Middendorf v. Henry

MIDDENDORF, SECRETARY OF THE NAVY, et al. HENRY

v. et al. January Argued 22, No. 74-175. Reargued November 1975 Decided March 1976* Henry *Together 74-5176, Middendorf, with No. al. Secre et tary Navy, al., et also on certiorari to the same court. J., Court, Rehnquist, opinion delivered the which Burger, J., JJ., C. White, Blackmun, joined. and and Powell, J., Powell, J., concurring opinion, filed a Blackmun, in which joined, post, p. post, 49. J., dissenting statement, filed a Stewart, p. J., 49. filed a dissenting opinion, in which Brenn Marshall, J., post, joined, an, Stevens, p. J., part 51. took no con sideration or decision of the cases.

Harvey Stone pro M. vice hac argued the cause petitioners in No. 7-N-175and respondents in 74-5176 No. on the reargument. Deputy Frey Solicitor General ar- gued the cause for parties those on the original argu- ment. With Mr. Stone on the brief were Solicitor Gen- eral Bork, Attorney Assistant General Petersen, Harriet S. Shapiro, Sidney Merlin Glaser, H. B. Staring, H. M. Robertson, Jr., and Max Halliday. G.

Nathan R. Zahm reargued petitioners the cause for No. 74-5176 respondents 74-175. With No. him on the briefs A. Wirin, L. Fred F. Okrand, David were Addlestone, and Thomas Geisler, Jr. M. opinion Rehnquist delivered Justice

Mr. Court. members 1—then enlisted February plaintiffs

In class this Corps brought United Marine States — the Central Court for District in the United action States authority of challenging District California summary without courts-martial try them at had been plaintiffs2 Five with counsel. providing them 3 in violation of absences” charged “unauthorized convicted S. C. § 86, UCMJ, Art. alia, periods sentenced, inter

courts-martial, and labor. days at hard to 30 ranging from 20 confinement charged, were plaintiffs, two whom The other three as one with alia, absence inter with unauthorized been had C. § 928, S.U. UCMJ, sault, Art. which to stand trial at ordered had were convicted Those who had not been convened. awaiting who were counsel—those provided not been pro not be that counsel would trial had been informed prior were informed plaintiffs All convicted vided. counsel and they be afforded trial would not they if they could refuse trial would their cases In the of such refusal so desired. event at which special to be referred writing All consented provided. plaintiffs would be without by summary court-martial, proceed to trial court petitioned judgment of the parties 1 Both have from “plaintiffs” simplicity to the servicemen below. For we refer parties and as “defendants.” the federal 2 original plaintiffs among the six Including two not who were but later intervened. 3 charged with several plaintiffs One of these was also other officer, offenses, including superior on a noncommissioned assault Military (UCMJ), 10 U. C. 91, Uniform Justice S. Art. Code § 891.

29 counsel.4 Plaintiffs’ court-martial records were reviewed by and approved5 Judge pursuant Staff Advocate 65 (c), (c). § Art. S. Plaintiffs did C. UCMJ, petition not file a Judge review with the Advocate Navy pursuant General Art. 69, UCMJ, S. 869.6 § U. C.

In the District Court, plaintiffs brought a class action seeking habeas corpus (release confinement), from an 4Plaintiffs were so pursuant informed and to the terms consented (Navy) Judge Staff Advocate Memorandum 10-72 which was force at Corps plaintiffs El Toro Marine Air Station where all were stationed. Record 18. example, plaintiff Henry,

For following entry as to appears in the record his court-martial:

“The that, by accused was Summary advised if tried Court- by Martial, represented appointed military he would not be counsel; instead, Summary thoroughly Court-Martial Officer would inquire impartially and matter, into both sides of the and would assure that the interests of both the Government the accused that, are safeguarded; if Special his case were that referred to a [sic], provided Courts-Martial he would be In addition, counsel. accused, being punishment after informed of the maximum im- posable Summary his case both Courts-Martial [sic] Special [sic], statutory Courts-Martial he foregoing would be his rights Special Id,., counsel at a 114. Courts-Martials [sic].” plaintiff, At McLean, guilty least one was found not as to cer charges tain at the Upon court-martial. review at the supervisory authority level, guilty findings charges on certain other upon which he had been convicted were reversed. plaintiffs arguably military These failed to exhaust their reme However, urge dies. the defendants that exhaustion be re not quired practice here because the Judge Advocate has General any petitions been to defer consideration of right-to-counsel on the pending completion litigation issue on this issue in the fed eral courts. requirement

Since the exhaustion is designed to protect the mili- tary from undue interference courts, Schlesinger federal Councilman, 420 U. (1975), can waive that requirement it where feels that review in the federal courts is necessary. Iowa, Sosna v. See 419 (1975). U. 396-397, S. 3n. resulting from un- confinement against future

injunction and an summary convictions, counseled previously those vacating order the convictions convicted. as a proceed suit

The District Court allowed the re- plaintiffs’ all of expunged class action, convictions, their class7 members of plaintiffs leased all and all other injunction confinement, and issued a worldwide from Be- counsel. without against merits, on the we disposition cause of our of this case Fed. of whether question have no occasion to reach is applica- providing Rule Proc. for class Civ. actions, Nelson, Harris petitions corpus, ble to habeas see prop- Court (1969), 394 U. or whether the District S. entitled to be erly its remedial order was determined that in district enforced outside of the territorial limits which the court sat. Appeals judgment vacated the Court the case for reconsideration Court,

District and remanded Daigle v. Appeals’ light opinion of the Court Warner, (CA9 Daigle had held 1973). 490 F. 2d 358 no Amendment to counsel there was Sixth and there likewise courts-martial, held Fifth Amendment process no absolute due was every might case in which a defendant However, citing Gagnon v. imprisoned. Scarpelli, did hold (1973), required it that counsel was timely request makes a based on a “accused where (1) claim that he has a and colorable defense, mitigating there are and as- (2) circumstances, necessary adequately of counsel is in order sistance Navy Corps all members included Marine The class required (the now or will be or are after date of who “were trial who had not order) stand courts-martial” Supp. 495, 357 F. been afforded counsel.

31 Daigle present mitigating or circumstances.” defense for exception general made an from this rule cases reasonably available,” which counsel "is not which required. it would not be 490 365. instance 2d, F. granted 419 We certiorari. S. 895 U.

I provides four The UCMJ methods for disposing cases involving committed offenses servicemen: and dis- courts-martial, general, special, ciplinary punishment administered the commanding pursuant officer § Art. 815. UCMJ, 10 U. S. C. 15, special General and judicial resemble pro- courts-martial nearly always presided ceedings, by lawyer over judges with lawyer prosecution counsel for both the and the de- fense.8 General courts-martial are authorized to award any lawful including death. Art. sentence, 18, UCMJ, 10 U. S. C. Special may § 818. courts-martial award a bad-conduct up to six months’ discharge, confinement at hard labor, pay per forfeiture two-thirds month for six and in months, case an enlisted re- member, duction to the pay lowest Art. 10 19, grade, UCMJ, U. 819. § S. C. Article 15 per- conducted punishment, by the sonally accused’s is commanding an admin- officer, 8 mandatory These features are general Special courts-martial.' may be, are, but seldom convened military without judge; cases, such the senior member of presides. court Appointed defense special counsel at a required court-martial is be an attorney, attorney unless an cannot be obtained because of physical military conditions or exigencies. In addition ap pointed general special counsel at a court-martial, or the accused may retain civilian expense, counsel at his own he repre by sented lawyer of his selection, lawyer own if such “reasonably 16, 25, (b), available.” Arts. 27 27 (c), (b), UCMJ, 10 U. 825, C. (b), S. (c), 838 (b). §§ minor offenses. the most dealing method

istrative (1974).9 Levy, Parker v. position be occupies summary 15 and under Art. disposition nonjudicial

tween informal special general and of the procedure courtroom-type justice to “is exercise purpose, Its courts-martial. sim minor offenses under a relatively promptly for Courts-Martial Manual procedure.” ple form ¶ con proceeding is an informal (MCM). It (1969) 79a with jurisdiction officer commissioned ducted a single officers and other enlisted only noncommissioned over 820. The 10 S. C. personnel. UCMJ, § U. 20, Art. and factfinder, presiding officer acts prosecutor, judge, presiding officer must inform counsel. The defense of the accuser and charges and name accused of the or all whom he the accused desires to call.10 call witnesses MCM The accused must consent trial ¶ 79d (1). 9 may punishments imposed maximum which be under The days’ custody; days’ 60 15 are: 30 correctional restriction Art. specified limits; days’ duties; forfeiture of one-half of one extra months; per pay month’s month for two detention of one-half of pay per months; grade. one month’s month for three reduction in may sen Enlisted members attached or embarked on a be vessel days’ tenced to three and or confinement on bread water diminished custody necessarily rations. Correctional same is not as confine way It ment. is intended to be served in a which normal allows performance duty, together counseling. intensive Persons custody, however, may serving be Art. 15 correctional confined. (b). Department Navy, 1640.9, See of the Inst. SECNAV Correc Manual, 1972; Department Army, Pamphlet tions c. June of the 27-4, Custody, 1972; Department No. Correctional 1 June Force, Reg. 125-35, Custody, Air Correctional Oct. 1970. 10Additionally, the officer must inform the accused of his him or remain silent and allow to cross-examine witnesses have them The court officer cross-examine for him. ac- may testify present cused If in his own behalf. evidence

33' by summary if he does not do court-martial; trial so, may special general be ordered court-martial.

