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Is Military Law Relevant to the 'Evolving Standards of Decency' Embodied in the Eighth Amendment?:
Corey Rayburn Yung argues that the answer is "no."
Oren:
Will VC commenters be able to write about the actual question without this devolving into whether the 'evolving standards of decency' test is a proper reading of the 8A? Sure it's debatable, but it's not the question being presented right now.
9.15.2008 10:14pm
Scott Scheule (mail) (www):
Speaking of Sarah Palin, I just found this blog on an unrelated Google Search.

Behold the PalinDrome.
9.15.2008 10:27pm
Mike& (mail):
It's an interesting premise. My first thought is that he's correct.

The military is treated as a separate animal in all sorts of different contexts. There are numerous abstention doctrines involving, e.g., contracts between a soldier and the military (forget, but it's a hyphenated doctrine, named after the respect case or cases). Soldiers can't sue in tort (Feres doctrine). Bivens also doesn't apply to the military (Chappell v. Wallace).

The military is also allowed to try soldiers in ways that would NEVER be allowed in the civilian context. Military juries, e.g.
9.15.2008 10:34pm
Mike& (mail):
I just read the article. I think he's right.

Very smart of him to outflank everyone by posting a short and timely article.

Incidentally and unrelatedly, before reading his article, I wrote the following: "The military is also allowed to try soldiers in ways that would NEVER be allowed in the civilian context." On page 5, the author wrote the following: "Policies that would never be supported for civilians have been enacted specifically for the military."

Seems like a case where I plagiarized him. I could see a student getting into trouble for "re-wording" that sentence. I had not seen the sentence before I typed my own. Something to thini about...
9.15.2008 10:38pm
FlimFlamSam:
In some cases, military law might not be especially relevant, but in this case I think it could very well be. Why would the military have any sort of heightened interest (i.e. an interest greater than the states or the national federal government) in punishing child molesters?

And onto this Eighth Amendment jazz, could the federal government pass a law of general application allowing the death penalty for child molesters and suddenly "reconstitutionalize" those laws? Or is "evolving standards of decency" simply a one way street to leniency?
9.15.2008 10:46pm
Richard Aubrey (mail):
Evolving standards of decency are whatever the jurist in question says they are.
IMO, this means the military has higher standards.
Less patience with child rapists.

The broader question in cases like this is just how far from civil society do we want to put the military? Incrementally, this is a step away. And a good many people who favor the DP for child rapists will think the military is superior to civil society.

Every time civil society steps on its crank and needs the military to straighten things out, the general support for civilian control of the military erodes. Slightly.

If the bad stuff hit the spinny thing, and on the way to picking up the pieces we had a choice between being run by Petraeus or Biden, it would take a doctrinaire constitutionalist to pick the latter, and a person interested in the practical and the short term to pick the former. 'course, we have to survive the short term to get to the long term so....

This is an incremental, not a decisive, move away from public support for civilian control of the military. It won't matter unless something horrible happens.
9.15.2008 11:03pm
Smokey:
Scott Scheule, after seeing Oren's sensible comment right above your complete O/T threadjack... you still went ahead and trolled anyway. Aren't there enough Palin threads to post on??

OK, on topic: regarding the UCMJ, I recall a newsreel from the end of WWII, where a few foreign potentates were taken to the gallows by the U.S. military. Their crime? They captured and killed a B-25 crew that had crash landed in their territory.

If the U.S. military was allowed to dispense this kind of justice, Americans would certainly be less threatened.
9.15.2008 11:07pm
Avatar (mail):
The paper does bring up an interesting point. It makes sense to distinguish the military and civilian systems of justice if, in this instance, there are other distinguishing factors; if the military's definition of rape is different in an important fashion from the civilian legal code, that could justify different punishments.

At the same time, aside from the "conduct unbecoming"-type violations that have no civilian counterpart, how different are the penalties in the military's code of justice from the civilian code? If the penalties for similar crimes closely track, then that's an argument that the presence of a death penalty for child rape in the military code might admit that it's not unconscionable for the civilian code to include a similar provision. On the other hand, if military justice regularly metes out harsher penalties than the civilian code, that reduces the military code's usefulness as an example.

