Bradley Manning’s Sentence, Parole and Appeal Implications

CryingJusticeOn Monday I laid out the dynamics that would be in play for the court in considering what sentence to give Bradley Manning in light of both the trial evidence and testimony, and that presented during the sentencing phase after the guilty verdict was rendered. Judge Lind has entered her decision, and Bradley Manning has been sentenced to a term of 35 years, had his rank reduced to E-1, had all pay & allowances forfeited, and been ordered dishonorably discharged. This post will describe the parole, appeal and incarceration implications of the sentence just imposed.

Initially, as previously stated, Pvt. Manning was credited with the 112 days of compensatory time awarded due to the finding that he was subjected to inappropriate pre-trial detention conditions while at Quantico. Pvt. Manning was credited with a total 1294 days of pre-trial incarceration credit for the compensatory time and time he has already served since the date of his arrest.

Most importantly at this point, Manning was sentenced today to a prison term of 35 years and the issue of what that sentence means – above and beyond the credit he was given both for compensatory time and time served – is what is critical going forward. The following is a look at the process, step by step, Bradley Manning will face.

The first thing that will happen now that Judge Lind has gaveled her proceedings to a close is the court will start assembling the record, in terms of complete transcript, exhibits and full docket, for transmission to the convening authority for review. It is not an understatement to say that this a huge task, as the Manning record may well be the largest ever produced in a military court martial. It will be a massive undertaking and transmission.

At the same time, the defense will start preparing their path forward in terms of issues they wish to argue. It is my understanding that Pvt. Manning has determined to continue with David Coombs as lead counsel for review and appeal, which makes sense as Coombs is fully up to speed and, at least in my opinion, has done a fantastic job. For both skill and continuity, this is a smart move.

The next step will be designation of issues to raise for review by the “convening authority”. In this case, the convening authority is Major General Jeffrey Buchanan, who heads, as Commanding General, the US Army’s Military District of Washington. This step is quite different than civilian courts, where a defendant proceeds directly to an appellate court.

The accused first has the opportunity to submit matters to the convening authority before the convening authority takes action – it’s not characterized as an “appeal,” but it’s an accused’s first opportunity to seek relief on the findings and/or the sentence. According to the Manual for Courts-Martial, Rule for Court-Martial 1105:

(a) In general. After a sentence is adjudged in any court-martial, the accused may submit matters to the convening authority in accordance with this rule.

(b) Matters which may be submitted.
(1) The accused may submit to the convening au­ thority any matters that may reasonably tend to af­ fect the convening authority’s decision whether to disapprove any findings of guilty or to approve the sentence. The convening authority is only required to consider written submissions.
(2) Submissions are not subject to the Military Rules of Evidence and may include:
(A) Allegations of errors affecting the legality of the findings or sentence;
(B) Portions or summaries of the record and copies of documentary evidence offered or intro­ duced at trial;
(C) Matters in mitigation which were not avail­ able for consideration at the court-martial; and
(D) Clemency recommendations by any mem­ber, the military judge, or any other person. The defense may ask any person for such a recommendation.

Once the convening authority has the full record and the defense has designated its matters for review, Buchanan will perform his review and determine whether any adjustments to the sentence are appropriate, and that will be considered the final sentence. At this point, the only further review is by a traditional appeal process.

Generally, the level of appellate review a case receives depends on the sentence as approved by the convening authority. After the approval of the sentence, cases in which the sentence includes death, a punitive discharge (bad conduct, dishonorable discharge, or dismissal), or confinement for one year or greater (and Manning’s sentence certainly fits that criteria) are automatically referred to the service (in this case the Army) Court of Criminal Appeals (ACCA) for review. In Bradley Manning’s case, only some counts will be eligible for appeal, the ones for which Judge Lind convicted him of after “deliberation”. Appeal on the counts Manning voluntarily pled guilty to prior to trial was waived.

The ACCA will be responsible for reviewing the entire case and has, pursuant to Article 66, UCMJ, the responsibility to:

…affirm only such findings of guilty and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines on the basis of the entire record, should be approved.

That statutory requirement to find law and fact “correct” is significant; the ACCA could decide not to sustain a conviction on a particular offense even if not challenged on appeal. The ACCA “may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the court-martial saw and heard the evidence.”

In addition to the ACCA’s review, military appellate counsel, unless waived, are provided to the accused at no cost. Bradley Manning will likely already have David Coombs, but due to the complexity, it can be anticipated there will also be military counsel participating as well. The appellate counsel may raise specific legal issues to the court for resolution.

After the ACCA, the decision may be appealed to the Court of Appeals for the Armed Forces and thereafter to the United States Supreme Court. Military appellate counsel are continued to be provided at no cost until all the appeals have been exhausted. See generally Subchapter IC, Post-Trial Procedure and Review of Courts-Martial (10 USC §§ 860-876) and Chapter XII of the Rules for Courts-Martial.