The maximum sentence which im elements posed by con courts-martial are: one month’s finement at labor; days’ hard hard labor without confinement; two months’ restriction to specified limits; reduction to the lowest enlisted pay grade; and forfeiture pay two-thirds for one month. Art. UCMJ, § S. C. 820.1

II question of whether an accused in a court-martial has a constitutional to counsel has been much de- bated squarely Covert, never Reid resolved. See 354 U. S. 37 Ex 1, parte Dicta in 4 Milligan, 123 said that “the of 2, (1866), Wall. framers the Consti- tution, meant to by limit the doubtless, right trial guilty may accused is found statement, he unsworn, make a sworn or mitigation. extenuation or MCM 79d. ¶ The record of by the trial is convening officer, then reviewed the UCMJ, 860, Art. 10 U. Judge S. C. and thereafter advo- § (c), UCMJ, cate. Art. 65 (c). 10.U. C.S. §865 11 may Not all these sentence elements imposed sentence, one persons and enlisted above the fourth pay grade enlisted not be sentenced to by summary confinement or hard labor courts-martial, or except reduced grade. next inferior 16b MCM and ¶¶ c. 127 12Compare, Wiener, Rights: Courts-Martial the Bill of The Original Practice, 72 Harv. (1958), L. Rev. 1 which finds that there precedent is no application historic to counsel to courts-martial, Henderson, with and the Courts-Martial Constitution: Original Understanding, 71 (1957), Harv. L. Rev. 293 which original concludes that the intent of the apply Framers was to Sixth Amendment military. to Compare counsel to the Daigle Warner, (CA9 v. 1973), 2dF. Betonie v. Size more, (CA5 2d 1974). 496 F. who were persons to in the sixth those

jury, amendment, In fifth.” in the presentment indictment or subject Quirin, it was said parte (1942), Ex U. S. “ are ex- or forces’ . . arising in the land' naval . ‘cases from Fifth excepted pressly Amendment, from the implication Sixth.” excepted deemed finally resolve unnecessary in this case to find it We since conclude of this we aspects question, the broader applica- to be held Amendment that even were Sixth summary court- proceedings, ble court-martial not “criminal for in these cases was provided martial Amendment.13 meaning within of that prosecution” the ulti- does not answer conclusion, This course, question plaintiffs are entitled mate whether but it proceeding, counsel at a from the Amend- does shift the frame of reference Sixth prosecu- criminal guarantee ment’s of counsel all “[i]n prohibition against tions” to Fifth Amendment’s without due deprivation “life, property, liberty, process of law.”

Argersinger Hamlin, 407 U. held that (1972), S. 25 for the provision the Sixth assistance Amendment’s prosecutions in civilian counsel extended misdemeanor A if in imprisonment. courts conviction would result analysis Since Amend under our Brother Sixth Marshall’s only military, right applies appear ment it not to would jury trial, guaranteed right to to which is likewise counsel but the by v. Amendment, come it. Duncan would with While under Louisiana, (1968), presumably not 391 U. S. 145 such a would because the short obtain in cases of surely they may impose, apply it periods of confinement would which general courts-martial, empowered to im special to and which are held in Duncan be the maxi pose sentences far excess of those may jury. a be imposed mum which could be without Whatever Amendment, incorporation” merits under Fourteenth of “selective absolutely no distinction between the Amendment makes the Sixth jury right to trial and the counsel. days’ may confinement impose at hard equivalent which is doubtless the labor, imprisonment. Yet the of a fact that the outcome proceeding may liberty by result in does not itself, loss life, even in civilian mean that the Sixth Amendment’s guarantee applicable. Gagnon of counsel is In Scar pelli, 411 U. respondent S. 778 faced the (1973), prospect of sent to being prison as a result of the revoca probation, tion of his but we held that the revocation proceeding was nonetheless not a "criminal proceeding.” pains We took in that case to observe: are critical differences between “[T]here criminal probation trials or and parole revocation hearings, both society probationer and and the or parolee have stakes in preserving these differences.

“In a criminal represented the State is trial, by a prosecutor; formal rules of evidence are force; a enjoys defendant procedural a number of rights which if timely lost not raised; in a and, jury a trial, presentation defendant must make a jurors. understandable In untrained short, criminal system adversary trial under our is an pro- ceeding with its own unique characteristics. In revocation on the other hearing, hand, the State is represented, not a prosecutor, parole but officer with the orientation described formal above; procedures and rules of evidence not employed; members the hearing body are familiar problems with the practice probation parole.” Id., at 788-789.

In re Gault, 387 U. S. involved a (1967), proceeding juvenile in which a was threatened with confinement. The Court,. although holding counsel was went required, say: on to

“ ‘We do not mean ... indicate that the hearing 36 require- all of the with must conform held be usual ad- or trial even criminal

ments do hold that but we hearing; ministrative of due to the essentials up measure hearing must ” at 30. Id., fair treatment.’ and process pro- various civilian between distinction The Court’s notwithstanding the that, its conclusion ceedings, and nor hearings juvenile neither loss of potential liberty, proceed- “criminal are probation hearings revocation the role of assessing equally relevant ings,” are military. in the summary court-martial above, one as noted is, military imposes types four which proceedings If we to remove the were discipline punishment. from its civilian context holding Argersinger court- apply it counsel before require may simply liberty loss of proceeding martial because but it would seem all result from a proceeding, such required be for inescapable would likewise that counsel military proceeding dealing with lowest level the most minor For even the so-called offenses. Art. may imposed which ad- “nonjudicial punishment,” be ministratively may commanding officer, result man of imposition upon an enlisted “correctional for not custody” hard labor more than 30 consecu- days.14 (b).15 tive C. 815 But we think § U. S. Alderman, Judge Darden, dissenting in United States v. Chief (1973), M. C. M. R. 298 made similar S. C. A. observation: required argued that counsel should be for sum-

“While it mary they courts-martial since constitute criminal convictions and they nonjudicial proceedings Article not for corrective nature, the former the effect of confinement under and correctional custody distinguish. Gault, under the latter is difficult to See In re (1967). Consequently, difficulty I S. 1 would 387 U. have sus- Gault, analysis Gagnon the made in cases such as and as peculiar to the well considerations military, against Argersinger. such a of application mechanical Gagnon in

Admittedly is that there distinguishable the defendant had been earlier sentenced at the close of an orthodox prosecution. criminal But Gault is not so distinguishable: juvenile possible there the faced initial confinement as proceeding question, a result the in but nevertheless its conclusion Court based that required counsel was on the Due Process Clause of the Fourteenth Amendment, any rather than on determina- tion that the was a hearing prosecution” “criminal within meaning of the Sixth Amendment.