Anyone have the relevant expertise? I freely admit ignorance.
9.15.2008 11:07pm
fullerene:

Why would the military have any sort of heightened interest (i.e. an interest greater than the states or the national federal government) in punishing child molesters?


The military has a heightened interest in punishing all sorts of crime. The question is why child molestation should be excluded from the norm.

But to answer your question, crimes against women and children are uniquely powerful in their ability to erode the morale of your own soldiers and unite the enemy against your cause. Soldiers like to think of themselves as protecting and defending the innocent. When members are their ranks are actively abusing children, it may undermine this important sentiment. Also, sexual crimes of all types are a hallmark of poor discipline in a military. Stamping it out in all forms is incredibly important.
9.15.2008 11:08pm
EH (mail):
Ah, that Scott Scheule comment is the funniest thing I've seen in days.
9.15.2008 11:11pm
Obvious (mail):
Mike&: "Incidentally and unrelatedly, before reading his article, I wrote the following: "The military is also allowed to try soldiers in ways that would NEVER be allowed in the civilian context." On page 5, the author wrote the following: "Policies that would never be supported for civilians have been enacted specifically for the military."

Seems like a case where I plagiarized him. I could see a student getting into trouble for "re-wording" that sentence. I had not seen the sentence before I typed my own. Something to thini about..."

Amazingly, this was EXACTLY Senator Biden's defense...
9.15.2008 11:21pm
Christopher Cooke (mail):
The UCMJ is only relevant if it supports the position I would want to take on the 8th Amendment. That, at least, is how the Supreme Court justices will react.
9.15.2008 11:27pm
Christopher Cooke (mail):
The UCMJ is only relevant if it supports the position I would want to take on the 8th Amendment. That, at least, is how the Supreme Court justices will react.
9.15.2008 11:27pm
Smokey:
Avatar:

The paper does bring up an interesting point. It makes sense to distinguish the military and civilian systems of justice if, in this instance, there are other distinguishing factors; if the military's definition of rape is different in an important fashion from the civilian legal code, that could justify different punishments...

Anyone have the relevant expertise?
I remember reading General Patton's autobiography, War As I Knew It. Patton told a local chieftain that there would be hangings of American soldiers who raped local girls. The cheiftain was delighted. [I can look up the relevant passage if anyone is interested.]

That is respect for American womanhood. Anything less is disrespect.

The UCMJ has more credibility - where it counts - than all the other lawyers in creation.
9.15.2008 11:33pm
Soronel Haetir (mail):
Another reason military justice can have for wishing to treat crimes more seriously than domestic civilian infractions are tensions created when a service member commits a crime while stationed overseas.

Look at the uproar created by the various cases in Okinawa as examples.
9.15.2008 11:58pm
FlimFlamSam:

The military has a heightened interest in punishing all sorts of crime.


I disagree. Some crimes are uniquely offensive to unit cohesion, such as adultery. I don't think child molestation is any more offensive to unit cohesion than it is to society as a whole.
9.16.2008 12:26am
Mike& (mail):
Some crimes are uniquely offensive to unit cohesion, such as adultery. I don't think child molestation is any more offensive to unit cohesion than it is to society as a whole.

Statements like those are what I hate about con law. No basis in evidence. No surveys of soldiers. Just an empty statement based solely on the inner life of the speaker. Unfortunately, it's exactly the type of statement that passes as "analysis" in Supreme Court opinions.
9.16.2008 12:40am
FlimFlamSam:
Corey Rayburn Yung's article would be more persuasive if he didn't completely botch the occasional citation. In footnote 26 alone he miscites the Fifth Amendment, calling the Seventh, and he misquotes it too ("War of [sic: or] public danger").
9.16.2008 12:40am
Mike& (mail):
Corey Rayburn Yung's article would be more persuasive if he didn't completely botch the occasional citation. In footnote 26 alone he miscites the Fifth Amendment, calling the Seventh, and he misquotes it too ("War of [sic: or] public danger").

