Jackson v. Taylor
Opinion of the Court
delivered the opinion of the Court.
This is a habeas corpus proceeding in which petitioner, a soldier, attacks the validity of a sentence of 20 years he is now serving as the result of his conviction by an Army court-martial of the offense of attempted rape. While serving in the United States Army in Korea, he was found guilty by a general court-martial of the separate offenses of premeditated murder and attempted rape of a Korean woman. He was given an aggregate sentence
Petitioner was tried with two other soldiers and each was convicted of the same offenses, premeditated murder and attempted rape. Each was also sentenced to life imprisonment. The record of the trial was then forwarded to the convening authority where the convictions and sentences were approved. In accordance with military procedure, the record was then forwarded with the convening authority’s approval to a board of review in the office of the Judge Advocate General of the Army. That board, as already stated, found the murder convictions unsupported by the record and set them aside, but sustained the convictions for attempted rape and modified the sentences. The soldiers then sought further review by petition before the United States Court of Military
Petitioner claims no deprivation of constitutional rights. He argues only that under military law the board of review should have ordered either a rehearing or that he be released because it was without authority to impose the 20-year sentence.
The review board derives its power from Article 66 of the Uniform Code of Military Justice, 64 Stat. 128, 50 U. S. C. § 653.
“(c) In a case referred to it, the board of review shall act only with respect to the findings and sen*573 tence as approved by the convening authority. It shall affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved. In considering the record it shall have authority to weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses.”
Here the board relied on its power to “affirm . . . such part or amount of the sentence, as it finds correct . . . .” Petitioner argues, however, that the 20-year sentence was not a “part or amount” of the sentence imposed by the court-martial. He supports this by reference to the action of the law officer of the court-martial who, after the findings of guilt were returned, advised its members in open court of the punishment it might impose. In view of the finding on the murder charge, he told the court-martial it had only two alternatives, a death sentence or life imprisonment. Art. of War 92, 62 Stat. 640. He made no reference to the punishment for attempted rape, the maximum for which is 20 years. Since the court-martial was required to impose a single sentence covering both of the guilty findings,
But, the petitioner says, simple arithmetic shows that no sentence was imposed on the attempted rape finding. He reasons that the offense of premeditated murder carries a minimum punishment of life imprisonment, the exact sentence he received. The sentence therefore included no punishment covering the attempted rape finding he claims. It is true that the sentence was not broken down as to offenses. That is not permitted. However, the petitioner in his analysis overlooks entirely the requirement of military law that only the entry of a single gross sentence for both of the offenses is permitted. This Court has approved this practice. Carter v. McClaughry, 183 U. S. 365, 393 (1902). See also McDonald v. Lee, 217 F. 2d 619, 622 (1954); Winthrop, Military Law and Precedents (2d ed. 1920), 404. The sentence here was a gross sentence. It covered both the convictions. What the petitioner would have us do is to strike down this long practice, not only approved over the years by the Congress but by our cases. This we cannot do.
The question remains whether the board had the authority to modify the life sentence to 20 years after the murder conviction was set aside. Reviewing authorities have broad powers under military law.
Review of a court-martial conviction is first provided by the convening authority — the commanding officer who directed that the case bé tried before a court-martial. He is empowered to reduce a sentence though he cannot increase it. He can weigh facts, determine credibility of witnesses, disapprove findings of guilt which he believes erroneous in law or fact, and determine sentence appropriateness without regard to what the court-martial might have done had it considered only the approved findings. Art. 64 of the Uniform Code, 64 Stat. 128, 50 U. S. C. §651. He has other broad powers. See Manual for Courts-Martial, United States (1951), c. 17. Here the convening authority approved the action of the court-martial.
The next stage of review is that with which we are particularly concerned. It is conducted by the board of review composed of legally-trained officers.
