990. Contrary to his pleas, he was found
    > guilty of five specifications of writing bad checks totaling in
    > excess of \$9300, in violation of Article 123a, Uniform Code of
    > Military Justice. . . . He was sentenced to a dishonorable
    > discharge, confinement for 24 months, and total forfeitures.

    *Id.* at 23.

[^59]: *See supra* notes 31-34 and accompanying text.

[^60]: The following cases are cast as being similar to the potential
    sentence to confinement in MSgt Eatmon's case since the defendants
    were facing more than thirty years in prison. In bad check cases
    involving lesser sentences to confinement, other jurisdictions have
    rejected claims that the duration of confinement was either
    excessive or amounted to "cruel and unusual punishment." *See,
    e.g*., Wilson v. State, 475 S.W.2d 543, 544 (Ark. 1972) (finding
    that defendant's sentence of twenty-four years in jail for forging
    and uttering two checks totaling \$77.46 did not constitute cruel
    and unusual punishment given legitimate goals of the state's
    habitual criminal statute); Utah v. Nance, 438 P.2d 542, 544 (Utah
    1968) (stating that in view of defendant's criminal history, no
    constitutional basis existed for challenging a sentence of not more
    than five years in prison for writing a check of \$13.32 without
    sufficient funds). The state of Mississippi has, on a number of
    occasions, struggled with the issue in the context of shorter terms
    of confinement. As a result, the state has come down on both sides
    of the issue. *Compare* Clowers v. State, 522 So. 2d 762 (Miss.
    1988) (upholding the trial court's downward deviation from a statute
    requiring habitual offenders to be sentenced to the maximum term of
    confinement, because the court said that fifteen years in
    confinement for uttering a forged \$250 check was disproportionate
    and cruel and unusual punishment), *with* Wallace v. State, 607 So.
    2d 1184, 1188 (Miss. 1992) (upholding defendant's cumulative sixteen
    year sentence for forging and publishing checks in the amounts of a
    \$40, \$54, and \$62, and for ten other convictions, nine of which
    were misdemeanors), *and* Barnwell v. State, 567 So. 2d 215, 222
    (Miss. 1990) (upholding the defendant's fifteen year mandatory
    sentence under the state's habitual offenders statute for uttering a
    forged check for \$500).

[^61]: 445 P.2d 815 (Alaska 1968).

[^62]: The judge found the sentence was "cruel and unusual" in violation
    of the Alaska Constitution and the United States Constitution. *Id*.
    at 819. A separate concurring opinion concluded the sentence was
    constitutional but excessive. *Id*. at 822 (Rabinowitz, J.,
    concurring). *See also* Black v. State, 569 P.2d 804, 805 (Alaska
    1977) (concluding that appellant's sentence of fifteen years
    confinement for forging two checks totaling about \$500 was
    excessive).

[^63]: Faulkner, 445 P.2d at 824 (Nesbett, C.J., dissenting):

    > During his military service he was court-martialed twice. In
    > civilian life he was arrested in Boise, Idaho in June of 1952 on a
    > charge of passing bad checks. . . . In March of 1955 he was
    > sentenced to serve 15 years in Washington State Prison on a charge
    > of larceny by check. He was released on parole from Washington
    > State Prison within one year. He was arrested in Stillwater,
    > Minnesota in July of 1958 and sentenced to 0-2 years on a charge
    > of concealing and removing mortgaged chattel property. He served
    > one year and four months of this sentence. In 1961 in Denver,
    > Colorado, he was sentenced to serve four years for violation of
    > the National Motor Vehicle Transportation Act. He was released on
    > conditional release in February of 1964 and arrested in Chicago in
    > June of 1964 for violation of the terms of his conditional
    > release. He was returned to the United States Penitentiary at
    > Leavenworth in November of 1964 to serve the balance of 408 days
    > on his sentence. He was released from Leavenworth in September of
    > 1965. At that time he was again placed on parole by the state of
    > Washington for his 1955 offense. Parole supervision for the state
    > of Washington was accepted by the Illinois State Parole Authority
    > as a courtesy. Appellant absconded parole supervision in Chicago
    > and came to Anchorage, but was again placed on parole by the state
    > of Washington under the parole supervision of the Alaska Youth and
    > Adult Authority as a courtesy to the state of Washington under the
    > provisions of the Inter-State Compact Agreement. While under the
    > parole supervision of the Alaska Youth and Adult Authority, on or
    > about July 9, 1966, appellant passed at least eight checks ranging
    > in value from \$45 to \$233.45, totaling approximately \$1,384. In
    > addition, appellant is reported to have written a number of bad
    > checks in the states of Washington, Idaho, and Oregon while in
    > flight attempting to avoid prosecution for his Alaska offenses.
    > Appellant\'s parole was finally revoked by the state of
    > Washington, but proceedings have been held in abeyance until it is
    > determined what will be done by the Alaska courts for the offenses
    > which resulted in the sentence now under consideration by this
    > court.

