CORRECTED COPY



## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before the Court Sitting En Banc

UNITED STATES, Appellee

v. Chief Warrant Officer Two LAMONT S. JESSIE United States Army, Appellant

ARMY 20160187

Headquarters, 1st Cavalry Division Rebecca Connally, Military Judge

Lieutenant Colonel Ore n McKnelly, Staff Judg e Advocate (pretria l) Lieutenant Colonel Scott E. Ling er, Staff Judge Ad vocate (post- trial)

For Appellant: Captain Heather M . Martin, JA (argued); Lieuten ant Colonel Tiffany M. Chapman, JA; Captain Joshua B. Fix, JA (on brief); Lieutena nt Colonel Tiffany D. Pond, JA; Captain Zachary Gra y, JA; Captain Heather M. Marti n, JA (on reply brief); Captain Zachary Gray, JA ; Captain Heather M. Martin, J A (on supplemental brief). Lieuten ant Colonel Tiffany D. Po nd, JA; Major Todd W. Simpson, JA; Captain Zachary Gray, JA; Captai n Heather M. Martin, JA (on sec ond supplemental brief).

For Appellee: Captain Marc B. Sawyer, JA (argued); Colonel Ta nia M. Martin, JA; Major Michael E. Korte, JA; Capt ain Marc B. Sawye r, JA (on brie f); Colonel Steven P. Haight, JA; Lieutenant Colone l Eric K. Staffo rd, JA; Major H annah E. Kaufman, JA; Captain Marc B. Sawyer, J A (on supplemental briefs).

28 December 2018

--------------------------------- MEMORANDUM OPINION

---------------------------------

This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

WOLFE, Senior Judge:

Chief Warrant Officer Two (CW2) Lamont S. Jessie asks us to fin d that his sentence is inappropriate. 1 Based on matter submitted for the first time on appeal,

1 Appellant also asserts that his sentence is inappropriate beca use of unreasonable

(continued . . .)JESSIE—ARMY 20160187

2 appellant argues that we should u se our Article 66 (c), UCMJ, au thority to reduce his prison sentence because of his c onditions of confinement. Spec ifically, appellant argues that the confinement facility’s vi sitation rules violate his First and Fifth Amendment rights by depriving h im of contact with his biologica l children. We determine this is not an appropr iate use of our A rticle 66(c) a uthority.

An officer panel sitting as a ge neral court-mart ial convicted appellant, contrary to his pleas, of two specifications of sexual assault of a child over the age

of twelve but under th e age of sixte en, one specification of co nduct unbecoming an officer, and one spec ification of adultery, in violation of Art icles 120b, 133, and 134, Uniform Code of Military Justi ce, 10 U.S.C. §§ 920b, 933, and 934 (2012) [UCMJ]. The panel sent enced appellant to a dismissal from the service, confinement for four years, and a reprimand. The convening authority appro ved the adjudged

sentence.

BACKGROUND

After being convicte d of a sexual offense against a child, app ellant has been denied any form of contact with his children whi le in military confinement.

A. The Offense

In June 2012, in antic ipation of deployment, appellant moved hi s family from Georgia to Oklahoma. 2 To save money, appe llant moved in wit h his close friend Staff Sergeant (SSG) LE and her family. The family consisted o f SSG LE, her husband Sergeant Firs t Class (SFC) SE, an d their two daughters TE and ME. The family lived in a three bedroom apartment, with the master bedr oom on one side of the apartment and the other tw o bedrooms next t o each other on the other side of the apartment. While staying with SSG LE’s family, appellant staye d in a bedroom next

to the children’s bedroom. Dur ing this timeframe, appellant’s daughter ZR came to visit appellant and stayed wi th him at SSG LE’s house.

During appellant’s stay with SS G LE’s family, ap pellant began to have sex with thirteen-year-old TE. Appe llant and TE continued to commu nicate after TE

moved to Colorado and appellant deployed. Their communication consisted of text messages, phone calls, an d video messaging.

(. . . continued) post-trial delay. We disagree. We have als o considered the ma tters personally asserted by appell ant pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982), and fin d they lack merit.

2 Appellant is married and has tw o children with h is wife. He a lso has a daughter, ZR, from his first marriage.JESSIE—ARMY 20160187

3 In September 2013, SSG LE discovered text messages between appe llant and TE on TE’s phone. She and her husband called appellant immedia tely to confront him about the messages. He did not deny the messages but said they were being misinterpreted. Staff Sergeant LE also confronte d TE, who init ially denied having sex with appellant. Staff Sergea nt LE reported the incident to the police. In the course of the investigation, TE ad mitted to having sexual relat ions with ap pellant on

several occasions.

At trial, the panel rejected appellant’s argument that he was a platonic mentor to TE. We concur with the pan el’s weighing of the evidence. T he panel sentenced appellant to a dismissa l from the service, confinement for four years, and a reprimand.

B. Conditions of Confinement

In March 2016, appellant was sent to the Joint Reg ional Confine ment Facility (JRCF) at Fort Leavenworth, Kansa s, to serve his sentence. At the time, the JRCF policy on visitation was that inm ates convicted of a child sexu al offense could have no contact with any chi ldren – to inc lude their biological chil dren – unless they received an exceptio n to policy. However, p rior to an exceptio n to policy being considered, an inmate w as seemingly re quired to complete a trea tment program for sexual offenders. To participate in the sexual offender treatm ent program, appellant complains would require admitting the co nduct underly ing the of fense in question. This policy was codified in JRCF R egulation 600-1 and Military Correctional Complex Standard Operating Procedure (MCC SOP) 310.

Effective 7 November 2018, the po licy was amended to allow pris oner contact
with children under c ertain conditions and after an individuali zed assessment of the inmate’s risk. This change in p olicy occurred af ter briefing b y the parties, after oral argument on the case, and after several r ounds of both parties moving to supplement

the record with additional affi davits and evidence. We do not know whether appellant will be allowed direct o r indirect conta ct with his c hildren under the new policy.

For the purposes of cons idering this assignm ent of error, we li mit our review to the policy as it ex isted from when appe llant arrived at the confinement facility in

March 2016 until the policy was amended in November 2018. 3

3 We see no substantive differenc es between the applicable versi ons of MCC SOP 310 during this timeframe. As su ch, we do not ne ed to stratify our analysis and assumptions.JESSIE—ARMY 20160187

4 Within this timeframe , we will assume for our purposes that MCC SOP 310 prohibited all direct and indirect contact with appellant’s bio logical children. We

further assume that a ppellant has exhauste d all administrative means of challenging the policy. 4

DISCUSSION

A. The limits of our authority

Appellant alleges th at the confinement f acility policies prohib iting him from seeing his biological children we re unconstitutional, at least as applied to him. As a preliminary matter, we briefly discuss this court’s limited rem edies.

This court has no authority to dir ect change to the policies of military confinement facilities. Indeed, we have no authority to superv ise the practice of military justice generally. See Clinton v. Goldsmith , 526 U.S. 529 (1999). Regardless of how infamous or hei nous the alleged constitutiona l violations might be, we may not order injunctive r elief directing the facility t o amend its p olicies.

