Defense Articles

It has also increased the number of so-called “moral waivers” to recruits with criminal pasts, even as the total number of recruits dropped slightly. The sharpest increase was in waivers issued for serious misdemeanors, which make up the bulk of all the Army’s moral waivers. These include aggravated assault, burglary, robbery and vehicular homicide. The number of waivers issued for felony convictions also increased, from 8 percent to 11 percent of the 8,129 moral waivers granted in 2006.

Waivers for less-serious crimes, including traffic offenses and drug use, have dropped or remained stable.

The Army enlisted 69,395 men and women last year.

While soldiers with criminal histories made up only 11.7 percent of the Army recruits in 2006, the spike in waivers raises concerns about whether the military is making too many exceptions to try to meet its recruitment demands in a time of war. Most felons, for example, are not permitted to carry firearms, and many criminals have at some point exhibited serious lapses in discipline and judgment, traits that are far from ideal on the battlefield.
The military automatically excludes people who have committed certain crimes. They include drug traffickers, recruits who have more than one felony on their record or people who have committed sexually violent crimes. A felony is defined as a crime that carries a sentence of a year or more in prison.

Bill Carr, the undersecretary of defense for military personnel policy, said the military granted waivers selectively and scrutinized a recruit’s full record, the nature of the crime, when it was committed, the degree of rehabilitation and references from teachers, employers, coaches and clergy members. In many cases, Carr said, the applicant may have committed the crime at a young age and then stayed out of trouble. To his knowledge, Carr said, recruits who are issued moral waivers are not tracked once inside the military.

“If the community backs them, we are willing to take a hard look,” Carr said, referring to the waiver process, which includes local, state and federal records checks.

The majority of moral waivers are for serious misdemeanors, most often committed by juveniles. As Douglas Smith, the public information officer for the Army’s recruiting command, said, “We understand that people make mistakes in their lives and they can overcome those mistakes.”

Fewer than 3 in 10 people between ages 17 and 24 are fully qualified to join the Army; that means they have a high school diploma, have met aptitude test score requirements and fitness levels and would not be barred for medical reasons, their sexual orientation or their criminal histories. The Defense Department has also expanded its applicant pool by accepting soldiers with criminal backgrounds and medical problems like asthma, high blood pressure and attention deficit disorder, situations that require waivers. Medical waivers have increased 4 percent, totaling 12,313 in 2006. Without waivers, the soldiers would have been barred from service.

In the last three years, the percentage of moral waivers for all new enlistments in the four branches combined have decreased by 3 percent, with spikes in the Army and Air Force. Since 2003, a total of 125,525 moral waivers have been issued. The Marine Corps issues far more moral waivers than the Army — 20,750 in 2006 — but only because it has a stricter policy on drug use. It requires waivers for one-time marijuana use while the other services do not. Rules on waivers vary according to service.

“The data is crystal clear; our Armed Forces are under incredible strain, and the only way that they can fill their recruiting quotas is by lowering their standards,” said Rep. Martin T. Meehan, D- Mass., the chairman of the House Armed Services Subcommittee on Investigations and Oversight. He has requested more detailed data from the Defense Department on the use of waivers.

“By lowering standards, we are endangering the rest of our armed forces and sending the wrong message to potential recruits across the country,” Meehan added. “Our men and women in uniform represent the best and brightest in American, and we need to keep it that way.”

The 7th Circuit Court of Appeals said the clock for the statute of limitations begins to run at the time of discovery of an alleged 4th Amendment violation and that a plaintiff must bring a charge against the officers within the proscribed period.
Andre Wallace was 15 in 1994 when Chicago police arrested him on a murder charge. He confessed during questioning, which he later claimed was coercive and violated the 4th Amendment.

At trial, Wallace testified that he killed John Handy in self-defense. Wallace was convicted and served eight years in prison before various challenges to police tactics resulted in the suppression of the confession and all other evidence and Wallace was released.

Wallace filed civil rights damages claims against the officers nine years after the alleged false arrest, but the 7th Circuit rejected the damages claim because the Illinois statute of limitations of two years had expired.

The Supreme Court agreed to review Wallace’s argument that the statute of limitations for a civil rights claim of false arrest should begin at the time that a prisoner is released rather man at the time of discovery of an alleged police violation.
The 2nd, 6th, 7th and 10th circuits have rendered subsequent opinions that Crawford is not retroactive. But the 9th Circuit found that Crawford represented a sharp turn in jurisprudence and should be applied retroactively to all cases in which hearsay evidence was admitted without the defendant being able to directly confront the witness.

Thirty-six states have filed amicus briefs against retroactivity.

The case before the court-like many cases of hearsay testimony-involves sexual assault of a child. Hearsay evidence is also popular in domestic violence prosecutions.

In Crawford, the Supreme Court set a higher standard for hearsay evidence, limiting its use in a criminal trial only if the person who made the out-of-court statement is unavailable to testify and the defendant had a prior opportunity to confront the witness about the hearsay evidence.

The states said Crawford had already had a profound impact on prosecutors and making the decision retroactive as Bockting seeks to do would further expand the number of cases that would have to be retried.

In Ayers v. Belmontes, 05-493, the high court will decide whether a jury must be directly told to consider a capital defendant’s potential for reform as a mitigating factor.

The 9th Circuit Court of Appeals decided that jury instructions don’t go far enough in allowing the introduction of mitigating factors to reduce the penalty against the defendant.

Fernando Belmontes, who had a juvenile and adult history of violent crime, entered a home for a burglary, found a young woman at home and bludgeoned her to death with an iron bar. Belmontes stole her stereo, sold it for $100 and bought beer.

At trial, the 9th Circuit ruled, that the jury didn’t take into consideration the mitigating factor that Belmontes had shown improvement during an earlier incarceration at the California Youth Authority.

The Supreme Court has been asked to decide whether juries should receive more specific instructions to include the possibility of future reform as a mitigating factor.

In U.S. v. Resendiz-Ponce, 05-998, the Supreme Court will decide whether an omission of an element of a criminal offense in an indictment is a 5th Amendment violation that invalidates the indictment.

Juan Resendiz-Ponce, a Mexican citizen, was indicted for attempting to illegally reenter the United States, but the indictment did not explicitly allege an overt act beyond submission of a false identification card at the border.

Without any other act than submitting a false ID, the 9th Circuit Court found the indictment invalid and reversed the conviction.

Resendiz-Ponce had earlier been deported for illegal entry. He returned and was convicted again of kidnapping his stepdaughter, whom he had impregnated, and ordered deported.

Despite his history, the 9th Circuit said the government made a fatal error in failing to identify an overt act of an illegal attempt to reenter the United States.