It seems to us indisputably clear, that even therefore, in a civilian context the fact that a proceeding will result liberty in loss of ipso does not mean that the pro- facto ceeding prosecution” is a "criminal purposes Sixth Amendment. Nor does the fact that confinement will imposed be in first instance as a result of that make proceeding prosecution.” it a “criminal When we consider in addition the fact that a court-mar- tial in occurs rather than the community, civilian we believe that the considerations community, supporting conclusion it is prose- that not a “criminal cution” are at as strong least as those which were held dispositive Gagnon in and Gault. points dissent out, post, at n. 56-57, that position

taming the that while provided counsel must be before summary courts-martial, they may dispensed with Article 15 proceedings may custody.” Id., result correctional at 308 1,n. R., 46 C. M. at 308 1.n. provides This section commanding (of grade officer major above) or lieutenant commander may impose, alia, or inter not more days than 30 consecutive custody,” “correctional 815§ (b) (2) (H) (ii), during duty non-duty hours and include (b). “hard labor.” 815§ purpose rehabilitative weight gave Court

Gault the involved, there juvenile proceedings courts-martial. present no such factor dis- Gagnon factually Undoubtedly both Gault proceed- summary court-martial from the tinguishable surely for the they stand together here. But ing community pro- even in the civilian that proposition liberty is deprivation of which result in ceeding the within mean- proceeding” “criminal not a nonetheless about if there are elements of Amendment ing the Sixth traditional sufficiently it from a distinguish it which pro- trial. The civilian criminal trial from a is different traditional ceeding here likewise it of which is that many important the most respects, community. This latter fac- military the occurs within every of this Court, under a line of decisions long tor, every given bit as entitled to be bit as significant, Gagnon de- as the fact the controlling weight, previously or the fact fendant had been sentenced, purpose. proceeding Gault that the had a rehabilitative only recently We noted the between have difference community more the diverse civilian and the much military community tightly regimented in Parker v. Levy, 417 We said there equated the UCMJ to a civilian criminal “cannot be code. various and the versions of the Articles War It, of preceded regulate aspects which have the of conduct it, military of members the sphere which in civilian are left unregulated. a civilian code While criminal a relatively segment carves out small of potential con- duct and it declares the Uniform Mili- Code of criminal, tary essays Justice more varied regulation much larger segment of the activities of the more tightly knit community.” Much military Ibid. pro- conduct military scribed is not “criminal” conduct civilian sense of word. at Id., 749-751.

Here, for most of the example, plaintiffs charged were solely absence," an which “unauthorized offense counterpart has no common-law and which little carries popular opprobrium. Conviction such an offense likely would consequences have no for the accused beyond punishment the immediate meted out unlike military, such conviction civilian misdemean ors as vagrancy larceny carry which stamp could “bad character” with conviction.16 argues, 57-58, Our Brother MARSHALL post, nn. 8 and considers a court-martial conviction as Hearn, Navy Judge General, “criminal.” But Admiral Advocate “criminal”; did not describe the convictions as he did state that a commanding summary court-martial, decision to utilize a officer’s opposed to punishment, might an Art. administrative turn on his judgment that it “in begin was the best interests of the service to put on record infractions” of a serviceman who had accumu [the] punishments lated type several Art. 15 for the same offense. Hearings Military Joint on Justice before the on Subcommittee Rights Judiciary Constitutional of the Senate on the Committee and Special a Subcommittee of the Services, Senate Committee on Armed Cong., Sess., (1966) (1966 89th 2d Hearings). Army 34 The Judge Assistant pointed Advocate General then out that one ad summary vantage a court-martial accused, held for the over an Art. proceeding, 15 adjudged by was that the latter was company the commander, accuser,” the “nominal summary whereas “the court nothing knows about the case at all.” Ibid. Army’s dissent also us refers to the acknowledgment of consequences” flowing summary “collateral from a court-martial Post, quoted conviction. at 58-59. But that which is is the text portion Army’s response a of the written in 1962 following question: are “What the on effects a serviceman’s career of convic- by summary tion special or disjunctive court-martial?” The in the question impossible makes it portion quoted to tell whether the is special summary court-martial, addressed to or or both.

Finally, may whatever by conclusions have been drawn the author dissent, article in 39 Va. L. Rev. 319 cited post, the at 59 “impact n. as of a conviction,” are present of little aid to considerations. The article was written at 40 may be meted which penalties

By same token, month’s limited one are out with- days’ hard labor at hard labor, confinement speci- restriction two months’ confinement, out affecting may imposed be which Sanctions limits.17 fied in grade to reduction limited are interest property of a or detention or forfeiture loss of with attendant pay, pay. month’s of one portion quite procedurally summary court-martial

Finally, a it is In place, the first criminal trial. from a different adversary nature Yet the adversary proceeding. not an touchstones is one of the proceedings criminal civilian we counsel18 which Amendment’s of the Sixth dis- UCMJ, operation year, for a then in inception of the the Code and between sentencing in terms of the interaction cusses Both, of corresponding Manual for Courts-Martial. intervening 23 in the course, undergone substantial revision have conclu- lightly It should not be assumed author’s years. present respect to the UCMJ at that time are valid with sions drawn currently they implemented MCM, manner in which or the by the services. various notes, post, technically even Our Brother Marshall noncapital offenses be tried before a most serious UCMJ upon practical is of little effect court-martial. But that imposed accused, given ceilings punishments the serviceman charge It seem inconceivable that a serious such Art. 20. would officer, (1), UCMJ, striking Art. C. a commissioned U. S. (1) 10-year general impose court-martial could which § —for prosecuted before a court which could im sentence—would ever pose only maximum confinement at hard labor for one month. But occurred, charged summary an accused so before a court- if that delighted good no doubt be at his fortune. The fact martial would notes, post, 57-58, only is, the dissent n. of the 14% by Navy conducted the are for “nonmili tary” regard figure do not this offenses. We as “substantial” in the apparently sense that the does. dissent Zerbst, (1938): As held in Johnson v. we U. S. 462-463 recognition “The Amendment . . . embodies a realistic Sixth average defendant the obvious truth that does not have Argersinger petty extended offenses v. Hamlin, 25 Argersinger relied Gideon v. 372 U. S. Wainwright, where held: we (1963), adversary system any our of criminal

“[I]n justice, person haled into court . . cannot be assured a . fair provided trial unless is for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast of money machinery try sums to establish de- Lawyers fendants accused of prosecute crime. everywhere deemed to protect pub- essential lic’s interest an orderly society. . at 344. . .” Id., The function the presiding quite officer is different any from that of participant in a civilian trial. He ¶ guided by the admonition in 79a of the MCM: “The function a summary is to justice promptly exercise relatively minor offenses simple under a procedure. form of The court will thoroughly and impartially inquire into both sides of the matter and will assure that the interests of both the Government and the accused are safeguarded.” presiding officer is specifically enjoined more to attend by interests of the provisions accused these same paragraph:

“The accused will be extended to cross- examine these witnesses. The court will aid the accused in if and, cross-examination, desires, accused will questions ask suggested accused. On behalf of the the court will accused, obtain the attendance of witnesses, administer oath and examine them, and obtain such other evi- professional legal protect skill to himself brought when before power tribunal with liberty, to take life his prosecu- wherein the is presented tion experienced and learned counsel.” guilt disprove negative tend to dence charged, or omissions explain the acts charges, grounds circumstances, or establish extenuating show he findings, determining mitigation. for Before testify on the his explain to the accused will give will the accused or to silent and merits remain MCM his election.” full to exercise opportunity ¶ 79d between the significant parallels

We believe there parole revocation description probation Court’s summary court-martial, Gagnon and the proceedings proceed- parallels distinguish which tend to both of these upon ings prosecution from the civilian misdemeanor Argersinger which we consider addi- focused. When not in proceeding place tion that the court-martial takes society, parole proceeding, civilian as does the revocation military community its distinctive but with all of we court-martial qualities, conclude that a prosecution” purposes not a “criminal of the Sixth Amendment.19

III Appeals The Court likewise concluded there was no Amendment Sixth proceedings such as but this, applying Fifth process adopted

due standards of the Amendment Gagnon from Scarpelli, a standard U. S. which would have made the counsel de- (1973), right to pend upon the nature of the serviceman’s defense. We

19No pro one of the factors discussed above—the nature of the ceedings, offenses, punishments necessarily and of the dis- —is positive. Rather, all three combine with the distinctive nature of discipline life and dissent, by to lead to our conclusion. The discussing independently these factors attempting to demonstrate that each factor cannot grips stand its own force does not come to analysis. with this Appeals properly Court of unable to that agree

applied Gagnon military this context. who have been either recognize plaintiffs,

We or appear convicted are due to before a liberty subjected to loss of be court-martial, property, consequently are entitled to the due process of law the Fifth Amendment. guaranteed process whether this embodies a

However, depends upon analysis counsel an of interests of the individual regime and those to which he is subject. v. McDonnell, (1974). S.U. 539, Wolff

In making analysis particular such give an we must deference to the determination of made under Congress, its authority to regulate forces, land and naval U. S. Const., Art. that counsel not § should 8, I, provided courts-martial. As we held in Wilson, Burns v. (1953): U. S. 137, rights of men in the “[T]he armed forces must perforce be overriding conditioned to meet certain demands discipline and duty, and the civil courts are not agencies which must pre- determine the cise balance be struck this adjustment. The especially Framers entrusted Congress.” that task to (Footnote omitted.)

The United States Court Military Appeals has held Argersinger is applicable military to the requires at courts-martial. United States v. Alderman, 22 U. S. C. A. M. R. 298 298, C. M.

