Collateral consequences

Thanks (again) to CAAFLog for finding a case relating to collateral consequences — Moutrie v. Secretary of the Army, __ F. Supp. 2d __, No. CV 09-4456-SVC (RC) (C.D. Cal. July 7, 2010).

Up until, oh I don’t remember the date now, but quite a number of years ago, a military prisoner who reached his minimum release date (MRD) was released without any restrictions on liberty post release.  That lead to a bit of gamesmanship before the clemency and parole boards.  If a prisoner was up for parole consideration and he had less than a year to go for his MRD the prisoner would usually waive parole consideration.  They were willing to serve the months rather than be paroled.  That was because a paroled prisoner would waive all of their good time.  But more importantly be subject to many onerous conditions of parole.

(Note to trial practitioners.  Before advising your client about post-trial matters I would recommend you consult and you review with the client DODI 1325.7.  This regulation has a number of important rules you can educate your client about (including, yes, sex offenders).  Although it does not contain Rule No. 1 for obtaining parole: that you “have taken responsibility for your confining offenses.”  Words to that effect must show up somewhere in confinement evaluations and recommendations.  That works pretty well in a GP case.  If you are a defense counsel and have NG but found guilty case give me a call, all is not lost.  [Having sat as a voting member of the Navy C&PB, albeit some years ago, I’d venture that no other rule is as important to parole than Rule No. 1.  You may have good scores on the points based classification system and good reports and no discipline reports, but . . .  you clearly haven’t learned any lessons.]  Anyway.  Upon entry to confinement the facility calculates the full term date (FTD), that’s day for day service of sentence, minus credit for pretrial confinement or an Article 13, UCMJ, violation, or effect of a PTA.  Then they calculate automatic good time credit based on the length of approved sentence, which becomes the minimum release date (MRD).  Absent loss of good-time or clemency or parole that’s when the prisoner can normally expect to be released.)

Once the rule changed it no longer matters much about release on MSR or parole because of mandatory supervised release conditions.  These conditions can be as onerous as parole conditions administered by the federal probation and parole personnel.  In particular mandated sex offender or other counseling, no computer access, etc.

As Dwight points out that rule was challenged in United States v. Pena, 61 M.J. 776 (A.F. Ct. Crim. App. 2005), aff’d, 64 M.J. 259 (C.A.A.F. 2007).  The petitioner in Pena was unsuccessful.

The district court judge in Moultrie denied the petition.  So now several courts have independently ruled against a petitioner wanted a ruling against application of MSR, as well as CAAF.  It would seem that the issue doesn’t really become ripe until such time as the prisoner is about to be or is released on MSR?

The results are consistent with Supreme Court jurisprudence as those ordered into supervision by state or federal civilian courts.  No federal circuit court has ruled on this issue yet.  But Dwight points to the one case from the federal jurisdiction in which the USDB sits — Huschak v. Gray, 642 F. Supp. 2d 1268 (D. Kan 2009).  It was assumed that all MSR’s would have to be litigated in Kansas.  But if Moultrie is followed, a MSR’ee can seek relief in the federal district court-house building in which (usually) his probation officer has her office.  A similar type of petition has been denied in Clayton v. United States Army, 20091119, 0000827 (W.D. Ky. November 19, 2009).

Here is a link to the U.S. Sentencing Commission report on Federal Offenders Sentenced to Supervised Release, July 2010.