    *Id.*

[^64]: People v. Keogh, 46 Cal. App. 3d 919, 932 (Cal. Ct. App. 1975).

[^65]: *Id*. The defendant "had a previous felony conviction and other
    minor convictions all of which were related directly or indirectly
    to the use of heroin." *Id*.

[^66]: *See id*.

[^67]: Wanstreet v. Bordenkircher, 276 S.E.2d 205, 214 (W. Va. 1981).
    This court likened its proportionality requirement to the
    proportionality requirement found in the Eighth Amendment to the
    United States Constitution. *Id.* at 209.

[^68]: *Id*. at 212. *See also* State v. Barker, 410 S.E.2d 712, 714 (W.
    Va. 1991) (per curiam) (overturning the appellant's life sentence
    imposed under a recidivist statute for the triggering offense of
    forging and uttering a \$40.48 check). *Cf*. Houk v. State, 747 P.2d
    1376 (Nev. 1987) (upholding a fifty year sentence to confinement
    flowing from bad check offenses). The bad check crimes of the
    defendant in the *Houk* case were so flagrant and long-running that
    the case is not inconsistent with the results reached by the three
    cases discussed in this paragraph.

[^69]: Eatmon, 47 M.J. at 538.

[^70]: *See* United States v. Towery, 47 M.J. 514 (A.F.C.C.A. 1997)
    (refusing to venture beyond the actual punishment the appellant
    received to search for infirmities in the case). The court stated,
    "whether the maximum punishment in the appellant\'s case is 125
    years or 20 years, the appellant only faced (and received) 15 months
    in jail pursuant to his pretrial agreement. Any further discussion
    of 'proportionality' would be an exercise in angelic pin-dancing,
    which we need not pursue." *Id.* at 515. *But cf.* United States v.
    Hughes, 48 M.J. 700, 732 (A.F.C.C.A. 1998) (Snyder, S.J.,
    concurring) ("Ensuring a fair trial is the bedrock of military due
    process and the *raison d'etre* of the trial judiciary.").

[^71]: MCM, *supra* note 2, R.C.M. 1005(e)(1).

[^72]: *See* United States v. Thomas, 46 M.J. 311, 312 (1997); United
    States v. Lawson, 34 M.J. 38, 40 (C.M.A. 1992); United States v.
    Gray, 37 M.J. 751, 757-58 (A.C.M.R. 1993); United States v. Turner,
    34 M.J. 1123, 1126 (A.F.C.M.R. 1992). *See also* United States v.
    Harden, 1 M.J. 258, 259 (C.M.A. 1976) ("Primary responsibility for
    determining the legal limits of punishment rests upon the trial
    judge."); English, 25 M.J. 819, 822 (A.F.C.M.R. 1988) ("\[W\]e
    conclude that a reassessment of the appellant\'s sentence is
    appropriate based upon the military judge's misapprehension as to
    the maximum confinement which might be adjudged."); United States v.
    Clifford, 1 M.J. 738, 740 (A.F.C.M.R. 1975) (concluding the military
    judge's incorrect calculation of the maximum applicable punishment
    required reassessment of the appellant's adjudged sentence).

[^73]: United States v. Guevara, 26 M.J. 779, 782 (A.F.C.M.R. 1988)
    (citing United States v. Baker, 14 M.J. 361, 368 (C.M.A. 1983)).

[^74]: 38 M.J. 597 (A.F.C.M.R. 1993).

[^75]: *Id.* at 600.

[^76]: *Id.* at 601. The Air Force Court of Criminal Appeals was, at
    that time, called the Air Force Court of Military Review.

[^77]: *See id*. The court seemed to indicate it would have disapproved
    some of the adjudged confinement time but for the fact the time had
    already been served. In another case, the military judge's
    instruction that the maximum term of confinement was twenty-nine
    years rather than the correct amount of twenty years was plain error
    and necessitated setting the approved sentence aside. United States
    v. Pabon, 37 M.J. 836, 844 (A.F.C.M.R. 1993); *see also* United
    States v. Hart, 30 M.J. 1176, 1178-79 (A.F.C.M.R. 1990) ("Because
    the sentence in this case included a dismissal, six months
    confinement and a forfeiture of \$6,000.00, we cannot rest assured
    that the stated maximum--which exposed the appellant to ten times
    the correct maximum punishment as to confinement--did not affect the
    sentence."), *aff'd,* 32 M.J. 101 (C.M.A. 1991).