The foregoing is the process that will play out in relation to court proceedings for Bradley Manning. But, as such is progressing, Mr. Manning will, of course, be incarcerated, and there will be factors to be considered in that regard as well. Manning will be sentenced to a facility for confinement. The obvious location is Fort Leavenworth where he has been for some time already, although he will likely be moved out of pre-trial population and into general confinement population.

Some military prisoners can be transferred to a Federal Bureau of Prisons (FBOP) facility with the concurrence or direction of the Secretary concerned and agreement with the FBOP. Factors that are considered are: the prisoner’s demonstrated potential for return to duty or rehabilitation, nature and circumstances of offenses, confinement file, status of legal appeals/proceedings, length and nature of sentence, age, and special circumstances (prisoner needs/interests of national security). At least at this point, there is no reason to believe Bradley Manning would be transferred to a civilian prison, although it is at least possible after all appeals are exhausted, which will not be for a very long time.

Once assigned to his facility, Mr. Manning will have a “sentence computation form” generated that will effectively control his confinement and eligibility for release going forward. Here is the template used for such computation. The form can be, and is, commonly updated as the prisoner serves his time, and the document is primarily an internal one as opposed to a public one. There is no set time period for initial production of the form, but it should happen pretty quickly after Manning’s return to the permanent facility. Any number of things can cause adjustments to the form as time goes on, including any sentence relief granted by the convening authority, either initially or after alteration of the conviction status from appellate courts.

So, what about Bradley Manning’s potential release date? This is where there is a HUGE difference in the UCMJ process from civilian process. As many know, the United States government has abolished “parole” for federal prison sentences. Instead, and this is now common in many states too, federal prisoners must serve at least 85% of their imposed sentence, and only then are eligible for supervised release for the remaining time. Under the UCMJ, however, there is still an active and healthy parole system that is far more flexible and favorable to a defendant, especially one like Bradley Manning, who is sentenced to a long term.

Several programs exist within the military corrections process to allow prisoners to be released prior to serving their full sentence. These programs are: clemency, parole, mandatory supervised release (MSR), reenlistment, and restoration to duty. Prisoners do not have any right to clemency, parole, reenlistment, or restoration. These programs are administered by a Clemency and Parole Board (C&PB) on behalf of the Secretary concerned and only apply to military prisoners confined at military corrections facilities. Upon the unlikely event of permanent transfer to the Federal Bureau of Prisons, military prisoners may only be considered for clemency, restoration to duty, and reenlistment, the latter two of which are pretty inconceivable for Bradley Manning.

C&PB considers factors such as the nature and circumstances of the prisoner’s offenses, the military and civilian history, the confinement file, personal characteristics of the prisoner (age, education, marital/family status, psychological profile), impact of prisoner’s offense on victim and attempts at restitution, protection and welfare of society, and the need for good order and discipline in the military when determining whether a prisoner should be granted any of the above programs.

Parole is the conditional release from confinement of a prisoner under the guidance and supervision of a United States Probation Officer. This may be granted prior to the minimum release date and does not require the member to remain on parole until the adjusted maximum release date. Parole considerations begin, upon request of the prisoner, if the sentence is less than 30 years after the member serves one-third of the confinement, but no less than 6 months. If the sentence is greater than 30 years, the prisoner must serve at least 10 years of confinement. The point at which the C&PB begins to consider the prisoner for these programs is dependent upon the sentence received. Specific details on how to calculate when a prisoner, such as Bradley Manning, is eligible for parole or MSR, see Department of Defense Instruction 1325.07, Administration of Military Correctional Facilities and Clemency and Parole Authority as well as the DOD Sentence Computation Manual.

MSR is the conditional release of a prisoner who has served the portion of the sentence to confinement up to the minimum release date from confinement. This type of release continues until the individual reaches the adjusted maximum release date unless the confinement term is altered by the military department through remission, revocation, etc. This is also served under the guidance and supervision of a United States Probation Officer.

Bradley will also be eligible for “good time credits” that will inure to his release favor assuming he is a model prisoner. Good time credit is time that is awarded for faithful observance of all rules and regulations and is subtracted from the prisoner’s adjusted maximum release date. The adjusted maximum release date is computed by adjusting the maximum release date to include administrative credit (pretrial confinement), judicial credit (credit ordered by a judge to a sentence of confinement), inoperative time, and crossing the International Date Line. Good time credit is calculated as 5-10 days per month off the top depending on the length of the approved sentence. In addition, a prisoner may receive up to an additional 8 days per month for work, participation in rehabilitation programs, and/or participation in education programs. If a prisoner performs extraordinary acts, then an additional 2 days per month for 12 months may be credited. The total combined credited time may not
exceed 15 days per month.

