Update on Mandatory Supervised Release

Thanks to CAAFLog there is news about the military mandatory release program imposed on those convicted and sentenced at court-martial.

Judge Rogers of the 10th Circuit has found the program to be legal and constitutional, in Huschak v. Gray, 642 F. Supp. 2d 1268 (D. Kan. 2009).  (United States v. Huschak, ACM 35382 (A. F. Ct. Crim. App. 28 June 2004) aff’d 61 M.J. 154 (C.A.A.F. 2005).  He was sentenced to 10 years of confinement, and the CA reduced confinement to 8 years.  As Judge Rogers notes, no issues relating to the MSRP were raised at trial or on appeal.  The case preceded United States v. Pena.

In the old days the military prisoner who reached the MRD would be released from confinement and released.  There was no consequence to their current sentence if they got in more trouble, also the government couldn’t impose conditions on that release such as attending sex offender treatment programs.  That meant that as they got closer to parole eligibility the prisoner started to think about gaming the system.  At the time a paroled prisoner would be on the military leash up until their FTD, they could have parole revoked, and the could be back serving every day of the adjudged sentence.  Typically that meant that a prisoner offered parole during their last year up to MRD gamed the system and refused parole.  They’d have to serve up to their MRD for several more months, but it was better than being on the government leash for several more years through the parole system.

All changed some years ago when the mandatory release program was adopted for military prisoners, under the intent of 10 U. S. Code §952, which allows the service secretaries to provide a system of parole.

Judge Rogers effectively demolishes each argument against the program, even the ones he states should have been raised in the military courts, weren’t, and so were waived.  As CAAFLog astutely notes, the petitioner in Huschak apparently had no idea about the program while going through his providency or the military appellate process.  This, based on experience, is because many defense counsel don’t know about the program and/or don’t discuss these types of collateral consequences with the client after trial.  Perhaps as a former member of the Navy Clemency & Parole Board it seems easy to discuss the “next steps” when talking to a client about “what next?”  But some discussion ought to be had about how to survive the Brig and how to get clemency or parole.  There is more to the what next than how many good time days does the person get.  ** Defense counsel note ** another potential, “he never told me” complaint on appeal along with the he never told me about sex offender registration or he never told me about deportation, in guilty plea cases?  I would not expect the issue to be a winner.  Somewhere the courts will have to draw a line for when a defense counsels “failure” to advise is truly central to a guilty plea decision.  While sex offender registration and deportation are major impacts on a persons life, the lesser collateral effects of post-confinement parole or other monitoring should not imperil a guilty plea.  That is not to say that defense counsel shouldn’t include advice about the Brig and release programs to their clients pre and post-trial.

Again, quoting from CAAFLog:

Huschak also argued that his guilty pleas were improvident because he wasn’t advised of the possibility of being placed on involuntary MSR.  Judge Rogers held this issue was waived by failure to raise it in the military appellate system.  But again, he proceeded to reject the claim’smerits:  “Parole is not a matter which must be discussed with a defendant prior to a guilty plea.  The Supreme Court has noted that it has never held ‘that the United States Constitution requires the State to furnish a defendant with information about parole eligibility in order for the defendant’s plea of guilty to be voluntary, and indeed such a constitutional requirement would be inconsistent with the current rules of procedure governing the entry of guilty please in the federal courts.’”  Id. at 1281 (quotingHill v. Lockhart, 474 U.S. 52, 56 (1985)).  Judge Rogers concluded, “The possibility that petitioner would be involuntarily placed on MSR was a collateral consequence of his guilty plea, and the failure of the court to warn him of that possibility did not render his plea involuntary or improvident.”  Id.

There is one potential issue that has yet to develop fully.  Again quoting CAAFLog.

Finally, Huschak argued that being required to participate in a sex offender treatment program violated his Fifth Amendment right against self-incrimination.  . . . Judge Rogers didn’t suggest that such an argument couldn’t ever succeed, but held that Huschak had not presented a sufficient factual basis to prevail.  He wrote, “Petitioner must establish that the risk of incrimination from compelled testimony was substantial and real.”  Id.at 1282.  “Persons asserting a Fifth Amendment privilege are not exonerated from answering merely because they declare that in so doing they would incriminate themselves — their say-so does not of itself establish the hazards of incrimination.”  Id.  But “petitioner does not state whether petitioner would have been required to admit his guilt regarding matters beyond those counts to which he has already pleaded guilty and been punished.”  Id.  Judge Rogers also noted that “when the only consequence to a refusal to answer questions is the revocation of supervised release as opposed to criminal liability, courts have found that the Fifth Amendment right to self-incrimination is not implicated.”  Id.

As a general proposition, the USDB and Miramar, and any other legitimate program do require full admissions of guilt and acceptance of responsibility for the confining offenses.  So whether the MSRP imposes an impermissible Fifth Amendment burden lives for another day.

There has been some military litigation on some of the Huschak issues.

I. WHETHER THE APPELLANT WAS IMPROPERLY PLACED ON EXCESS APPELLATE LEAVE AND DENIED PAY AND ALLOWANCES IN VIOLATION OF ARTICLE 76a, UCMJ, WHEN HIS SENTENCE TO CONFINEMENT WAS NOT COMPLETED OR REMITTED AND HE WAS FORCED TO FULFILL CONDITIONS OF MANDATORY SUPERVISION UPON HIS RELEASE FROM CONFINEMENT.

II. WHETHER THE AIR FORCE CLEMENCY AND PAROLE BOARD INCREASED THE SEVERITY OF APPELLANT’S SENTENCE IN VIOLATION OF ARTICLE 55, UCMJ, AND THE EIGHTH AMENDMENT WHEN IT FORCED APPELLANT TO FULFILL CONDITIONS OF MANDATORY SUPERVISION THAT ARE NOT AUTHORIZED BY THE UCMJ.

III. WHETHER THE IMPOSITION OF CONDITIONS OF MANDATORY SUPERVISION ON APPELLANT VIOLATES THE DUE PROCESS CLAUSE BECAUSE THE MILITARY JUDGE DID NOT ANNOUNCE A PERIOD OF MANDATORY SUPERVISED RELEASE OR ANY OF ITS CONDITIONS AS PART OF THE SENTENCE.

IV. WHETHER APPELLANT’S PLEAS OF GUILTY ARE IMPROVIDENT BECAUSE THE MILITARY JUDGE DID NOT INFORM APPELLANT PRIOR TO ACCEPTING HIS PLEAS THAT HE COULD BE ADDITIONALLY PUNISHED IN UNSPECIFIED WAYS.

United States v. Pena, 64 M.J. 259, 261 (C.A.A.F. 2007), cert. denied 550 U. S. 937 (2007).  Pena is discussed by Judge Rogers,  Huschak, 642 F. Supp. 2d at 1275.