This lack of authority reflects that the respons ibility of admi nistering the military justice system is shar ed between commanders, staff jud ge advocates, military judges, and others. See, e.g., Bergdahl v. Burke , ARMY MISC 20150624, 2015 CCA LEXIS 431 (Army C t. Crim. App. 8 Oct. 2015); United States v. Walker

, ARMY 20160239, 2018 CCA L EXIS 506 (Army Ct. Crim. App. 22 Oct. 2018); UCMJ arts. 26(a), 27(b)(2), 69, a nd 73 (responsibilities of the Judge Advocate General in designatin g military judges, cer tifying the qualific ations of counsel, conducting appellate review, an d acting on petitions for new tr ials); UCMJ arts. 32, 34, 60, 71, and 138 (resp onsibilities of conven ing authorities in appointing preliminary heari ngs, referring ca ses to trial, approving and e xecuting sentences, and hearing complaints against commandi ng officers).

Our authority, which i s delineated by Artic le 66, UC MJ, is to d etermine the

correctness of the case in front of us. More technically, we “ may act only with respect to the findings and sentence as app roved by the conveni ng authority.” Article 66(c), UCMJ. Ordering a prison commandant to change a prison policy, for example, would not be acting on the findings and sentence. We have found no authority to the con trary. Indeed, appellant acknowledges our limitations and instead asks this court to reduce his sentence in light of the confinement policies to which he was subjected.

4 To our knowledge, appellant has not sought injunctive relief f rom a court of competent juri sdiction.JESSIE—ARMY 20160187

5 The November 2018 intervening c hange to the pri son policy does not alter our analysis. Even assum ing that recent polic y changes would moot appellant’s claim going forward, appellant was subje cted to the old policy for an extended period of

time. If this would warrant sen tence relief, the fact that the policy has been modified would not alter the appr opriateness of appellant’s sen tence.

Accordingly, we next add ress our authority t o grant appellant’s requested

relief.

B. May we consider sentencing matter submitted for the fi rst time on appeal?

In United States v. Gay, our sister court a t Joint Base Andrews considered

whether to reduce the accused’s sentence based on post-trial co nditions of

confinement. 74 M.J . 736 (A.F. Ct. Crim. App. 2015). After co nsidering that the

accused was unnecessari ly placed in solitar y confinement, the A ir Force Court

determined the sentence was too severe and cut it in half. Id . “A court-martial shall not adjudge a sentence to solitar y confinement . . . .” Rule f or Courts-Martial (R.C.M.) 1003(b)(7).

Upon certification, see Article 67(a)(2), the Cour t of Appeals fo r the Armed Forces (CAAF) was asked to deter mine whether the Courts of Crim inal Appeals (CCAs) have the auth ority under Article 66 to grant sentence ap propriateness relief for post-trial confinement cond itions that do not amount to cru el and unusual punishment. United States v. Gay , 75 M.J. 264 (C.A.A. F. 2016). The CAAF

determined that the CCAs have “d iscretionary sentence appropria teness authority” and may reduce a sentence based on “a legal defic iency in the p ost-trial confinement

conditions.” Id . at 269.

Appellant persuasively argues that under Gay we may reduce appellant’s sentence based on legal deficiencies in his post-trial confinem ent conditions. However, our unde rstanding of Gay is shaped by a c ouple of other con siderations.

First, in Gay, the accused’s request for sent ence relief was b ased on matter that was previously submitted to the conv ening authority. See 74 M.J. at 739-41.

An accused’s R.C.M. 110 5 submissions are a proper means to plac e matter in the

record for a CCA to c onsider when conducting a sentence appropr iateness review. See United States v. Beatty , 64 M.J. 456, 458 (C.A.A.F. 2007). Here, by contrast,

none of the matter su bmitted for our consideration was reviewed by the convening authority.

Second, in Healy , the CAAF stated, “Congress ne ver intended that a Court of Military Review would be under any duty t o receive a dditional i nformation on sentencing after the convening authority had acted.” 26 M.J. at 396-97. “[A]fter the convening authority has acted, the Code provides no way for bri nging to theJESSIE—ARMY 20160187

6 attention of the Court of Military Review information that purp ortedly bears even on

sentence approp riateness.” 5 Id. at 396; accord United St ates v. Boone, 49 M.J. 187, 193 (C.A.A.F. 1998) (“[ Healy ] lives in peace wit h our holding that consideration of

sworn affidavits from counsel is a proper fact-fi nding act of a Court of Criminal Appeals.”).

We therefore understand the CAAF’s decision in Gay to be that the Air Force Court acted within its authority when it reduced the accused’s sentence based on a legal deficiency in the post-trial confinement conditions, but not that the Air Force Court was obligated to reach t hat conclusio n. Accordingly, we will assume that we may consider appellan t’s submissions.

Thus, the issue for us to determine is n ot whether w e “must” or “must not” consider appellant’s post-trial confinement conditions when det ermining appellant’s sentence appropriat eness, the questio n is whether we should.

C. Eighth Amendmen t and Article 55 ca ses distinguished

Before addressing whether we should consider matter submitted for the first time on appeal regarding the app ropriateness of a ppellant’s sen tence, we first distinguish cases that involve claims of cruel and unusual puni shment.

In United States v. White , 54 M.J. 469 (C.A. A.F. 2001), the Air Force Court had determined that it lacked jur isdiction to consider a claim that the accused was subject to cruel and unusual punishment while confined. 6 Our superior court disagreed and stated the “gran t of authority” under Article 67 includes “determin[ing] on dir ect appeal if the ad judged and approved se ntence is being

executed in a manner that offends the Eighth Amendment or Artic le 55.” 7 Id . at 472.

The court went further and stated that Article 67 “includes aut hority to ensure that the severity of the adj udged and approved s entence has not been unlawfully increased by pris on officials.” Id . The CAAF found the CCA had erred in determining it lacked jurisdi ction to consid er the claim. Id .; see also United States v. Erby , 54 M.J. 476, 478 (C.A.A.F. 2001) (finding the CCA erred when it concluded that it “lacked authority” to re view appellant’s claims of crue l and unusual punishment).

5 And nor would it be appropriate for us to consider government submissions that

showed an accused had been violent while confined.

6 See United States v. White , ACM 33583, 1999 CCA LEXIS 220 (A.F. Ct. Crim App. 23 Jul. 1999).

7 Because the CAAF in White found no violatio n, the court did not n eed to determine what the appropriate remedy would be under Article 67.JESSIE—ARMY 20160187

7 Here, appellant does not allege that he is entitled to relief f or a violation of the Eighth Amendment or Article 55. Such a claim would require appellant to “prove, as an objective matter, that the alleged abuse or haras sment caused ‘pain’ and, as a subjective matter, tha t the officer in question acted with a sufficiently culpable state of mind.” White , 54 M.J. at 474 (quoting Freitas v. Ault , 109 F.3d 1335, 1339 (8th Cir . 1997)). This i s an exception ally hard sta ndard to meet. Nothing we have reviewed leads us to fault appellant for not ra ising an Eighth

Amendment or Article 55 claim.

We do not read White or Erby as establishing an exc eption or overruling Healy . That is, we do not read the Article 55 ca ses as establishing that we must consider all matter affecting se ntence appropriateness submitte d for the first time on appeal. Specifically, we do not read White

, Erby , (or Gay ) as requiring this court to consider all post-tria l submissions, not pa rt of the authentica ted record, as long as they can be framed as asserting a legal deficiency in the post- trial confinement

conditions. 8 Such an interpretation wou ld require that we read Healy as being implicitly overturne d. This we may not do. United States v. Davis , 76 M.J. 224, 228 n.2 (C.A.A. F. 2017).

A “legal deficiency” may be const itutional, statu tory, or regul atory. We have

found no case where our superior cour t, outside of Article 55 c laims, has ever stated that we are required to determine the appropriateness of a sent ence based o n a claim of a legal deficiency: (1) following the c onvening authority’s action; and (2) based

on matters submitted for the first time on appeal.

