The Constitutionality of the U.C.M.J. Death Penalty Provisions

• Author: by Major John J. Pavhck, Jr.
• Pages: 03

I. INTRODUCTION

The death penalty, the ultimate sanction, has been the subject of much controversy and fascination in recent years During the late 1960's anassault upon the constitutionality of the death penalty was launched by several groups led by the NAACP Legal Defende and Education Fund, lnc. and the American Civil Liberties Umon. The zenith of their success was the 1972 Supreme Court decision of Furman 0. Georgia,l which struck down the Georgia capital punishment statute as violative of the cruel and unusual prohibitions of the Eighth Amendment.# Since that time the Court's attempts at grapphng with this area has been char. acterized by lack of unanimity in reasoning and uncertainty in direction. The Furman decision itself was of little usefuiness as legal precedent. as it was a five to four per curiam decision unth nine beparate opinions: however, its practical effect wa8 far reaching. Furman caused courta to strike down and legislatuxes to amend all except one of the capital punishment statutes in existence at the time of the decisi~n.~

The ~plnmni and conc1u~mn8 expressed m this art& B ~ O

those of the avthar and do not neesssnly represent the \dew8 of The Judge Advoeate GeneraYa Sehmi. the Depart. meni af the Army. or my other governmental agency Thia articb i8 based UP" B p a w wntten by the author in pertid satufactlan of the requiremenfa of the 8Gth Judge Aduo-ate Ofirer Graduate Course, The Judge Advaate Genmal'a Sehool. Charlotierviile, Vir-pima. durmg acaderme year 1981-1982

** Judge Advaate Generah Corps. Urvfed States Army Augned ta General law Branch. AdmrrustratweLav Division. Office ofThe Judne Advaste Generd, Wasinnptan. D c , 1982 . present pr~viously assigned 8s a iudge sdvaate u1 the office of the Staff Judge Advaate, 1st lnfsntry Dlvmon and Fort Riley, Fort &ley. Kansaa. 1978-1981 Assigned as Company Commander. 1st BatfaLan. 77th Armor. 4th Infantry Dlvlslon, Fort Carson, Colorado. 1974.1976.1st Squadron, 11th Armored Cavalry Rewent, Fulda Gsr many, 1971-1974 J.D, 1978. Umvsrslfy of Pemsylvarva Law Schml. Phlisdeipha, Pemeylvarua. B S..

1970. United Stat- Mihtary Academy. Welt Point. New York Com-pleted the 97th Judge Advoeate Officer Bane Coma. 1978, and the 30th Judge Advacate Officer Graduate Caurse, 1982 Member offhe Bars ofthe Supreme Cowt of Psnnsylvarvs and the UnitdStstaaSupremeCovrt Avihor oiExImordinnry Wnfa 2n IheiMililary JUiiirS)slem ADiNonnfP~isprciiir,

84Md L Rev 7 11979)'408US 238(1972)(percunsml* Excemwe bail shall not be requued. nor exce88we f m n mposed, nor crud and unusual punishem mfieted US Const amend Vlil

' Cokerv Georgia. 433U S. 684, 693.94 (1977) Theoneslstutels the Uniform Cadeof Mllltary Justice. IOU 8 C (5 801-940119761[heremaftereitedasU.C.M

J I.

Since Furman, the constitutmnaiity of the capital punishment prow smns of the Uniform Code of Mihtary Justice (U.C.M.J.) had not been directly addressed an the merits by the Supreme Court and was ad. dressed by only one military appellate court ' until the Army Court of Mhtary Renew decided United States u. Matthews on March 17, 1982. The court mMafthews upheid the constitutionality of the death penalty under the U C.M.J. for the offense of premeditated murder.' The case is currently before the United States Court of Military Appeais for mandatory review with a final decision emected later this year.'

Should the court approve the findings and sentence, the President must decide whether the death sentence should be approved! If the President approves the death sentence, this would undoubtedly lead to collateral attack in the federal courts and possibly B definitive decision from the Supreme Court.

This article will primarily examine the constitutionality of the military death penalty provisions under Article 118 for premeditated and felony murder Lo and briefly discuss the other death penalty provisions of U C.M J. far militarytype offenses. The history of Supreme Court decisions in the death penalty area will be analyzed and then ap. plied to the military provisions of the U.C.M.J. in the light of the reqmrements of military necessity. An analysis of these provisions willdemonstrate that they comport with current Supreme Court require. ments and are constitutional

U. HISTORY AND ANALYSIS OF

SUPREME COURT DECISIONSPrior to Furman,the constitutionality of the death penalty either had been assumed or upheld in the decimns of the Supreme Court. Several cases decided within the four.year period prior to Furman were

*ti C hl J art il(a1

"Article 118. defmei four categories of murder Tua elegoriea ace pumshsble by death (1) preme&tsted murder. and I21 mwder while engaged m the perpetration or et-tempted papetrauon of burglary, dam). raps. robbers. 01 aggravated mon The latter m often referred ta 8s felony murder although ~f IS h f e d to the five named felaniea By owration of Article 77. ti C M J and Paragraph 127c. Manus1 for Courts.Martml, 1565 @v. ed I [heremafter cited 88 hl C M I, the penalty of death IS extended to tho- who nd, counpel, command. procure. or cmse the eommid~iunof me of fheae two types of murder. The Supreme burl decam m Edmund s Ronda. 102 S Ct 3368 115821, struck dawn the vnposltian of the death penalty for B pemn convicted af felony murder The c ~ g e

m.

