concurring:
Trial counsel’s argument on sentencing exceeded the bounds established in the recent case of United States v. Mosely, 1 M.J. 350 (March 19, 1976). We must consider whether appellant was prejudiced thereby. I agree that he was not prejudiced.
I offer the following comments on the holding in Mosely to encourage the Court of Military Appeals to reconsider its decision. Whereas the court in Mosely indicated that their decision was in accordance with former practice and precedent, I do not agree with their analysis of the former cases and consider the present holding as establishing a new military rule.
Historically, military jurisprudence has recognized general deterrence as a valid consideration in sentencing. An early military justice text states that the “court should always take into account the fact that the object of punishment is not to take vengeance for the deed but to prevent crime and the repetition of the offense by the offender and to deter others from similar acts." (Emphasis supplied.)1 Courts were considered bound “to award a punishment in every respect proportioned to the offense found and calculated for the due maintenance of military discipline.”2 Colonel Winthrop noted that a proper consideration in punishment is its effect upon military discipline.3 Modern military legal writers have also recognized the proper consideration of general deterrence in sentencing.4 The Court of Military Appeals in United States v. Barrow, 9 U.S.C.M.A. 343, 26 C.M.R. 123 (1958) recognized the traditional basis for punishment and added the military consideration of retention in the service. Although discussed in the context of a convening authority’s action, the court stated:
“In civilian courts, a judge is primarily concerned with the protection of society, the discipline of the wrongdoer, the reformation and rehabilitation potential of the defendant, and the deterrent effect on others who are apt to offend against society. Those are all essential matters to be considered by a convening authority but, in addition, he must consider the accused’s value to the service if he is retained and the impact on discipline if he permits an incorrigible to remain in close association with other members of the armed services.”
Probably the best statement of the current civilian standards is found in United States v. Foss, 501 F.2d 522 (1st Cir. 1974) wherein Judge Campbell stated:
“. . . the view that punishment should fit the offender has never yet been held to eliminate general deterrence as a factor to be considered along with others. This is so even though general deterrence concerns itself not with the individual offender but with the sentence’s impact on others. A commentator describes it as ‘the only goal we can accept in advance for punishing all crimes committed by all persons, without scrutinizing the facts of the particular case in which punishment may be imposed.’ ”
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*836“The court’s duty to ‘individualize’ the sentence simply means that, whatever the judge’s thoughts as to the deterrent value of a jail sentence, he must in every case reexamine and measure that view against the relevant facts and other important goals such as the offender’s rehabilitation. Having done so, the district judge must finally decide what factors, or mix of factors, carry the day. While the judge’s conclusions as to deterrence may never be so unbending as to forbid relaxation in an appropriate case, they may nonetheless on occasion justify confinement although other factors point in another direction.” Id., at 527. [Citations omitted.]
The Court of Military Appeals in Mosely distinguished Foss on the grounds that military standards have been different. The court relied principally on the earlier cases of United States v. Mamaluy, 10 U.S.C.M.A. 102, 27 C.M.R. 176 (1959) and United States v. Hill, 21 U.S.C.M.A. 208, 44 C.M.R. 257 (1972) to establish that difference. However I do not believe those cases go that far. In Mamaluy, the court reviewed a sentencing instruction modeled after the provisions of paragraph 76a, Manual for Courts-Martial, United States, 1951. This paragraph encouraged uniform sentences and in “special circumstances, to meet the needs of local conditions, sentences more severe than those normally adjudged for similar offenses.” The court found this portion of the instruction to be impractical, confusing and of doubtful validity. The members had no way of determining the sentences adjudged in similar cases. The consideration of unidentified local conditions or the concern of the civilian community about inadequate military sentences, was held to be so vague as to be valueless. In suggesting that instructions patterned after paragraph 76a be discarded the court stated:
“As a general proposition, they may not be unsound, and we have previously considered them in that light but, when beamed at a particular case in which the court-martial might try to apply them, there is some risk the court may veer away from its primary task of assessing a sentence appropriate to the person on trial. It is worth noting that we are dealing with imponderables which have no bearing on findings of guilt, and it is conceivable that subjectively court-martial members as well as civilian judges might properly give some consideration to the subjects mentioned, but objectively they should be of little moment and they should not be given the importance they naturally carry when given in instructional form.”