Dealing with areas of peculiar law military of Military the Court Appeals’ branches, judgments are normally entitled to great deference. But the 2-to-l in which majority itself was decision, sharply divided in theory, reject does not the claim of military necessity. Quinn Judge was of opinion Argersinger’s ex- pansion of the Sixth Amendment to counsel was with civilian equally military tribunals

binding M. at 300. 46 C. Alderman, supra, at R., courts.20 reasoning disagreed, concurring part, Judge Duncan, binding prec not Argersinger were that decisions such necessity military if demonstrated edent “there 46 C. M. nonapplicability.” Id., R., at demanding convincing no evidence 303. He found Arger preclude application would necessity which disagreed singer. Judge Chief Darden, dissenting, recog court’s decisions Quinn, pointed to that Judge and application balancing “the for nizing need Id., at military needs.” protection against constitutional 307. issue as well Taking 46 C. M. at 307, R., of his belief that the Court Judge he stated Duncan, competence to Military Appeals no “possesses special particular procedure of a morale evaluate effect to and discipline require implementation and and its over at by Congress.” Id., above the balance struck 308, at M. 308. C. R., only Military of

Given that one member of the Court military Appeals necessity, took issue with the claim of and the latter of Chief statements taking Judge Darden’s applying equal as with at least force to the Members of Court, previous this are left with Congress’ we determina- tion that counsel is not We required. only thus need decide whether the in militating factors favor extraordinarily so weighty to overcome the struck balance Congress.21 Quinn’s Judge the applicability broad view of of the Bill of Rights military Concurring to members of the is well established. Culp, United 199, 216-217, States v. A. S. C. M. (1963), C. R. 428-429 protections M. he stated that its run to “ directly the Armed by necessary impli Forces ‘unless excluded ” cation, by provisions of the Constitution itself.’ See also Jacoby, United States v. 11 U. 428, 530-431, S. C. M. A. 29 M.C. R. 246-247 21Prior positive the enactment the UCMJ into law in providing We first consider the effect of counsel at Gagnon As courts-martial. we observed Scarpelli, supra, at 787:

"The counsel into . . . proceeding introduction of will significantly proceeding. alter the nature provided If counsel is State [accused], normally provide counsel; turn will its own lawyers, by training and are advocates and disposition, by professional bound duty present all available arguments evidence and clients' support of their positions vigor contest with all evi- adverse dence and views.”

In short, presence brief, counsel will turn a informal which hearing quickly convened con- rapidly cluded into an attenuated which proceeding consumes the Congress resources of the degree which beyond could properly have felt to be what is warranted insignificance being the relative tried. the offenses particular lengthy proceeding Such a burden to the Armed in- virtually Forces because all the participants, cluding the counsel, defendant and his are members of suggested it was 1956 that courts-martial be abolished. Congress rejected suggestion provided this and instead that no person by summary objected be could tried he if (unless previously thereto he had punishment). refused Art. 15 70A Stat. 43. Prior to the 1968 amendments to the elim Code the again ination proposed rejected. of courts-martial was and g., Rights E. Subcommittee on of Constitutional Senate Committee Judiciary, Cong., Sess., on the 88th 1st Summary Report of Hear — ings Rights Military Personnel, (1963). Constitutional of 34-36 Instead, exception the Art. 15 to refuse was eliminated compromise favoring between those retention of and those who Rep. would abolish them. S. No. Cong., Sess., 1601, 90th 2d It apparent is thus that Con gress depth. has considered the in some matter may spent be better than whose time of

possibly protracted disputes imposition over discipline.22 Quarles,

As we ex rel. Toth v. observed U. U. S. 11, (1955): primary is the business of armies navies

“[I]t ready fight fight wars the occasion or be should is discipline But trial soldiers maintain arise. merely primary func- army’s fighting to an incidental per- those responsible tion. extent that To the from primary formance of this are diverted function necessity trying cases, fighting it basic [Military . is not served. . . purpose armies probably never can be tribunals have not been and way in such have the they constituted that can kind of that the has qualifications same Constitution trials of in federal deemed essential to civilians fair courts.” not find counsel

However, Appeals did Court Daigle necessary proceedings all only, pursuant but Warner, where the makes accused timely (1) “a and colorable claim he has (2) there are circum- mitigating defense, necessary the assistance of stances, present adequately to miti- order defense or F. gating circumstances." 365. 2d, if such if But the accused has claim, he feels in order to air his views his properly rights, and vindicate period imposed The one-month confinement which by court-martial stands in marked contrast with period years confinement for a minimum of three which could imposed juvenile proceeding Gault, have in a In re been in 387 U. S. 60n. necessary may counseled he sim formal, proceeding ply by summary refuse proceed trial court-martial and by special to trial which he general or court-martial at considerably have counsel.23 he stands in a Thus, position probationer Gagnon more favorable than the subject though possibility periods longer who, had no such right absolute incarceration, counsel.24 It is true by exercising option this the accused subjects greater himself to possible penalties imposed special court-martial proceeding. we However, do not find possible detriment constitutionally be decisive. We have frequently approved the much more difficult daily by faced decision, civilian criminal defend- plead ants, guilty to a lesser g., included offense. E. Brady v. States, United 397 U. 749-750 (1970). S. 742, In such a up only case gives defendant not his right to counsel but any his trial at all. Furthermore, UCMJ, Article 20 C..§820, provides pertinent part person respect to whom “[n]o jurisdiction may have brought to trial before a court- objects martial if he thereto. . . (b) UCMJ,

Article 38 (b), provides: C. U. S. §838 “The accused has represented to be in his defense before general special or provided by civilian if him, by military or reasonably counsel of his own selection if avail- able, the defense counsel detailed under section 827 of this title.” 24The dissent Gault, supra, criticizes our failure to discuss as to point. inapposite. this Contrary Gault is to the assertion of the dissent, post, 22, Gault, n. had he been tried the adult courts, subject would have been to a maximum sentence of two years months rather actually than six he S., received. 387 U. speculate at 29. We cannot what the result in Gault have would been if there had been a waiver available and if the sentence adult greater had been juvenile. rather than than less 48 he his to trial stands right elects to exercise

if he likely bear which will offense serious convicted of a more penalties.25 increased jus- part of the criminal necessary choices are a

Such system: tice legal like the rest criminal process,

“The 'the requiring situations replete with system, course which judgments’ of difficult making at 397 Richardson, S., McMann U. to follow. v. even a a defendant have Although right, 769. to follow whichever of constitutional dimensions, by that does not chooses, course he Constitution him choose.” always forbid requiring token 213 California, v. 402 U. McGautha S. with the defendants that neither agree

We therefore Sixth nor the Fifth Amendment to United States empowers Constitution us to overturn the congressional not required determination that counsel is judgment Appeals courts-martial. The Court of is therefore

Reversed. part Mr. Justice took no Stevens in the consideration decision cases. these follows, post, suggests, 71-72, It no means as the dissent at system that the obtain such same result would a two-tier Wainwright, context, (1963), civilian where Gideon v. Argersinger Hamlin, (1972), v. U. S. have held the Sixth right applicable. context, Amendment’s a to counsel In such reasoning Jackson, (1968), of United 390 U. S. 570 States penalized exercising one right cannot be would constitutional however, play. Here, come into we have held that there is no con stitutional the issue of court-martial, so being penalized presented. for the exercise of such is not the Due believing dissents, Justice Stewart Mr. requires Process Fifth Amendment Clause of the of a defendant be accorded the counsel in assistance proceeding, Blac Powell, Justice with whom Mr. Justice Mr. kmun joins, concurring.

As I of the substance and agree holding empha I I join separately Court’s it. write to opinion, my distinguishes size the factor this which, view, Argersinger Hamlin, (1972). from v. case U. S. 25 expresses for One sentence the fundamental basis distinction: military

“This long recognized Court has is, by specialized society separate from a necessity, society.” Parker v. civilian S. Levy, Parker, say In the Court went that we also have military recognized that “the again necessity, has, developed of laws and traditions its own its during long Only history.” Ibid. Schlesinger last Term in Councilman, 420 U. 757 (1975), we said: [military]

“The laws and traditions governing dis- cipline long they history; have . . founded . are on unique military powerful exigencies as now as past. contemporary vitality repeatedly Their recognized by has been Congress.” expressly The Constitution authorized the Congress Rules for the Regulation “make Government and of the land and naval Forces.” § Art. 8. Court-martial I, primary proceedings, as for means the regulation and of discipline the Armed Forces, were well known Founding procedures Fathers. The in such courts were with, conform required analogous to, deemed

never history, ignore must courts. One procedures in civilian into the centuries read practice for two tradition, date, requirement at this late Constitution, military law.1 minor violations discipline rights I constitutional that one’s recognize, course, upon entering the Armed Services. are not surrendered has held, Court often But the rights this applied, neces- “unique military exigencies” of the light govern many aspects service. See sarily this, Levy, supra, recognition Parker v. at 758. In Republic enacted founding Congress since has legislation applicable only Services,2 special to the Armed of including provisions the current in the Uniform Code relatively petty the that opinion, As noted in the offenses Court’s customarily summary in often come before courts-martial most case, society. military volve offenses unknown civilian In this plaintiffs only example, charged for most the with “unau were sure, try thorized To such courts also some absence.” be offenses of civilian law. these are be violations criminal But would subject typically petty by offenses and are committed defendants military discipline. to to Court has no occasion this case requires providing address the of counsel whether Constitution special general serious, proceedings court-martial where civil Indeed, charged. felonies now often all of the Armed Services are required by provide 27, are statute to in such Art. counsel cases. UCMJ, 10 U. S. C. 827. § Schlesinger Councilman, Code, referring In v. to Uniform said: Court “Congress attempted [gov- military these necessities balance

erning against equally discipline] significant ensuring interest charged offenses, fairness to servicemen with formu- late competing a mechanism which these often interests can be adjusted. Congress result, integrated system As created an of mili- tary procedures courts and review 420 U. 757-758 . . . .” S. (1975). Military Justice for courts-martial. Art.

