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Is hard labor fair?
For 35 days this summer, Pvt. John Suarez worked from 9 a.m. until midnight in a Kevlar helmet, full body armor and a packed ruck, digging foxholes at Fort Lewis, Wash.
His hands turned to sandpaper. His lower back felt like someone had kicked him. Every time he swung his pickax, soreness flooded his wrists.
“It was pretty exhausting,” said Suarez, 20, who was sentenced to 45 days’ hard labor in a summary court-martial after a urinalysis test came up positive for cocaine. “It was like dirt and rock. The soil here is pretty bad.”
His first sergeant told him that his battalion commander, Lt. Col. Richard Demaree, of the 2nd Battalion, 1st Infantry Regiment, 5th Stryker Brigade Combat Team, had ordered that Suarez could not do goal-oriented work. The foxholes were for naught.
On weekdays, he did morning physical training with his unit, then reported for hole-digging. On weekends, he dug from 6 a.m. to midnight. Every day, he laid out a square from pick handle to pick handle, and then dug until he could stand in the hole up to his nametag.
Fortunately, he said, he’s only 5-foot-6.
At night, he had five or six hours to shower, do laundry and sleep.
“I heard it was the first time they’d had hard labor at Fort Lewis since World War II,” he said.
The Uniform Code of Military Justice says unit commanders determine the form of hard labor without confinement, which can be given only to enlisted troops, not officers. But the UCMJ and service regulations offer little guidance on such issues as hours or safety guidelines.
That has led to what lawyers call inequitable inconsistencies. For example, Suarez spent weeks digging holes and then was discharged from the Army for the drug offense. But a Marine convicted of pummeling prisoners in a jail in Iraq had his hard labor disapproved by a two-star general — and, after leaving the Corps, enlisted in the Army.
In one case, a sailor who claimed conscientious objector status and refused to deploy to Iraq spent weeks pulling weeds in a vacant lot until his hands bled. But a soldier convicted of prisoner abuse in Iraq was allowed to work in a post gym.
The regulations on hard labor — a phrase that seems rooted in a long-gone era — are as vague as they are disparate. In the Navy, sailors cannot have mustaches while doing hard labor, although they do not have to perform hard labor on their Sabbath. Marines may be punished with no more than three days of bread and water. Soldiers must have at least three Meals, Ready to Eat per day. Air Force regulations add nothing — just refer lawyers back to the vague UCMJ guidelines.
The lack of guidance has led some troops sentenced to hard labor to be given activities more aptly described as “extra duty,” while others perform grueling, and possibly dangerous, work.
In a 2004 article on military hard labor published in the journal Army Lawyer, Maj. Joseph Berger III wrote that others pick up cigarette butts and paint rocks to beautify unit areas.
Berger said there is definitely a place for hard labor in the military justice system, but added that the key is consistency, which he called “the critical component of any successful contemporary plan for executing sentences to hard labor without confinement.”
Several lawyers said such consistency is sorely lacking today, noting that the many service members who test hot for drugs are either processed out of the military or serve a few months’ confinement, which makes it hard to consider Suarez’s punishment equitable.
Some lawyers even termed it “cruel and unusual.”
‘Lucky they didn’t kill the kid’
Finally, on Day 40 of Suarez’s sentence, a voice came from above: No more.
“When informed of the sentence, the commanding general, I Corps and Fort Lewis, ordered that Private Suarez’s hard labor cease in order to review the use of hard labor and what systems must be in place to ensure the consistent safety and welfare of the soldier during the execution of the sentence to hard labor,” Fort Lewis spokesman Joseph Piek said in an e-mail.
Piek confirmed the details of Suarez’s summary court-martial and that he worked 15- to 18-hour days digging holes until his punishment was modified on the 35th day, when he was allowed to ditch the helmet, armor and ruck and work in a soft cap and t-shirt.
Piek also said that as a result of Suarez’s case, Fort Lewis is developing guidelines for hard labor without confinement.
“While the punishment carried out ... was lawful, the chain of command wants to ensure that hard labor without confinement punishments are implemented in a manner designed to rehabilitate the soldier, while safeguarding his safety and welfare,” he said.
Piek said “it would not be appropriate” for Demaree to discuss Suarez’s punishment with Military Times. According to Army regulations, hard labor should be performed where others can see the soldier. It may not include duties that “constitute a safety or health hazard,” but it “may include duty to induce fatigue.”
And the hours to be worked are left completely to the commander.
Piek said the new Fort Lewis policy in development “would ensure that hard labor without confinement punishments are uniform ... and that appropriate oversight for such punishments is accomplished.”
Lawyers who represent troops from all services say that needs to happen on a much broader scale.
