                                  IN THE CASE OF


                           UNITED STATES, Appellee

                                           v.

                  Ann M. BRENNAN, Private First Class
                          U.S. Army, Appellant

                                    No. 02-0801
                           Crim. App. No. 20000401

       United States Court of Appeals for the Armed Forces

                            Argued April 29, 2003

                            Decided June 26, 2003

     EFFRON, J., delivered the opinion of the Court, in which
BAKER and ERDMANN, JJ., joined. CRAWFORD, C.J., filed a
separate dissenting opinion. GIERKE, J., recused himself from
the case.


                                       Counsel

For Appellant: Captain Terri J. Erisman (argued); Colonel
    Robert D. Teetsel, Lieutenant Colonel E. Allen Chandler,
    Jr., and Captain Imogene M. Jamison (on brief).

For Appellee: Captain Tami L. Dillahunt (argued); Lieutenant
    Colonel Margaret B. Baines, Lieutenant Colonel Lauren B.
    Leeker, and Major Mark L. Johnson (on brief).


Military Judge:      Donna M. Wright


        THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Brennan, No. 02-0801/AR


   Judge EFFRON delivered the opinion of the Court.

   At a general court-martial composed of a military judge

sitting alone, Appellant was convicted, pursuant to her pleas,

of possession, use, and distribution (three specifications) of

marijuana and acquitted of possession with intent to distribute

and distribution of mushrooms (psilocybin), in violation of

Article 112a, Uniform Code of Military Justice [hereinafter

UCMJ], 10 U.S.C. § 912a (2000).   She was sentenced to a bad-

conduct discharge, confinement for 15 months, total forfeitures,

and reduction to the lowest enlisted grade.   The pretrial

agreement between Appellant and the convening authority limited

the period of confinement to 12 months.    The convening authority

reduced the period of confinement to nine months and approved

the balance of the sentence.   The Court of Criminal Appeals

affirmed in an unpublished opinion.

     On Appellant’s petition, we granted review of the following

issues:

          I. WHETHER APPELLANT SUFFERED CRUEL AND
          UNUSUAL PUNISHMENT, IN VIOLATION OF THE
          EIGHTH AMENDMENT AND ARTICLE 55, UCMJ, 10
          U.S.C. § 855 (2000), WHEN A GUARD AT THE
          MANNHEIM REGIONAL CONFINEMENT FACILITY
          ENGAGED IN CONDUCT INCOMPATIBLE "WITH THE
          EVOLVING STANDARDS OF DECENCY THAT MARK THE
          PROGRESS OF A MATURING SOCIETY" BY
          REPEATEDLY SEXUALLY ASSAULTING AND HARASSING
          HER.




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United States v. Brennan, No. 02-0801/AR


          II. WHETHER THE STAFF JUDGE ADVOCATE'S
          POST-TRIAL RECOMMENDATION PREJUDICED
          APPELLANT BY IGNORING DEFENSE COUNSEL'S
          ASSERTION OF LEGAL ERROR.

For the reasons set forth below, we affirm the findings, but set

aside the sentence and remand to the Court of Criminal Appeals.



                          I. BACKGROUND

     After the sentence to confinement was adjudged by the

court-martial, Appellant was confined at the United States Army

Confinement Facility, Europe, located in Mannheim, Germany.

Defense counsel’s clemency petition provided the following

description of actions taken against Appellant by a petty

officer first class (E-6) serving as a Guard Commander during

her post-trial confinement:

          Ann Brennan was the victim of an indecent
          assault and sexual harassment by one of the
          male guards during her first two months of
          confinement. Ann Brennan was sent to
          Mannheim Confinement Facility (MCF) on 15
          May 2000. In late May 2000, [a] Guard
          Commander, MCF, attempted to engage in
          sexual activity with Ann Brennan during his
          shift. [The Guard Commander] promised Ann
          Brennan special privileges in exchange for
          sex. Furthermore, he placed his hands on
          her buttocks, breasts and vaginal area on
          numerous occasions. He also exposed his
          penis to her and tried to force her to touch
          it with her hand.

          . . . CID titled [the Guard Commander] for
          indecently assaulting Ann Brennan, another
          inmate and one guard. The investigation is
          still outstanding . . . .


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United States v. Brennan, No. 02-0801/AR



          . . . MAJ Steven Lynch, Commander of the
          MCF, stated that Ann Brennan was
          instrumental in identifying [the Guard
          Commander’s] criminal behavior and aiding
          CID in the investigation. He stated that
          her cooperation may very well lead to a
          court-martial conviction for [the Guard
          Commander]. It took a great deal of courage
          for Ann Brennan to come forward and report
          this conduct. For her courage in reporting
          it and for suffering an attack at the hands
          of a guard, Ann Brennan deserves clemency.
          Additionally, MAJ Lynch stated that Ann
          Brennan has been a model inmate[.]