8 All manner of problems can be fr amed as a legal deficiency, an d have incl uded the following (in just one case): (1) inade quate cell ventilation; (2) improper cell lockdown averaging 9 1/2 hours per day; (3) p resence of l ead paint; (4) unsanitary food preparation, storage, d ining, and dishwashi ng; (5) crowded and noisy dini ng area; (6) insufficient time to consume meals; (7) improper cell assig nment with inmates known to be violent; (8) housing with inmate s who are known to have tuberculosis or HIV; (9) requirement for milit ary haircuts; (1 0) excessive s crutiny while using bathroom, showering, a nd changing clothes; ( 11) the requirement to stand at

attention and render formal mili tary courtesies; (12) the inabi lity to refuse to take prescribed medication; (13) me dications dispen sed by unqualifie d and untrained personnel; (14) mattresses not c leaned or sterili zed between us ers; (15) insufficient smoke or fire detection equipmen t; and (16) excessive USDB phon e call rates.
Marrie v. Nickels, 70 F. Supp. 2d 12 52, 1255-56 (D. K an. 1999).JESSIE—ARMY 20160187

8 D. Should we co nsider appellant’s post-trial submis sions and claims?

If we may consider appellant’s claims for post-trial sent encing relief, but are not required to, the question next becomes whether we should . For several reasons,

we think not i n this case.

Starting broadly, the Supreme C ourt of the United States has st ated “courts are ill equipped” to re view problems regarding prison administr ation, and that it is not “wise for [a court] to second -guess the expert administrato rs on matters on which they are be tter informed.” Bell v. Wolfish , 441 U.S. 520, 531, 544 (1979) (quoting Wolfish v. Levi , 573 F.2d 118, 124 ( 2nd Cir. 1978)); see also Jones v. North

Carolina Prisoners’ Labor Un ion, Inc. , 433 U.S. 119 , 128 (1977); Procunier v.

Martinez , 416 U.S. 396, 404 -05 (1974); Cruz v. Beto , 405 U.S. 319, 32 1 (1972);

Meachum v. Fano , 427 U.S. 215, 228-29 (1976 ). “Prison admini strators therefor e should be accorded w ide-ranging deference in the adoption and e xecution of policies and practices that in t heir judgment are needed to preserve int ernal order and discipline and to maintain institutional security.” Bell , 441 U.S. at 547.

Courts do sometimes re view conditions of c onfinement – and some times must. The Supreme Court’s guidance cite d above is a cal l for caution, not abdication. But

we nonetheless th ink this case remains unsuitable for an Articl e 66(c) sentence appropriateness assessment.

Were we to find appellant’s claim meritorious, we would then ne ed to determine whether to reduce appe llant’s sentence. That is, we would need to determine not only that the prev ious version of MCC SOP 310 was wrong, but also weigh the degree of wrong. We would esse ntially determine (eve n if left unstated in the opinion) what the confinemen t facility policy for child sex offender contact with

children should b e. The effect, and perhaps the intended effec t according to the dissent, would be for this Article I Court to use our authority to lower sentences to force (or at least heav ily incentivize) a change in policy we f ind offensive. Our Article 66(c) sentence appropriat eness power is a poor tool for such an endeavor.

Additionally, this case i s distinguishable from Gay. In Gay, the Air Force

Court was not asked t o review the correctne ss of published poli cies and regulations.

The evidence in Gay was that the accuse d was placed in solitary confineme nt, at the direction of Air Force personne l, “without expl anation” and for “[n]o valid reason.” 74 M.J. at 739, 743. And since a c ourt-martial m ay not sentenc e an accused to solitary confinement, R.C.M. 10 03(b)(7), the Air Force Court di d not have to think too hard in resolving the matter. Gay is a case where procedures were not followed. Thus, while a CCAs sentence appro priateness power might have be en the appropriate

tool in Gay , that does not mean it is the right one here.JESSIE—ARMY 20160187

9 Relatedly, there are f our Courts of Criminal Appeals. Assuming we weighed in (to whatever greater or lesser extent) a s to what is an appr opriate policy for child

sex offender contact with childr en, our opinion w ould be co-equ al with the appellate judges of our sister courts. A p rison official should not be e xpected to respond to four different courts or operate d ifferent policie s for prisone rs depending on their

service.

And then, even were we t o attempt to use sen tence appropriatene ss review to effect policy change, it is a blunt tool. Were we to reach app ellant’s claim, the legality of MCC SOP 310 would be only a small pa rt of our overa ll sentence appropriateness review. We must first cons ider appellant’s cri mes and the sentencing evidence introduced at trial. If we determined that appellant’s adjudged sentence was lenient, we might approve appellant’s sentence not withstanding that we agree with his claims about his post-trial confinement conditio ns.

We must also giv e some consideration to t he statutory limits of our authority. Were we to act on appellant’s cl aim, we would be at the outer e dge of our authorizing statutes. Consider t he following text ual limitatio ns:

(1) Article 54(a), UCMJ, states that each court-martial “shall keep a separate record” and that “the record shall be authenticated by the sign ature of the military judge.” Here, we are being asked to reduce a sentence based en tirely on a record that was never authenticated by the military judg e, based on in formation that was neither adversarially tested nor admitted under the Military Ru les of Evidence.

(2) Article 66(c) requires that when “considering the record” t o determine whether a sentence “should be ap proved,” we must recognize that the trial court saw

and heard the evidence . Here, we are asked to determine whethe r the sentence should be approved bas ed on information that neither the conven ing authority nor

the trial court ever saw.

(3) And, our authorit y under Article 66(c) is limited to the fi ndings and sentence as approved by the convenin g authority. But here, we are asked to provide

relief based on con duct that happened after the convening author ity approved the

sentence.

Now, Gay can be understood as extending our authority to consider such

matter. 9 If correct, then these consider ations are not d ispositive nor jurisdictional.

9 It is not clear whether the CAAF ’s decision in Gay would be differ ent if the evidence of the accused’s solitary confinement had been submitt ed for the first time on appeal, rather than, (as it appears from the CCA opinion), h aving been submitted to the convening authority.JESSIE—ARMY 20160187

10 But to the extent that we have discretion, the farther we get f rom our core function under Article 66(c), the greate r the argument for demurral.

Lastly, appellant’s claim inevitably involves determining the o uter limits of

what is an a cceptable prison policy for familial co ntact by con victed child sex offenders. That we might consid er the claim does not mean we s hould. This is a claim we are poorly pos itioned to consider, and that within the structure of the military justice system is better entrusted to a determination by persons other than

this Article I court.

Setting aside the broader policy concerns and looking more narr owly at the facts of this case, we reject appellant’s claim that the record shows he poses no

threat to his children and that he therefore sho uld have a redu ced sentence. We find

as fact 10 that appellant committed a sexual crime against a close family friend. We further find that appe llant used the excus e of babysitting his daughters to invite Ms.

TE to Texas where he intended to c ontinue his sexu al exploitati on. That is, appellant attempted to use his da ughters to play some role in a plan for the continued sexual exploitation of Ms. TE. A ppellant’s daughters are now ( or soon will be) about the same age as Ms. TE was when appel lant acted on his se xual attraction

towards a minor.

These findings do not mean that appellant has forever forfeited all rights to

familial association. But it doe s mean that we should not pres ume how appellant would fare when given a n individualized risk assessment. If an assessment reveals that appellant should be denied all access to his chi ldren, the n appellant has suffered no prejudice under any policy.

