NIMJ comment to OSD's Military Justice Review Group

Dru Brenner-Beck, President of the National Institute of Military Justice, has submitted the following comment to the Defense Department's Military Justice Review Group:

The following issue has come to our attention.  Although it may be resolved through the normal appellate processes, statutory clarification of the military Courts of Criminal Appeals’ authority to order sentence-only rehearings in appropriate cases, in accordance with long-standing C.A.A.F. precedent and C.C.A. practice, may be an issue that the Military Justice Review Group would like to explore, and possibly include in its March 2015 submission to the Department of Defense and Congress.

Although dicta in Jackson v. Taylor, 353 U.S. 569 (1957), states that “no authority exists” for the Courts of Criminal Appeals to order sentence-only rehearings, military Courts of Criminal Appeals have ordered such rehearings, rather than conduct sentence reassessments, in appropriate cases when there is a “dramatic change in the sentencing landscape” in accordance with United States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006); United States v. Cook, 48 M.J. 434, 438 (C.A.A.F. 1998); and United States v. Sales, 22 M.J. 305, 307-309 (C.M.A. 1986).

On January 30, 2015, a Certificate for Review was filed seeking review of the following issue in No. 15-0347/MC. U.S., Appellant v. Christopher A. Quick, Appellee. CCA 20201300341: 

“WHETHER PRECEDENT AUTHORIZING COURTS OF CRIMINAL APPEALS TO ORDER SENTENCE-ONLY REHEARINGS SHOULD BE OVERRULED BASED ON (A) JACKSON v. TAYLOR, 353 U.S. 569 (1957), WHICH STATED "NO [SUCH] AUTHORITY" EXISTS; (B) THE PLAIN LANGUAGE OF THE STATUTE INCLUDING THE CONJUNCTIVE "FINDINGS AND SENTENCE" IN ARTICLE 66(d) IN CONTRAST TO AUTHORITY GRANTED THE JUDGE ADVOCATES GENERAL IN ARTICLE 69(a) TO ACT WITH RESPECT TO "FINDINGS AND SENTENCE OR BOTH" AND THE CONVENING AUTHORITY IN ARTICLE 60(f)(3) TO ORDER SENTENCE REHEARINGS; AND (C) JUDICIAL ECONOMY.”

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