The U.S. Military Death Penalty
Facts about the Military Death Penalty
Overview of the Military's Death Penalty System
Racial Disparities in the Military's Death Penalty System
See also Federal Death Penalty
News and Developments - Current Year
News and Developments - Previous Years:
|Number of Executions||135 people have been executed by the Army since 1916 (Source: National Law Journal, 4/5/99; but see Executions in the Military listing additional executions)|
|Date of last military execution||On April 13, 1961, U.S. Army Private John A. Bennett was hanged after being convicted of rape and attempted murder. (R. Serrano, "Last Soldier to Die at Levenworth Hanged in an April Storm," Los Angeles Times, 7/12/94).|
|Minimum Age to Receive the Death Penalty||18 years|
|Method of Execution||Lethal Injection|
|Death Row Location||U.S. Disciplinary Barracks, Fort Leavenworth, Kansas|
|United States Military Death Row Roster and sentencing rate||Total: 5 (race of defendant in parentheses)
[Brackets indicate that death sentence has been overturned, but appeals process is still continuing or the defendant still faces retrial or resentencing proceedings]
Under the current death penalty system (adopted in January 1984), there have been 47 capital courts-martial resulting in 15 adjudged death sentences, for a 31.9% prosecution "success" rate. (Federal Death Penalty Resource Counsel, March 2008).
|Date the Death Penalty Was Reenacted after Furman||In 1983, the Armed Forces Court of Appeals held in U.S. v. Matthews, 16 M.J. 354, that military capital sentencing procedures were unconstitutional for failing to require a finding of individualized aggravating circumstances. In 1984, the death penalty was reinstated when President Ronald Reagan signed an executive order adopting detailed rules for capital courts-martial. Among the rules was a list of 11 aggravating factors that qualify defendants for death sentences.|
|Life Without Parole||A 1997 amendment to the Uniform Code of Military Justice offers a previously unavailable alternative to the death penalty. For crimes that occurred on or after November 17, 1997, a sentence of life without the possibility of parole became available. Prior to this legislation, those servicemembers serving a life sentence would have become eligible for parole after serving 10 years.|
|Clemency Process||The President has the power to commute a death sentence and no servicemember can be executed unless the President personally confirms the death penalty. There has been one commutation of a military death sentence since the U.S. Supreme Court upheld the constitutionality of the death penalty in 1976. On January 17, 2017, President Barack Obama commuted to life imprisonment the death sentence that had been imposed on Dwight Loving (B) in 1989.|
|Capital Offenses||The Uniform Code of Military Justice provides the death penalty as a possible punishment for 15 offenses (10 USC Sections 886-934), many of which must occur during a time of war. All 9 men on the military's death row had been convicted of premeditated murder or felony murder.|
|Who Decides Sentence||In a military capital case, the convening authority -- a high ranking commanding officer who decides to bring the case to a court martial -- decides if the death penalty will be sought. Once decided, the convening authority picks those servicemembers who will serve as panel members/jurors. One requirement for the panel is that if the accused so chooses, at least 1/3 of the panel must consist of enlisted personnel.
The panel must consist of 12 members. (Rules for Courts-Martial 501(a)).
(Unless otherwise noted, source: D. Sullivan, "A Matter of Life and Death: Examining the Military Death Penalty's Fairness," The Federal Lawyer, June 1998).
BY THE NUMBERS: MILITARY DEATH PENALTY CASES
-Dallas Morning News, Nov. 9, 2009
49: military cases in which the death penalty was sought since 1984
15: convictions in capital trials since then
2: times among the 15 that the commanding general has commuted the sentence to life
8: times an appeals court has reversed the conviction, commuted the sentence or ordered a new trial
5: defendants on death row, 3 of whom have appeals pending in military courts
2: condemned servicemen who have exhausted their military appeals. One has had his conviction upheld by the U.S. Supreme Court and awaits an order from the president to be executed. The other had his death writ signed by President George W. Bush, but his case has been appealed to federal district court.
HOW MILITARY AND CIVILIAN TRIALS DIFFER
A service member is entitled to an Article 32 hearing before he or she can be charged with a serious crime and face a court-martial. Similar to a grand jury proceeding, such a hearing is held in open court with attorneys for both sides present.
•A military jury in a capital case must be unanimous in both its verdict and the sentence. But if no death penalty is sought, a conviction can be secured with the assent of only two-thirds of the jury.
