Of the 16 death sen­tences that have been imposed since the U.S. mil­i­tary made sig­nif­i­cant changes to its death penal­ty sys­tem in 1984, 10 have been over­turned and all the defen­dants were resen­tenced to life. There have been no exe­cu­tions, and the 6 remain­ing cas­es are still under appeal. Military appel­late courts over­turned the sen­tences because of mis­takes made at many lev­els of the mil­i­tary’s judi­cial sys­tem, includ­ing inad­e­quate defense rep­re­sen­ta­tion, pros­e­cu­to­r­i­al mis­con­duct, and improp­er jury instruc­tions. Some observers attribute these wide­spread errors to an out­dat­ed sys­tem that has not enact­ed insti­tu­tion­al changes to match cur­rent death penal­ty rep­re­sen­ta­tion stan­dards in civil­ian courts. Young, inex­pe­ri­enced lawyers are reg­u­lar­ly assigned to rep­re­sent cap­i­tal defen­dants. David Bruck, a vet­er­an defense lawyer and direc­tor of the Virginia Capital Case Clearinghouse, said, ​“If you have a sys­tem where … where the lawyers are always try­ing their first cap­i­tal case, you’re going to guar­an­tee the same kinds of mis­takes … are going to be made over and over again.” A 2009 law requires the mil­i­tary to appoint qual­i­fied attor­neys for ter­ror­ism sus­pects, but no such require­ment exists for aver­age ser­vice mem­bers who face crim­i­nal charges. Military offi­cials inter­pret its 80% death sen­tence rever­sal rate not as an indi­ca­tor of the need for reform but as a nat­ur­al part of the nat­ur­al appeals process. 

Denny LeBoeuf, the direc­tor of the American Civil Liberties Union’s Capital Punishment Project, praised the spir­it of new offi­cers being will­ing to take up chal­leng­ing cas­es, but cau­tioned that death penal­ty cas­es require years of expe­ri­ence: ​“If you look at the strength of the mil­i­tary, it’s an admirable qual­i­ty in our mil­i­tary men and women that they have a can-do, make-do atti­tude. It’s a recog­ni­tion that mil­i­tary con­di­tions are not always ide­al and a real leader steps up and fig­ures things out,” she said. ​“That’s a great atti­tude in a lot of sit­u­a­tions, but it is not pro­tec­tive of the stan­dards that are nec­es­sary in cap­i­tal cas­es.” Several branch­es of the mil­i­tary are tak­ing steps to improve the qual­i­ty of representation.

(M. Taylor, ​“Many death sen­tences in U.S. mil­i­tary over­turned,” McClatchy Newspapers, August 28, 2011). See U.S. Military and Representation. See also STUDIES: Significant Racial Disparities Found in Military Death Penalty.

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