(3), § 816 U. S. UCMJ, C.

I find no holding basis for now Constitution compels equating, purposes requiring for counsel be military summary courts with provided, civilian criminal courts.

Mr. Marshall, Justice whom Mr. Justice Brennan joins, dissenting. only recently

We held that, per- absent a “no waiver, son imprisoned any for offense, whether classified petty, misdemeanor, felony, repre- unless he was Hamlin, sented Argersinger counsel at his trial.” 407 U. (1972). Today the Court refuses apply Argersinger’s holding to defendants in proceedings. Assuming purposes of its opinion that applies Sixth Amendment to courts- martial in general, the Court holds that, because their special characteristics, par- ticular simply not “criminal prosecutions” within the meaning of the Sixth and that Amendment, is therefore I inapplicable to them. dissent.

I Preliminarily, it is clear aside, to me that a citizen does not right ap- surrender all to pointed counsel when he military. enters the It is incon- ceivable, example, that this Court could conclude that a defendant in a general court-martial proceeding, where sentences as severe as life imprisonment may be is imposed, not entitled to the protection same our Con- stitution affords a civilian facing day’s defendant even a imprisonment. Argersinger Hamlin, supra. Surely See v.

those sworn to risk their lives to defend the Constitution should derive some benefit from right to counsel,

right that firmly has become even more entrenched our jurisprudence past generations. over the several See Gideon v. Powell Wainwright, (1963); 372 U. v. Alabama, 287 U. S. 45 only question might

The the gen- that arise is whether guarantee eral counsel to is court-martial defendants placed to be under the Fifth or under the Amendment my Sixth Amendment. It is conviction that it is a Sixth guarantee. Amendment provides That Amendment an explicit guarantee of counsel “in all criminal prosecu- Since, recently tions.” as we observed, courts-martial adjudicate charges are “convened to of criminal violations military Davidson, law,” Parisi 34, 405 U. S. (1972), it seem would that courts-martial are criminal prosecutions that the Sixth Amendment therefore applies its face. is legitimate

There dispute among scholars, true, it about expressly whether the Framers intended the Sixth Amendment to right counsel to apply military. ante, See at 33-34, and 12.1 While historical evi- n. is somewhat my dence reading of the sources ambiguous, suggests the Sixth right Amendment to counsel was intended by the Framers to apply to courts-martial. argue Those who the Framers did intend the Sixth Amend ment to apply point congressional counsel to proceed both to ings which right’s seem to assume applicability, Henderson, see Courts-Martial and the Original Constitution: The Understanding, (1957), Harv. L. Rev. 303-315 and materials therein, cited and to fact that it was traditional century late 18th an Id., allow accused legal serviceman assistance. at 318. Those opposite who alia, position point, take inter contemporary treatises, Wiener, see Courts-Martial and the Rights: Bill of Original I, Practice (1958), Harv. Rev. 23-26 L. and materials therein, cited lack any mention of military first id., Constitution, codes under the 22-23, and to the any fact appear counsel who did proceedings was only Id., allowed a limited role. at 27-32. showed to the plainly

But even if the historical evidence contrary certainly its does not —that would not be —and contemporary scope of the Sixth determinative the As Mr. Hughes Amendment. Chief Justice observed: by “If the statement that what the Constitution adoption meant at the time of its it to-day, means say it is great intended the clauses the Constitution must interpretation be confined to the which the with conditions and outlook the framers, of their placed upon would have them, time, statement Bldg. carries its own refutation.” Home Blaisdell, & Loan Assn. v. 290 U. 442-443 398, S. (1934).

Application of the right Sixth to counsel Amendment military to the follows logically naturally from the right-to-counsel modern in which right decisions, fully has been held applicable every case which a defendant faced conviction of po- a criminal offense and Hamlin, tential Argersinger incarceration.2 e. g., See, any given case, In right whether there is a Sixth Amendment by jury is, course, trial not at all determinative of whether there right Indeed, Argersinger a Sixth Amendment to counsel. itself reject, we therefore, stated that premise prose that since “[w]e punishable by cutions for imprisonment crimes than for less six jury, they may months be tried without a also be tried without lawyer.” 25, (1972). Compare id., 37, 30-31 with Louisiana, (1968). Duncan v. 391 U. S.

This express Court has indicated that the Fifth Amendment’s exemption military requirement from the of indictment grand jury military exempts “inferentially, also from [Sixth jury.” Parker, trial O’Callahan v. U. S. Amendment] But there is no reason to assume that the same exemption inferences from the Fifth Amendment should be drawn regard with to the Sixth Amendment to counsel. Not even parties suggest settling jury-trial federal issue regard ipso has settled all other Sixth facto Amendment issues as well. 54 Wainwright, supra. process Gideon v. The due

supra; case-by-case right usually to on a counsel, applied basis, qualified right persons a counsel to not in- extends proceedings, Gagnon Scarpelli, volved in criminal see v. 411 (1973), 778 but has not been viewed as a re- placement for the to counsel in Sixth Amendment in be situations which a stands convicted defendant of a criminal offense. short, my

In it is belief that the Sixth Amendment de- ordinarily mands that court-martial be ac- defendants Only special corded counsel.3 if the characteristics particular deprive courts-martial in them of the prosecutions” status of “criminal is the Sixth Amendment inapplicable today. the cases us before It is, course, proposition, this major to which the part of Court’s opinion is addressed which I and to now turn.

II The Court’s that summary conclusion prosecutions” are not “criminal is, on its a face, surprising one. No less than case of courts-martial, other summary courts-martial are adjudicating directed at “charges criminal military law,” violations of at a summary conviction court-martial can lead to confinement one month. the Court Nevertheless, finds its conclusion mandated a combination of pure analysis Even if a process due however, were used, to be my counsel, mind, required would be still for courts-martial. Many analyzed factors below in a Sixth Amendment context, II, infra, fully Part see a process relevant due analysis. Gagnon Scarpelli, See v. (1973); U. S. 778 Morrissey Brewer, And, Gagnon 408 U. S. while adopts case-by-case approach in probation to counsel proceedings, revocation fact courts-martial we are deal ing with trial which can result a criminal conviction mandates every made available in Gagnon, case. supra, See at 12. 789 n. punishment that on. the four factors: limitations court-martial, out be meted can can be for which a defendant nature of the offenses pro- tried, the nature ceeding life “the distinctive nature of itself, and totally discipline.” I un- 19. am and persuaded n. Ante, any others— these considerations—or that Gagnon supra, analysis Scarpelli, to in The Court looks our v. prose support as in the distinctions it draws between “criminal under Sixth courts-martial. cutions” the Amendment and questionable, I say find that reliance the least. to Gagnon intimates, holding The in ante, 35, Court at our that probation prose hearing part that of revocation not a criminal relating cution was on which such based factors to manner in the hearings prosecutor are conducted —factors such as the absence of informality however, the proceedings. This, of the is an Gagnon. Gagnon’s inaccurate reflection of what we said in con clusion, early S., in opinion, pro stated the at that a U. hearing prosecution” bation stage revocation is “not a aof criminal proceedings was not at dependent all on the manner which in such Rather, are conducted. it held conclusion was to follow from the Morrissey Brewer, supra, parole in v. revocation was of part following analysis not of prosecution, a criminal the in Morrissey held be to determinative: including prosecution,

‘“Parole arises after the of the criminal end imposition deprives individual, of Revocation not sentence. . . an . liberty only every entitled, the but to which citizen is absolute liberty of the properly dependent conditional observance special parole S.], S., restrictions.’ U. 480.” 411 at 781. [408 at hearing simply manner in the not a which was conducted was factor in hearing our part conclusion that such a is not of a “crimi prosecution.” Only nal we did reached this conclusion we after refer to the hearing manner in in which was conducted consider ing secondary question right appointed whether the to required Thus, was process. nevertheless as a matter of due even assuming “parallels” proba there are between manner in which hearings tion-revocation are conducted and the manner which Gagnon conducted, ante, courts-martial 41-42, are lends support no conclusion that not prosecutions” meaning “criminal within the of the Sixth Amendment. denying justify combination, singly or taken

whether defendants summary safeguards of “one of counsel, assistance funda- necessary to insure deemed Sixth Amendment v. liberty.” Johnson of life and rights human mental 458, 462 Zerbst, 304 U. S.