In other words, the a mount of any sentencin g relief appellant m ight be due will likely turn on whether he w ould be allowed t o have contact with his children under the new policy. (And of c ourse appellant may then compla in that the new policy is also uncons titutional or is bein g unconstitutionally applied). To grant relief today would re quire us to eit her speculate about the out come of the confinement facility’s resolutio n of appellant’s f uture individ ual assessment, 11 or delay making a decision until the record is more developed. If there was no other

10 We may make factual findin gs based on th e record. See Article 66(c), UCMJ. We may not make credibility determi nations based on post-trial aff idavits. See United

States v. Ginn , 47 M.J. 236 , 248 (C.A.A.F. 1997). Our f indings here are base d on the evidence that was litigated at trial, and therefore fall ou tside of Ginn.

11 Our superior court has stated t hat we may not order relief to avoid determining

whether there is error. See United States v. Fagan , 59 M.J. 238 (C.A .A.F. 2004).JESSIE—ARMY 20160187

11 forum for appellant to seek relie f from a policy h e claims is u nconstitutional, this

latter course of action m ight be appropriate.

But here, to the exten t that appellant’s claims are meritorious , there exists a

court that has the aut hority to order actual (i.e., injunctive) relief. The Tenth Circuit has determined that military prisoners at Fort Leavenworth may file suit in U.S. District Court seeking injunctive and declaratory relief for op pressive prison

conditions. See Walden v. Bartlett , 840 F.2d 771, 774-75 (10 th Cir. 1988) (finding such requests are not specifically barred by Feres v. United States , 340 U.S. 135 (1950)). And the abi lity to grant injuncti ve and declaratory r elief are not the only benefits. Our jurisdiction over this case exists only during t he snapshot in time between when the convening author ity acts and whe n we issue our judgment. A U.S.

District Court is not so constrai ned. Likewise, similar claims for prisoners of

different services can be considered by a f ederal district cour t, rather than by four

different service court s of criminal appeal s. And, to the exte nt that the CCAs and a federal district court are asked to address the same issue, thi s might invite

confusion. 12

Accordingly, we determine that i n this case we s hould not consi der appellant’s post-trial submission s in his claim for sentencing relief. Our decision today is case specif ic, and should not be un derstood as prohibi ting or disincentivizing similar (or dissimilar) requests. 13 Article 66(c) requires individual

consideration of each case.

Nor should our conclusi on be in any way int erpreted as a valida tion (tacit or otherwise) of the previous ver sion of MCC SOP 310 . Those in co mmand of military prisons should execute their duties faithfully, regardless of t he presence or absence of any judicial fi nger-wagging.

12 In at least one case , we have found oursel ves in a do-loop wit h the federal court; each court not acting because the other had not yet acted. Gray v. Belcher , No. 5:08-cv-03289-JTM, 2016 U.S. Dis t. LEXIS 149574 (D. Kan. 26 Oct . 2016) (declining to consid er coram nobis claim be cause ACCA had not y et acted); Gray v.

United States , 76 M.J. 579 (Army Ct . Crim. App. 2017) (de clining to grant re lief

because of the availab ility of relief in the Kansas district co urt). The do-loop was only terminated when ou r superior court dec lared Gray’s militar y appeals complete. United States v. Gray , 77 M.J. 5 (C.A.A.F. 2017).

13 We specifically commend appellate defense counsel for the stel lar quality of their representation.JESSIE—ARMY 20160187

12 CONCLUSION

Upon reconsiderat ion by the court en banc, the parties’ motions to attach

documents that relate t o MCC SOP 310 and the restrictions on ap pellant’s familial visitation rights are DENIED. 14

Upon consideration of the recor d, the findings of guilty and th e sentence are

AFFIRMED.

Senior Judge MULLIGAN, Judge FEBBO, Judge SALUSSOLIA, Judge ALDYKIEWICZ, and Judge FLEMING concur.

14 Our reconsideration on the motions does not remove the documen ts from the file, nor do we seek to prev ent our dissenting colleagues from referr ing to documents that they would both adm it and consider.JESSIE—ARMY 20160187

13 Judge FEBBO, concurring:

I fully concur with the majority’s result. I write separately to raise my

concern that we woul d actually go beyond the outer edge of our Article I authority if we were to reduce appellant’s se ntence because, f or the first t ime on appeal, appellant challenges the constitutionality of the prison’s sexu al offender treatment

and child acce ss policy.

Given the historic lows in the number of courts-martial cases, I am not

worried about floodin g the appellate proce ss nor the sky fallin g. See Hagler, J., dissenting, infra . Instead, I am concerned that we are entertain ing crossing th e horizon of our Article I jur isdiction as outlined in Clinton v. Goldsmith , 526 U.S. 529 (1999). If we have jurisdiction to red uce appella nt’s sent ence, based on matter

that was never raised at trial a nd was never pre sented to the c onvening authority, it

is difficult to see how anything bu t the exercise of our own di scretion (i.e. the

measure of our own fee t) limits the reach o f our review under A rticle 66(c), UCMJ.

This new frontier of prisoner litigation could include, among o ther areas of the law, addressing 42 U.S.C. § 1983 civil rights claims, famil y custody and child welfare laws, and navigating the limits and rules that Congress establishe d under the Prison Litigation Refor m Act, Pub. L. No. 104 -134, 110 Stat. 13 21 (1996). As military prisoners a re sometimes ke pt in non-milit ary facilitie s, our opinions in this area could purport t o reach prison policies in the Federal Bure au of Prisons and state agencies.

Perhaps most troublesome, were th is court to adop t an expansive view of what matter is properly before us, our decisions could also impact t he government’s legitimate interest in the safety and welfare of civilian child ren. In deciding family custody and visit ation issues, our opinion could be misinterpre ted. Social workers, family law attorneys, and others might not see that our opinion is technically limited to determining the appropriateness of appellant’s sentence. Th ere is some danger

that such a decision b y us could be misrea d by practitioners wh o are unfamiliar with military justice. After all, mos t courts do not go about decla ring prison policies unconstitutional unless they have the authority to do something about it.

I believe that United States v. Gay , 75 M.J. 264 (C. A.A.F. 2016), is distinguishable in two significant ways from the facts of this case. First, Gay was a case in which the accused’s cond itions of confinem ent were dire ctly raised to the convening authority. That is, t he matter consid ered by the Air Force Court of Criminal Appeals in Gay was part of the sentence a s approved by t he convening authority. This is not the case here. Second, the policies at issue in this case are not comparable to the issues in Gay . Appellant asks us to go w ell beyond the authority to decide solitary confinement issues addressed in Gay with the poten tial to impact the safety and welfare of civilian children.JESSIE—ARMY 20160187

14 Our court has the wis dom and experience to m ake sentence approp riateness determinations of military courts-martial under Article 66(c). Our wisdom does not extend into this new horizon. Article III courts give us defer ence to decide military matters. Similarly, we should not reach int o an area of the la w that is the province of another court system.

Appellant’s primary avenue of rel ief has always b een in the mor e appropriate

forum of an Article III court. O nce raised, the federal court may or may not conclude that the prison policy is unconstitutional. Similarly , the federal court may also enjoin the prison from implementing i ts policy and therefo re allow alternative telephonic and letter contact with childre n. However, before d eciding the issue, the

Article III court woul d have the benefit of depositions, civil discovery between the parties, and possibly a full evidentiary h earing. The Article III court would also have the benefit of having authority to order injunctive relief, enforce consent decrees between the parties, cons ider the wide-range applicatio n and consistency of Federal Bureau of Prison regulations, and order an agency to ac tually cha nge its policy if unconsti tutional.

