Court of Appeals for the Armed Forces

​No. 22-0123/AF. U.S. v. Travis D. Pullings. CCA 39948. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is granted on the following issues:
 
I. IN ADDITION TO PRISON OFFICIALS, CAN THE DECISIONS OF MILITARY PERSONNEL SATISFY THE "DELIBERATE INDIFFERENCE" ASPECT OF THE CRUEL AND UNUSUAL PUNISHMENT TEST WHEN THEY REPEATEDLY SEND MILITARY INMATES TO A LOCAL CIVILIAN CONFINEMENT CENTER WITH A HISTORY OF INHUMANE LIVING CONDITIONS FOR INMATES?
 
II. ADDITIONALLY OR ALTERNATIVELY, DID APPELLANT SUFFER CRUEL AND UNUSUAL PUNISHMENT FOR 247 DAYS AND NIGHTS AT LOWNDES COUNTY JAIL?

Pullings at AFCCA here.

Another case in a history of issues with civilian pretrial and posttrial confinement. Most, but not all, seem to arise in AF cases. Kawai is a recently decided one.

A very broad search in Lexis with the search terms "civilian" and "conditions" and ""confinement conditions"" brought up a list of 237 cases. Looking at only the first 50, 42 were AF cases going back to September 2019. Of these, 11 were about military confinement. The local facilities include Otero County, NM (note, the Army uses this facility), whichever civilian jail services Vandenberg AFB, CA, Sutter County Jail, CA, Lowndes County Jail, GA, Hillsborough County Jail, FL, "Bossier Max," SC, Taylor County Jail, TX, the local facility that services McConnell AFB, KS, the local facility that services Tinker AFB, OK, Tom Green County Jail, TX, the facility that services Dover AB, DE, Comal County Jail, TX, Elmore County Jail, ID, 

Appellant was ordered into pretrial confinement, which included both a civilian confinement facility and a military confinement facility. While in the civilian facility, Appellant wore the standard striped jail uniform. When Appellant returned to Ellsworth AFB for appointments other than those with defense counsel, she wore the striped jail uniform. Appellant's diet during pretrial confinement caused weight gain while in the civilian facility and subsequent weight loss while in the military facility.

United States v. Hepfl, No. ACM 39829 (f rev), 2021 CCA LEXIS 491, at *3-4 (A.F. Ct. Crim. App. Sep. 24, 2021). A UCMJ art. 13 motion was waived as part of her PTA. (Was ADC aware the client was being brought to on-base appointments in prison clothes?)

In United States v. Damm, the appellant argued his confinement conditions violated Article 58, UCMJ, "because he was treated differently from civilian confinees at [the confinement facility]." The court held "[a]s with alleged violations of the Eighth Amendment and Article 55, prisoners must first exhaust administrative remedies before invoking judicial intervention to remedy alleged violations of Article 58(a)." Because the court determined appellant "failed to exhaust his administrative remedies," the court did not consider his Article 58, UCMJ claims. . . . Here, appellant does not argue he exhausted his administrative remedies, but instead speculates such exhaustion "would have been futile in this case."

Query: What steps are taken by the military or civilian facility to ensure the detainee is aware of their complaint processes? 

United States v. Grillo, No. ARMY 20210309, 2022 CCA LEXIS 295, at *4-5 (A. Ct. Crim. App. May 18, 2022).

The message here is to trial defense counsel, I think. The burden is on you to do the following post-trial.

1. Advise and encourage using the facility complaint system and also the military system at the same time.
2. Raise the issue with the SJA.
3. Put the issue in the 1106.
4. Reread United States v. Willman, 81 M.J. 355 (C.A.A.F. 2021) for the consequences of first raising the issue on appeal.