MIDDENDORF V. HENRY, 425 U. S. 25 (1976)

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U.S. Supreme Court

Middendorf v. Henry, 425 U.S. 25 (1976)

Middendorf v. Henry

No. 74-175

Argued January 22, 1975

Reargued November 5, 1975

Decided March 24, 1976*

425 U.S. 25


The Uniform Code of Military Justice (UCMJ) provides four methods of disposing of cases involving servicemen's offenses: general, special, and summary courts-martial, and disciplinary punishment pursuant to Art. 15 of the UCMJ. General courts-martial and special courts-martial, which may impose substantial penalties, resemble judicial proceedings, nearly always presided over by lawyer judges, with lawyer counsel for both sides. Article 15 punishment, conducted personally by the accused's commanding officer, is an administrative method of dealing with most minor offenses. A summary court-martial, lying in between the informal Art. 15 procedure and the judicial procedures of general and special courts-martial, is designed "to exercise justice promptly for relatively minor offenses" in an informal proceeding conducted by a single commissioned officer, acting as judge, factfinder, prosecutor, and defense counsel (with jurisdiction only over noncommissioned officers and other enlisted personnel), who can impose as maximum sentences: 30 days' confinement at hard labor or 45 days' hard labor without confinement; two months' restriction to specified limits; reduction to the lowest enlisted pay grade; and forfeiture of two-thirds pay for one month. If the accused does not consent to trial by summary court-martial, the case will either be referred to a special or general court-martial, or be dismissed. Various enlisted members of the Marine Corps (hereinafter plaintiffs) charged for the most part with "unauthorized absences" brought this class action in District Court challenging the authority of the military to try them at summary courts-martial without providing them with counsel. All the plaintiffs had consented

Page 425 U. S. 26

in writing to be tried by summary court-martial, without counsel, after having been advised that they could be tried by special court-martial with counsel provided and having been apprised of the maximum sentences imposable under the two procedures. The District Court entered a judgment for the plaintiffs. The Court of Appeals vacated the judgment and remanded the ease for reconsideration in the light of its opinion in Daigle v. Warner, 490 F.2d 358, wherein it had held that there is no right to counsel under the Sixth Amendment in summary courts-martial and no absolute Fifth Amendment due process right in every case in which a military defendant might be imprisoned, but that, in line with Gagnon v. Scarpelli, 411 U. S. 778, counsel is required where the accused makes a request based on a timely and colorable claim (1) that he has a defense and (2) that there are mitigating circumstances, and the assistance of counsel is necessary in order adequately to present his defense.


1. There is no Sixth Amendment right to counsel in a summary court-martial, since that proceeding is not a "criminal prosecution" as that term is used in the Amendment. Pp. 425 U. S. 33-42.

(a) Even in a civilian context, the fact that a proceeding will result in the loss of liberty does not ipso facto mean that the proceeding is a "criminal prosecution" for Sixth Amendment purposes, Gagnon v. Scarpelli, supra, at 411 U. S. 788-789; In re Gault, 387 U. S. 1, 387 U. S. 30; and when it is taken into account that a summary court-martial occurs in the military, rather than a civilian, community, the considerations supporting the conclusion that it is not a "criminal prosecution" are at least as strong as the factors that were held dispositive in those cases. The charges against most of the plaintiffs here have no common law counterpart and carry little popular opprobrium; nor are the penalties comparable to civilian sanctions. Pp. 425 U. S. 34-40.

(b) A summary court-martial, unlike a criminal trial; is not an adversary proceeding. Pp. 425 U. S. 40-42.

2. Nor does the Due Process Clause of the Fifth Amendment require that counsel be provided the accused in a summary court-martial proceeding. Pp. 425 U. S. 42-48.

(a) Though the loss of liberty which may result from a summary court-martial implicates due process, the question whether that embodies a right to counsel depends upon an analysis of the interests of the accused and those of the regime to which he is subject, and in making that analysis deference must be

Page 425 U. S. 27

given to Congress' determination under Art. I, § 8, of the Constitution, that counsel should not be provided in that type of proceeding. P. 425 U. S. 43.

(b) Supporting Congress' decision is the fact that the presence of counsel would convert a brief, informal hearing, which may be readily convened and concluded, into an attenuated proceeding, preempting the time of military personnel and thus consuming military resources to an unwarranted degree. See United States ex rel. Toth v. Quarles, 350 U. S. 11, 350 U. S. 17. Pp. 425 U. S. 45-46.

(c) The accused who feels that counsel is essential in the situation envisaged by the Court of Appeals in reliance on Daigle v. Warner, supra, may elect trial, with counsel provided, in a special court-martial proceeding, and though he would thus expose himself to the possibility of greater penalties, a decision involving that kind of choice, which often occurs in civilian criminal cases, is not constitutionally decisive. Pp. 425 U. S. 46-48.

493 F.2d 1231, reversed.

REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J.,and WHITE, BLACKMUN, and POWELL, JJ., joined. POWELL, J., filed a concurring opinion, in which BLACKMUN, J., joined, post, p. 425 U. S. 49. STEWART, J., filed a dissenting statement, post, p. 425 U. S. 49. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 425 U. S. 51. STEVENS, J., took no part in the consideration or decision of the cases.

Page 425 U. S. 28

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