Although the diss ent recognizes our cour t does not hav e jurisdi ction to control prison policy, it is cle ar that a change in policy would be the outcome of their ruling. Furthermore, the dissent’s conclu sion is rea ched on a limited appellate

record with no evi dentiary hearing , conflicting a ffidavits from experts, no actual

exhaustion of administrative re medies, and not knowing the actu al impact on the prison resources to screen te lephone calls or letters.

Turner v. Safley provides a four part test, but it is a test best designed for a court that can actua lly grant injunctive r elief. 482 U.S. 78 ( 1987). I think it highly unlikely that when writing Turner , the Supreme Court cons idered how an Article I, lower-intermediate appellate court would apply Turner in determining whether appellant’s sentence s hould be approved.

It is true that our superior court has recognized our court as “the proverbial 800-pound gorilla” when protecting the rights of soldiers. See Schasberger, J., dissenting, infra (citing United States v. Parker , 36 M.J. 269, 271 (C.M.A. 1993)). However, in comparison to our ability to grant appellant actual relief, an Article III court is the proverbia l M1A2 Abrams tank. For the purpose of p roviding appellant with the most appropriate relie f, it is a tank loaded with the authority to potentially

determine all of appellant’s complaints in his favor. As an Ar ticle I court, we should let Congress decide whether to “uncage” our authority an d allow us to wade into the constitutionality of p rison regulations for sex offend er treatment, scope of

child sex offender communication with childr en, risk assessment for child sex offenders, and wheth er association and communicati on is in the best interest of protecting civilia n children.JESSIE—ARMY 20160187

15 Our Article 66(c) authority is indeed broad, powerful, and may sometimes be the last safeguard in providing a just mili tary criminal justic e system for a n accused. But we should not fly too far f rom our statutor y Article 66(c) authority. If we exceed our authority a nd fail to exercise restraint, we may ins tead have our wings clipped.JESSIE—ARMY 20160187

16 Judge SCHASBERGER, dis senting, joined by Chi ef Judge BERGER, Se nior Judge BURTON, and Judge HAGLER:

I respectfully dissent.

In reviewing Article 66(c), our superior c ourt has described ou r court as “the proverbial 800-pound gorilla when it comes to their ability to protect an accused.”

United States v. Parker , 36 M.J. 269, 2 71 (C.M.A. 1993). I do not believe we should lock this gorilla in a cag e when it comes to potential v iolations of an appellant’s consti tutional rights.

We have an obligation un der Article 66(c), U CMJ, to only affirm “the sentence or such part or amount of the sente nce as [we find] co rrect in law and fact and determine[], on the basis of the entire record, should be a pproved.” T hat record primarily consists of evidence admitted at trial and prior to a ction, but we may also consider evidence of post-trial confinement conditions as part of our sentence appropriateness determination if there is a legal deficiency in those conditions. United States v. Gay , 75 M.J. 264, 267 ( C.A.A.F. 2016). 15

15 The majority overs tates the relevanc e and effect of United States v. Healy , 26 M.J. 394 (C.M.A. 1984), and i gnores the underlyin g analysis in both White and Erby

.

First, in Healy , our superior court con cluded that we have “no duty to receive

information or data that purports to be relevant only to clemency .” Id . at 397 (emphasis added). This is not a clem ency case. Unlike Healy , appellant is seeking sentence appropriatenes s relief based on “a legal deficiency in the post-trial

confinement co nditions.” Gay , 75 M.J. at 269. The court in Healy perfectly explained the difference: while “clemency involv es bestowing me rcy – treating an accused with less rigor than he deserves,” “sentence appropriat eness involves the judicial function of assuring that justice is done and that the accused gets the punishment he deserves. ” 26 M.J. at 395.

Second, in both White and Erby , the CAAF rejected the Air Force Court’s conclusion that it lacked juris diction. 54 M. J. 469, 472 (C. A.A.F. 2001); 54 M.J. 476, 478 (C.A.A.F. 2001). Notably, in re aching this concl usion, the Air Force Court relied on its prior decision in United States v. Haymaker , 46 M.J. 757 (A. F. Ct. Crim. App. 1997). See United States v. White , ACM 33583, 1999 CCA LEXIS 220, at *2-3 (A.F. Ct. Crim. A pp. 23 Jul. 1999); United States v. Erby , ACM 33282, 2000 CCA LEXIS 120, at *3 (A.F . Ct. Crim. App. 14 Apr . 2000). The analy sis in Haymaker is strikingly similar to the major ity’s analysis in this case. Am ong other things, Haymaker stated “we are not the appropria te forum for thi s complaint,” “ the

conditions of confineme nt are . . . no t in the record of trial, ” “the question of matching the remedy to the spe cific injury alle ged is by no mea ns incident to our

discussion as to the a ppropriateness of our consideration of ap pellant’s complaint,” (continued . . .)JESSIE—ARMY 20160187

17 I agree with the majority that Gay does not requ ire that we review every possible post-trial submission. I respectfully disagree with t he majority, however, that we should ignore appellant’s claims that violations of his First and Fifth Amendment rights have led to an increase in his sentence. 16

In Overton v. Bazzetta , 539 U.S. 126 (2003), the Supr eme Court ad dressed a prison regulation which limited vi sitation. The Court acknowle dged the Cons titution protects certain relationships a nd, “outside the prison context ,” the right to maintain certain familial relationships. Id . at 131. Though the Co urt acknowle dged that “[s]ome curtailment of [the fre edom of association] must be exp ected in the prison context,” the Court also caref ully explained, “We do not hold, and we do not imply, that any right to intim ate association is altogether terminated by incarceration or is always irrelevant to claims made by prisoners.” Id

.

The fact that some right of asso ciation for prisoners survives was made clear by Overton applying the four factors from Turner v. Safley , 482 U.S. 7 8 (1987),

which are used to dete rmine “whether a pri son regulation affect ing a Constitutional right that survives incarcerati on withstands constitutional cha llenge.” Overton , 539

U.S. at 132. The Turner factors are: “whether the regulation has a ‘valid, rational connection’ to a legitimate governmental interest; whether alte rnative means are open to inmates to exer cise the asserted ri ght; what impact an accommodation of the

(. . . continued)

and “to achieve a remedy tailored to the s pecific inadequacy al leged, the complaint should be brought to the forum or tribunal best p ositioned to d o so.” 46 M.J. at 760-

61. While White and Erby involve Eighth Amendment an d Article 55 claims (and are therefore not necessarily di spositive in thi s case), the CA AF’s rejection of their

reliance on Haymaker is noteworthy and lends streng th to the notion th at we should consider appellant’s claim.

16 As outlined below, I would find that appellant’s First Amendme nt rights were

violated. I would no t, however, find that the polic y violated appellant’s Fifth Amendment rights. In McKune v. Lile , the Supreme Court noted tha t though the privilege against self -incrimination “does not terminate at the jailhouse door,” choices that might in fringe those rights out side the prison con text “fall w ithin the expected conditions of confinem ent of those who have suffered a lawful conviction.” 536 U.S. 24, 36 (2002) (Kennedy, J., plurality opinion). Given that courts have

found no Fifth Amendment violation in policies that are stricte r than the one in question here, I would conclude t hat appellant’s Fifth Amendmen t rights were not

violated.* See, e.g., Roman v. Diguglielmo , 675 F.3d 204 (3r d Cir. 2012); Ainsworth v. Stanley , 317 F.3d 1 (1st Cir. 2002).