In the companion case of United States v. Brennan, 10 U.S.C.M.A. 109, 27 C.M.R. 183 (1959), the court again condemned this type of instruction stressing that the resentment of a local community should not be the cause for a court adjudging a more severe sentence than would otherwise be appropriate. The court’s decision in Mamaluy formed the basis for the subsequent elimination of these objectionable provisions in the 1969 Manual for Courts-Martial. DA Pam 27-2, Analysis of Contents, Manual for Courts-Martial, United States, 1969 (Revised edition) 1970, at 13-7. Neither of the foregoing opinions addressed the subject of general deterrence. The language of Mamaluy stressing “individualized” sentences should be considered in the light of the matter under consideration, but even in a broader sense it is not inconsistent with the generally accepted theory of general deterrence. See United States v. Foss, supra.
The case of United States v. Hill, supra, was a trial by judge alone and concerned the trial judge’s statement to the accused after sentencing to the effect that “you take that message back to those other pushers.” While some of the language of Hill tends to impugn the validity of general deterrence as a proper factor in sentencing, it is clear from the totality of the opinion that the court was concerned with the imposition of a sentence calculated to punish the accused for the acts of others engaged in the same enterprise. The opinion states:
“The fact that the accused was convicted of selling drugs may justify the judge’s description of him as a ‘pusher,’ but it did not make him accountable for others en*837gaged in the same act, any more than he would be accountable for all thieves if he had been convicted of larceny. Reputation may be established by the company one keeps but the individual cannot be punished for the misdeeds of others. See United States v. Rao, 296 F.Supp. 1145, 1148-49 (S.D.N.Y.) (1969).”
The citation to United States v. Rao, supra, enforces my belief that the court was principally concerned with not punishing one for the crimes of others. In Rao the court stated:
“Consequently, the defendant’s alleged underworld associates and his alleged status in the Mafia or Cosa-Nostra cannot and do not constitute a predicate or criterion for punishment.”
In Rao the court noted Mr. Justice Black’s opinion in Williams v. People of State of New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949). Therein, Justice Black in a footnote refers to Judge Ulman’s statement of the facts a judge should consider in imposing sentence. They are:
“ ‘1st. The protection of society against wrong-doers.
2nd. The punishment — or much better — the discipline of the wrong-doer. 3rd. The reformation and rehabilitation of the wrong-doer.
4th. The deterrence of others from the commission of like offenses.
It should be obvious that a proper dealing with these factors involves a study of each case upon an individual basis.’ ”
That Hill did not concern general deterrence is further evident from the following language of the court:
“. . .we have no hesitancy as to the legal correctness the trial judge’s remark that the ‘problem of heroin must be dealt with . . . [among others] by the courts who [must] endeav- or to deter others from engaging in conduct similar to’ that to which the accused had pleaded guilty.”
There is a distinction between the concept of general deterrence, which has as its purpose the deterrence of others, and the imposing of a stiffer sentence on one offender for the crimes of others. The latter concerns itself with fairness while the former is a traditional factor in sentencing.
It is my conclusion that the rule of Mosely that in the military general deterrence is a factor included within the maximum punishment prescribed by law for an offense and not a separate factor for consideration in adjudging an appropriate sentence is a new rule and a significant departure from traditional military jurisprudence. I believe that general deterrence should remain one of the several factors to be considered in military sentencing and that it is not inconsistent with the requirement that the accused’s sentence be individualized. The needs of military discipline provide as much, if not more, justification for retention of general deterrence as a sentencing factor than the needs of the civilian community.
. Dudley, Military Law and the Procedure of Courts-Martial (1907) p. 155.
. O’Brien, A Treatise on American Military Law and the Practice of Courts-Martial (1846) p. 270.
. Winthrop, Military Law and Precedents (2nd Ed. 1920), p. 397.
. J. Snedeker, Military Justice Under the Uniform Code, 1953 at 402; Morrison, The Role of Trial Counsel in Sentencing Proceedings, 13 A.F. JAG L.Rev. 30 (1971); Moyer, Justice and the Military, § 2-661 (1972).