A a sum the Court of course true, states, It is in ex confinement adjudge not mary court-martial ¶ Courts-Martial 16b cess of one month. Manual length held the Argersinger But itself (1969) (MCM).5 determining wholly confinement irrelevant counsel. Aware that applicability time for however short a prospect imprisonment “the as a trivial will seldom be viewed the accused York, 399 'petty’ Baldwin New U. S. matter,” Argersinger (1970) (plurality we held opinion), not is determina the fact of its duration, confinement, to of the to counsel. Insofar as Court tive day on court-martial 30-day ceiling summary uses the a for it is not support defendant’s sentence as its holding, Argersinger “inapplicable” rejecting so much as finding very Argersinger’s basis of holding.6 5 prescribed by 11, September MCM was Order of Executive 1968, (UCMJ). supplement Military the Uniform Code of Justice 6 Argersinger’s attempts by The Court to evade clear mandate relying Gagnon supra, on our In re decisions Scarpelli, v. Gault, (1967). Gagnon, already observed, 387 1 As I U. S. for have supra, 4, support n. it lends no Amend Court’s Sixth analysis Gault, ment in this case. As for it is true that have we juvenile delinquency held that proceedings, though they might even confinement, result prosecutions” are not “criminal under the Sixth Pennsylvania, Amendment. McKeiver (1971); v. 403 U. S. 528 id., see (opinion Brennan, J.). at 553 However, con undoubtedly clusion was predominantly based on the rehabilitative purpose juvenile justice system, a which, factor as shown

57 B In support further of its the Court observes holding, by proscribed the conduct “[m]uch is not ‘criminal’ conduct in the civilian sense of word,” ante, many 38, at and intimates that conviction for normally summary tried offenses at would court-martial consequences “beyond no punish have the immediate by ment out meted 39. The Ante, military.” at Court’s observations both misleading are and irrelevant. summary

While the designed court-martial is generally relatively minor deal MCM see offenses, 79, ¶ statutory as matter proceeding can be try any noncapital used to offense triable general special court-martial. Art. 820.7 § S. C. UCMJ, Moore, United States See M. A. U. C. 687, 697, And M. R. while C. offense plaintiffs which most of the here were tried —unauthor no ized absence—has common-law sub counterpart, proportion of the actually stantial offenses tried sum mary court-martial such larceny offenses, assault, that would also constitute if criminal offenses aby committed civilian.8 one of the service- Indeed, infra, 61, manifestly present not in the while Gault did not And, apply context. Amendment, the Sixth course, did, process it hold due applicable to counsel to all delinquency juvenile proceedings pose which a threat confinement. punishment ceilings Of imposed by course 10 U. S. C. § applicable courts-martial are no what offensé matter But being "popular is tried. opprobrium” resulting con from viction a serious crime—a factor places which the Court stock, ante, likely considerable at 39—is to be severe whatever magnitude of the punishment; “popular opprobrium” significant ante, could, course, “practical have effect,” 17, at 40 n. on a serviceman’s future. 8 921, 10 U. C. Figures by See 928. supplied §§ federal parties indicate that summary 14%

58 with assault. It charged in these cases was

men as the Court misleading therefore suggest, does, type is a difference there fundamental between summary conduct at court-martial and the chargeable type of conduct deemed criminal in civilian sector. implication summary

The further Court’s that a court- beyond martial conviction has no consequences “the im- punishment” mediate ante, is also inaccurate. One of the central distinctions nonjudicial between Art. 15 punishment and a court-martial conviction is the latter is regarded as a criminal conviction.9 And that criminal conviction has collateral conse- quences both military Army and civilian life. As the readily itself has acknowledged: by [any]

“Conviction court-martial creates crim inal record which will color any consideration of subsequent by misconduct the soldier. A noncom missioned officer survive one court- martial without reduction being but it is effected, unlikely with one that, on his conviction he record, will survive a second trial and retain his status. A of an by any conviction officer court-martial could Navy conducted “nonmilitary were for offenses.” Brief for 33; Federal Parties Fidell, see also Summary Court-Martial: Proposal, A Legis. 571, 8 (1971). Harv. J. n. See also Hearings Military Joint on Justice before the Subcommittee on Rights Constitutional of the Senate Judiciary Committee on the Special and a Subcommittee of the Senate Committee on Armed Cong., 89th Services, Sess., 2d (1966) (hereinafter cited as Hearings). testimony, In Senate Judge Advocate Navy General of the observed that a serviceman convicted opposed punished to one under 15, “begins acquire Art. record of Hearings convictions.” 1966 33. See also Subcommittee Rights Constitutional of the Senate Committee on Judiciary, Summary Report Hearings on the Rights Constitutional of Mili — tary Personnel, Cong., 88th Sess., 1st upon a his It devastating

have aftereffect career. could be described some cases as a sentence to a passover promotion may on a list and serve a basis for initiation of elimination administrative action.

“For any conviction on man, fact a criminal is a handicap may his record in civilian life. It job with his it interfere opportunities; if counted him against he has with difficulty civilian law enforcement agency; general he tends to be a marked man.” The MCM any itself belies claim that no significant beyond consequences punishment immediate attach to a court-martial conviction. 127c Paragraph of the MCM a comprehensive establishes scheme which an subject offender is made punish- to increased ment if he has record of previous convictions —even if all of those previous convictions by summary were court- martial.

It wholly is therefore unrealistic suggest impact of court-martial conviction lies ex- clusively in the punishment immediate meted Summary out.11 carry convictions potential them a of stigma, injury to career, and increased punishment for future way offenses in the same as do convictions after civilian criminal trials and convictions general after and special courts-martial.

Quite apart from flimsy their factual basis, the Court’s observations as to both the nature of the offenses tried at summary court-martial and the lack of collateral conse-

10Hearings Rights Military on Constitutional Personnel before the Subcommittee on Rights Constitutional of the Senate Committee the Judiciary, Cong., Sess., (1962). 87th 2d Fidell, supra, also 594-596; Feld, See n. The Court Martial Foul, Sentence: Fair or 39 Va. L. Rev. by already determined been have of convictions

quences of applicability to irrelevant Argersinger Argersinger right to counsel. Amendment’s the Sixth triggered by po- the is right to counsel that the teaches petty or of how trivial confinement, regardless of tential Logic itself at 37. S., seem. See 407 the offense right suggestion the that the preclude therefore would confinement, is de- potential activated the counsel, consequences the of collateral absence activated conviction.

C proceeding— court-martial The nature of the the nonadversary and, the nature proceeding’s relatedly, a third protective presiding functions of its officer—‘-is helps to make un- according to the factor which, Court, the necessary provision Again, the of counsel to accused. foundation. Court’s reliance is without substantial the summary courts-martial as The characterizes Court to how “nonadversary,” explanation but offers little as that the the contention that characterization advances argument If inapplicable. is the Court’s right to counsel the pro- counsel will transform simply furnishing is that argument it no adversary proceeding, into is ceeding an argument must all, simply observation. at but an something peculiar goal is about the be either that there the that makes proceeding of the court-martial or that there are elements inapplicable, to counsel counsel proceeding in the conduct of the itself that render unnecessary.