* CorrectedJESSIE—ARMY 20160187

18 right would have on gua rds and inmates and p rison resources; an d whether there are ‘ready alternatives’ t o the regulation.” Id . (quoting Turner

, 482 U.S. at 89-91).

To properly apply the Turner factors, one must take a closer look at the

relevant facts in this case. 17

In March 2016, appella nt was sent to the J RCF at Fort Leavenwor th, Kansas,

to serve his sentence. At the time, the JRCF policy on visitat ion was that inmates

convicted of a child sexual offe nse could have no contact with any children – to include their biologi cal children – unless they received an exc eption to policy. However, prior t o an exception to policy b eing considered, the inmate was required to admit guilt and com plete a treatment program for sexual offe nders.

This policy was codif ied in MCC SOP 310 and JRCF Regulation 600 -1. The MCC SOP 310 explained the polic y was designed to preclude any “ written, telephonic or in-perso n contact with any mi nor child” without t he necessary exception to policy. JRCF Regulation 600- 1 clarified this rest riction precluded having contact “ in-person, written, telephonic, directly or indirectly with any child under the age of 18 years old.” (em phasis added).

In March 2017, appella nt submitted an MCC F orm 510 asking for i nformation

on how he could have contact wit h his children. In response to his request, appellant was told that “[f]ac ility protocol” preclu ded such contact, as “individuals with child victims in sex offense cases are not permitted contact with chi ldren until they complete sex offender treatment . You are not currently eligibl e for sex offender treatment as you do no t take responsibility for your confining offense.”

In June 2017, appellan t submitted a r equest for red ress under A rticle 138, UCMJ, stating that he had not b een allowed to sp eak to his chil dren. In denying this request, appellant’s c ommanding officer cite d JRCF Regulation 6 00-1, noting that the regulation p recludes inmates convic ted of sexual offenses w ith children from having any direct or indirect contact with minor children unles s they have prior approval of the Deputy to the C ommander. Appellant’s commandin g officer also

concluded that f iling an Article 138 comp laint was inappropriat e since appellant could submit a request for excep tion to policy. The commanding officer did not explain how an exception to polic y could ever be approved, as i t required completion

of the sex offender treatment for which appellant was “not curr ently eligible.”

17 I do not read Healy (or any other case) t o preclude attachmen t of the documents submitted by the partie s in this case . In order to properly co nduct our Article 66(c) review for sentence appropriaten ess, I find it necessary to con sider many of the documents that were previousl y attached to the record.JESSIE—ARMY 20160187

19 In his appeal to th is court, appellant s ubmitted a sworn affid avit. As attachments to his affidavit, appellant included his MCC Form 5 10, his Article 138 request for redress, and a letter from the mother of his oldest daughter which requested appellant be able to contact his daughter for the ben efit of the child.

In its response, the government included an affidavit from Lieu tenant Colonel (LTC) GW, the Director of the Directorate of Treatment Programs (DTP) for the MCC, cosigned by Ms. RJ, the Chi ef of the Rehabilitation Divisi on. In his affidavit, LTC GW stated the government’s ba sis for the po licy. According to LTC GW, the policy was “created th rough consultation wi th expert leaders in the field of sex offender management an d is in accordance w ith generally accepte d best practices. MCC SOP 310 aligns with practice standards and gu idelines of th e Association for

the Treatment of Sexual Abusers (ATSA) . . . .”

In response, appell ant submitted an affi davit from Ms. MC, the Executive

Director of ATSA. She stated tha t as part of the ir mission, AT SA produces practice standards and gui delines for the treatment and management of ad ult male sex abusers. In these guidelines, ATSA did not provide policy guid ance for contact or

visitation in an institutional s etting. Instead, the guideline s state “unilateral strategies to manage the risk of individuals who may be at risk of offending do not meet best practice guidelines tha t promote community or institu tional safety.” As part of his filings, appellant a lso submitted evi dence that he is able to sit in close proximity to children of other inmates in th e JRCF visiting are a, but he cannot similarly sit near his own children.

Following briefing an d oral argument in th is case, the applica ble policy was amended. I agree with the major ity that, for purposes of this assignment of error, we

should limit our revie w to the policy as it existed from when a ppellant arrived at the confinement facility in March 2 016 until the poli cy was amended in November 2018.

Unlike the majority, however, I w ould specifically apply the Turner factors to

determine whether the policy constituted a legal deficiency in appellant’s post-trial

confinement conditions . When considering t hese factors, courts accord “substantial deference to the profe ssional judgment of p rison administrators .” Beard v. Banks

, 548 U.S. 521, 528 ( 2006) (quoting Overton , 539 U.S. at 132) . However, “a regulation canno t be sustained where the logical connection bet ween the regulation and the asserted goal is so remote as to render the policy arbi trary or irrational.”

Turner , 482 U.S. at 89-90. Further, th e prison regulat ions cannot re present an “exaggerated response” t o a security objective. Id . at 97-98.

In weighing the Turner factors in this case, I find they overwhelmingly favor appellant.JESSIE—ARMY 20160187

20 The first Turner factor, whether the regulation has a valid rational connection to a legitimate governmental interest, is admittedly a close ca ll. The gov ernment put forth two objectives for the challenged policy: (1) the safety of children; and (2)

rehabilitation of the o ffender. Both of these objectives are c learly valid penological and governmental int erests. I also do not find either rational e remote. I am, however, concerned that the policy represen ted an “exaggerated response” to the stated objectives.

Unlike similar policies in other cases, the challenged policy p recluded all

forms of contact to inclu de indirect contact. See Overton , 539 U.S. at 133-35 (biological children a llowed to visit and in mate can speak with nieces and nephews by phone or mail); Pell v. Procunier , 417 U.S. 817, 824-2 5 (1974) (inmates permitted to, am ong other things, communi cate with those who ca nnot visit by sending messages thr ough those who ca n visit). Furthermore, ap pellant can sit in close proximity of other inmates’ children, but h e cannot sit i n close proximity to his

own children. 18 Under the facts of this case, I find the MCC policy represent ed an exaggerated response.

The second Turner factor, whether there are alt ernate means ope n to exercise the right, a lso weighs against the gove rnment. Critically, in analyzing this factor in

Overton , the Court stated, “A lternatives to visita tion need not be ide al . . . they need only be available. Her e, the alternatives a re of sufficient ut ility that they give some support to the regulations, par ticularly in a context where vis itation is limited, not completely withdrawn .” 539 U.S. at 135. On the oth er hand, th e Court stated,

“Were it shown that no alternative means of [exercising the cir cumscribed right]

existed . . . it would be some evidence tha t the regulations we re unreasonable.” Id

.

Here, visitation was completely withdrawn and the government di d not put forth any alternative means of c ontact. Instead, the governmen t argues that an

inmate had the alternative of ad mitting guilt, co mpleting a sex offender treatment program, and then subm itting a reques t for an exception to poli cy. The government emphasized that regard less of completing th e program, an except ion to policy may

not have ever bee n granted. I find the c ombination of the amou nt of time this

alternative would take and the speculative nature of whether an inmate would ever be able to receive an exception renders this a false alternativ e. Requiring an exception to policy i s not demonstrat ing that the policy has an alternative; on the contrary, it is an ackn owledgment that no a lternative existed.

In its brief, the government put forth a second alternative: th at appellant could

contact his children t hrough their adult m others. The governme nt cites Samford v.