•The commanding general who convenes the court-martial must approve the sentence and the conviction and can commute sentences he or she thinks are too harsh.
•Before a condemned service member can be put to death, the president must sign an affirmative order explicitly approving the execution.
(source: Dallas Morning News)
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.
There is racial disparity on the military's death row. Of those on the military death row today, five are African-American, one is a Pacific Islander, and only one is Caucasian. Whereas nationwide, about half of the 3,600 death row inmates are members of a minority, the military has an 86 percent minority death row population.
According to Dwight Sullivan (see above), "While the number of servicemembers under death sentence is fairly small, the racial disparity in military death penalty cases has been distressingly persistent. During World War II, African-Americans accounted for less than 10 percent of the Army. Yet, of the 70 soldiers executed in Europe during the war, 55 [79%] were African-American. After President Truman ordered an end to the armed forces' segregation in 1948, this racial disparity actually increased. The military carried out 12 executions from 1954 until the most recent one in 1961. Eleven of the 12 executed servicemembers were African-American."
"The death sentences adjudged since 1961 have continued to fall disproportionately on minority servicemembers. In 1983, when the Court of Military Appeals issued its Matthews opinion invalidating the military death penalty, seven servicemembers were on death row. Five were African-American, one was Latino, and one was Caucasian."
In addition to the racial disparity among death row inmates, there is also racial disparity among victims. Each time an African American has been
sent to the military's death row, the case has involved a white victim. (R. Serrano, "A Grim Life on Military Death Row," Los Angeles Times, 7/12/94). For more information about racial disparities, see DPIC's Race and the Death Penalty page.
Guantanamo Detainees: U.S. Attorney General Eric Holder announced that five men being held in Guantanamo prison in connection with the September 11, 2001 attack on the World Trade Center will face trial in federal court in New York City: Khalid Shaikh Mohammed, Ali Abd al-Aziz Ali, Walid bin Attash, Mustafa Ahmed al-Hawsawi and Ramzi bin al-Shibh. These defendants could face the federal death penalty. (C. Savage, "U.S. To Try Avowed 9/11 Mastermind Before Civilian Court in New York," New York Times, November 14, 2009.) UPDATE: Holder announced in 2011 that these detainees will be tried before military commissions, possibly in Guantanamo, rather than under the federal death penalty.
Five other detainees held in connection with other acts of terrorism will face trials before military commissions: Abd al-Rahim al-Nashiri, Ahmed Mohammed Ahmed Haza al-Darbi, Ibrahim Ahmed Mahmoud al-Qosi, Oma Ahmed Khadr, and Noor Uthman Muhammed.
See also: Responses to Terrorism
List of Individuals Executed by the United States Military from Wikipedia.
A. Ashton, "Capital punishment rare for killers in U.S. military," News Tribune, June 18, 2012.
C. Grosso et al., RACIAL DISCRIMINATION IN THE ADMINISTRATION OF THE DEATH PENALTY: THE EXPERIENCE OF THE UNITED STATES ARMED FORCES (1984–2005), Michigan State University News, February 17, 2012.
D. Baldus et al., THE IMPACT OF CIVILIAN AGGRAVATING FACTORS ON THE MILITARY DEATH PENALTY (1984--2005): ANOTHER CHAPTER IN THE RESISTANCE OF THE ARMED FORCES TO THE CIVILIANIZATION OF MILITARY JUSTICE, 43 Univ. of Michigan Journal of Law Reform 569 (2010).
M. McCluer, Lindo Military death sentence case may head back for Supreme Court certiorari decision, The Jurist, December 9, 2008.
D. Riechmann, "Bush OKs Execution of Army Death Row Prisoner," Associated Press in New York Sun, July 28, 2008 (Pres. Bush signs order for execution).
Lt. J. Michael Montgomery, "Death Is Different: Kreutzer and the Right to a Mitigation Specialist in Military Capital Offense Cases," Army Lawyer, 2007 Army Law. 13 (2007).
Maj. Mary M. Foreman, "Military Capital Litigation: Meeting the Heightened Standards of United States V. Curtis" Military Law Review, 174 Mil. L. Rev. 1 (Dec. 2002).
R. Bonner, "Push Is on for Larger Jury in Military Capital Cases," New York Times, September 3, 2001.
T. DeFrank, "Servicemen on Death Row: 6 killers await as military justice crawls" New York Daily News, June 24, 2001.