There is no interplay between parole and good time credit as good time credit affects the adjusted maximum release date, and parole consideration is annual after a specified time frame as explained above. If a prisoner is not paroled, s/he may be released earlier than initially expected as a result of good time credit.

So, what is the bottom line as to how much time Bradley Manning will likely really serve in confinement given the sentence today by Judge Lind? As you can tell from the above discussion, that is an extremely hard question to answer, and the answer is quite fluid and subject to change as the circumstances dictate. A good rule of thumb, however, is that Bradley could be released after serving one third of his sentence. In light of the fact Judge Lind has imposed a term of 35 years, Mr. Manning, considering the time he has already served, could potentially be eligible for release in as little as 9 years from now. As painful as it is to admit, this sentence, and Bradley Manning’s prospects could have very easily looked far worse. [UPDATE – after pondering what Col. Morris Davis said, I think he is right, and after recalculation, I think the initial eligibility for release – assuming everything goes perfectly for Bradley Manning – will be in 8.3 years.]

One last point – what are the effects of this UCMJ conviction upon Bradley Manning’s civil rights? That is a question not nearly as easy to answer as it is for a civilian felony conviction, where certain rights are simply lost until formally restored. It turns out that for military convictions there is no set authority. The best resource I have found on understanding collateral consequences of a military conviction and sentence is this from the American Bar Association. Some consequences may apply during a period of supervised release while others could be permanent. In general, the consequences that military convicts face is determined by the state law of the person’s residence.

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.
27 replies
  1. What Constitution? says:

    Thank you for this exposition. Is there any requirement for exhaustion of appellate procedures before pursuit of clemency or parole avenues, is it permitted for both proceed to at the same time?

  2. Shelley Dunnigan says:

    Thank you for the well written article; it answered a lot of questions about the process and potential release of Bradley Manning. I don’t condone what he did, however I feel there are so many other things a non-violent prisoner could do to pay restitution, besides just sit in jail for so many years.

  3. Ben Franklin says:

    I should think the tortured portion of his incarceration should be credit for time served @ 100 to 1.

    Obama?

  4. Mike says:

    Did you see any particular procedural or substantive errors that may negate the result on appeal?

    In articular, I’m unclear as to why Obama’s generic statements about sex assault are getting so much play over the potential for “command influence” while Obama’s very specific pre-trial announcement of Manning’s guilt is not seen as a game-changer.

    To be clear: Obama said Manning, specifically, was guilty before any evidence was heard. If you are the career minded officer convening the court martial, how do you get past that?

    On the other hand, with regards to sex assaults, Obama spoke in generalities of the need to end the problem in the services by better enforcement and consistent and tough punishment of the crimes.

    Finally, a general statement about military justice: IMHO, the case should have been removed from UCMJ jurisdiction. The idea is that in a high profile case like this, where the charge includes endangering every single person in the military, where the actions embarrassed (or should have) every single person in the military, and where, as a result, it’s overwhelmingly likely that the vast majority of flag officers (and lower) hold the accused in contempt for his actions…

    Under those circumstances, how can anyone expect the presiding officer to:

    1) be free of the aforementioned contempt for the accused;
    2) be free of career considerations and peer pressure

    The whole system sems violative of due process. Even if Manning were to have lucked into drawing an enlightened jurist sympathetic to his actions, the problem – as a matter of law – remains. In cases like this, the appearance of conflict cannot be cured. How can he not believe that the judge was predisposed to a finding of guilt (and harsh punishment) considering that anything less would have been an indelible scarlet letter upon her career.

  5. bmaz says:

    @Mike: No, procedurally, my guess is it holds up. There are some pretty decent substantive legal arguments, such as on the espionage charges and intent burdens utilized by the court. As to removal from the military system, you would have to be nuts to want that; Manning would have been hammered FAR worse in the civilian system and would have to serve decades before being eligible for release. All things considered, this is not too bad at all.

  6. Ben Franklin says:

    @bmaz:

    “Manning would have been hammered FAR worse in the civilian system and would have to serve decades before being eligible for release ”

    And the likelihood of his choosing a judge over a jury trial, is what, a million to one? No I think the treatment might have resulted in jury nullification, or several hung juries in a row.

    http://ccrjustice.org/solitary-factsheet

  7. bmaz says:

    @Ben Franklin: There is about zero chance of that. Jury nullification is pretty rare, and it is extremely hard to see it in a case like this, whether from a military or civilian jury.