18 Given appellant’s conviction for sexual assault of a friend’s thirteen-year-old daughter, this seems c ounterproductive to the facility’s goal o f protecting children.JESSIE—ARMY 20160187

21 Dretke for the proposition t hat this form of ind irect contact suffice s. 562 F.3d 674, 680-681 (5th Cir. 2009). Even assu ming such contact would suff ice, this argument fails because appellant was permitted neither direct nor indirect contact with his children. In fact, if appellant attempted to use this purporte d alternative, he would

have been in violatio n of the regulations a nd subject to admini strative action.

The third Turner factor, what impact an accommodation of the right would have on guards and inmates and p rison resources , weighs against the government. While a complete reversal of the challenged policy would potent ially have a significant impact on the guards and prison reso urces, allowing an inmate to send or receive letters does not appear to add substantially to the bur den of the correctional facility.

For the final Turner factor, we look to see if there are re asonable alternatives which accommodate appell ant’s request at a de minimis cost to t he valid penological goal. This factor again weighs against the gover nment. Appell ant put forth telephone calls or let ters as reasonable al ternatives. The gov ernment argues that

these would have more than a de minimis i mpact on the goals of safety and

rehabilitation. Such a n argument remains u npersuasive, particu larly in light of the analyses in several cases uphold ing limitations on contact poli cies after f inding that either telephone calls or letters were reas onable alternatives which precluded the conclusion that the policies i n those facilities overreached. 19

I agree with the major ity that our court do es not hav e the auth ority to dictate MCC policies. Instea d, our authority is lim ited to ensuring ap pellant’s sentence is appropriate. So the question b ecomes how the MC C policies play into our sentence appropriateness review. By abst aining from answ ering this ques tion, the majority: (1) adopts an unnecessarily restr ictive view of Article 66(c); and (2) fails to appreciate the effect of its abstention when addressing sentenc e appropriateness and post-trial delay.

19 See, e.g., Overton , 539 U.S. at 135; Wirsching v. Colorado , 360 F.3d 1191, 1200- 01 (10th Cir. 2004) (ap pellant’s ability to “maintain contact w ith his children through means ot her than visitation supp orts the rea sonableness of the CDOC policy”); Simpson v. Cty. of Cape Girardeau , 879 F.3d 273, 280-81 (8th Cir. 2018) (appellant could send postcards and receive collect calls as pa rt of “alternative means of communication”); Royer v. Fed. Bure au of Prisons , 933 F. Supp. 2d 170, 186 (D.D.C. 2013) (appel lant retained righ t to make phone calls , write letters, and have noncontact visits); Vega v. Tegels , 2018 U.S. Dist. LEXIS 118801, at *18 (W.D. Wis. July 17, 2018 ) (“[D]efendants have provided plaintif f with other means of communication, inc luding unlimited phone calls, messaging, a nd mail.”).JESSIE—ARMY 20160187

22 First, in failing to determine whether a constitutional error e xists in this case, the majority adopts a n unnecessarily restri ctive view of Articl e 66(c). For example,

in White , the concurring judge stated the opinion “squarely held” that “the lower

courts have the duty . . . to review wheth er the sentence impos ed by a court-martia l is being unlawful ly increased by prison officials.” 54 M.J. at 475 (Sullivan, J., concurring) (emphasis added).

While this duty will normally rel ate to assessing alleged viola tions of Article 55 and the Eighth Amendment, it may also arise in other unique contexts. As our sister court recently stated, “Only in very rare circumstances do we anticipate granting senten ce relief when there is no violation of the Eigh th Amendment or Article 55, UCMJ.” United States v. Ferrando , 77 M.J. 506, 517 (A.F. Ct. Crim. App. 2017). This case presents s uch circumstances. Appellant provided ample documentation to sup port his First Amendm ent claim, and I belie ve we should address this error and weigh its effect on sentence appropriate ness. 20

Second, the majority f ails to appreciate the effect of its abst ention. More specifically, by failin g to address the alle ged error, the majo rity conducts a flawed review of sentence appropriatene ss and post-trial delay. Criti cally, while the majority assumed the facts underlying the first alleged e rror, it did not analyze the alleged error itself. The difference matters, particularly in the context of sentence appropriateness.

For example, a service court could f ind that the post-trial con finement

conditions – when exac erbated by dilatory po st-trial processing – change appellant’s

sentence from one that is appropriate to on e that is inappropri ately severe. Put another way, an individual erro r may not warrant the same relie f as its cumulative effect. Notably, in Gay , our sister court c oncluded the sentenc e was inap propriate “on the basis of his post-tri al confinement conditions and the government’s delay in forwarding the record of trial for [its] review.” 74 M.J. at 7 45 (emphasis added).

Furthermore, in conduc ting a due process an alysis for post-tria l delay, one of the relevant sub-factors for pr ejudice is “directly related to the success or failure of

20 I have also considered whether we are required to remand this case for a DuBay hearing. I agree with the majority that no post-trial hearing is necessary, though for different reasons. When appl ying the factors outlined in United States v. Ginn , no hearing is required if the government does n ot contest the rele vant facts. 47 M.J. 236, 248 (C.A.A.F. 1997 ). Here, the governm ent did not dispute the relevant facts and agreed the policy deprived a ppellant of an op portunity to h ave contact with his

children unless he r eceived an exc eption to policy. Additional ly, in one of its briefs, the government expressly stated there were no substantial contr adictions between its appellate exhibits and appellant’s.JESSIE—ARMY 20160187

23 an appellant’s substant ive appeal,” since “[i]f the substantive grounds for the appeal are not meritorious, an appella nt is in no worse position due t o the delay.” United

States v. Moreno , 63 M.J. 129, 139 (C.A .A.F. 2006) (citation omitted). Under s uch circumstances, it becomes even m ore important to carefully anal yze the validity of an appellant’s substa ntive claims. The m ajority, however, elec ted to abstain and then did not provide any analysis of the effect of its abstenti on.

Finally, the MCC polici es present several unique considerations related to post-trial delay. One i s that an appellant’ s ability to make c hoices on whether and

when to waive his ri ght to self-incrimina tion can be impacted b y the state of his appeal. As such, any post-tria l delay has a potential impact o n an appellant’s

choices and when his assignments of error w ill be considered by this court. At a minimum, these are vali d consideratio ns in determining whether relief is warranted under Article 66(c). See United States v. Tardif , 57 M.J. 219, 224 (C.A.A.F. 2002) (CCAs can grant relief for post-trial delay without material pr ejudice if relief is “appropriate under th e circumstances.”).

In sum, we should address both a lleged errors when conducting o ur sentence appropriateness review in this c ase. To this extent, I would f ind that the post-trial

confinement conditions and dilatory post-tri al processing chang e appellant’s sentence from one that is appr opriate to one that is inappropr iately sev ere. 21

Conclusion

Over thirty years ago, our court stat ed, “The Supreme Court’s a pproach in Turney v. Safley may be paraphrased as follows: A court should inquire whether a particular restriction or condition that burdens a prisoner’s r ights is ‘reasonably related’ to legitimate penological objectio ns, or whether it re presents an ‘exaggerated response’ by the prison author ities to those conce rns.” United States v.

Austin , 25 M.J. 639, 642 n.3 ( A.C.M.R. 1987) (em phasis added).

I believe we should fol low this advice and t herefore I dissent.