Although the staff judge advocate’s post-trial recommendation

discussed various aspects of Appellant’s request for clemency,

the staff judge advocate did not comment upon, or otherwise draw

the convening authority’s attention to, Appellant’s specific

request for clemency based upon the abusive conditions of her

post-trial confinement.

     In a subsequent statement filed before the Court of

Criminal Appeals, Appellant stated:

          I was sexually attacked by [the Guard
          Commander] on many occasions. His attacks
          were almost daily and range from verbal to
          physical.

          . . . .

          He . . . would come in and look at me when I
          was on the toilet.

          . . . .

          Every day I can remember that he was there,
          he at least propositioned me and told me
          what he wanted to do to me. His


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United States v. Brennan, No. 02-0801/AR


          propositions were asking for sex in return
          for special treatment and goodies, then
          followed by a comment like "you'll give it
          to me anyway or I will take it". When he
          told me what he wanted to do to me it was
          very vulgar and perverted. He said things
          like "I'll F*** you till you can't scream
          anymore, then I'll f*** you up your a** to
          get you screaming again."

          . . . .

          He was physical many times. He would do
          things as little as slapping my butt when I
          was on a treadmill or just walking by. He
          groped me wherever he could whenever he
          could. These events did not last long
          because of my resistance, but they got
          worse. There was a specific event that was
          the worst. When he told me that he was
          going to take a verbal statement about
          something that happened to another inmate,
          he took me into a counselor's room on the
          weekend locked the door and trapped me in
          the corner. He rubbed his body up and down
          my side while rubbing his hand all over me
          and grabbing my private area between my
          legs, he licked the side of my face and
          tried to kiss me. I struggled to get away
          and finally was able to make a break for the
          door. While I was unlocking the door and
          opening it, he stopped the door, grabbed my
          hand and was pulling it toward him, saying
          something to the effect of "just touch it",
          I looked at him as I pulled my hand away and
          noticed that he was pulling it toward his
          penis that he had exposed out of his pants.
          I then got the door open enough to run out
          and back to my cell.


                II. CRUEL AND UNUSUAL PUNISHMENT

     The Eighth Amendment to the Constitution prohibits the

infliction of “cruel and unusual punishment.”   Article 55 states



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United States v. Brennan, No. 02-0801/AR


that various specified punishments, as well as “any other cruel

or unusual punishment, may not be adjudged by a court-martial or

inflicted upon any person subject to [the UCMJ]."   We have

observed that the Supreme Court’s interpretation of the Eighth

Amendment applies to a claim under Article 55 that confinement

was administered in a cruel or unusual manner, subject to

exceptions not pertinent to the present appeal.   United States

v. White, 54 M.J. 469, 473 (C.A.A.F. 2001).

     Under the Supreme Court’s jurisprudence, misconduct by

prison officials does not constitute cruel and unusual

punishment unless it falls within the Eighth Amendment standards

established by the Court.   See Farmer v. Brennan, 511 U.S. 825

(1994); Hudson v. McMillan, 503 U.S. 1 (1992); Estelle v.

Gamble, 429 U.S. 97 (1976).   In Estelle, the Supreme Court held

that the Eighth Amendment prohibits “punishments which are

incompatible with the evolving standards of decency that mark

the progress of a maturing society . . . or which involve the

unnecessary and wanton infliction of pain.”   429 U.S. at 102-03

(citations and internal quotation marks omitted).

     In the context of a challenge to the conditions of

confinement, the Court in Farmer observed that the Eighth

Amendment “does not mandate comfortable prisons” but “neither

does it permit inhumane ones.”   511 U.S. at 832 (internal

quotations omitted).   The Court identified two elements of an


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United States v. Brennan, No. 02-0801/AR


Eighth Amendment claim concerning confinement conditions: (1) an

objective test – whether there is a sufficiently serious act or

omission that has produced a denial of necessities; and (2) a

subjective test – whether the state of mind of the prison

official demonstrates deliberate indifference to inmate health

or safety.    Id. at 834.   Applying the Supreme Court’s test,

numerous federal courts, including this Court, have held that to

sustain an Eighth Amendment violation, there must be a showing

that the misconduct by prison officials produced injury

accompanied by physical or psychological pain.     See United

States v. Erby, 54 M.J. 476, 478 (C.A.A.F. 2001); White, 54 M.J.

at 474; United States v. Sanchez, 53 M.J. 393, 395-96 (C.A.A.F.