To the that characterization extent Court’s “nonadversary” is meant purpose convey goal pro- about something unpersuasive. In totally it this sense the sum- ceeding, is mary “nonadversary” is proceeding far less juvenile delinquency proceedings than the which we In re Gault, applicable held the The Court in Gault 1 dispute U. S. not did proper purpose juvenile justice system is re- habilitative parties rather than that all to a punitive, juvenile delinquency proceeding might be for an striving adjudication disposition is in “the best inter- ests of the child,” traditional notion of “kindly juvenile judge” highly appropriate one. See id., 27. Gault Yet Court confronted reality that, however beneficial the goal delinquency they potential have as their result con- proceedings, the Ibid. This finement of an individual in an institution. factor mandated juvenile that accused offenders be en- representation titled to the of counsel.12 Gault, distinguished As from the situation in special courts-martial have no rehabilitative purpose; rather, their central purpose discipline immediate is to those who have violated the If UCMJ.13 the goals of juvenile delinquency proceedings justi- are an insufficient fication for the of counsel, denial it follows that fortiori goals the of the summary similarly court-martial insufficient. possible second meaning conveyed by characteriz-

ing the summary as “nonadversary” —the

12The Court intimates that our might decision in Gault have been different had period Gerald Gault been faced with a of confinement significantly years Ante, less than three in duration. at n. 22. However, opinion our any contained no hint of such and limitation held the applicable to counsel juvenile whenever a is faced proceedings “which result in commitment to an institution juvenile’s in which freedom S., the is curtailed.” at 41. 13In general, “a trial age-old marked the manifest destiny justice. of '[Mjilitary always retributive . . . law has been primarily continues to be and an discipline, instrument of not justice.’ Glasser, Captain Justice and Levy, 12 Columbia Forum (1969).” Parker, O’Callahan v. 395 U. it- proceeding in the conduct of the presence elements unnecessary re- counsel independent which render self —is “function the Court’s observation flected the any from that of quite officer is different presiding the 41. It is trial.” participant in a civilian Ante, officer to act as presiding responsibility and defense counsel combined. judge, prosecutor, jury, presiding officer’s The Court intimates ability his duty his rights to advise the accused of help accused assemble examine witnesses, facts, un- his make defense counsel cross-examine accusers particularly light of absence necessary, I in the this prosecutor proceeding. argument formal find Alabama, In unpersuasive. (1932), Powell v. 287 U. 45S. judge “effectively could dis- rejected we notion charge obligations accused,” of counsel for the largely judge participate because a “cannot . . . necessary those conferences between and accused partake which sometimes inviolable character of Id., the confessional.” at 61.

It unrepresented is true that Powell the defendant prosecutor. Gault, was But opposed traditional in only supra, prosecutor; there was no participants the delinquency the proceedings juvenile, were the his All mother, probation officers, judge. par- and ticipants presumably were interested the welfare of the juvenile. protective Yet we held that no matter how judge participants might or the other have been, juvenile was entitled independent to counsel. among

The irreconcilable conflict the roles of the sum- mary inevitably presiding court-martial officer prevents him effectively from functioning as a substitute for de- fense counsel. For a defendant has a to instance, right remain silent testify and not at his court-martial. See ¶ An in- 831; § Art. S. MCM 53h. 31, ü! UCMJ, C. telligent requires decision whether to exercise that testifying help consultation as to whether or would hurt inevitably his case and sharing involves the confi- dences with possibly counsel. Full consultation cannot place take when “defense counsel” is playing also role of judge prosecutor. defense counsel who also prosecutor serves as and judge effectively unavail- many able for of the “necessary conferences between counsel and Powell accused,” Alabama, v. supra, well as for the making implementation of critical tactical and strategic helpful trial decisions. As as the presiding might officer be to the his inconsist defendant, ent roles bar him from being adequate an substitute for independent defense counsel.

In sum, nothing there is about the assertedly “non- adversary” nature of court-martial —either goals terms of its safeguards alternative —that renders unnecessary the assistance of counsel.

D Finally, the Court draws on military notions of necessity justify its conclusion that counsel is inapplicable pro- ceedings. Concerns for discipline and obedience will on occasion, justify it is true, imposing restrictions that would be unconstitutional a civilian context. See Parker Levy, 758 (1974). But denials of rights any traditional group should not be approved without examination, especially when the group comprises members of the military, who are en- gaged in an endeavor of national service, frequently fraught with both danger and sacrifice. After ex- such I amination, persuaded am that the denial of the summary counsel at justified courts-martial cannot be by military necessity.

64 here justification the asserted of

The substance morale demand discipline, is efficiency, procedure disciplinary expeditious an utilization of the however, seem, It would relatively minor offenses. for can be punishment judicial 15 non that Art. —which not does but which imposed by commander, speedily pro of a criminal carry stigma it the conviction — amend the 1962 procedure.14 just such a vides Indeed, expanded greatly 10 § U. S. C. 15, 815, ments to Art. and resulted availability judicial punishment non the of summary the in utilization of sharp decrease in a need to pressing There no court-martial.15 is, therefore, summary proceeding have a streamlined procedure. supply expeditious disciplinary an order to by guaranteeing no means clear that it is Moreover, would re summary court-martial defendants counsel to preferral from of periods sult time significantly longer punishment fairly proceedings than conducted charges to counsel;16 any timesaving in the now absence of 14 punishment distinguish Differences been have advanced imposed that can be under Art. 15 from the "confinement” that summary States v. can from court-martial. United result See Shamel, (1973) (Quinn, J.). 22 U. S. M. R. 116 361, C. A. C. M. 1969, 1962 and Between number year 28,281, per dropped 85,166 Armed from Services military percentage dropped their total caseload from 64% Fidell, supra, explanation n. “The 573. chief 26%. phenomenon expansion nonjudicial punishment this in the lies Id., powers accomplished in 1963.” at 572. according cases, While, parties to the federal to these average period preferral charges time between and final review days courts-martial has increased since the Military Argersinger Appeals applied United States Court of to the States Alderman, in United U. S. C. M. A. (1973), Supp. 3-4, par C. M. R. 298 Mem. for Federal Parties ties “it possible themselves concede that is not changed to ascribe the exclusively injection experience . . . counsel into proceedings." Nothing court Ibid. is offered parties federal

65 enjoyed might presiding well result from officer’s be- the less in- ing something adequate than an substitute dependent defense counsel.

It is especially accept difficult to parties’ the federal “military necessity” claim of in view of the fact that well Argersinger, our decision in the each of serv- before summary ices allowed court-martial defendants retain expense.17 counsel their own Given this the fed- fact, to indicate that average pro the time of the court-martial ceeding lengthened itself providing has been as a result of to defendants. 17 Hearings 1966 (testimony Brig. See of Kenneth Gen. J. Hod- son, Judge Military Asst. Justice, Department Adv. Gen. for of the Army); (testimony Maj. Manss, of Judge R. Gen. W. Adv. Gen. Force); Air (testimony the Hearn, Rear Wilfred A. Adm. Judge Navy); (letter Adv. the 7, 1965, Gen. of June of the Chairman Senate Committee on Armed Services from the Acting Department General Treasury). Counsel of the of the Indeed, acknowledging while provision is no either "[t]here in law regulation or appointment for the of counsel before a sum- mary court-martial,” Department Treasury indicated, of the years Argersinger six decided, Treasury was that “it is De- before partment policy Coast counsel for a [in Guard] supplied request reasonably court-martial will upon if Id., available.” at 627.

Moreover, question-and-answer following exchange place took letter between the Senate Subcommittee on Constitutional Rights Navy Judge and the Corps: Advocate General “Question: permitted by Are Depart- defendants official Defense policy ment or service regulation or to have counsel assist them summary courts? [A]lthough “Answer: . . . representation to individual is not extended to an accused before a

policy regulation, general practice or in the naval service is to ac- request representation cord such on the accused.

“Question: requests counsel, ... If man appointment otherwise, legal grant requests? it practice such availability Yes, dependent upon “Answer: the reasonable requested Id., counsel.” at 939. to a contention is reduced parties’ argument

eral to coun- afford retain cannot who only those defendants be denied “military necessity,” must, matter of sel as a Sustain- proceedings. summary court-martial counsel at very prin- for those a defeat contention means ing that military is sworn that the ciples justice of equality are of fairness fundamental notions most defend; thé poor alone sacrificed rights of subverted when necessity.” “military the cause Court the United States significant It that is also body recognized with Military (USCMA), Appeals military problems,18 applied has dealing with expertise in giving without summary courts-martial Argersinger necessity military posed problem. any hint that 46 Alderman, United 22 S. M. 298, States v. U. C. A. Duncan of that (1973).19 Judge 298 C. R. Indeed, M. explicitly that “the record contains no evi- court noted Arger- application me that dence which convinces system in our singer should not be followed because rule Id., military R., at 46 M. 303 necessity.” 303, C. at part dissenting part).20 And even (concurring in decided, both the Air and the before Alderman was Force 18 Noyd Schlesinger Councilman, 738, (1975); U. See v. 758 S. Bond, (1969). v. 395 U. S. 19The decisions of the USCMA are final. 10 876. It is U. C. § parties statutorily ap indeed ironic that the federal barred from — pealing rejection through Alderman —have secured its this now lawsuit, seeking originally brought servicemen federal court very protections later accorded them Alderman. Daigle Warner, (1974), pending, See also v. 490 F. 2d 358 cert. 73-6642, Appeals the Court of for the Ninth Circuit No. which Navy argues “[wjhile vigor noted that some naval required discipline severely appointed if will suffer counsel are [in summary courts-martial], support is scant this in the there Id., 366. record.” Quinn, Court, relying previously Judge stated views Quinn’s majority, Judge Alderman

one of the members of the and on Army applied Argersinger courts-martial21 advancing theoretically rather than “mili- available Priest, tary necessity” argument. United See States S. M. A. 45 M. That R. C. C. military they did so leads me to doubt whether even the military was then of the opinion necessity dictated the denial of counsel.