“They’re lucky they didn’t kill the kid with heat-related injuries,” said Vaughan Taylor, who said he has seen hard labor handed out only once in the 30 years he has represented service members as a defense lawyer.
“Nine to midnight — that’s inhumane,” Taylor said. “That could qualify as cruel and unusual.”
He said hard labor is difficult to enforce because someone must supervise the convicted person at all times. That takes time away from real work — which is why most commanders avoid it.
But Taylor said he has seen some instances in which hard labor was not senseless. In the 1960s, soldiers sentenced to hard labor cleared swampland at Fort Lee, Va. And when he was stationed in Germany, Taylor said hard-labor soldiers painted the interiors of barracks.
“It was pretty arduous,” he said, “but at least it was productive.”
Taylor said service regulations could provide some guidelines as to how strenuous hard labor can be, the hours people can work and what is considered safe — adding that such guidelines already exist for people going through arduous training or transitioning into the hot climate of Iraq.
“The type and amount of hard labor is a command function of the imposing commander and not governed by” standard operating procedure, Army spokesman Lt. Col. George Wright said.
The Army “relies on well-trained and well-educated commanders ... supported by Army lawyers, to determine the character of hard labor,” he said.
Wright did not respond to a question about how often soldiers are sentenced to hard labor, but he noted they always have the right to appeal the punishment.
Gene Fidell, president of the National Institute of Military Justice, said that putting so much discretion in the hands of commanders creates a “danger that there will be wildly divergent punishments.”
He called hard labor without confinement “archaic” and said the military should review the entire concept.
Civilian society has mostly done away with hard labor, he said, in favor of organizing work crews to pick up garbage or paint over graffiti — tasks that contribute to the betterment of society.
“The fact is, our values have changed,” he said. “It degrades the whole system. It’s like putting someone in the stocks. This is the kind of thing that gives military justice a bad name.”
Hard labor without confinement can be given as a punishment only as part of a court-martial sentence. Extra duty is a nonjudicial punishment that can be administered without a trial.
After the sentence is handed down at a court-martial, the actual form of labor is left to the member’s commander. Defense attorneys usually don’t check up on the punishment unless their clients make a complaint.
The services say they do not keep centralized logs of the actual duty ordered, and only one — the Air Force — responded to a Military Times inquiry about how often the sentence is handed out: Since January 2006, 276 airmen have been sentenced to hard labor without confinement.
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For 35 days this summer, Pvt. John Suarez worked from 9 a.m. until midnight in a Kevlar helmet, full body armor and a packed ruck, digging foxholes at Fort Lewis, Wash.
His hands turned to sandpaper. His lower back felt like someone had kicked him. Every time he swung his pickax, soreness flooded his wrists.
“It was pretty exhausting,” said Suarez, 20, who was sentenced to 45 days’ hard labor in a summary court-martial after a urinalysis test came up positive for cocaine. “It was like dirt and rock. The soil here is pretty bad.”
His first sergeant told him that his battalion commander, Lt. Col. Richard Demaree, of the 2nd Battalion, 1st Infantry Regiment, 5th Stryker Brigade Combat Team, had ordered that Suarez could not do goal-oriented work. The foxholes were for naught.
On weekdays, he did morning physical training with his unit, then reported for hole-digging. On weekends, he dug from 6 a.m. to midnight. Every day, he laid out a square from pick handle to pick handle, and then dug until he could stand in the hole up to his nametag.
Fortunately, he said, he’s only 5-foot-6.
At night, he had five or six hours to shower, do laundry and sleep.
“I heard it was the first time they’d had hard labor at Fort Lewis since World War II,” he said.
The Uniform Code of Military Justice says unit commanders determine the form of hard labor without confinement, which can be given only to enlisted troops, not officers. But the UCMJ and service regulations offer little guidance on such issues as hours or safety guidelines.
That has led to what lawyers call inequitable inconsistencies. For example, Suarez spent weeks digging holes and then was discharged from the Army for the drug offense. But a Marine convicted of pummeling prisoners in a jail in Iraq had his hard labor disapproved by a two-star general — and, after leaving the Corps, enlisted in the Army.
In one case, a sailor who claimed conscientious objector status and refused to deploy to Iraq spent weeks pulling weeds in a vacant lot until his hands bled. But a soldier convicted of prisoner abuse in Iraq was allowed to work in a post gym.
The regulations on hard labor — a phrase that seems rooted in a long-gone era — are as vague as they are disparate. In the Navy, sailors cannot have mustaches while doing hard labor, although they do not have to perform hard labor on their Sabbath. Marines may be punished with no more than three days of bread and water. Soldiers must have at least three Meals, Ready to Eat per day. Air Force regulations add nothing — just refer lawyers back to the vague UCMJ guidelines.