volved a clas~lc felon? murder fact situation wbh the petitioner. Earl Edmuld. dnvmg ius

accomphees to thêeeneof a robbery and waitmg m the car while they perpetrated the rob.

bow, Mlmg two people Although there WBP 8ome qneitian aa 0 Edmuda Xno~ledge of what was ta transpre and the extent of hs p~rticipaiian m the murders, the Supreme Court found that hs edpabhts did not iustlf? the mpoaitmn af the death penalty The malorit? aPm~mfocused on the u8e of the elaaaie doctrine of felony murder where the edpnblty of the sefual murderer 18 v~canoudy attributed to the nonmurder aecomphce Cif-h g Lackett Y. Ohio, 438 US 586 (1978). the Supreme Cowl requved that the vnp~mion of the death penalty could be baaed only upan the eulpablhty of the defendant not hla RC.camphces The Cawt found that the death penalti was diapiopanianste where the defend-anfdidnot~.sitempttokrll,ordidnotmlendthedeathofth~~~~t~

TheEdrniind dmiaion does naf appear to affect the mpmifmn af the death pendty far B murder actvdy committed b) B defendant durmg the ~ommisemn 01 B felony Thus the provlslans of Article 11841, U C M J remam unaffected by the mhng The demon dose appear to inuahdate that portion of Paragraph 127e. M C M..dsahng wlfh the law of prmclplea as 11 apphee to murder commitfed dwing the c~mmiision of me of the fclonles nsmed ~n Arfiele 1W4)

premised on the constitutionality of the death penalty I>. Of these, McGmtha u Colifornta.'* decided lust one term before Furman, waB the mast important McGautha alleged that the California capital sentencing statute violated the due process clause af the Fourteenth Amend. ment because the jury had absolute, unguided discretion to impose the death penalty The Court rejected the argument based upon history, precedent, and a perceived mabihty to famulate standards that could cover all the conceivable circumstances that could confront a l ~ r y . ' ~

TheMcGautha case evidenced a concerted effort on the part of various organizations, notably the NAACP Legal Defense and Education Fund and the American Ciwl Liberties Union, to abalish the death penalty During the years prior to Furman, those groups, through their attacks on the death penalty, had created a ventable laglam on the death rox across the country In Furman and in a number of companion cases. these groups argued various positions, including that the death penalty violated the cmel and unusual prohibition of the Eighth Amendment I'

On June 29.1972 the Supreme Court agreed that the particular statutes before It violated the Eighth Amendment prohibition. The cruel and un.usual punishment clause had rarely been considered by the Supreme Court and never in the procedural sense used by the majority m Fur-mon In

'I

founditun- constitutional to exclude jurors who expressed doubts about impairng the death penalty). UnitdSrarerv Jsckson.390U S ~7011963ilunconifsunanslforsstatutetoallovade- iendant to exsieise bii right to B )pry m a l only by suhptmg himself to the possible pen-dry ofdeath

402U.S 183(1971!

Id ~f 196See Nota Furman to Oregg The Judicialand Legiaiafi~oHirfor), 22 Haw L J 53,71 l1919i

"The death pen"8ty w.88 a190 attacked aa violatmg equal pratwrron a1 the law in ~da.

fion of the Fiifh and Fourteenth Amendments and the due pmeea c l a w of the Fourteenth Amendment 33LEd 2daf93011972!

I' The rensons for this relative inacirvrty ~eemto center an the vagueness of the essential

terne and the resultant diflirvlfi m ~ppiymg these terms to m y gwen sltustion Addmon. ally. It was not untd Robvlsan Y Cslrforma, 370 E S 690 11962) fhst the Supreme Cowl tlesrly sppled the eghth Amendment ro the stalesirorueally, one of the prmary Eighth Amendment cages relred upon b) the malorlty ~n Furman, Trap Y Dullea. 356 US 86 11958) apeelfieally rejected the propaaman that the death penalty vialared the conititutional prohibition against cruel and un~iusl punish

ment

McCautha v Cahfarnia. 402 US 183 119711 luntrammeled dmreuan by the )pry fa sentence8 defendant to desfhor mme lesserpvniahment 11 not violatireal theduepmcess requvements of the Cansntutmn!. Baykm s Alabama. 395 US 238 11969) (1rr.f tme the Bupieme Covf was faced wth the argwnenf that the death penalty was cruel and unumsl punishment iiolating the Eighth Amendment. reversed on gudt) plea 1ssue1, Witherspaon

Y IUrnais, 391 US 510l1966ilasswnedconstrlur~onsht~ofdeathpenalrybut

A. THE F U M DECISION

Theper curiam decision in Furman is a judicial nightmare of nine sep. arate opinions, and the specifics of the opinions are af limited practical and precedentml value. Five justices found that "the imposition and car. v n g out of the death penalty in these cases constitutes cruel and un.usual punishment in violation of...