I was once at a debate where a speaker critical of a book kept noting errors contained in the foot notes. The author finally said, "If all you can do is point out some typos, I'll remain pretty confident in the conclusions contained in my book."

Lots of laughter ensued.
9.16.2008 12:43am
Corey Rayburn Yung (mail) (www):
Thanks to everyone for the comments. And thanks to Orin for mentioning my short piece. I'll do my best to integrate any suggestions here into my next draft.

FlimFlamSam, I'll be sure to fix the footnotes before the article comes out (it will be in an online law review in the next couple of weeks). In my defense, it is just a draft and there are a few warts because of the short time frame I had to write the essay. The Bill of Rights citations got a little screwed up because I cut some material to meet the length requirements of online law reviews.

Corey
9.16.2008 1:27am
DangerMouse:
Is Military Law relevant? Who can say, because the standard is complete B.S. Maybe the answer is found in a penumbra or emanation.
9.16.2008 2:46am
TCO:
I bet that military law represents the general will of the legislature and is highly relevant to this case and to contradicting the evolving standards decision that was handed down recently.
9.16.2008 2:55am
FlimFlamSam:

I was once at a debate where a speaker critical of a book kept noting errors contained in the foot notes. The author finally said, "If all you can do is point out some typos, I'll remain pretty confident in the conclusions contained in my book."


I'm not sure calling the Fifth Amendment the Seventh Amendment constitutes a "typo." I think it's a reflection of a hurriedly put-together article desperately begging for a citation in a SCOTUS opinion. There's nothing particularly wrong with Mr. Yung doing that, he's a professor and a SCOTUS citation would be a boon for his career. But the piece is not particularly scholarly, novel but illogical, and clearly was hastily thrown together.

The author's thesis seems to be that because the military is different from the civilian world, its practices are irrelevant in determining what constitutes cruel and unusual punishment. That seems quite illogical, because the Eighth Amendment applies to military punishments just as it does to civilian punishments. And if the standard (wrong though it may be) is "evolving standard of decency," then surely the military's view of what is decent is entitled to some weight. But it isn't really the "military's view," it is Congress' view. The military doesn't make its own laws, Congress does, and Congress is a civilian entity.

It is also very important given the standard that this law was passed in 2006 (and several states have passed similar laws of late). The evolving standard of decency in this case appears to be moving TOWARD allowing execution of child rapists, not away.
9.16.2008 8:10am
FlimFlamSam:

[In reference to my statement that child molestation doesn't seem any more offensive to unit cohesion than to society as a whole:] Statements like those are what I hate about con law. No basis in evidence. No surveys of soldiers. Just an empty statement based solely on the inner life of the speaker. Unfortunately, it's exactly the type of statement that passes as "analysis" in Supreme Court opinions.


I'm not preparing a SCOTUS brief, I'm writing a blog comment. And I have some experience with military law matters, a partner of mine is a former JAG who has brought me in on a variety of military law matters. LOTS of military crime cases are pedestrian matters, in the sense that they are just soldiers committing garden variety crimes. I.e., there is no nexus between what the soldier did and his military service, nor is what he did any "worse" because he's in the military.

There are some crimes that are treated very differently in the military context than in the civilian world. Two good examples are adultery and fraternization. But both of those are especially problematic from a unit cohesion standpoint because they both often involve service members having sex with one another or with the wife/husband of another service member. Civilians are not typically criminally charged for adultery, it's not even a crime in many jurisdictions anymore; ditto fornication.

But child molestation in the military is a different matter. I am aware of no real difference between a military child molester and a civilian child molester. Both are reviled individuals, hated by pretty much everybody. A child molester in the military is as offensive to unit cohesion as a child molester in civilian life would be to the groups he is involved with.