Virtually ignoring all the doubt on factors that cast Court defers to military-necessity justification, congressional an asserted “counsel should judgment provided not be Ante, courts-martial.” at 43. While evaluation of Congress’ necessity clearly entitled to it would our deference, departure be a from position past in the to suggest that the Court need not come to its validity own conclusion as to of any argu- military ment necessity. based on e. See, g., United States Robel, v. 389 264 U. S. Parker 258, (1967); Levy, S. 733 (1974); New York cf. Times United Co. v. States, 403 U. S. regardless But of what weight properly is accorded a congressional clear deter- mination of military no there has been such necessity, determination in this case. only congressional by action to referred the Court Congress’

is refusal in 1956 and summary 1968 to abolish opinion his explicitly failure in Alderman military- mention the necessity argument, declines rejection to view Alderman as a of that argument. disagree. I In United Priest, States v. 21 U. A. S. C. M. (1972) 45 C. M. only R. 10 months before Aider- —decided man —the recognized, USCMA had in. context, albeit another that military necessity may affect application of traditional constitu- rights tional to members of military, parties and the in Aider- military-necessity man briefed the argument great Judge in detail. Quinn opinion. concurred in the Priest factors, plus Judge These explicit Duncan’s argument, reference to the lead me to Aider- read rejection man as a of the military-necessity argument. 21United Alderman, States v. supra, at R., C. M. at 303 (Duncan, J., concurring part dissenting part). extending concurrent and its altogether trial sum- reject opportunity of the serviceman’s action as refers to that The Court mary court-martial. depth” “in some has considered Congress evidence that required is whether counsel matter is no evi- 21. But there Ante, courts-martial. at n. congressional consideration any detailed dence offered feasibility providing specific of the question And, impor- more summary courts-martial. counsel at judg- Congress is made tantly, there no indication necessity the denial of requires ment court-martial constitutional to counsel defendants. military necessity Congress’

If of discussion of lack not to throw doubt the Court’s enough substantial cited timing congressional action inferences, certainly do All that action the Court should so. substantially Argersinger. occurred before our decision if to re- Congress’ even assume that decision Thus, we represents tain the a considered provided,” conclusion that “counsel should not be was time civilian judgment made when even defend- subject prison had ants terms of less than six months no recognized constitutional to counsel. There Congress have been little reason for would, therefore, 1956 or 1968 to undertake the detailed consideration necessary necessity” to of finding “military make a before provided summary that concluding counsel need not be court-martial defendants.

In there simply is no indication that Congress sum, “military ever made clear determination that neces- sity” precludes applying Amendment’s Sixth summary to counsel to In- proceedings. court-martial the Court characterizes the deed, congressional determi- nation in the of vaguest expressly terms, never military- claims made a determination of Congress that I necessity. only opinion can read the Court’s Thus, any a grant as of almost total deference to Act of Con- military. gress dealing with

Ill The Court rejects holding even the limited Court Appeals provision of that of counsel sum mary court-martial should proceedings be evaluated process a matter due the basis the accused’s defense in any particular explains case. The Court that ap court-martial defendants can have pointed by refusing trial court-martial and then proceeding by special to trial court-martial —the acknowledged consequence of exposure which is to greater possible penalties. my Given conviction that a court-martial is a prosecution criminal under the Sixth it unnecessary for me Amendment, to deal in detail this process question.22 due In the event, however, special option may court-martial be offered as additional support for the Court’s treatment the Sixth I briefly Amendment issue, shall its significance. assess analogizes Court the decision expose whether to special oneself to court-martial with pro- counsel or to ceed summary court-martial without counsel to the me, It however, does seem to “option” serviceman’s subjecting himself possibility special of a support lends little process analysis. to the Court’s due heldWe Gault, (1967) in In re U. S. decision left unmentioned in —a the Court’s treatment of the Fifth Amendment question that, as — process matter due accused offenders have an absolute juvenile delinquency counsel at proceedings. Surely holding would be no different juvenile the case of given opportunity “voluntarily” subject himself to pro criminal adult ceedings, in which he counsel, would have but at he which would subject punishment. to harsher proceed to whether by a civilian defendant

decision faced offense. included to a lesser plead guilty to trial or up by such right given to Court, According counsel but only his to right “not is civilian defendant at 47. The Ante, all.” any to trial at his who civilian defendant a flawed one. The analogy is he necessarily up rights whatever gives pleads guilty him to to accorded enable thereafter have been might plead- on his innocence; claim the conditions protect a contrast, the By logically mandated ones. ing guilty be tried opting condition on the defendant’s denial of e., court-martial —i. counsel— with must therefore be viewed imposed is an one, suspicion. entirely Court’s analogy

Indeed, the force by the civilian defendant who dissipated fact that a only of his to counsel pleads forfeits so much guilty fully necessary consequence plea. is a of his He is process leading up plea— entitled to counsel in the the Government as to including negotiations with plead. possibility plea of a and the actual decision to any The defendant is also entitled to counsel in sentenc- plea. his ing proceeding might making follow the I acceptance have no doubt that a scheme which the guilty pleas was conditioned a full abandonment of the right to counsel would be unconstitutional.

By today the Court contrast, approves denial at all defendant stages regards for all purposes including, least as — very reject sailors and whether to marines,23 the decision any Neither the MCM UCMJ nor the contains indication provided making serviceman must be with counsel to assist him in object his determination as to whether to consent or trial Army guidelines appear court-martial. While internal do making determination, allow consultation counsel in this see Military Handbook, Summary Justice Court-Martial Trial Guide by summary trial if opts court-martial. And the accused the for Court’s parallel court-martial —the accepted guilty the plea right no to counsel has —he sentencing either at the of adjudicative phase the proceeding.24

Conditioning provision of counsel a defendant’s subjecting punishment himself to the risk of additional from the suffers same defect disapproved scheme Jackson, by the Court in United States v. 390 U. S. 570 in which (1968), jury trial condi- a was tioned possi- on a defendant’s subjecting himself bility capital punishment. of analysis If the Court’s applied correct as to the Sixth then Amendment, Argersinger’s any guarantee counsel the trial of carrying offense with it the potential imprisonment could nullity; be reduced to a could constitution- a State ally imprisonment establish two levels of for the same offense—a lower tier for willing defendants who are proceed higher to trial without and counsel, a one for who having those insist on the assistance counsel.25 It Department Pamphlet 3-5, Army Procedure 3-3 to 27-7 No. (1973), Navy guidelines provision. contain no such 24Assuming “option presents scheme” serviceman with any choice, availability substantially sort of realistic its also under parties' cuts the military-necessity argument. federal supra, See at parties argue “military 63-69. The federal as a matter of necessity” disposed minor offenses must court- proceedings giving martial without defendants the benefit of counsel. Yet, option any under the scheme can be serviceman assured simply by rejecting trial Thus court-martial. the scheme itself goal could render unattainable which is claimed to be a necessity. matter of Kentucky system we against While sustained two-tier due process jeopardy Kentucky, double attacks in Colten v. 407 U. S. (1972), system we were careful to note that under that “cannot, not, defendant prison will face threat of the realistic sentence in the inferior court having help without of counsel.” Id., at 119. Amendment would to me that the Sixth

is inconceivable result. tolerate such a

IV pervasive” “the most to counsel has been termed As re rights accorded an accused. 26 all the persons action today, sult of the Court’s all accused protected by the United States Constitution —federal de defendants, juveniles adults, fendants and state civil only ians and those enlisted men tried soldiers — court-martial can be imprisoned without hav ing I been accorded counsel. would have expected that such a result would have been based justifications more far substantial than those relied on I respectfully Court. dissent. Procedure, 70 Harv. L. Schaefer, Criminal Federalism and State 1,8 Rev. S. C. subject courts-martial. Officers are not § 820.

Case Details

Case Name: Middendorf v. Henry

Court Name: Supreme Court of the United States

Date Published: Mar 24, 1976

Citation: 425 U.S. 25

Docket Number: 74-175

Court Abbreviation: SCOTUS