United States v. Varacalle

4 M.J. 181, 1978 CMA LEXIS 12999

• Court: United States Court of Military Appeals
• Decided: January 30, 1978
• Docket: No. 31,888; CM 434052
• Status: Published

Opinions

Opinion

FLETCHER, Chief Judge:

The appellant was convicted of sodomy with a child under 16 years of age, lewd and lascivious acts, solicitation of sodomy, indecent liberties with children under 16 years of age, and assault and battery on a child under 16 years of age in violation of Articles 125, 134 and 128, respectively, Uniform Code of Military Justice, 10 U.S.C. §§ 925, 934, and 928. He was sentenced by the military judge to a bad-conduct discharge, confinement at hard labor for 4 years and 3 months, forfeiture of all pay and allowances, and reduction to the lowest enlisted grade. Both the convening authority and the United States Army Court of Military Review approved the findings and sentence. We granted review to determine whether the appellant was prejudiced when the military judge considered the deterrence of others as a factor in imposing sentence. Examination of the record and the applicable legal standards leads to the conclusion that the trial judge acted properly in his sentencing deliberations.¹

We have been criticized ² for establishing a new rule in United States v. Mosely, 24 U.S.C.M.A. 173, 51 C.M.R. 392, 1 M.J. 350 (1976),³ which resulted in the discarding of the time-honored concept for proper sen-fencing common in both military and civilian jurisprudence of utilization of the factor of general deterrence in sentence deliberations.⁴ An unfortunate result of our desire to insure strict compliance with the worthy goal of “individualized sentencing” developed in United States v. Mamaluy, 10 U.S.C.M.A. 102, 27 C.M.R. 176 (1959), has been an improper restriction on the sentencing authorities from properly performing their function.⁵

Numerous reasons or philosophies have been advanced for the imposition of punishment.⁶ Despite the variety of methods of expressing these societal needs,⁷ general deterrence is virtually universally accepted.⁸ There are three reasons for prescribing punishment for those acts declared to be criminal by society. These are the protection of society, the rehabilitation of the offender, and example. The concepts of deterrence and example are not synonymous; instead deterrence comes about because of example. It should be evident that any criminal statute whose violation provides for punishment in any form is enacted with a purpose of making an example of the violator. A deterrence not only to the accused, but to all who are cognizant of the commission of the crime and of the punishment ordered, is the logical consequence of the imposition of a sentence. The punishment serves as notice that the society will not condone the act in question.

An accused properly sentenced is not being made example of for crimes committed by others. The sentence and the resultant punishment are individualized to the particular accused, but will vary as to the crime and the mores of that society at any certain time. Any sentencing authority, to be significant, must correlate its sentence with the present acceptance or nonacceptance of the given act. It must act as the community conscience within the prescribed limits at that point in time. To do otherwise, where a maximum and minimum sentence are set forth, vitiates society’s mandate to that authority to individually prescribe a punishment to meet the needs of that particular offender, and to protect society from future violations of that sort.

A sentencing authority would be remiss in imposing punishment if it did not consider both the effect it will have on the individual accused, and on the community, for society is protected through a proper sentencing process not only in an immediate sense from the criminal in the dock, but in a greater sense through the announcement that at this time and place, the given crime will be punished. This is general deterrence which is a valid and necessary facet of appropriate sentencing. To conclude that sentence authorities do not, or should not, do what this trial judge verbalized is a fiction, and ignores what is inherent in the decision-making process whereby the appropriate sentence is determined.

There is a critical distinction between an enlargement of a sentence for the purpose of general deterrence only without consideration for the particular accused, and the sentencing authority saying as to this individual with all the matters peculiar to him, we make an example of him and all others like him so disposed.⁹ The latter is necessary and proper to meet the needs of society, and to comply with the goal of individualized sentencing.

The decision of the United States Army Court of Military Review is affirmed.

1 . In the instant case, the prosecutor, in reliance upon our decisions in United States v. Mosely, 24 U.S.C.M.A. 173, 51 C.M.R. 392, 1 M.J. 350 (1976), and United States v. Miller, 24 U.S.C.M.A. 181, 51 C.M.R. 400, 1 M.J. 357 (1976), specifically argued that the court should not consider deterrence of others in determining an appropriate sentence. The trial judge, after announcing his sentence, related to the appellant the numerous factors and matters he had relied upon in determining what he felt was an appropriate sentence for appellant’s acts. Although this case, therefore, is not directly concerned with improper prosecutorial argument, the question of the validity of general deterrence as a sentencing factor is before us, and the viability and the scope of the Mosely concept must be properly scrutinized.

