United States v. Jackson

3 M.J. 101, 1977 CMA LEXIS 9949

• Court: United States Court of Military Appeals
• Decided: May 16, 1977
• Docket: No. 30,812; CM 432738
• Status: Published

Opinions

Opinion of the Court

PER CURIAM:

Following our decision in United States v. Courtney, 1 M.J. 438 (1976), a number of questions aróse concerning its applicability to other cases pending appellate review at the time Courtney was decided. Crucial to many of the petitions now before this Court is whether Courtney should be given retroactive effect or, instead, should be applied only prospectively.

In Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975), the Supreme Court reiterated the factors set forth in Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) for resolving retroactivity questions:

(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.

Retroactive application of Courtney would overturn virtually every conviction obtained in good faith reliance on United States v. Walter, 20 U.S.C.M.A. 367, 43 C.M.R. 207 (1971), which, until Courtney, was the controlling precedent on matters concerning the maximum penalty for offenses which could have been charged under either Article 92, Uniform Code of Military Justice, 10 U.S.C. § 892, or Article 134, UCMJ, 10 U.S.C. § 934. Cf. Fuller v. Alaska, 393 U.S. 80, 81, 89 S.Ct. 61, 21 L.Ed.2d 212 (1968).

Balancing the purpose to be served by the Courtney equal protection standard against past reliance by the military justice community on the Walter standard, together with the adverse effect retroactive application would have on the administration of military justice, the Court believes prospective application of the Courtney rule to cases tried or retried after the date of the Courtney decision is the more equitable course of action. See United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975); Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971); Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969); Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966); Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); cf. Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971); Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968). See also Gosa v. Mayden, 413 U.S. 665, 93 S.Ct. 2926, 37 L.Ed.2d 873 (1973); Adams v. Illinois, 405 U.S. 278, 92 S.Ct. 916, 31 L.Ed.2d 202 (1972); Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966).

Decisions of the Courts of Military Review interpreting Courtney also suggest that some confusion remains as to what the decision actually requires. In Courtney, the Court found that “drug offenses punished by the Army under Article 92, UCMJ, [were] virtually identical with those punished under Article 134, UCMJ.” 1 M.J. at 440.¹ We went on to note that neither Congress nor the President “has sought to recognize varying ‘degrees of evil’” insofar as treatment of drug offenses under Articles 92 and 134 is concerned. Id. We stressed the absence of “a uniform policy . . . with regard to how servicemen who commit drug offenses will be charged.” Id. The resultant punishment differential between Articles 92 and 134, we concluded, violated the fifth amendment. In so concluding, the Court believes that the absence of statutory or Manual guidance² to insure equal treatment of all servicemembers coupled with the existence of two statutes which punish virtually identical conduct in different ways renders the use of a more severe penalty³ for Article 134 drug offenses than that prescribed for similar violations of drug regulations under Article 92 unconstitutional.

The decision of the U. S. Army Court of Military Review is affirmed.

1 . We reach the same conclusion insofar as the other services are concerned.

2 . Through amendment of Army Regulation 600-50, the government suggests that equal treatment of Army personnel for drug offenses now is assured. The Uniform Code of Military Justice was designed to afford equal treatment for servicepersons in all branches of the armed forces. Consequently, regulatory amendment of the sort proposed does not necessarily eliminate the equal protection infirmity addressed in Courtney.

3 . It is, of course, incumbent upon the trial judge to ascertain the appropriate maximum penalty. United States v. Harden, 1 M.J. 258, (1976); cf. United States v. Graves, 23 U.S.C.M.A. 434, 50 C.M.R. 393, 1 M.J. 50 (1975).