Jackson v. Taylor/Dissent Brennan

Mr. Justice BRENNAN, with whom The CHIEF JUSTICE, Mr. Justice BLACK and Mr. Justice DOUGLAS join, dissenting.

I am unable to see how the action of the Board of Review can fairly be characterized as other than an original imposition of sentence by the Board for the offense of attempted rape. The Uniform Code of Military Justice grants no power to the Board to impose original sentences. 64 Stat. 128, 50 U.S.C. § 653, 50 U.S.C.A. § 653. That power is reserved exclusively to the court-martial. There was, therefore, no valid gross sentence embracing attempted rape upon which the Board's power to remit an excessive portion could operate. I subscribe to what Judge Major said in the similar case of De Coster v. Madigan, 7 Cir., 1955, 223 F.2d 906, 909-910, in which De Coster was allowed habeas corpus and ordered discharged:

' * *  * While the court-martial obviously had jurisdiction of      plaintiff and the offenses with which he was charged, it did      not fully and fairly deal with him. The Law Officer     instructed the court-martial that the minimum sentence which      could be imposed on the murder charge was life imprisonment. But the Law Officer gave no instructions as to the punishment     which could be imposed on the attempted rape charge. The     court-martial found plaintiff guilty of both murder and      attempted rape, but its sentence was life-imprisonment, the      minimum sentence for the murder charge alone. Of course, any     suggestion that the court-martial should have sentenced      plaintiff for a term of life plus twenty years would be      ridiculous, but equally so is the assertion that the      court-martial did or intended to impose any part of its      sentence for attempted rape. It lacked even the necessary instructions upon which such award of punishment     would have to be based. Imposition of sentence by the proper     authority is an essential step in administration of criminal      justice. Here, under the statute, only the court-martial was     authorized to take this step; it failed to do so.'