Against this background of broad powers of review under military law, Congress began the drafting of the new Uniform Code of Military Justice. Their work culminated, so far as we are here concerned, with Article 66 (c), supra. Petitioner finds the language of this section ambiguous and argues that any ambiguity must be resolved in favor of the accused. That would be true if there were ambiguity in the section. But the words are clear. The board may “affirm ... such part or amount of the sentence, as it finds correct . . . That is precisely what the review board did here. It affirmed such part, 20 years, of the sentence, life imprisonment, as it found correct in fact and law for the offense of attempted rape. Were the words themselves unclear, the teachings from the legislative history of the section would compel the same result.
The Uniform Code was drafted by a committee chair-manned by Professor Edmund M. Morgan, Jr. In testifying before the Senate Subcommittee which considered the bill, Professor Morgan stated with reference to the review board that it now
“has very extensive powers. It may review law, facts, and practically, sentences; because the provisions stipulate that the board of review shall affirm only so much of the sentence as it finds to be justified by the whole record. It gives the board of review . . . the power to review facts, law and sen*577 tence . . . Hearings before a Subcommittee of the Senate Committee on Armed Services on S. 857 and H. R. 4080, 81st Cong., 1st Sess. 42.
Military officials opposed giving the review boards power to alter sentences. Id., at 262, 285. The Subcommittee nevertheless decided the boards should have that power. Id., at 311. The Committee Report to the Senate augments the conclusion that the boards of review were to have the power to alter sentences.
Boards of review have been altering sentences from the inception of the Code provision. These alterations have been attacked but have found approval in the courts as
Finally the petitioner suggests that the case should be remanded for a rehearing before the court-martial on the question of the sentence. We find no authority in the Uniform Code for such a procedure and the petitioner points to none.
Affirmed.
The Manual for Courts-Martial, United States (1951), App. 8, at 521, specifically provides, inter alia: “The court will adjudge a single sentence for all the offenses of which the accused was found guilty.” This sentence is known as an “aggregate” or “gross” sentence. A court-martial may not impose separate sentences for each finding of guilt, but may impose only a single, unitary sentence covering all of the guilty findings in their entirety, no matter how many such findings there may be.
Carl De Coster, one of the codefendants with petitioner, was released on an order of the Court of Appeals for the Seventh Circuit. See De Coster v. Madigan, 223 F. 2d 906 (1955). The other code-fendant, Harriel Fowler, was denied release by the Court of Appeals for the Fifth Circuit. See Wilkinson v. Fowler, 234 F. 2d 615 (1956). While no petition was filed in the De Coster case, we granted certio-rari in both the petitioner’s and Fowler’s cases.
Since this action was filed this section has been revised and recodi-fied as 70A Stat. 59, 10 U. S. C. (Supp. IV) § 866. The changes in language are not pertinent to this case. Other sections of the Uniform Code are cited in the form and source in which they appeared during the course of this litigation. The Uniform Code now appears in 70A Stat. 36-78, 10 U. S. C. (Supp. IV) §§ 801-934.
See note 1, supra.
For a detailed analysis and history of review powers under military law see Fratcher, Appellate Review in American Military Law, 14 Mo. L. Rev. 15 (1949).
Art. 66(a) of the Uniform Code, 64 Stat. 128, 50 U. S. C. § 653 (a) provides:
“(a) The Judge Advocate General of each of the armed forces shall constitute in his office one or more boards of review, each composed of not less than three officers or civilians, each of whom shall be a member of the bar of a Federal court or of the highest court of a State of the United States.”
See Art. of War 51 (a), 62 Stat. 638, and Art. of War 49, 62 Stat. 635.
“The Board of Review shall affirm a finding of guilty of an offense or a lesser included offense ... if it determines that the finding conforms to the weight of the evidence and that there has been no error of law which materially prejudices the substantial rights of the accused. . . . The Board may set aside, on the basis of the record, any part of a sentence, either because it is illegal or because it is inappropriate. It is contemplated that this power will be exercised to establish uniformity of sentences throughout the armed forces.” S. Rep. No. 486, 81st Cong., 1st Sess. 28.
