Sen. Lindsey Graham's overall performance during Judge Ketanji Brown Jackson's confirmation hearings could be characterized as nasty political theater, or petty payback for perceived slights endured by past Republican nominees. But when it comes to Graham's animated attacks against Judge Jackson's sentencing record of child pornographers, two words best fit the senator: total hypocrite.
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An examination of Graham's Air Force service, which included time as prosecutor and appellate judge, demonstrates that he maintained close ties with the most senior members of the Air Force Judge Advocate General Corps. That's important because one would therefore expect Graham to be intimately aware of how the military punishes child pornography offenders, in particular those in the Air Force. One would also expect that if Graham did not like the comparatively short sentences such offenders receive in the military (which are typically much lighter than the ones handed down by Judge Jackson), he would have done something about it — for example, propose legislation to create mandatory minimums for those convicted of child pornography in the military. He did not.
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Graham's indifference concerning the military's lenient treatment of child pornography, compared to his supposed disgust regarding Judge Jackson's sentencing record, is not only hypocritical. It is political theater at its worst. How we should sentence child pornography offenders is a legitimate debate. But after decades of inaction on his part to reform the military sentencing process, Graham's sudden concern about child pornography sentencing is no more than a cheap, hypocritical and destructive attempt to score political points.
There is a large flaw in Col Christensen's article:
ReplyDelete"For example, like all federal judges, Jackson had (and used) the authority to subject offenders to lengthy conditions after being released from prison, including sex offender treatment; restrictions on accessing the internet; monitoring of computer devices and smart phones; and no-notice searches. These measures are, of course, designed to reduce recidivism. In contrast, after a military offender has served their court-martial sentence, they are subject to no such restrictions. When a military offender is released from jail, there is nothing stopping them from going right back to searching for more child pornography."
Like "regular" federal prisoners, military prisoners who are released from confinement are indeed subject to "mandatory supervised release" [MSR]and is under the active supervision of a US Probation Officer who sets terms and conditions - in military child porn case, the same conditions which are imposed on former BoP inmates.
This is governed by DoDI 1325.07, Encl. 2, para. 20.
Mr. Rehkopf, I'm certain you agree with me that military judges do not have the authority to order conditions on supervised release. I would also hope you would agree that the MSR you are talking about stops when a service member serves their sentence.
ReplyDeleteI wrote,"after a military offender has served their court-martial sentence, they are subject to no such restrictions." The MSR you are referencing only applies for parole and when a prisoner is released for good time, etc under MSR. Parole and MSR end when the prisoner's sentence is complete. Supervised release does not extend beyond the length of the sentence. Thus when a military offender has served their sentence, there is no follow on period of court ordered supervised release like in the federal system.
To use the example of the two Air Force colonels I referenced in the opinion piece. The colonel prosecuted by the feds will serve five years and then start 15 years of supervised release. The colonel prosecuted by the Air Force served a year (not counting potential good time) and after that year he was not subject to any supervised release conditions.
Even if he was released for good time, he would not have been subject to MSR because of his short sentence. Only prisoners with a sentence of 3 or more years are really subject to MSR. As military child porn possession cases rarely result in that lengthy of a sentence, I stand by my assertion that when a military member convicted of child porn possession is released from confinement, they have no supervised restrictions preventing them from accessing more child pornography.
Bottom line is that military judges do not have authorities that federal judges have to order supervised release conditions, and the MSR you referenced only apply to prisoners released early on parole or MSR and lasts only until their sentence is served. And a prisoner does not have to accept parole and often they do not accept parole because they do not want to be subjected MSR requirements such as sex offender treatment.
1) I will agree that MJ's have no authority to impose MSR, but whether or not they have an obligation to ensure that a convicted servicemember is aware of the MSR mandates [by operation of law], e.g., immigration consequences, etc., is a contention resolved on a case-by-case basis.
ReplyDelete2) I can't agree that MSR stops when the sentence is "served." It can be, but is not always the case. Whether this violates the ex post facto clause when it does extend the length of a sentence [which happened in one of my cases and we're preparing to litigate], and I also have a USMC client who served 13 years on a 15 year sentence and then got a 5 year MSR.
See AR 15-130, para. 3-2(c): https://arba.army.pentagon.mil/documents/AR15-130.pdf
and, in addition to the DoDI I referenced earlier, see Army TJAG Criminal Law Deskbook, Chap. 30:
https://tjaglcspublic.army.mil/criminal-law-deskbook?p_p_id=54_INSTANCE_79pzdDvgfBLM&p_p_lifecycle=0&p_p_state=normal&p_p_mode=view&p_p_col_id=column-1&p_p_col_count=2&_54_INSTANCE_79pzdDvgfBLM_struts_action=%2Fwiki_display%2Fview_page&_54_INSTANCE_79pzdDvgfBLM_nodeName=Criminal+Law&_54_INSTANCE_79pzdDvgfBLM_title=30.+Corrections+and+Post-Conviction+Consequences
Mr. Rehkopf,
ReplyDeleteThis is from the DODI you referenced:
"A prisoner released on MSR through good conduct time
(GCT) and abatement credits is subject to supervision by a U.S. probation officer up to the full-term of
the sentence imposed."
A federal judge has the authority to ensure a lengthy period of supervised release after a sentence is served and that authority simply does not exist for military judges. Most military sentences are below the three year threshold used for MSR, and importantly a prisoner can refuse MSR by forfeiting good time credit. By contrast a federal judge can order sex offender treatment etc. and the federal judge can order the supervised release conditions even if the offender is sentenced to no or minimal jail. No such process exists in the military.
The fact that you have client who appears to have had his rights violated does not negate the fact MSR in the military is not comparable the power federal judges have. Which brings me back to my main point. Sen Graham's attack on Judge Jackson was hypocritical because her sentences and supervised release conditions are much stiffer than military members receive. Yet, he has done nothing to reform the military sentencing process including the use of presentencing reports and judge mandated supervised release restrictions.
CAAF has also addressed this issue making it clear MSR and parole only lasts as long as the approved sentence:
ReplyDelete"In addition, parole is a voluntary program, in which the inmate applies to participate during the balance of his or her period of approved confinement."
"As with parole, Mandatory Supervised Release applies from the
time of release from prison until the end of the prisoner’s
approved sentence, and it may be revoked for violation of the
terms and conditions of the program."
United States v. Pena, 64 MJ 259 (2007)