The lack of guidance has led some troops sentenced to hard labor to be given activities more aptly described as “extra duty,” while others perform grueling, and possibly dangerous, work.
In a 2004 article on military hard labor published in the journal Army Lawyer, Maj. Joseph Berger III wrote that others pick up cigarette butts and paint rocks to beautify unit areas.
Berger said there is definitely a place for hard labor in the military justice system, but added that the key is consistency, which he called “the critical component of any successful contemporary plan for executing sentences to hard labor without confinement.”
Several lawyers said such consistency is sorely lacking today, noting that the many service members who test hot for drugs are either processed out of the military or serve a few months’ confinement, which makes it hard to consider Suarez’s punishment equitable.
Some lawyers even termed it “cruel and unusual.”
‘Lucky they didn’t kill the kid’
Finally, on Day 40 of Suarez’s sentence, a voice came from above: No more.
“When informed of the sentence, the commanding general, I Corps and Fort Lewis, ordered that Private Suarez’s hard labor cease in order to review the use of hard labor and what systems must be in place to ensure the consistent safety and welfare of the soldier during the execution of the sentence to hard labor,” Fort Lewis spokesman Joseph Piek said in an e-mail.
Piek confirmed the details of Suarez’s summary court-martial and that he worked 15- to 18-hour days digging holes until his punishment was modified on the 35th day, when he was allowed to ditch the helmet, armor and ruck and work in a soft cap and t-shirt.
Piek also said that as a result of Suarez’s case, Fort Lewis is developing guidelines for hard labor without confinement.
“While the punishment carried out ... was lawful, the chain of command wants to ensure that hard labor without confinement punishments are implemented in a manner designed to rehabilitate the soldier, while safeguarding his safety and welfare,” he said.
Piek said “it would not be appropriate” for Demaree to discuss Suarez’s punishment with Military Times. According to Army regulations, hard labor should be performed where others can see the soldier. It may not include duties that “constitute a safety or health hazard,” but it “may include duty to induce fatigue.”
And the hours to be worked are left completely to the commander.
Piek said the new Fort Lewis policy in development “would ensure that hard labor without confinement punishments are uniform ... and that appropriate oversight for such punishments is accomplished.”
Lawyers who represent troops from all services say that needs to happen on a much broader scale.
“They’re lucky they didn’t kill the kid with heat-related injuries,” said Vaughan Taylor, who said he has seen hard labor handed out only once in the 30 years he has represented service members as a defense lawyer.
“Nine to midnight — that’s inhumane,” Taylor said. “That could qualify as cruel and unusual.”
He said hard labor is difficult to enforce because someone must supervise the convicted person at all times. That takes time away from real work — which is why most commanders avoid it.
But Taylor said he has seen some instances in which hard labor was not senseless. In the 1960s, soldiers sentenced to hard labor cleared swampland at Fort Lee, Va. And when he was stationed in Germany, Taylor said hard-labor soldiers painted the interiors of barracks.
“It was pretty arduous,” he said, “but at least it was productive.”
Taylor said service regulations could provide some guidelines as to how strenuous hard labor can be, the hours people can work and what is considered safe — adding that such guidelines already exist for people going through arduous training or transitioning into the hot climate of Iraq.
“The type and amount of hard labor is a command function of the imposing commander and not governed by” standard operating procedure, Army spokesman Lt. Col. George Wright said.
The Army “relies on well-trained and well-educated commanders ... supported by Army lawyers, to determine the character of hard labor,” he said.
Wright did not respond to a question about how often soldiers are sentenced to hard labor, but he noted they always have the right to appeal the punishment.
Gene Fidell, president of the National Institute of Military Justice, said that putting so much discretion in the hands of commanders creates a “danger that there will be wildly divergent punishments.”
He called hard labor without confinement “archaic” and said the military should review the entire concept.
Civilian society has mostly done away with hard labor, he said, in favor of organizing work crews to pick up garbage or paint over graffiti — tasks that contribute to the betterment of society.
“The fact is, our values have changed,” he said. “It degrades the whole system. It’s like putting someone in the stocks. This is the kind of thing that gives military justice a bad name.”
Hard labor without confinement can be given as a punishment only as part of a court-martial sentence. Extra duty is a nonjudicial punishment that can be administered without a trial.
After the sentence is handed down at a court-martial, the actual form of labor is left to the member’s commander. Defense attorneys usually don’t check up on the punishment unless their clients make a complaint.
The services say they do not keep centralized logs of the actual duty ordered, and only one — the Air Force — responded to a Military Times inquiry about how often the sentence is handed out: Since January 2006, 276 airmen have been sentenced to hard labor without confinement.
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