Commentators have recognized this power of sentence review since the enactment of the Code. See, e. g., Currier and Kent, The Boards of Review of the Armed Services, 6 Vand. L. Rev. 241 (1953). “The greatest single change brought about in the powers and duties of the boards of review by the Uniform Code of Military Justice is the power of the board to affirm only so much of the sentence in a given case as it finds appropriate.” Id., at 242. See also 65 Yale L. J. 413.
Petitioner complains that the 20-year sentence for attempted rape was excessive. He argues that because the court-martial gave him the minimum sentence for premeditated murder, it would not have given the maximum sentence for attempted rape. We need not speculate on what the court-martial would have done, nor will we interfere with the discretion exercised by the board of review. It held that in the “vicious circumstances of this case,” 20 years was an appropriate sentence. Furthermore, since the sentence was legally imposed, its severity is not reviewable on habeas corpus in the civil courts. Carter v. McClaughry, 183 U. S. 365, 401 (1902).
The United States Court of Military Appeals in United States v. Field, 5 U. S. C. M. A. 379, 18 C. M. R. 3 (1955), hesitatingly suggested in dictum that a convening authority might return a case to a court-martial solely for the purpose of a reassessment of sentence on the findings of guilt affirmed by him. The court indicated that such a practice would be unlikely for “obvious and compelling reasons of a practical character.” Id., at 385, 18 C. M. R., at 9. It explicitly refused to express an opinion concerning the desirability of the practice. There, of course, was no suggestion that the practice was mandatory for the convening authority has, just as has the board of review, the power to modify a sentence to make it appropriate. See also United States v. Voorhees, 4 U. S. C. M. A. 509, 543, 16 C. M. R. 83, 117 (1954).
It is well to point out that the Uniform Code permits the convening authority under limited circumstances to return a case for “reconsideration and revision” to a court-martial composed of “only ... the members of the court who participated in the findings and sentence.” See Art. 62 of the Uniform Code, 64 Stat. 127, 50 U. S. C. § 649, and Manual for Courts-Martial, United States (1951), at 130. This would be impossible after the passage of time in nearly every case since the original court-martial could not be reassembled. On the other hand, if resentencing is a limited type of rehearing, the Uniform Code requires the rehearing to “take place before a court-martial composed of members not members of the court-martial which first heard the case.” (Emphasis added.) Art. 63 of the Uniform Code, 64 Stat. 127, 50 U. S. C. § 650. Such a court-martial would be no more capable — if as capable — as a board of review.
Dissenting Opinion
dissenting.
I am unable to see how the action of the Board of Review can fairly be characterized as other than an original imposition of sentence by the Board for the offense of attempted rape. The Uniform Code of Military Justice grants no power to the Board to impose original sentences. 64 Stat. 128, 50 U. S. C. § 653. That power is reserved exclusively to the court-martial. There was, therefore, no valid gross sentence embracing attempted rape upon which the Board’s power to remit an excessive portion could operate. I subscribe to what Judge Major said in the similar case of De Coster v. Madigan, 223 F. 2d 906, 909-910 (C. A. 7th Cir. 1955), in which De Coster was allowed habeas corpus and ordered discharged:
“. . . While the court-martial obviously had jurisdiction of plaintiff and the offenses with which he was charged, it did not fully and fairly deal with him. The Law Officer instructed the court-martial that the minimum sentence which could be imposed on the murder charge was life imprisonment. But the Law Officer gave no instructions as to the punishment which could be imposed on the attempted rape charge. The court-martial found plaintiff guilty of both murder and attempted rape, but its sentence was life-imprisonment, the minimum sentence for the murder charge alone. Of course, any suggestion that the court-martial should have sentenced plaintiff for a term of life plus twenty years would be ridiculous, but equally so is the assertion that the court-martial did or intended to impose any part of its sentence for attempted rape. It lacked even the*582 necessary instructions upon which such award of punishment would have to be based. Imposition of sentence by the proper authority is an essential step in administration of criminal justice. Here, under the statute, only the court-martial was authorized to take this step; it failed to do so.”
Reference
- Full Case Name
- Jackson v. Taylor, Acting Warden
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