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Military Law Review Vol. 55 DEPARTMENT OF THE ARMY PAMPHLET 27-100-55 MILITARY LAW REVIEW VOL. 55 Articles CON STlTUT I0 NAL RIG HTS 0 F PR I S 0 N ERS THE UNITED STATES COURT OF MILITARY APPEALS: ITS ORIGIN, OPERATION AND FUTURE EVIDENCE AND THE ADMINISTRATIVE DISCHARGE BOARD MILITARY CONTEMPT LAW AND PROCEDURE Perspective THE ETHICAL AND JURIDICAL STATUS OF CONSTRAINTS IN WAR Comments COMA REVIEW Recent Deve1oprnenL.s Book Reviews HEADQUARTERS, DEPARTMENT OF THE ARMY WINTER 1972 MILITARY LAW REVIEW The Military Law Review provides a forum for those interested in military law to share the product of their experience and re- search. Articles should be of direct concern and import in this area of scholarship, and preference will be given to those articles having lasting value as reference material for the military lawyer. The Militarg Law Review does not purport to promulgate De- partment of the Army policy or to be in any sense directory. The opinions reflected in each article are those of the author and do not necessarily reflect the views of The Judge Advocate General or any governmental agency. SUBMISSION OF ARTICLES : Articles, comments, recent de- velopment notes, and book reviews should be submitted in dupli- cate, triple spaced, to the Editor, Militaq Law Review, The Judge Advocate General’s School, Charlottesville, Virginia 22901. Foot- notes should be triple spaced and appear as a separate appendix at the end of the text. Citations should conform to the Uniform System of Citation (11th edition 1967), copyrighted by the Columbia, Harvard, and University of Pennsylvania Law Reviews and the Yale Law Journal. SUBSCRIPTIONS AND BACK ISSUES : Interested persons should contact the Superintendent of Documents, United States Government Printing Office, Washington, DC 20402. Subscription price: $2.60 a year, 9.76 for single copies. Foreign subscription, $3.26 per year. REPRINT PERMISSION : Contact Editor, Militarg Law Re- view, The Judge Advocate General’s School, Charlottesville, Vir- ginia 22901. This Review may be cited as 66 MIL. L. REV. (number of page) (1972). i For sale by the Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402 - Price 75 cents (single copy). Subscription Price: $2.50 per year; 75 cents additional for foreign mailing. Pam 27-100-55 PAMPHLET HEADQUARTERS DEPARTMENT OF THE ARMY NO. 27-100-55 WASHINGTON, DC, Winter 1972 MILITARY LAW REVIEW-VOL. 55 Page Articles : Constitutional Rights of Prisoners Major Conrad W. Forys _________ _________-- __ 1 The United States Court of Military Appeals: Its Origin, Operation and Future Captain John T. Willis - - - - - - - - - - - - - - - - - - 39 Evidence and the Administrative Discharge Board Captain Jack Finney Lane, Jr. _--_--_-------- 95 Military Contempt Law and Procedure Major John A. McHardy, Jr. - - - - - - - - - __ - - __ __ 131 Perspective: The Ethical and Juridical Status of Constraints in War Colonel G. I. A. D. Draper ___________________ 169 Comments: COMA Review Captain Donald N. Zillman and Captain Stephen L. Buescher - - - - - - - - - - - - - - - - 187 Recent Developments - - - - - - - - - - - - - - - - - - - - - - - - - - - 247 Jury Assessment of the Death Penalty: McGautha v. California, 402 U.S. 183 (1971) ____ _________ Book Reviews _____________________---------------_253 Books Received - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 261 iii CONSTITUTIONAL RIGHTS OF PRISONERS* By Major Conrad W. Forys** Events at San Quentin and Attim have made prisoner demands front pwe news around, the world. Less violent confrontations have helped to define the constitutional rights retained bg incarcerated civilians and soldiers. The author examines this burgeoning area of the law, focusing on such matters as the free exercise of religion, censorship, and disciplinary proceedings. He concludes that some revision in military regulations is desirable to reflect recent judicial decisions. I. INTRODUCTION A. THE PRISON SYSTEM In discussing the rights of military prisoners, an understanding of the past and present institutional framework is helpful. The current confinement practices with which we will be concerned have evolved not alone from a separate military confinement sys- tem, but also from the federal, state and local systems. Until 1875, serious military offenders were confined in the state operated prisons, and minor offenders were handled within the Army at post guardhouses or central facilities such as Governors Island.' In 1873, the first United States Military Prison was established by Congress at Rock Island, Illinois, and relocated in 1874 at Fort Leavenworth, Kansas.2 Branch' prisons were estab- *This article was adapted from a thesis presented to The Judge Advocate General's School, U.S. Army, Charlottesville, Virginia, while the author was a member of the Nineteenth Advanced Course. The opinions and conclusions presented herein are those of the author and do not necessarily represent the views of The Judge Advocate General's School or any governmental agency. **JAGC, U.S. Army; Deputy Staff Judge Advocate, Fort Devens, Massachusetts. B.A., 1961, University of Texas; J.D., 1970, Rutgers Law School. 