21 The majority would have it too di fficult to determine an appro priate sentence. Yet

that is what Article 6 6(c) mandates we do i n every case. I see no reason why we cannot “bring to bear [ our] wisdom, experienc e, and expertise” in determining an appropriate sentence. United States v. Hutchison , 57 M.J. 231, 234 (C.A.A.F. 2002).JESSIE—ARMY 20160187

24 Judge HAGLER, joined by Chief Judge BERGER, dissenting:

I join Judge Schasberger’s disse nt and would affirm the finding s while reducing the sent ence. I write separatel y to comment on the MC C policies (i.e., MCC SOP 310 and JRCF Regulation 60 0-1) and the majority opinion

.

It is true this court has no directive authority over the MCC, and we cannot grant injunctive relie f, yet that does not mean we should give tacit approval to poorly justified polici es that continue to violate appellant’s constitutional rights.

While we do not have “u nlimited authority . . . to grant senten ce appropriateness relief for any conditi ons of post-trial conf inement of which [w e] disapprove,” this case presents the exac t type of “legal deficiency in the post-t rial process” that authorizes relief under Article 66(c). United States v. Gay , 75 M.J. 264, 269 (C.A.A.F. 2016). Not only do the previous M CC policies on inma te contact fail the

Turner criteria (two of these are ep ic fails, in my view), they were also administered

in a manner that mad e them both inflexible and arbitrary.

First, the government offers no convincing, or even reasonable, explanation why the MCC need s policies that, to my knowledge, are more rest rictive than any

other federal or sta te jurisdiction. I ha ve not found any case addressing a policy that, among other t hings: (1) bans all direct and indirect cont act with a non-victim biological child, when t he child’s custodia n approves the reque sted contact; (2) requires admission of guilt as a precondition to sex offender t reatment; and (3) requires treatment that may take years to complete before even requesting an exception to t he policy (ETP). 22

While we must give “substantial deference to the professional j udgment of prison administrators,” such deference is no t wholly unfettered

. Beard v. Banks , 548 U.S. 521, 528 (2 006) (quoting Overton v. Bazzetta , 539 U.S. 126, 132 (2003)). In fact, it is difficult to defer to the judgment of prison offici als on a policy that purports to be in the best interest of chi ldren and an inmate’s rehabilitation, when in practice, they take neither of these into account on an individ ualized basis. Of course, “protection of children” and “rehabilitation of inmates ” are valid penological interests, but simply invoking these phrase s provides no ration al basis for why the MCC draws the line where it does, or why these interests should apply differently

22 The cases cited by the government are rea dily distin guishable. In Mondonedo v.
Roberts, the policy did allow sex offenders mail an d phone contact with their “children or immediate family mem bers,” as long as no such chil dren or family

members were a victim. 2013 U. S. Dist. LEXIS 35178, *2 (D. Kan . March 14, 2013). In Fuller v. Werholtz , the plaintiff challeng ed whether he should be

classified as a sex offender unde r the policy, no t whether the policy violated his right to familial a ssociation. 2005 U.S. D ist. LEXIS 48368 (D. Kan. July 11, 2005).JESSIE—ARMY 20160187

25 within military fac ilities. Similar ly, the MCC cl aimed its cha llenged policies align

with ATSA standards a nd guidelines, and that it evaluates conta ct with children on an individual basis, but this do es not mean the MCC’s policy an d practice actually do so. The documents before this court clearly show otherwise. Simply put, the

walk does not m atch the talk.

Second, the policies provide no alternative means of contact. In my view,

Overton was very clear on thi s point: “Alternatives to visitation need not be

ideal . . . th ey need only be available .” 539 U.S. at 135. He re, none are. The MCC approach is simple: child sex o ffenders can have no contact—in -person, telephonic, or written, direct o r indirect—with chil dren. Thus, the “alter native” proposed in the government’s brief (i.e., contact through the child’s mother) i s expressly prohibited by the MCC policy . The government’s clai m that this policy pro vides another alternate means—namely, requesti ng an ETP—is dub ious at best. 23 Under the terms of the challenged policy, a requ est for ETP will not be conside red until an inmate admits responsibility and compl etes sex offender treatment. 24 According to the affidavits provided by MCC personnel, appellant remains ineligi ble for such

treatment due to 25 his “denial of his contact sexua l offenses and st atements of v ictim blaming and questioni ng the victim’s cred itability [sic].”

In practice, appellant’s experien ce shows the process to obtain an ETP is as inflexible as the policy itself . Appellant filed an MCC Form 5 10, requesting “information for excep tion of policy. I am asking if and when I can see my chidren [sic].” In response, appellant was informed, “Y ou are not curr ently eligible for sex

23 The idea that an exce ption to polic y is, in fact, the key prot ection provided by the policy is “doublethink” wor thy of Georg e Orwell’s Nineteen Eighty-Four . It is even more problematic that the deci sion to grant an e xception is com pletely discretionary and the overall polic y remains—in the major ity’s view—not suita ble for review by

this court

.

24 The government submitted a rev ised MCC SOP 310 (with an effect ive date well after oral argument in this case ), which allows an inmate to su bmit a request for ETP before completing the treatment . After reviewi ng the SOP, howe ver, I remain convinced it allows appellant no alternative means of contact t hat would satisfy

Turner . First, the SOP does not say ap pellant would be eligible to b egin treatment without first admitting guilt—a precondition not ed in the MCC’s own affidavits. Second, it is no t apparent how a unit SOP signed by a chief of staff affects JRCF Regulation 600-1, which still expressly prohi bits all direct an d indirect contact. Thus, the SOP revision appears to have no impact on appellant’s situatio n and the viability of any alte rnative means of contact available to him.

25 CorrectedJESSIE—ARMY 20160187

26 offender treatment a s you do not take responsibilit y for your c onfining offense.” Later, in response to an Article 138 compla int, appellant’s com mander informed him the request was “inappropriate” because he could apply for an E TP—for which he was previously told he was ineligible. I cannot view this proc ess as a viable

alternative means to exercise wh at the Supreme Court has recogn ized as a constitutional right.

Despite the majority ’s implication, our po sition is not an atte mpt to effect policy change or to di ctate the most “appr opriate” prison polic y. We have only reviewed the policy, as applied to appellant, under the prevail ing legal standard. This is routine practice for our court. The majority’s hesitan cy to address the matter is even more perplex ing based on the clear framework of the Turner factors. Simply put, we have the test. We need only apply it. On this point, I note that our sister courts have capably applied the Turner factors in cases invol ving prison po licies and regulations. See United States v. Green , ACM 36664, 2007 CCA LEXIS 475, at *6- 12 (A.F. Ct. Crim. App. 12 Oct. 2007); United States v. Felicies , NMCCA 9900206, 2005 CCA LEXIS 124, a t *36-41 (N-M. Ct. C rim. App. 27 Apr. 2005 ). We should join them.

Finally, I recognize the majority ’s apparent concern with flood ing the appellate process with complaint s of post-trial confinement con ditions, bu t I cannot accept it as a justification for inaction in this case. Given the legal defi ciency of the MCC policy, we have the authority to grant sentencing relief. This relief would be meaningful as it would allow app ellant an earlier opportunity t o exercise a right the MCC’s policy continues to deny h im. If our consid eration of po st-trial submissions in this case increases the frequ ency of similar complaints, so be it. The sky will not

fall. It is a sad da y for justice when this court is presented with strong evidence of a constitutional infringement yet declines to addr ess it—not beca use we find no prejudice or lack authority to g rant meaningful r elief—but beca use we fear the consequences. Even if such conse quences do come t o pass, I wou ld still fulfill our statutory duty. Fiat Justitia Ruat Caelum

.

FOR THE COURT:

.

JOHN P. TAITT JOHN P. TAITT Acting Clerk of Court FOR THE COURT: