Policing the separation of powers

A recent petition for certiorari gives the U.S. Supreme Court an opportunity to address whether the president has the authority to issue sentencing factors in death penalty cases in military courts. The case has been billed as implicating the separation of powers. As welcome as any robust effort by the court to limit what seems to be the ever-expanding power of the executive, the court should pass on this particular opportunity.

Akbar v. United States involves a "fragging" incident during the Iraq War where an Army soldier, Hasan K. Akbar, killed two officers and injured 14 other servicemen.

At Akbar's court martial, his lawyers acquiesced in the introduction of their client's diary during the penalty phase. Akbar had written in it of his intent to "kill as many of [his fellow soldiers] as possible" as soon as he arrived in Iraq. While his defense introduced the diary in support of their contention that Akbar was mentally ill, the military jury was persuaded that the crimes were premeditated and sentenced Akbar to death. The sentence was affirmed by a 3-2 vote of the Court of Appeals for the Armed Forces.

Akbar's counsel have dropped the ineffective assistance of counsel argument based in part on the introduction of the diary that was central to his unsuccessful lower court appeal. Instead, their petition for certiorari is based on a separation of powers argument that the president could not constitutionally issue the sentencing factors which the panel in Akbar's court martial found. Those factors come from the Rules for Courts-Martial. Akbar contends that they can only come from Congress.

According to the appellant, the president cannot issue the sentencing factors because under the court's Apprendi line of cases the aggravating factors the court martial panel found are now "elements" of a crime and therefore must, under other court precedent, be set forth by Congress, not the president.

The main obstacle to Akbar's position is the court's ruling in 1996 in Loving v. United States. There, the court upheld the military's aggravating factors regime where those factors were issued by the president under authority delegated by Congress. Akbar contends that Loving must be overturned in light of Apprendi.

The Loving court distinguished between elements of crimes and aggravating factors that could be used to enhance punishment. It held that sentencing factors used in courts martial could be issued by the president under delegated authority from Congress.

Since Loving, the court's Apprendi line of cases has required juries in civilian cases to make any finding that enhances a criminal sentence. In Apprendi, the court stated in a footnote that enumerated aggravating factors operate as "the functional equivalent of an element of a greater offense."

Akbar argues that "the functional equivalent of an element" is now, in fact, an element under Apprendi and therefore the distinction between elements and aggravating factors in Loving is untenable.

There are three problems with Akbar's argument. The first is that the entire Apprendi line of cases is based upon the Sixth Amendment right to a jury trial that is inapplicable in the military context. There is no right to jury trial in a court martial. Apprendi should not apply to Akbar's case.

The second problem is that, even assuming that a court martial panel is the equivalent of a jury for Sixth Amendment purposes, those panels find the facts that support sentencing enhancements, and did so in Akbar's case. Before Apprendi, judges in many civilian courts functioned as fact-finders for sentencing factors after a jury had found a defendant guilty of a crime. Apprendi stands for the proposition that juries must find all facts that increase a defendant's punishment. The problem that Apprendi addressed - fact-finding by judges that increases punishments - does not exist in the military context.

Third, the court's language in Apprendi that sentencing factors are the "functional equivalent" of an element of a crime does not make such factors the same as an element of a crime. It is a clever argument.

But it ignores that what animated the court's concern in Apprendi was not the separation of powers, but the Sixth Amendment right to a jury trial. Thus, in a military case where the Sixth Amendment right to a jury is not implicated, the court is being asked to hold that Apprendi is really about defining sentencing factors as "elements" of crimes and that Congress and not the president should define those factors. That concern has nothing to do with the Sixth Amendment.

No doubt the court's docket is replete with examples of executive overreach. The court should be more vigilant about policing the boundaries separating the three branches of government. But the Akbar case, involving typical and uncontroversial function of the commander in chief, is not one of them. The court should deny Akbar's certiorari petition when it considers it this fall.