'The Army Correotional System, Office of The Adjutant General, De- - partment of the Army (1952) (information booklet). 'Id. The reasons for establishing the system were reported by the Military Committee of the House of Representatives in recommending passage of its bill in 1871: "As a measure of economy it will be beneficial. These even have - been guilty of some little crime, some violation of orders of superior officers, offenses not stained with any great amount of moral turpitude, not in the nature of a felony. But they are cast into prison, and stay there very frequently years and years by the side of men of the blackest character, who have committed robbery and murder, or other felonies. Now, it is very improper that these soldiers should be put there, and we feel that as a matter of economy-as a matter of humanity-as a matter of reformation, 1 55 MILITARY LAW REVIEW lished at Fort Jay and Alcatraz in 1907, and for a short time (1913 to 1915) the entire system was operated by The Judge Advocate General. In 1915, the system was renamed the United States Army Disciplinary Barracks with control of the discipli- nary barracks and staff supervision of post guardhouses and stockades vested in The Adjutant General. In the same year a system of parole for all military prisoners in the United States Army Disciplinary Barracks and its branches was authorized. In 1946, control of the United States Disciplinary Barracks and its various branches (now inactive) and staff supervision of post guardhouses and stockades passed to The Provost Marshal Gen- eral, In parallel to the military system, federal ciT*ilian prisoners were confined in state institutions until 1895. Then the United States Military Prison was temporarily used by the Department of Justice until the completion of the United States Penitentiary at Leavenworth, Kansas, in 1906, marked the start of the present federal system. Female federal prisoners continued to be boarded in state institutions until a separate facility was opened at Alderson, West Virginia, in 1927.3 The military and federal prison systems, pursuant to agreement between the Secretary of the Army and the Attorney General, Article 58 of the Uniform Code of Military Justice, and 18 U.S.C. 8 4083 have long provided for the confinement of military prisoners in federal civilian fa- ~ilities.~ B. COURT REVIEW OF PRISONERS COMPLAINTS For many years the courts have been extremely reluctant to review the internal administration of any prison system, a re- they should have a place of their own, subject to the inspection of the higher officers of the Army, where the discipline of military men can be in a measure enforced and a uniformity of treatment tempered with humanity may be observed and enforced.” H. SCHENDLER, HISTORY OF THE UNITED STATES MILITARY PRISON (1911). Thirty Years of Prison Progress, United States Penitentiary, Atlanta, Georgia. ’ The number of military prisoners in federal institutions has varied from 156 in 1915 to 3,631 in 1947. The Army Correctional System, supra, note 1. Pursuant to 18 U.S.C. 0 4083 (1964) persons convicted of offenses against the United States or by courts-martial punishable by imprisonment for more than one year may be confined in any United States penitentiary. But a sentence for an offense punishable by imprisonment for one year or less shall not be served in a penitentiary without the prisoner’s consent. For the purposes of this section, whether a military prisoner can be confined in a United States penitentiary is resolved by looking to the length of sentence he could have received, rather than that which he actually received. Dorssart v. Blackwell, 277 F. Supp. 399 (N.D.Ga. 1967). 2 PRISONER RIGHTS luctance which undoubtedly stemmed from their recognition of the inany problems faced by prison administrators and the courts’ own lack of expertise in the area. In view of these factors, a denial of jurisdiction over the subject matter by a court is I understandable when it involves a dismissal of prisoners’ peti- tions alleging no more than those deprivations inevitably accom- panying incarceration in highly regulated institutions with limited resources, such as complaints of restrictions on movement, poor lighting or plumbing. However, the courts have not so limited their dismissal of prisoners’ suits, but have also denied jurisdic- tion where mistreatment, needless
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