[^78]: MCM, *supra* note 2, R.C.M. 1005(e)(1).

[^79]: *See supra* Part II.A.2.

[^80]: If a life sentence, which is available for murder, rape, and
    kidnapping, can be equated to approximately seventy years
    confinement, MSgt Eatmon's maximum possible term of confinement
    still exceeded such a sentence by over 130 years.

[^81]: For a suggestion on how these cases should be handled see *infra*
    Part IV.

[^82]: *See, e.g*., United States v. Clay, 1 C.M.R. 74, 77 (C.M.A.
    1951). In *Clay*, the court-martial closed for deliberation without
    the members ever being instructed on the elements of the offense,
    the presumption of innocence, or the burden of proof. All of these
    instructions were required under the UCMJ. *Id.* at 76.

[^83]: *Id*. at 77. *Cf.* United States v. Kelly, 41 M.J. 833
    (N.M.C.C.A. 1995), *rev'd on other grounds*, 45 M.J. 259 (1996).

    > "Military due process" is not a source of military law, nor is it
    > a natural or common law concept. Rather, it was coined by the
    > early Court of Military Appeals to describe a pattern of rights
    > granted by Congress to servicemembers and as a means to determine
    > when the abrogation of those rights warranted a remedy . . . .

    *Id.* at 843.

[^84]: Clay, 1 C.M.R. at 77 ("\[W\]e look to the acts of Congress to
    determine whether it has declared that there are fundamental rights
    inherent in the trial of military offenses which must be accorded to
    an accused before it can be said that he has been fairly
    convicted."). For an earlier treatment of the doctrine, see Hon.
    Robert E. Quinn, *The United States Court of Military Appeals and
    Military Due Process*, 35 [St. John's L. Rev.]{.smallcaps} 225
    (1960-61).

[^85]: *See* United States v. McGraner, 13 M.J. 408, 415 (C.M.A. 1982)
    (citing United States v. Caceres, 440 U.S. 741 (1979)).

[^86]: United States v. Berrey, 28 M.J. 714, 717 (N.M.C.M.R. 1989);
    United States v. Jerasi, 20 M.J. 719, 723 (N.M.C.M.R. 1985),
    *aff\'d*, 23 M.J. 162 (C.M.A. 1986); United States v. Suttles, 6
    M.J. 921, 925 (A.F.C.M.R. 1979); [David A. Schlueter, Military
    Criminal Justice---Practice and Procedure]{.smallcaps} § 1-1(B) (3d
    ed. 1992). *Cf*. Kelly, 45 M.J. at 262 (noting that "military due
    process . . . is not a self-standing principle of law"). There have
    been occasions where the courts have equated military due process
    with constitutional due process. *See, e.g*., United States v.
    Garries, 22 M.J. 288, 292 (C.M.A. 1986) (referring to the
    "constitutional and military-due-process duty to preserve
    evidence"). However, this article employs the more restrictive view
    of military due process. Whatever loss of coverage this creates for
    purposes of considering the full impact of the *Mincey* approach on
    bad check cases will be made up by discussing constitutional due
    process in its own section. *See infra* Part II.D.

[^87]: Berrey, 28 M.J. at 717 (citing Jerasi, 20 M.J. at 723).

[^88]: *See* Hughes, 48 M.J. at 732 (Snyder, S.J., concurring).

[^89]: 15 M.J. 255 (C.M.A. 1983).

[^90]: *See id*. at 256-57. Article 46, UCMJ, provides, "The trial
    counsel, the defense counsel, and the court-martial shall have equal
    opportunity to obtain witnesses and other evidence in accordance
    with such regulations as the President may prescribe."
    [UCMJ]{.smallcaps} art[.]{.smallcaps} 46, 10 U.S.C.A. § 846 (1998).
    In order to avoid confusion, it should be noted that the United
    States Court of Military Appeals recently changed its name to the
    United States Court of Appeals for the Armed Forces.

[^91]: 47 M.J. 99 (1997).

[^92]: *Id.* at 102. A convening authority must "obtain and consider the
    written recommendation of his staff judge advocate or legal officer"
    before acting on an adjudged case. [UCMJ]{.smallcaps}
    art[.]{.smallcaps} 60(d), 10 U.S.C.A. § 860(d) (1998).

[^93]: 6 M.J. 921 (A.F.C.M.R. 1979).

[^94]: *Id.* at 922.

[^95]: *Id.* at 923.

[^96]: *Id.* at 925.

[^97]: *Id*.

[^98]: 22 C.M.R. 443 (A.B.R. 1956).

[^99]: *Id*. at 447-48.