2000).

     The Court in Hudson emphasized that the proof required to

establish the unnecessary and wanton infliction of pain “varies

according to the nature of the alleged constitutional

violation.”    503 U.S. at 5 (citing Whitley v. Albers, 475 U.S.

312 (1986)).    The Court added:

          What is necessary to show sufficient harm
          for purposes of the Cruel and Unusual
          Punishments Clause depends upon the claim at
          issue, for two reasons. First, "[t]he
          general requirement that an Eighth Amendment
          claimant allege and prove the unnecessary
          and wanton infliction of pain should . . .
          be applied with due regard for differences
          in the kind of conduct against which an
          Eighth Amendment objection is lodged."
          Whitley, [475 U.S.], at 320. Second, the


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United States v. Brennan, No. 02-0801/AR


            Eighth Amendment's prohibition of cruel and
            unusual punishments "draw[s] its meaning
            from the evolving standards of decency that
            mark the progress of a maturing society,"
            and so admits of few absolute limitations.
            Rhodes v. Chapman, 452 U.S. 337, 346
            (1981)(quoting Trop v. Dulles, 356 U.S. 86,
            101 (1958)(plurality opinion)).

Id. at 8.



                           III. DISCUSSION

     The Government, in the course of this appeal, has not

contested Appellant’s statement and has characterized the Guard

Commander’s conduct as “deplorable.”    The Government contends,

however, that Appellant has failed to show that the Guard

Commander’s actions violated the Eighth Amendment because

Appellant has not shown that she suffered physical or

psychological pain.    As a general matter, verbal harassment,

even when accompanied by physical contact, is insufficient

without evidence of physical or psychological injury to prove

that the misconduct constitutes an Eighth Amendment violation.

See, e.g., Sanchez, 53 M.J. at 394-96; Boddie v. Schneider, 105

F.3d 857 (2d Cir. 1997).    The present case, however, involves

more than occasional unwelcome advances and incidental contact.

Virtually every day over a two-month period, the Guard Commander

abused his position as a prison official to mistreat Appellant,

a prisoner subject to his command and control.    At one point,



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United States v. Brennan, No. 02-0801/AR


using graphic language, he brutally threatened her with anal

sodomy.   On another occasion, he isolated her in a locked room,

trapped her in a corner, and physically assaulted her.      This

case involves a Guard Commander whose raw exercise of power over

a prisoner transformed her lawful period of confinement into a

different form of punishment by imposing repeated physical and

verbal abuse over a two-month period.    Under these

circumstances, expert testimony is not needed to demonstrate

that the harm inflicted upon Appellant was sufficiently

injurious to establish that she was subjected to punishment in

violation of Article 55 by the Guard Commander.

     The Government also contends that the evidence does not

demonstrate that the confinement facility official in question

acted with a sufficiently culpable state of mind.      In the

present case, the Guard Commander engaged in persistent sexual

harassment, threatened to forcibly sodomize Appellant, and

indecently assaulted her.    His culpability is clearly

established by his conduct, which is wholly unrelated to any

legitimate penological or disciplinary purpose in a confinement

facility.

     The Government further argues that the pertinent mental

state is that of the supervisors, who acted promptly on

Appellant’s complaints, thereby disproving any claim of

deliberate indifference.    This case, however, involves a Guard


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United States v. Brennan, No. 02-0801/AR


Commander who exploited his considerable discretionary authority

to abuse Appellant over an extended period of time.    Regardless

of the impact of the chain of command’s reaction on the civil

liability, if any, of supervisory officials, see Hudson, 503

U.S. at 12, White, 54 M.J. at 472, the response of supervisors

does not preclude a finding that the Guard Commander violated

Appellant’s Eighth Amendment rights.    See, e.g., Barney v.

Pulsipher, 143 F.3d 1299 (10th Cir. 1998); Carrigan v. Delaware,

957 F. Supp. 1376 (D. Del. 1997).    In that regard, we note that

if the Guard Commander knowingly had tolerated mistreatment of

Appellant in the same manner by an inmate, he would have

violated Appellant's Eighth Amendment protection against cruel

and unusual punishment.   See Smith v. Chief Executive Officer,

No. 00 C.V. 2521, 2001 U.S. Dist. LEXIS 13887, at *16-17

(S.D.N.Y. Sep. 7, 2001)(citing Farmer, 511 U.S. at 834).    Just

as Article 55 does not permit a Guard Commander to knowingly

tolerate abuse of a prisoner by another inmate, Article 55 does

not permit a Guard Commander to inflict the same abuse on the

inmate.

