Yes they can–yes the CCA can order a sentence-only rehearing

The problem is that the CCA’s don’t do that enough. But at least they have the power.

In United States v. Quick:

The underlying issue is whether Article 66(d), UCMJ, authorizes the CCAs to order sentence-only rehearings. The government argues that the CCAs do not have that authority and asks that we overrule this court’s decision in United States v. Miller, 370 C.M.A. 296, 27 C.M.R. 10 (1956), in which we specifically recognized the authority of the CCAs to order sentence-only rehearings. The government asserts that Miller was wrongly decided in light of Jackson v. Taylor, 353 U.S. 569 (1957).

As the gubmint’s oft-stated “it’s too hard” argument CAAF said:

As noted in Miller, sending a case to CCAs for a sentenceonly rehearing is somewhat cumbersome, as a new court must be assembled and informed of the facts. 10 C.M.A. at 299, 27 C.M.R. at 373. However, a process that is cumbersome does not equate to a process that is unworkable. The very fact that the CCAs have been ordering sentence-only rehearings for over sixty years demonstrates the workability of the process.

Along with deciding the issue, CAAF made a couple of comments interesting to those students of CAAF’s stare decisis belief.

• We do not believe that Miller was so poorly reasoned that it should be reversed on that basis alone, particularly when it has been accepted by and relied upon by both the legislative and executive branches of government in the intervening years.
• Legislative history does not support overruling.
• A long supportive history following the case sought to be overruled and thus an argument for consistency. But, one asks, what about Fosler?
• The Supreme Court has held that stare decisis “is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Payne v. Tennessee, 501 U.S. 808, 827 (1991); see also Tualla, 52 M.J. at 231. As noted, the Miller rule has been in effect for over sixty years and during that time has become accepted procedure in the military justice system. It has provided a predictable and consistent appellate remedy for both litigants and the lower courts to follow. (Fosler anyone?)
• (Note from the two dissenting judges) The fundamental error in the court’s analysis was in according the policy of stare decisis an aspect of flexibility that it does not have. A precedent-making decision may be overruled by the court that made it or by a court of a higher rank. That discretion, however, does not reside in a court of a lower rank. United States v. Allbery, 44 M.J. 226, 228 (C.A.A.F. 1996)

The Supremes anyone?