The Military's Death Penalty System

An excerpt from: “A Matter of Life and Death: Examining the Military Death Penalty’s Fairness” by Dwight Sullivan (The Federal Lawyer, June 1998) (reprinted with permssion of author)

Under the Uniform Code of Military Justice, 15 offenses can be punishable by death, though many of these crimes — such as desertion or disobeying a superior commissioned officer’s orders — carry the death penalty only in time of war.

The “convening authority” — a high-ranking commanding officer who decides to bring the case to trial — chooses whether the government will seek a death sentence. If the case is referred capitally, the defendant cannot choose a bench [judge only] trial; rather, the case must be tried before a panel of at least five military members (DPIC note: now 12 members are required on the panel for a capital case (RCM 501(a)). The Uniform Code of Military Justice also precludes the defendant in a capital case from pleading guilty. Thus, every military death penalty case is resolved by trial before a panel of servicemembers.

A death penalty will be imposed only if the panel members reach unanimous agreement on four separate points. First, a military defendant cannot be sentenced to death absent a unanimous conviction of a death-eligible offense…. If the panel returns a unanimous conviction, the case then enters the sentencing phase…. The case’s outcome will depend upon the [panel] members’ resolution of three issues. First, they must determine whether the government has proven a specified aggravating factor beyond a reasonable doubt…. Most of these aggravating factors — such as killing more than one person or being the triggerman in a felony murder — are similar to those found in civilian capital punishment schemes. Other factors — such as committing an offense with the intent to avoid hazardous duty or knowingly endangering a mission — are unique to the military.

[The panel] must then weigh all of the aggravating evidence in the case against any evidence in extenuation and mitigation. A death penalty may not be imposed unless the members unanimously conclude that the aggravating circumstances substantially outweigh the mitigating circumstances.

Finally, even if every member agrees upon the existence of an aggravating factor and concludes that the evidence in aggravation outweighs the extenuating and mitigating evidence, any member is still free to choose a sentence other than death. Thus, members must unanimously conclude that death is an appropriate sentence.

When a death sentence is imposed, the record is initially reviewed by the convening authority, who has the power to reduce sentences and to set aside guilty findings…. The convening authority can reduce the sentence, but cannot increase it. And this review is no mere rubberstamp. Several years ago, a Marine Corps general commuted an adjudged death sentence to imprisonment for life. If the convening authority approves the death sentence, the condemned servicemember will be moved to military death row….

The record of trial then goes before one of the military justice system’s four intermediate appellate courts: the Army, Navy-Marine Corps, Air Force, or Coast Guard Court of Criminal Appeals…. If the Court of Criminal Appeals affirms a death sentence, the case then goes before the Court of Appeals for the Armed Forces, as the Court of Military Appeals was renamed in 1994. The Court of Appeals for the Armed Forces is a five-member Article 1 court that sits atop the military justice system. Its judges are civilians appointed by the President with the advice and consent of the Senate to serve 15-year terms.

[If the Court of Appeals for the Armed Forces affirms the sentence], the case is eligible for Supreme Court review. The Supreme Court’s certiorari jurisdiction over military justice cases… was enacted in 1983…. When the Supreme Court affirms [the sentence] or denies certiorari in a military capital case, the death sentence is then reviewed by the executive branch. If the President approves the death sentence, the condemned servicemember can seek habeas relief from the Article III judiciary. If the habeas petition is ultimately denied, the condemned servicemember will be led from death row down a flight of stairs to the USDB’s death chamber. There he will be strapped to a gurney and executed by lethal injection.