2 . I have carefully examined the position expressed in Mosely, and I conclude that, though it is sound in the narrow sense of its facts, its broad ramifications are untenable in the military justice system. As I was one of the concurring judges in that opinion, I now feel obliged to set forth my position separately. I share Judge Cook’s view that the military justice system requires that each defendant receive individualized sentencing; however, I do not regard the rejection of either all consideration of the concept of general deterrence by the sentencing authority or its espousal in a reasonable and professional manner by the prosecuting attorney as either necessary or desired in attaining that goal. My examination of this record convinces me that this appellant received a sentence that was “individualized,” that is, predicated on factors relevant to him, and hence, there was no error. To the extent, therefore, that Mosely involves anything more than a condemnation of overzealous argument by a prosecuting attorney as denounced in our other decisions (See e. g., United States v. Nelson, 24 U.S.C.M.A. 49, 51 C.M.R. 143, 1 M.J. 235 (1975); United States v. Knickerbocker, 25 U.S.C.M.A. 346, 349, 54 C.M.R. 1072, 1075, 2 M.J. 128, 130 (1977) (Fletcher, C. J., concurring in the result)), I view it now as incorrect.

3 . See United States v. Lucas, CM 434131, 2 M.J. 834 (A.C.M.R.1976); United States v. Davic, ACMS 24354, 1 M.J. 865 (A.F.C.M.R.1976).

4 . The concept is clearly well established in the civilian system; further, treatises and commentaries on military justice for over 100 years have recognized that one valid need or object of punishment was to deter others from similar acts. See Dudley, Military Law and the Procedure of Courts-Martial, 155 (1907); O’Brien, A Treatise on American Military Law and the Practice of Courts-Martial, 270 (1846); Winthrop, Military Law and Precedents, 397 (2d ed. 1925); Moyer, Justice and the Military, § 2-661 (1972).

The deterrence of others was often considered hand-in-hand with the necessary and specialized goal of the military society of maintaining military discipline. Obviously, the manner in which the argument is delivered, the matters referred to, and the concepts expressed may make the given argument or sentencing process improper. See Moyer, supra; Morrison, The Role of Trial Counsel in Sentencing Proceedings, 13 A.F.JAG L.Rev. 30 (1971). Yet, this cannot be said to undercut the validity of general deterrence as a sentencing factor or establish a specialized military society reason which denounces its use. (See note 2, supra.)

5 . Indeed, I seriously question whether the sentencing authority could ever actually sever such a consideration from his deliberations.

6 . Mr. Justice Black, in writing for a unanimous Court in Williams v. New York, 337 U.S. 241, 248 n.13, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), after a discussion of the modern philosophy of penology of having the punishment fit the offender, and not merely the crime, noted with approval the following formulation by Judge Ulman of the purposes of punishment found in Glueck, Probation and Criminal Justice, 113 (1933):

1st. The protection of society against wrong-doers.

2nd. The punishment—or much better—the discipline of the wrong-doer.

3rd. The reformation and rehabilitation of the wrong-doer.

4th. The deterrence of others from the commission of like offenses.

It should be obvious that a proper dealing with these factors involves a study of each case upon an individual basis.

7 . The ABA Standards Relating to Appellate Review of Sentences (Approved Draft 1968) at page 126, provides the following ethical bases for the state’s punitive intrusion upon personal liberty: (1) retributive, (2) general deterrence, (3) specific deterrence, (4) preventive, and (5) rehabilitative. See also Coffee, The Future of Sentencing Reform, 73 Mich.L.Rev. 1361 (1975); Bailey and Smith, Punishment: Its Severity and Certainty, 63 J.Cr.L. & Criminology, 530 (1972).

8 . See also United States v. Braun, 382 F.Supp. 214 (S.D.N.Y.1974).

9 . As the court in United States v. Foss, 501 F.2d 522 (1st Cir. 1974), correctly noted a sentencing authority/court’s duty to “individualize” the sentence simply means that, whatever that authority’s thoughts as to the deterrent value of a given sentence may be, he must in each case reexamine and measure that view against all the relevant facts and remaining sentencing goals. Once he has done so, he must then decide what factors, or mix of factors, will “carry the day”; and while his conclusions as to deterrence may never be so unbending as to forbid relaxation in the appropriate case, these may nonetheless justify the punishment if the situation so dictates.

Nothing in either United States v. Mamaluy, supra, or United States v. Hill, 21 U.S.C.M.A. 203, 44 C.M.R. 257 (1972), dictates an opposite result. Both of these cases stress the need for clear guidance to the sentencing authority to render an individualized sentence, yet neither prohibits reliance upon the concept of general deterrence. Instead, they prohibit punishment of an accused for the acts of others, rather than for his own illegalities or misconduct. Therefore, these cases are not in conflict with the position expressed in this opinion.