My point is that the military has no heightened interest in punishing child molesters. The military has the same interest in punishing child molesters as the states and the civilian side of the federal government. Accordingly, a military law providing for execution of child molesters is certainly entitled to weight in an Eighth Amendment analysis. I'm very surprised that this is a controversial point, but whatev.
9.16.2008 8:21am
Richard Aubrey (mail):
flim.
The child molester is just as damaging to unit cohesion in the military as he is to civilian groups.... Do I get that right?
Is there, in your view, a difference in the consequences of damaged group cohesion between the military and the civilian worlds?
9.16.2008 8:30am
Happyshooter:
I think Yung overstated the unique nature of military order.

Yes, the military is special in many ways, which is why there are limits on conduct that harms the functioning of a unit (gay conduct, having sex with another member's spouse or a person under you in the chain of command). However, you don't execute a gay, and you don't execute a man who sleeps with another's wife. Usually the penalty is a non-favorable discharge. Given that the act needs to be a crime because of the unique nature of the military, the punishment is usually light.

The military also needs crimes punished by death for important battlefield or critical tasks (forcing a safeguard, hazarding a vessel, mutiny, cowardice). However, no one argues that crimes outside this area need to be harshly punished past that level used in the civvie courts.

A number of military laws are adjuncts to other criminal laws--theft, drunking driving, murder, raping). There are just that, the same crimes as the civvie world only placed in the UCMJ so that they can be enforced by commanders (usually at a lower level of penalty than the civvie courts) or used to punish wrongful conduct where the rule of other law doesn't exist.

Nothing in the special nature of the military requires that the penalty for shoplifting be higher because the criminal is in the service. The penalty for child rape falls into the same type of crime--because it is not something that is a critical military task.
9.16.2008 9:28am
PersonFromPorlock:
Smokey: The UCMJ didn't come into effect until 31 May 1951. From what I can find it was adopted because of dissatisfaction with military justice during WW2.
9.16.2008 9:29am
Smokey:
PersonFromPorlock:

Thanks, I'm always impressed with your level of expertise in military matters.
9.16.2008 9:36am
ruralcounsel (mail):
So what happens if society is adopting a "devolving standard of decency"?

Perhaps the UCMJ contains a higher standard of decency than anything to be found in civilian statute. I find it interesting that so many assume that less death penalty means a higher standard of decency. There is a worthwhile argument that lower expectations of decent behavior reflected by less severe penalties is actually a lower standard.
9.16.2008 9:40am
JGT (mail):
If Mr. Yung's premise is correct, could the USMJ be amended so that it authorizes the imposition of forms of punishment against servicemembers found guilty of capital crimes that are universally recognized to be prohibited by the Eighth Amendment? Drawing and quartering? Disembowelling alive? Beheading? Public dissecting? Burning alive?
9.16.2008 9:57am
Soronel Haetir (mail):
I still haven't seen an answer to the community relations angle. Lots of argument over unit cohesion, where I agree that a child molestor likely isn't any more damaging than in any other circle.

However a child rapist in uniform is a crime suffient to enflame the surrounding community against the base as a whole. I doubt that an isolated shoplifting could do that, though I suppose a rash of unpunished shoplifting by soldiers could.
9.16.2008 10:07am
JGT (mail):

If Mr. Yung's premise is correct, could the USMJ be amended so that it authorizes the imposition of forms of punishment against servicemembers found guilty of capital crimes that are universally recognized to be prohibited by the Eighth Amendment? Drawing and quartering? Disembowelling alive? Beheading? Public dissecting? Burning alive?



Sorry-- should have said "UCMJ"
9.16.2008 10:13am
wfjag:
FlimFlamSam @7:21AM:

Sir, very well explained. It is settled that


[e]nlistment is a contract; but it is one of those contracts which changes the status; and, where that is changed, no breach of the contract destroys the new status or relieves from the obligations which its existence imposes. By enlistment the citizen becomes a soldier. His relations to the State and the public are changed. He acquires a new status, with correlative rights and duties; and although he may violate his contract obligations, his status as a soldier is unchanged.


Bell v. United States, 366 U.S. 393, 402 (1961)(quoting United States v. Grimley, 137 U.S. 147, 151, 152 (1890)). Moreover,


common-law contract rules do not apply to military pay and benefits. Military benefits are determined by statute and regulations, not from a contractual relationship with the government.