  8. scribe says:

    To keep things in perspective, William Calley led the MyLai massacre and got life. The day he was sent to Leavenworth, the President ordered him to be held in house arrest at Fort Benning instead. His sentence was then reduced by the Convening Authority to 20 years, reduced by the Secretary of the Army to 10 years and then reduced by presidential pardon to time served, about 3 years. The pardon happened after a habeas petition predicated on (essentially) a denial of a fair trial b/c of publicity and judicial decisions limiting his defense. http://en.wikipedia.org/wiki/William_Calley

    Still, Manning got a far fairer trial in the UCMJ system than he could ever have hoped for in civilian court. And he gets free appellate representation, something defendants do not get in the civilian system.

  9. orionATL says:

    @scribe:

    very interesting.

    i had forgotten about the calley travesty.

    it will be interesting to compare manning and bales over the next few years.

  10. Jim White says:

    It is a big relief that the judge chose not to impose the $100,000 fine the prosecution wanted. When Manning finally gets his release, he can get a fresh start rather than being under a huge debt burden along with all the other barriers society will place in his way.

  11. Phil Perspective says:

    @Jim White: I read just a bit ago that over a million dollars was raised for Manning’s defense. I also heard, via the Twitter machine, that the Manning support network is going to start a college fund for him to use once he gets out.

  12. bittersweet says:

    “In addition, a prisoner may receive up to an additional 8 days per month for work, participation in rehabilitation programs, and/or participation in education programs.”
    What educational programs are available to Mr. Manning? Would he be able to spend the 8.3 years pursuing a graduate degree, via the internet?

  13. Ben Franklin says:

    The lemonade mixed here makes it clear their are many options for Manning. He has a bright future and should really be quite optimistic.

  14. Ben Franklin says:

    @philip:

    Rule of Law…Rules of Engagement….same smell from my pov. Operating under that umbrella of legality means no accountability. Immoral acts are forgiven within that poorly constructed edifice. Don’t tell me about their innocence under ‘rules’.. It’s a fucked-up attitude.

  15. john francis lee says:

    The analysis above is based on the expectation of a lessening of the sentence handed down by Judge Lind. But the prosecution – ever the snarling, rabid dogs that they are – may well try to make the case that Bradley Manning got off lightly.

    What is the likelihood of Major General Jeffrey Buchanan increasing Bradley Manning’s sentence, pandering to the lifers in command?

  16. bell says:

    @john francis lee:
    i think the problem is that manning among other things, was shining a light on the usa’s role in murdering innocent people in iraq. clearly as far as the state is concerned that is a much more serious crime then just murdering people as it highlights the governments complicity in the murdering. i think this explains why manning is being treated like a roll model for anyone else who thinks about doing something similar and why he is being given a 35 year sentence..

  17. bmaz says:

    @john francis lee: No, the analysis in the post is predicated on the sentence being the 35 years as decreed by the court today. Any relief from the convening authority an/or the appeal process would only improve the outlook.

    And, no, the process cannot, by definition, make any sentence more severe, it can only uphold the current sentence or lessen it.

  18. rugger9 says:

    Good morning to all,

    Since now-E-1-Pvt Manning is now looking for a gender change operation on the taxpayer dime, I’d like to point out a few things making the news rounds on local MSM:

    * Apparently there is a claim that tactical plans of a classified nature were part of the haul from Bin Laden’s compound. I’m not sure who the source is for that or if it can be trusted as much as the reports the NSA surveillance busted dozens of terrorist plots. However, if that claim were true I do not see how the jury could acquit on aiding the enemy. It’s a smoking gun kind of document to have.
    * No discussion on the pre-trial torture of Manning. Time served or not, it flouted more than a few parts of the UCMJ and Geneva.
    * Also, no discussion on just how a PFC has unfettered and unsupervised access to TSCI type info that could be blithely walked out of the building. Where was his platoon commander and NCO? Their heads ought to be on spikes (it would have been so in my time in the military). I also wonder how much of this has to do with the lowering of standards in recruitment of the military that Shrub did to get bodies to throw into Iraq and Afghanistan. Remember the standards were relaxed during the first Iraq surge.

    I’m also pretty sure Manning gets his DD AFTER finishing his sentence, that would be standard procedure because it keeps a regulatory thumb on the guy.

    On a semi-related subject, the slavering over surgical strikes ignores the fact the New Soviets have a very active naval base at Tarsus, Syria in addition to being very supportive of the Assad regime with equipment, training and advisers. I do not see how we can avoid a conflict with the Russians in any kind of strike unless we go via Incirlik and make damn sure no “advisers” are on the ground where we strike. We aren’t that good, and Putin would be sure to have some soldiers found at the strike point even if we were that good on targeting.

  19. rugger9 says:

    IMHO:

    Manning can get his sex change after he finished his sentence, on his own dime.

    He’ll have a book deal for sure, and with luck the process will have improved to minimize the pain he will have to endure along the transition.

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