[Congressional Record: October 6, 2011 (Senate)]
[Page S6332-S6348]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mrs. FEINSTEIN:
S. 1664. A bill to amend titles 28 and 10, United States Code, to
allow for certiorari review of certain cases denied relief or review by
the United States Court of Appeals for the Armed Forces; to the
Committee on the Judiciary.
Mrs. FEINSTEIN. Mr. President, today I am pleased to introduce the
Equal Justice for Our Military Act of 2011. The act would eliminate
inequities in current law by allowing court-martialed servicemembers
who face dismissal, discharge or confinement for a year or more to seek
review by the United States Supreme Court.
In our civilian courts today, all persons convicted of a crime, if
they lose on appeal, have a right to petition the U.S. Supreme Court
for discretionary review. Even enemy combatants have the right to
direct appellate review in the Supreme Court.
In contrast, however, our men and women in uniform do not share this
same right. Our military personnel have a limited right to appeal to
the U.S. Supreme Court. They can appeal to the U.S. Supreme Court only
if the U.S. Court of Appeals for the Armed Forces, CAAF, actually
conducts a review of their case or grants a petition for extraordinary
relief. In other words, if the CAAF refuses to take their case, or
denies their extraordinary relief petition, the servicemember has no
right to further review in the Supreme Court.
For fiscal years 2008 through 2010, the CAAF denied a total of 2230
petitions for review. The CAAF also averages about 20 denials of
extraordinary relief petitions every year. Taken together, this means
that there are more than 750 court-martial decisions per year in which
servicemembers are denied the opportunity to seek certiorari from the
Supreme Court.
In addition to this disparity between our civilian and military court
systems, there is another disparity within the military court system
itself. The government may petition the Supreme Court for review of
adverse court-martial rulings in any case where the charges are severe
enough to make a punitive discharge possible. But servicemembers do not
have the same rights to petition the Supreme Court that the military
prosecutors on the other side of the aisle have.
The bill I am introducing today is a simple one, which would correct
these inequities. It would allow servicemembers whose appeals are
denied review by the U.S. Court of Appeals for the Armed Forces, or who
were denied extraordinary relief, the opportunity to seek review of
those decisions by writ of certiorari to the U.S. Supreme Court.
While this legislation would provide a fairer legal process for
servicemembers, it would not unduly burden the military or the Supreme
Court. As noted in the 2010 House Judiciary Committee Report on the
legislation, the expanded Supreme Court review of court-martial
decisions authorized by the legislation would result in only about 80-
120 additional petitions for certiorari each year. Additionally, the
Congressional Budget Office has estimated that the increased workload
for Department of Defense attorneys and Supreme Court clerks would cost
less than $1 million each year.
Every day, our U.S. service personnel place their lives on the line
in defense of American rights. It is unacceptable for us to continue to
routinely deprive our men and women in uniform of one of those rights--
the ability to petition their Nation's highest court for direct relief.
It is a right given to common criminals in our civilian courts, to the
Government, and even to some of the terrorists who we hope to prosecute
as war criminals.
It is long past time we give them the same rights as the American
citizens they fight, and sometimes die, to protect. I urge my
colleagues to support this important legislation to give equal justice
to our U.S. servicemembers.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 1664
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Equal Justice for Our
Military Act of 2011''.
SEC. 2. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE ARMED FORCES.
(a) In General.--Section 1259 of title 28, United States
Code, is amended
(1) in paragraph (3), by inserting ``or denied'' after
``granted''; and
(2) in paragraph (4), by inserting ``or denied'' after
``granted''.
(b) Technical and Conforming Amendments.--
(1) Title 10.--Section 867a(a) of title 10, United States
Code, is amended by striking ``The Supreme Court may not
review by a writ of certiorari under this section any action
of the Court of Appeals for the Armed Forces in refusing to
grant a petition for review.''.
(2) Time for application for writ of certiorari.--Section
2101(g) of title 28, United States Code, is amended to read
as follows:
``(g) The time for application for a writ of certiorari to
review a decision of the United States Court of Appeals for
the Armed Forces, or the decision of a Court of Criminal
Appeals that the United States Court of Appeals for the Armed
Forces refuses to grant a petition to review, shall be as
prescribed by rules of the Supreme Court.''.
SEC. 3. EFFECTIVE DATE.
(a) In General.--Subject to subsection (b), the amendments
made by this Act shall take effect upon the expiration of the
180-day period beginning on the date of the enactment of this
Act and shall apply to any petition granted or denied by the
United States Court of Appeals for the Armed Forces on or
after that effective date.
(b) Authority to Prescribe Rules.--The authority of the
Supreme Court to prescribe rules to carry out section 2101(g)
of title 28, United States Code, as amended by section
2(b)(2) of this Act, shall take effect on the date of the
enactment of this Act.
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