Sweazey v. United States, 69 Fed. Appx. 435, 437, 2003 WL 21540907, *2, 2003 U.S. App. LEXIS 13814, *4 (10th Cir. 2003)(citations omitted). See also Geiger v. United States, 707 F.2d 157, 161 (5th Cir. 1983) (same).

Crimes defined by the UCMJ fall into two categories. Common law crimes (e.g., murder, rape, theft, etc.), and crimes against military discipline (e.g., AWOL, disrespect, etc.). The change in status allows application of the UCMJ to service members as to crimes against military discipline, for which there are no comparable civilian crimes. If you're late for work on a civilian job, you may be fired. If you're late for formation in the military, you've committed the crime of "failure to repair", which is a species of AWOL.

However, I've never before seen a serious argument that as to common law crimes contained in the UCMJ that the constitutional standards applicable to all citizens do not apply. That Art. 120, UCMJ, now permits capital punishment for child rape is due to Congress authorizing that punishment. If the 8th Amendment prohibits that, then Congress enacted an unconstitutional punishment. However, if the basis for the US Sup. Ct.'s intrepretation is "evolving standards of decency", then the 2006 enactment by Congress cuts the guts out of the rationale. Nothing in the Constitution gives the Sup. Ct a right to make such a determination when the political branches have determined to the contrary. Doing so places ideology above constitutional law (although, -- response to Scott Scheule -- it appears from statements by Sen. Biden following the Bork nomination, that he endorses the idea that ideology is more important than legal reasoning in determining fitness to sit on the federal courts).

Mr. Yung's argument is, thus, very disturbing, because at its core it contends that the US military is somehow not bound by constitutional standards. This is very different from the conclusion that the change in status effected by enlistment changes the applicable constitutional standards to the extent necessary to enforce military discipline.
9.16.2008 10:38am
Al Maviva (mail):
I am aware of no real difference between a military child molester and a civilian child molester. Both are reviled individuals, hated by pretty much everybody. A child molester in the military is as offensive to unit cohesion as a child molester in civilian life would be to the groups he is involved with.

Servicemembers, especially those living abroad, tend to live in military housing on-post. That means that the people you work with, you live with. The communities are very tight, reflecting the intimacy of military units generally. When servicemembers then deploy - as in going from Germany to Iraq for 6 months - members of the community are expected to pick up the slack. The same trust that exists within the unit exists within the garrison (which houses a number of different units). When you ask an individual to regularly leave their family to go fight, it is important for them to know their families will be taken care of. One commenter above says he doesn't see how the unit cohesion and morale point is any more valid in military units than in civilian groups, which would also be affected by a child molestor. That's pretty simple - nobody asks the Elks to deploy and fight, and a pissed off Elk can go home after the meeting and the Elks won't face disaster, but a pissed off servicemember who is worried about rear area concerns may have problems keeping his act together. This is one of the reasons that fraternization is punished, and why servicemembers committing adultery with other servicemembers' spouses is punished so severely. The Elks can survive having some distracted members, but when the guy on the M-240 is distracted the squad can get killed as a result.
9.16.2008 11:15am
Redlands (mail):
The UCMJ section at issue was passed by Congress, right? The people who represent every nook &cranny of the U.S. It may be silly to think of Congress and evolution of anything, but where does that factor into the standard of "evolving standards of decency that mark the progress of a maturing nation?"
9.16.2008 11:23am
jpe (mail):

The military is also allowed to try soldiers in ways that would NEVER be allowed in the civilian context.

Sure, but that's because we have constitutioanl prohibitions on departing from certain aspects of due process. The relevant question, then, is: If our constitution required only that our trials operate in reasonable fashion, could we look to military trials for evidence of what different bodies consider reasonable?

Seems like we absolutely could. It may not be strong evidence, but it'd be silly to categorically preclude it just because it's the military.
9.16.2008 11:40am
wawjag (mail):
Traditionally, SCOTUS has shown considerable deference to the military precisely because it is a "unique" society. wfjag's post illustrates some of the reasons why. The recent line of cases involving the handling of detainees at Gitmo, however, departs from the the usual deferential attitude and suggests that military operations may be subject to more civilianized scrutiny than in the past. This trend, if indeed it is a trend, undercuts Prof. Yung's argument.
9.16.2008 11:57am
JohnO (mail):
Prof. Yung has been having this debate with myself and a few others over the past few days on a blog devoted to military justice matters.