     Finally, the Government contends that even if Appellant

suffered cruel and unusual punishment, the problem was

adequately addressed because the convening authority reduced her

confinement from the 12 month period, as required by the

pretrial agreement, to nine months.    The record, however, does


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United States v. Brennan, No. 02-0801/AR


not demonstrate that the convening authority’s action was

undertaken to provide corrective action for the mistreatment of

Appellant during confinement.   Defense counsel’s request for

clemency identified seven separate grounds for clemency, only

one of which involved the abusive conditions of her confinement.

The staff judge advocate’s recommendation to the convening

authority discussed various aspects of the defense request for

clemency, but contained no reference to the conditions of post-

trial confinement.   Under these circumstances, it would be

inappropriate to conclude that the convening authority took

corrective action to remedy Appellant's mistreatment in post-

trial confinement.

     With respect to Issue I, we conclude that Appellant was

subjected to illegal post-trial punishment in violation of

Article 55.   Issue II -- which asks whether the staff judge

advocate’s recommendation should have expressly addressed this

legal error –- is moot in view of our holding on Issue I.

     Because the case in its present posture involves correction

of a legal error rather than the provision of clemency,

corrective action may be taken by the Court of Criminal Appeals.

The Court of Criminal Appeals has discretion either to take

corrective action with respect to the Article 55 violation, or

remand the case for such action by a convening authority.




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United States v. Brennan, No. 02-0801/AR




                          IV. DECISION

     The decision of the United States Army Court of Criminal

Appeals is affirmed as to findings and set aside as to sentence.

The record is returned to the Judge Advocate General of the Army

for remand to the Court of Criminal Appeals for further

proceedings consistent with this opinion.




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United States v. Brennan, No. 02-0801/AR


     CRAWFORD, Chief Judge (dissenting):

     There is a significant difference between punishment

inflicted by a prison official, and independent criminal acts

committed by one rogue prison guard.      Appellant was a victim of

the latter.    The offending guard in this case –- 1st Class Petty

Officer (E-6) -- committed a criminal act of his own volition,

which the prison’s supervising official, a commissioned officer

(0-4), handled appropriately.      Upon learning of the guard’s

misconduct through Appellant’s complaint, the supervising

official immediately initiated a criminal investigation, during

which the Criminal Investigation Command (CID) titled the guard

for indecently assaulting Appellant and at least several others.

This prompt and reasonable response on the part of the Major

Lynch should be the focus of this Court’s analysis, and not the

independent criminal actions of one rogue prison guard.        It is

on these grounds that I respectfully dissent.

     “Generally, this Court looks to federal case law

interpreting the Eighth Amendment to decide claims of an Article

55 violation.”      United States v. Smith, 56 M.J. 290, 292

(C.A.A.F. 2002)(citing United States v. Avila, 53 M.J. 99, 101

(C.A.A.F. 2000)).      Accordingly, I consider Appellant’s “claims

of an Eighth Amendment violation and Article 55 violation

together.”    Id.
United States v. Brennan, No. 02-0801/AR


      The Supreme Court has been clear that “[t]he Eighth

Amendment does not outlaw cruel and unusual ‘conditions’; it

outlaws cruel and unusual ‘punishments.’”          Farmer v. Brennan,

511 U.S. 825, 837 (1994).       “’The infliction of punishment is a

deliberate act intended to chastise or deter.’”            Wilson v.

Seiter, 501 U.S. 294, 300 (1991)(quoting Duckworth v. Franzen,

780 F.2d 645, 652 (7th Cir. 1985)).         Accordingly, “[t]he thread

common to all [Eighth Amendment prison cases] is that

‘punishment’ has been deliberately administered for a penal or

disciplinary purpose.”      Id. (quoting Johnson v. Glick, 481 F.2d

1028, 1032 (2d Cir. 1973)).

      The record does not in any way suggest that the guard

sexually harassed Appellant “for a penal or disciplinary

purpose.”    On the contrary, Appellant’s affidavit suggests that

the guard attempted to manipulate Appellant in an effort to

satisfy his own sexual desires.        While no doubt intolerable, the

guard’s actions were not “punishment” for Eighth Amendment

purposes; they were independent criminal acts.           Thus, my

analysis focuses on the responsive actions of the prison’s

supervising official, and not the independent criminal acts of

one rogue guard.1


1
  Moreover, the ultimate outcome of the CID investigation is not apparent from
the record. There is certainly no indication in the record that the guard
eventually received punishment -- either administratively or through a court-
martial -- for his alleged acts. In the absence of evidence to this effect,
we cannot assume the veracity of Appellant’s affidavit, and must accept the


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United States v. Brennan, No. 02-0801/AR


      The question of cruel and unusual punishment under the

Eighth Amendment “is whether prison officials, acting with

deliberate indifference, exposed a prisoner to a sufficiently

substantial ‘risk of serious damage to his future health.’”

