Military Death Penalty

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MILITARY DEATH PENALTY INFORMATION

(Under revision)

The death penalty is an authorized punishment under the Uniform Code of Military Justice for certain crimes always, and for certain crimes committed when there has been a declaration of war by Congress. There are several major differences between a general court-martial authorized to impose a death sentence and a general court-martial not authorized to impose a death sentence. Very simply:

1. There must be a Members Panel (jury) of at least 12 persons.

2. The accused cannot plead guilty.

3. The accused cannot be tried by military judge alone.

4. Depositions cannot be used as evidence.

5. A finding of guilty must be by a unanimous secret written ballot.

6. A sentence to death must be unanimous by secret written ballot.

7. There is an automatic appeal up to and including the Court of Appeals for the Armed Forces.

8. It is the president of the United States acting as commander-in-chief who approves the death sentence and signs the death warrant.

Except for the distinctions listed above a death penalty court-martial proceeds in the same fashion, rules of procedure, rules of evidence, rights and responsibilities, as any other general court-martial. So let's review the process, and in doing so presume that the investigation has been completed.

The military justice process for a military execution.

After an investigation is complete the case is reviewed by the Convening Authority and his lawyers. A decision is then made on what charges to prefer against the accused. Once the charges are preferred they are "served" on the accused and that starts the official process toward a court-martial.

Speedy trial. A person suspected and accused of a death penalty likely case will almost certainly be in pretrial confinement. Under Article 10, UCMJ, that means he/she is entitled to a speedy trial. For many years the cases said that a person in pretrial confinement must be brought to trial within 90 days. Some years ago that was changed to 120 days, to bring the Article 10 and R.C.M. 707 rules into line. However, that does not mean that charges will automatically be dismissed if no trial is held within that 120 days. It is impractical and unrealistic to get a complicated murder/death penalty case to trial.

Article 32, UCMJ. Before charges can be referred to trial by general court-martial, there has to be an investigation in accordance with Article 32, UCMJ, and Rule for Courts-Martial (R.C.M.) 405.

An officer is then appointed under Article 32, UCMJ, to conduct an investigation. This is similar to a preliminary hearing. For years this procedure has been likened to a grand jury. The Article 32 is nothing like a grand jury.

At an Article 32, UCMJ, hearing the accused has the following rights.

Once the investigation is complete the IO makes recommendations on the validity of the charges and the forum.

The legal advisor makes a formal recommendation under Article 34, UCMJ.

The convening authority refers the charges to trial and authorizes the death penalty as a potential punishment.

The convening authority also appoints a minimum of 12 officers who will sit as the Members Panel (jury). The officers must be senior in rank to the accused. This is the first significant difference between a death penalty case and the usual general court-martial. The non-death penalty general court-martial requires a minimum of only five officers.

Once charges are referred a military judge is assigned to the case for the first time and officially takes over the handling of the case. In terms of overall trial practice a court-martial isn't unlike a trial in civilian state or federal proceedings. There are pretrial motions, there must be a voir dire process to sit a members panel, there are opening statements, presentation of evidence through witnesses and physical evidence, closing argument, members deliberations and voting, and if the person is found guilty a sentencing hearing.

Post-trial the accused can request clemency from the original convening authority.

After the initial post-trial review the case is automatically docketed with the service court of criminal appeals for mandatory review in accordance with Article 66, UCMJ.

The Court of Appeals for the Armed Forces also has a mandatory review in death penalty cases.

Recent history of the military death penalty.

The last military execution was of Private Bennett in 1961. He was convicted of rape and murder.

Since the current military death penalty system went into effect in 1984, 15 known military death sentences have been adjudged. In two of those cases, the CA commuted the death sentence to confinement for life. Of the remaining 13 cases, three remain on appeal at the court of criminal appeals level. That leaves 10 cases that have completed direct appellate review. Of those, the death sentence was affirmed in two cases and reversed in eight. In those eight cases, the death sentence was reversed in three cases due in whole or in part to ineffective assistance of counsel (Curtis, Murphy, Kreutzer, which also involved an erroneous deprivation of resources to the defense counsel). In two of those three cases (Curtis and Kreutzer) the original death sentence was replaced by a life sentence. Resentencing hasn’t yet occurred in the third case, Murphy. This suggests that if a convening authority wants to obtain and preserve a death sentence, he or she should support providing an experienced capital defense counsel to the accused and providing ample resources to the defense team. (Sullivan, Dwight H., 08 November 2009).

One of these, Loving is pending a decision from the president whether to approve the death sentence and sign a death warrant.