(I hope the link works).

My view is that, if you accept the evolving standards notion, and that counting jurisdictions is a credible way to analyze the issue, the UCMJ is relevant.

Prof. Yung views the military justice system as sui generis, and therefore of limited application to punishments in the civilian context. I think that the military justice system is sui generis at least as it relates to procedures and the criminalization of some types of conduct. But I don't see a good reason why punishments for offenses that are not purely military in nature would be irrelevant to the notion of what legislatures have found to be reasonable, just because the accused here is a servicemember.

I do think the analysis is different for criems that are purely military in nature (i.e., where the prosecution has to prove a negative effect on good order and discipline or where the conduct is punishable constitutinally only in the military context).
9.16.2008 12:19pm
JohnO (mail):
Of course, the link in my prior post didn't work. You can find it here.

http://www.caaflog.blogspot.com/
9.16.2008 12:22pm
MLS:
Please correct me if I am mistaken, but the UCMJ governs conduct that includes actions while engaged in military operations in foreign theaters. Perhaps, just perhaps, an act such as discussed here is viewed as having the potential for significant negative repercussions to the safety of other service members.
9.16.2008 12:32pm
Jim at FSU (mail):
I would go further and argue that evolving standards of decency aren't relevant to the 8th amendment.

If evolving standards are relevant and it is acceptable to take into account European law when determining the status of those standards, we might as well consider the UCMJ.
9.16.2008 12:59pm
Kazinski:
I think a better arguement is that Congress' standard of decency falls short of the public's standard of decency.
9.16.2008 1:30pm
wfjag:
Dear wawjag:

Two JAGs on one thread. To quote that noted philosopher, Bill The Cat: "Gack!"

Dear MLS:

The scope of the UCMJ is governed by Art. 2, UCMJ, 10 USC 802 (and Art. 3, UCMJ, for retirees recalled to active duty for court martial). Courts Martial are Art. I (Executive Branch), rather than Art. III (Judicial Branch) courts. Thus, they are created by statutes enacted by Congress, rather than created by the Constitution. I don't see any viable argument that an Art. I Court is somehow exempted from the 8th Amendment.

And, to take Jim at FSU's logic a step further, if evolving standards of decency means examining foreign law, why is that limited to Europe? Are, for example, Islamic nations' standards somehow "too primitive" to warrant consideration? Is the People's Republic of China not a "decent" nation? The Kennedy decision, and other discussions of "evolving standards of decency" demonstrate a tendency towards Eurocentric Elitism. (Which, in other contexts, Muslim and Chinese friends of mine have been quick to point out that their cultures had developed written language, math, engineering and most other hallmarks of civilization while Europeans were still painting themselves blue and howling at the full moon.) When considering the "evolving standards of decency" doctrine, the word "hubris" comes to mind.
9.16.2008 1:49pm
Thomas_Holsinger:
I've been saying this all along. The UCMJ's policy objectives are so different from those of normal crimimal law that the UCMJ death penalty for child rape is not grounds for reversing Kennedy. And I disagree with the ruling.
9.16.2008 2:54pm
Bpbatista (mail):
Doesn't the fact that BOTH presidential candidates denounced the ruling show that evolving standards of decency, etc. do not make the execution of child rapists beyond the pale? What about the scores of editorials and blogs expressing outrage at the decision? There was very little commentary in favor of the decision. Do these facts have any weight with the court as to the state of societal standards of decency? Or is this simply a case where the court decides what is decent based on its own whims and policy preferences?
9.16.2008 3:03pm
jpe (mail):

The UCMJ's policy objectives are so different from those of normal crimimal law

They want to punish and deter, and we want to punish and deter. These are, clearly, radically different ends.
9.16.2008 5:37pm