Farmer, 511 U.S. at 843 (quoting Helling v. McKinney, 509 U.S.

25, 35 (1993)).     Thus, to succeed in an Eighth Amendment claim,

a prisoner must establish not only the seriousness of the

offending acts -- by demonstrating exposure to a substantial

risk of serious damage -- but also the offender’s culpable

mental state of deliberate indifference.2          Id. at 835; see also

Hope v. Pelzer, 536 U.S. 730, 737-38 (2002) (reiterating that in

evaluating an Eighth Amendment claim courts must ascertain

whether the officials involved acted with deliberate

indifference); Wilson, 501 U.S. at 297 (noting that a prisoner

advancing an Eighth Amendment claim must at minimum allege

deliberate indifference to his serious medical needs); Estelle

v. Gamble, 429 U.S. 97, 104 (1976)(concluding that deliberate

indifference to serious medical needs of prisoners constitutes



possibility that the acts described in the affidavit may not have occurred.
For this reason, focusing on the established responsive acts of the super-
vising official, rather than the alleged acts of the guard, is even more
appropriate.
2
  Although I employ the deliberate indifference standard in my analysis in
accordance with federal precedent, it is worth noting that the standard has
been academically criticized as overly stringent. See, e.g., Michael Cameron
Friedman, Special Project: Cruel and Unusual Punishment in the Provision of
Prison Medical Care: Challenging the Deliberate Indifference Standard, 45
Vand. L. Rev. 921 (1992)(arguing that the intent component of the deliberate
indifference standard should be eliminated).


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United States v. Brennan, No. 02-0801/AR


the unnecessary and wanton infliction of pain proscribed by the

Eighth Amendment).

     An official acts with deliberate indifference only if “the

official knows of and disregards an excessive risk to inmate

health or safety.”    Farmer, 511 U.S. at 837 (emphasis added).

For that reason, “prison officials who actually knew of a

substantial risk to inmate health or safety may be found free

from liability if they responded reasonably to the risk, even if

the harm ultimately was not averted.”    Id. at 844 (emphasis

added).   In short, deliberate indifference requires, first,

knowledge of a serious risk posed to inmate health or safety,

and, second, failure to respond reasonably to that risk.

     In evaluating the reasonableness of a response, we bear in

mind that officials “should be accorded wide-ranging deference

in the adoption and execution of policies and practices that in

their judgment are needed to preserve internal order and

discipline and to maintain institutional security.”    Bell v.

Wolfish, 441 U.S. 520, 547 (1979)(citing Jones v. North Carolina

Prisoners’ Labor Union, 433 U.S. 119, 128 (1977); Procunier v.

Martinez, 416 U.S. 396, 404-05 (1974); Cruz v. Beto, 405 U.S.

319, 321 (1972)).    This is because “maintaining security and

order and operating the institution in a manageable fashion” are

considerations “’peculiarly within the province and professional




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United States v. Brennan, No. 02-0801/AR


expertise of corrections officials’.”    Id. at 540-41 n.23

(quoting Pell v. Procunier, 417 U.S. 817, 827 (1974)).

     Appellant filed a sworn statement with the commander of her

confinement facility, describing the abusive conduct of one

rogue guard.   This statement prompted him to initiate an

official criminal investigation, during which the CID

interviewed Appellant, as well as other female inmates and

prison guards.   These interviews identified both current and

former inmates, as well as a female prison guard, who had been

indecently assaulted and/or sexually harassed by the rogue

guard.   In addition to describing the acts allegedly committed

by him and acknowledging other potential victims, the CID’s

initial report requested a name check on the guard and indicated

that the investigation would continue.    In short, once the

supervising prison official knew of the risk posed by the guard,

he responded reasonably to it, by launching a thorough criminal

investigation closely linked to Appellant and the specific

allegations in her sworn statement.   See Jackson v. Everett, 140

F.3d 1149, 1152-53 (8th Cir. 1998)(finding official’s

investigation of inmate’s allegations a response sufficiently

reasonable to obviate deliberate indifference).

     In sum, the guard allegedly engaged in independent criminal

acts that threatened inmate health and safety.    Upon learning of

these acts, the supervising prison official responded in a


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United States v. Brennan, No. 02-0801/AR


manner aimed to examine and eliminate the threat.   Given the

clear absence of deliberate indifference on the part of the

supervising official, I respectfully dissent from the lead

opinion.




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