[^100]: *Id*. at 447.

[^101]: *Id*. at 447-48.

[^102]: *See id*. at 448.

[^103]: *Id.*

[^104]: MCM, *supra* note 2, R.C.M. 506(a).

[^105]: *Id*.

[^106]: *Id*. R.C.M. 506(b).

[^107]: *Id.* R.C.M. 903(a). Between the defense counsel and client,
    this is a choice that ultimately lies in the hands of the client.
    *See* [Air Force Rules of Professional Conduct]{.smallcaps} Rule
    1.2(a) \[hereinafter [Rules of Professional Conduct]{.smallcaps}\];
    [Air Force Standards for Criminal Justice]{.smallcaps} Rule
    4-5.2(a)(ii) \[hereinafter [Standards for Criminal
    Justice\]]{.smallcaps}.

[^108]: MCM, *supra* note 2, R.C.M. 903(c)(2)(B).

[^109]: *Id*. R.C.M. 903(c)(2)(B) Discussion.

[^110]: *Id*. 910(a)(1). Between the defense counsel and client, this is
    an election that ultimately belongs to the client. *See* [Rules of
    Professional Conduct,]{.smallcaps} *supra* note 106, 1.2(a);
    [Standards for Criminal Justice,]{.smallcaps} *supra* note 106,
    4-5.2(a)(i).

[^111]: "A plea of guilty may not be received as to an offense for which
    the death penalty may be adjudged by the court-martial." MCM,
    *supra* note 2, R.C.M. 910(a)(1). An accused cannot enter a
    conditional plea without approval of the military judge and consent
    of the Government. *See id*. R.C.M. 910(a)(2). "If an accused fails
    or refuses to plead, or makes an irregular plea, the military judge
    shall enter a plea of not guilty for the accused." *Id*. R.C.M.
    910(b). Finally, a military judge cannot accept an involuntary or
    inaccurate plea. *Id.* R.C.M. 910(d), 910(e).

[^112]: [UCMJ]{.smallcaps} art[.]{.smallcaps} 31, 10 U.S.C.A. § 831
    (1998). Between a defense counsel and a client, this decision
    ultimately rests with client. *See* [Rules of Professional
    Conduct,]{.smallcaps} *supra* note 106, 1.2(a); [Standards for
    Criminal Justice,]{.smallcaps} *supra* note 106, 4-5.2(a)(iii).

[^113]: [UCMJ]{.smallcaps} art[.]{.smallcaps} 31(a), 10 U.S.C.A. § 831.

[^114]: *See* Morris v. Slappy, 461 U.S. 1 (1983) (noting that the Sixth
    Amendment guarantees only competent representation, not "a
    meaningful attorney---client relationship"). *See also* Peter W.
    Tague, *An Indigent's Right to the Attorney of His Choice*, 27
    [Stan. L. Rev.]{.smallcaps} 73 (1974).

[^115]: *See* [U.S. Const.]{.smallcaps} amend[. VI.]{.smallcaps} "In all
    criminal prosecutions, the accused shall enjoy the right to . . .
    have the assistance of counsel for his defense." *Id.*

[^116]: *See* [UCMJ]{.smallcaps} art. 16, 10 U.S.C.A. § 816 (1998); MCM,
    *supra* note 2, R.C.M. 903. A military accused does not enjoy a
    Sixth Amendment right to a jury trial. *See* Ex Parte Quirin, 317
    U.S. 1, 39-40 (1942); United States v. Witham, 47 M.J. 297, 301
    (1997).

[^117]: *See* [U.S. Const]{.smallcaps}. amend. VI. "In all criminal
    prosecutions, the accused shall enjoy the right to . . . trial . . .
    by an impartial jury . . . ." *Id.*

[^118]: *See* [U.S. Const.]{.smallcaps} amend[. V.]{.smallcaps} "No
    person shall be . . . compelled in any criminal case to be a witness
    against himself . . . ." *Id*.

[^119]: *See* United States v. Toledo, 15 M.J. 255, 256-7 (C.M.A. 1983).

[^120]: *See* United States v. Suttles, 6 M.J. 921, 925 (A.F.C.M.R.
    1979).

[^121]: *See* MCM, *supra* note 2, R.C.M. 705(c)(2)(E). This rule does
    not prohibit either party from proposing a "promise to waive
    procedural requirements such as the Article 32 investigation, the
    right to a trial by court-martial composed of members or the right
    to request trial by military judge alone . . . ." *Id.*

[^122]: *Cf., e.g*., United States v. Walker, 34 M.J. 264 (C.M.A. 1991).
    "\[A\] plea of guilty may be improvident if it is predicated upon a
    substantial misunderstanding on the accused's part of the maximum
    punishment to which he is subject." *Id.* at 266 (quoting United
    States v. Windham, 36 C.M.R. 21, 23 (C.M.A.1965)).

[^123]: *See* United States v. Hunt, 10 M.J. 222, 224 (C.M.A. 1981)
    (inferring but not finding that such a result would be a very
    substantial factor in judging the providence of an appellant's
    guilty plea). One appellate judge noted,

    > \[I\]t would be very significant that there is any indication that
    > the accused pleaded guilty even though he believed himself to be
    > innocent, simply to avoid a "crushing" sentence. . . . \[S\]uch a
    > case would suffer a more serious flaw than the mistake about the
    > sentence, for courts-martial do not take pleas of guilty from
    > persons who say that they believe themselves to be innocent.

    United States v. Boroski, No. ACM 30157, 1993 CMR LEXIS 343, at \*20
    n.18 (A.F.C.M.R. Aug. 17, 1993) (James, J., concurring in part and
    dissenting in part) (citing Hunt, 10 M.J. 224; MCM, *supra* note 2,
    R.C.M. 910(e)).

[^124]: *See* United States v. Brasher, 6 C.M.R. 50 (C.M.A. 1952). "In a
    special and peculiar sense the sentence of the law for adjudged
    misconduct---military or civilian---is the product of a trial court.
    It alone, of all agencies of the law, is authorized to 'adjudge' the
    law's penalty." *Id.* at 52. *See also* United States v. Greaves, 46
    M.J. 133, 139 (1997) (calling sentencing "a vital part of a
    court-martial proceeding") (citing United States v. Allen, 25 C.M.R.
    8 (C.M.A. 1957)).

[^125]: United States v. Connell, 42 M.J. 462, 465 (1995) (citations
    omitted). *See generally* United States v. Ohrt, 28 M.J. 301 (C.M.A.
    1989). "The punitive discharge is a stigma. It is a badge of
    dishonor, and it has a significant historical background and basis.
    Importantly, it can be adjudged with or without regard to whether an
    accused has rehabilitative potential." Ohrt, 28 M.J. at 306. One
    commentator noted that,

    > The punitive discharge was never intended to be a rehabilitative
    > punishment. Historically the punitive discharge came into being at
    > a time when retribution and deterrence were the chief, if not the
    > only, reasons for inflicting punishment. The punitive discharge
    > was designed to sever a service member from the military community
    > and to put a mark upon him which would make it difficult for him
    > to reenter the civilian society and economy. The punitive
    > discharge thus had two effects by design: first, it punished by
    > ejection from a familiar society and by imposing social and
    > economic hardships; and, second, it deterred others by its
    > visible, swift, effective and harsh character.

    Charles E. Lance, *A Criminal Punitive Discharge--An Effective
    Punishment?*, 79 [Mil. L. Rev]{.smallcaps}. 1, 17 (1978).

[^126]: "These rules are intended to provide for the just determination
    of every proceeding relating to trial by court-martial." MCM,
    *supra* note 2, R.C.M. 102(a).

[^127]: *See id.* R.C.M. 1005(e)(1).

[^128]: The Fifth Amendment to the Constitution states, "No person shall
    . . . be deprived of life, liberty, or property, without due process
    of law . . . ." [U.S. Const.]{.smallcaps} amend[. V.]{.smallcaps}

[^129]: *See* Suttles, 6 M.J. 921.

[^130]: *See supra* notes 97-102 and accompanying text.

[^131]: See Assignment of Errors and Brief on Behalf of Appellant at 13,
    *Eatmon* (No. ACM 32664). In his sentencing argument the assistant
    trial counsel said that the possible term of confinement was "a
    reflection of how serious these crimes are" and later, in rebuttal,
    argued the fact that the prosecution hadn't asked for the full term
    of confinement showed that it was not trying to "hammer" the
    appellant. *See id*.

[^132]: *See* MCM, *supra* note 2, R.C.M. 1005(e)(1), 1006(d)(1).

[^133]: *See* [Schlueter,]{.smallcaps} *supra* note 85, § 1-1(B) at 8.

[^134]: *See id*. "These sources \[the Constitution, the UCMJ, and so
    on\] are set forth in an hierarchical scheme, the first source, the
    Constitution being paramount. If a lower source sets forth a more
    stringent provision to protect individual rights, it will prevail."
    Colonel Francis A. Gilligan, *The Bill of Rights and Service
    Members*, [The Army Lawyer,]{.smallcaps} Dec. 1987, at 3.

[^135]: [Schlueter,]{.smallcaps} *supra* note 85, § 1-1(B) at 9.

[^136]: *Id*.

[^137]: *See supra* Part II.B.

[^138]: *See supra* notes 103-22 and accompanying text.

[^139]: *See supra* notes 123-31 and accompanying text.

[^140]: *See* [U.S. Const.]{.smallcaps} amend[. V.]{.smallcaps}

[^141]: *See, e.g.,* Parker v. Levy, 417 U.S. 733 (1974).

    > While the members of the military are not excluded from the
    > protection granted by the First Amendment, the different character
    > of the military community and of the military mission requires a
    > different application of those protections. The fundamental
    > necessity for obedience, and the consequent necessity for
    > imposition of discipline, may render permissible within the
    > military that which would be constitutionally impermissible
    > outside it . . . .

    *Id.* at 758.

[^142]: United States v. Connell, 42 M.J. 462, 464 (citing Middendorf v.
    Henry, 425 U.S. 25, 43 (1976)). *See also* Cooke v. Orser, 12 M.J.
    335, 338 (C.M.A. 1982) ("A service member, like his civilian
    counterpart, is 'entitled to the due process of law guaranteed by
    the Fifth Amendment' to the Constitution.").

[^143]: *See* Weiss v. United States, 510 U.S. 163, 178 (1994) ("It is
    elementary that 'a fair trial in a fair tribunal is a basic
    requirement of due process.'"); United States v. Mitchell, 39 M.J.
    131, 136 (1994) ("The Supreme Court has long held that the Due
    Process Clause basically requires a 'fair trial in a fair
    tribunal.'").

[^144]: *See, e.g.,* Connell, 42 M.J. at 464-65; United States v.
    Spears, 48 M.J. 768, 776 (A.F.C.C.A. 1998).

[^145]: *See* Reno v. Flores, 507 U.S. 292, 302 (1993). "\[T\]he Due
    Process Clause contains a substantive component that bars certain
    arbitrary, wrongful government actions regardless of the fairness of
    the procedures used to implement them." Zinermon v. Burch, 494 U.S.
    113, 125 (1990) (citations omitted).

[^146]: United States v. Salerno, 481 U.S. 739, 746 (1987) (citing
    Rochin v. California, 342 U.S. 165, 172 (1952)).

[^147]: Salerno, 481 U.S. at 746 (citing Palko v. Connecticut, 302 U.S.
    319, 325-26 (1937)). *See also* United States v. Wright, 48 M.J.
    896, 899 (A.F.C.C.A. 1998) (quoting Salerno, 481 U.S. 739). "To
    warrant dismissal of charges, the government\'s conduct must be so
    outrageous, fundamentally unfair, and shocking to the universal
    sense of justice that prosecution is prohibited by the Due Process
    Clause of the Fifth Amendment." United States v. Lawson, No. ACM
    32303, 1998 CCA LEXIS 283, at \*5 (A.F.C.C.A. June 10, 1998) (per
    curiam). "A breach of due process would only occur if the
    \[pre-indictment\] delay violates those 'fundamental conceptions of
    justice which lie at the base of our civil and political
    institutions,' and which define the 'community's sense of fair play
    and decency.'" United States v. Devine, 36 M.J. 673, 677 (N.M.C.M.R.
    1992) (quoting United States v. Lovasco, 431 U.S. 783 (1977)). "To
    be so 'outrageous' as to deny due process, government enforcement
    procedures must be fundamentally unfair or shocking to a universal
    sense of conscience which generally includes: coercion, violence or
    brutality to the person." United States v. Patterson, 25 M.J. 650,
    651 (A.F.C.M.R. 1987).

[^148]: *See* Flores, 507 U.S. at 302. *See also* Wright, 48 M.J. at
    900. In that case, the court stated,

    > It is not the \[government\] which bears the burden of
    > demonstrating that its rule is "deeply rooted," but rather \[the
    > appellant\] who must show that the principle of procedure violated
    > by the rule (and allegedly required by due process) is "so rooted
    > in the traditions and conscience of our people as to be ranked as
    > fundamental."

    *Id.* (citations omitted).

[^149]: *See* Weiss, 510 U.S. at 178-79; United States v. Graf, 35 M.J.
    450, 462 (C.M.A. 1992); Mitchell, 39 M.J. at 137-41; Wright, 48 M.J.
    at 900 (citing Montana v. Egelhoff, 518 U.S. 37, 41 (1996)).

[^150]: Snyder v. Massachusetts, 291 U.S. 97, 105 (1934). *See also*
    Flores, 507 U.S. at 303; Graf, 35 M.J. at 463; Wright, 48 M.J. at
    900.

[^151]: Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (citing Youngberg v.
    Romeo, 457 U.S. 307, 316 (1982)).

[^152]: Flores, 507 U.S. at 315 (O'Connor, J., concurring) (citing
    DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189,
    200 (1989)).

[^153]: *See* Flores, 507 U.S. at 315 (citing Collins v. Harker Heights,
    503 U.S. 115, 125 (1992); Bowers v. Hardwick, 478 U.S. 186, 191
    (1986)). *See also* Salerno, 481 U.S. at 749. Justice O'Connor, in
    her concurring opinion in *Flores* that was joined by Justice
    Souter, talked of the need for a "sufficiently compelling"
    government interest when the occasion under consideration was one of
    the government imprisoning a convicted criminal. *See* Flores, 507
    U.S. at 316 (O'Connor, J., concurring).

[^154]: Weiss, 510 U.S. at 177. "\[W\]e have recognized . . . that the
    tests and limitations of due process may differ because of the
    military context." *Id.* (citations omitted).

[^155]: *Id*.

[^156]: *See id*. at 177-78. *See also* Mitchell, 39 M.J. at 137; Graf,
    35 M.J. at 462.

[^157]: Foucha v. Louisiana, 504 U.S. 71, 80 (1992).

[^158]: Of course, that includes a dishonorable discharge, which MSgt
    Eatmon actually received. A dishonorable discharge is the most
    severe type of discharge a military member can receive, and it is
    usually reserved for criminals who commit the most serious offenses.

[^159]: *See* United States v. Connell, 42 M.J. 462, 466 (1995).

[^160]: United States v. Solerno, 481 U.S. 739, 746 (1987) (citing Palko
    v. Connecticut, 302 U.S. 319, 325-26 (1937)).

[^161]: *See* MCM, *supra* note 2, R.C.M. 1005(e)(1).

[^162]: *See* *id.* R.C.M. 1003(b)(8).

[^163]: *See* MCM, *supra* note 2, Analysis of Rules For Courts-Martial,
    Appendix 21, at A21-72.

[^164]: *See supra* notes 73-76 and accompanying text.

[^165]: *See* United States v. Care, 40 C.M.R. 247 (C.M.A. 1969).

[^166]: 7 M.J. 414 (C.M.A. 1979).

[^167]: *Id*. at 414-15. *See also* United States v. Brewster, 7 M.J.
    450 (C.M.A. 1979) (concluding that the military judge's advice to
    the defendant that he faced the possibility of twenty years in jail
    instead of the correct amount of ten years, rendered the defendant's
    pleas of guilty improvident); United States v. Clifford, 1 M.J. 738,
    739-40 (C.M.A. 1975) (finding that the defendant was prejudiced by
    the military judge imposing sentence under the erroneous belief that
    the defendant was eligible for three more years of confinement than
    the law would allow, and that the defendant was also prejudiced by
    the convening authority reviewing the proceedings under this same
    erroneous belief).

[^168]: Castrillon-Moreno, 7 M.J. at 415. This court did recognize that
    a defendant could receive such incorrect advice and still not be
    entitled to relief if he were "intelligently indifferent to an error
    by the trial judge as to this aspect of the maximum authorized
    punishment and . . . still desired to plead guilty." *Id*. "But even
    a plea entered under such circumstances need not be vacated where
    the record affirmatively reflects that the accused is aware of the
    possibility that the actual legal maximum sentence may be less than
    that perceived at trial and, nonetheless, persists in his plea."
    Hunt, 10 M.J. at 223. "\[T\]he Court has not adopted a mathematical
    formula to resolve an issue of this kind. . . . All the
    circumstances presented by the record must be considered to
    determine whether misapprehension of the maximum \[possible\]
    sentence affected the providence of guilty pleas." United States v.
    Walls, 9 M.J. 88, 91 (C.M.A. 1980) (citations omitted).

[^169]: The reader is reminded that the Air Force Court of Criminal
    Appeals held in *Eatmon* that the military due process attack on the
    *Mincey* approach was unwarranted since MSgt Eatmon had not received
    anything like the threatened two hundred plus years in confinement.
    United States v. Eatmon, 47 M.J. 534, 538 (A.F.C.C.A. 1997),
    *aff'd*, 49 M.J. 273 (1998).

[^170]: United States v. Milburn, 8 M.J. 110, 114 (C.M.A. 1979).

[^171]: *See supra* Part II.

[^172]: *See* United States v. Jackson, 835 F.2d 1195, 1199-1200 (7^th^
    Cir. 1987) (Posner, J., concurring) (arguing that persons who are
    thirty-five years old would be unlikely to be further deterred in
    any significant way by the possibility of spending the rest of their
    lives in jail for bank robbery versus a maximum punishment of twenty
    years in jail without the possibility of parole).

[^173]: *See* MCM, *supra* note 2, Part IV, ¶¶ 49, 68 (Article
    123a--Making, drawing, or uttering check, draft, or order without
    sufficient funds and Article 134--Check, worthless, making and
    uttering--by dishonorably failing to maintain funds).

[^174]: *See generally* [Robert Sherrill, Military Justice is to Justice
    as Military Music is to Music]{.smallcaps} (1969).

[^175]: *See supra* notes 42-44 and accompanying text.

[^176]: Stealing money through purely nonviolent means is qualitatively
    different from perpetrating violence upon another or threatening
    another with violence. *See generally* [American Bar Association
    Standards for Criminal Justice: Sentencing,]{.smallcaps} Standard
    18-3.3(a)(i) (3^rd^ ed. 1994) \[hereinafter [ABA
    Standards]{.smallcaps}\] (recognizing a need to treat violent
    offenses differently from non-violent offenses). No matter how
    extensive the former misconduct in terms of the number of acts or
    the amount of money stolen, there has to be a hard ceiling of a
    reasonable number of years that could be imposed for that
    misconduct. That ceiling should be around twenty years. *See infra*
    Part IV. Of course, within limits, reasonable minds can differ on
    that number.

[^177]: *See* Spaziano v. Florida, 468 U.S. 447, 461 (1984)
    (characterizing the principle of retribution as including a
    community outrage component); United States v. Bramel, 29 M.J. 958,
    968 (A.C.M.R. 1990) (recognizing that in furtherance of retribution
    military members can be called upon to express the broader military
    society's outrage at a defendant's crimes).

[^178]: In the context of the capital punishment debate it has been
    argued that societal outrage is either the same as, or not far from,
    societal vengeance and that vengeance is not an emotion or desire
    that should be indulged by the state. *See* [Mark Tushnet, The Death
    Penalty]{.smallcaps} 4 (1994).

[^179]: *See* Harris v. Alabama, 513 U.S. 504, 518 (1995) (Stevens, J.,
    dissenting) ("An expression of community outrage carries the
    legitimacy of law only if it rests on fair and careful
    consideration, as free as possible from passion or prejudice.").

[^180]: While it is true that some of these more serious crimes do carry
    the possibility of a death penalty, as a practical matter the vast
    majority of these offenders face life in prison as their worst case
    scenario. *See*, MCM, *supra* note 2, Part IV, ¶ 43e (capital
    punishment for murder).

[^181]: In this regard, the *Mincey* approach challenges one of the
    basic tenets of the law--to treat like cases alike. *See* Vacco v.
    Quill, 521 U.S. 793 (1997).

[^182]: *See generally* [ABA Standards]{.smallcaps}, *supra* note 175,
    18-3.3(a)(ii) (recognizing that the gravity of an offense can vary
    depending upon the amount of money or quantity of goods stolen).

[^183]: *See* MCM, *supra* note 2, Part IV, ¶ 49e(1)(b) (stating that
    the maximum confinement for writing a bad check in excess of \$100
    with an intent to defraud is five years confinement).

[^184]: *See id*.

[^185]: In all likelihood, the vast majority of court-martial panels
    would view the ability to adjudge a sentence of this magnitude in a
    bad check case as absurd. These panels are not the concern. To the
    contrary, most panels will probably react the same way the *Eatmon*
    panel did when it passed sentence. It is the renegade or misguided
    panel (or the one being manipulated by a malevolent or mistaken
    judge) that causes distress. *Mincey* makes it possible for such
    panels to run amok in the courtroom and sentence an undeserving
    writer of bad checks to a lifetime in jail. It is the potential for
    this extraordinary injustice that requires action to nullify
    *Mincey.*

[^186]: The following example is based upon a prosecution for violating
    Article 123a, UCMJ. MCM, *supra* note 2, Part IV, ¶ 49a (proscribing
    making, drawing uttering, or delivering a check for the procurement
    of any article or thing of value with an intent to defraud).

[^187]: The state of Louisiana employs a system that is similar to the
    one being proposed in this article. It contains the 180-day device
    and it breaks out various categories of potential maximum
    confinement times based upon aggregate amounts stolen instead of the
    amount of each individual check. *See* [La. Rev. Stat.
    Ann.]{.smallcaps} § 14:71 (West 1998).

[^188]: For example, if an offender passed \$1500 in bad checks in the
    first 180 days and \$730 in bad checks in the next forty days, that
    offender could be charged with two specifications and could face a
    total of seven years in confinement (five years for the first 180
    days and two years for the remainder of the checks).

[^189]: *See supra* notes 55-57 and accompanying text.