Killing Time: Two Decades of Military Capital Litigation

• Author: Colonel Dwight H. Sullivan
• Pages: 04

MILITARY LAW REVIEW

Volume 189 Fall 2006

KILLING TIME: TWO DECADES OF MILITARY CAPITAL LITIGATION

Colonel Dwight H. Sullivan, USMCR1

I. Introduction

The military's death row is a pod in the U.S. Disciplinary Barracks' "Special Housing Unit." For the six men confined in that pod's cells, 24 January 2007 was just another Wednesday.2 They probably neither knew nor cared that the day marked the twenty-third anniversary of the current U.S. military death penalty system. But this milestone suggests that the military death penalty system has operated long enough to allow a meaningful analysis of its performance.

This article offers such an analysis. This examination is positivist rather than normative, describing the military death penalty system as it

actually works rather than suggesting how the system should operate. The article's focus is a survey of courts-martial that were tried capitally, the cases' outcomes, and the appeals of those cases that resulted in death sentences. A 2000 study of state death penalty systems3 provides the methodology for this survey and allows a comparison of the military system with its civilian counterparts. The resulting data present some quantifiable measures of how the current military death penalty system has performed over its first two decades.

The article's survey of the military death penalty system yields this overview of capital punishment in the military:

* Military death sentences have rarely been sought and even more rarely been adjudged. Less than one-third (15/47) of known capital courts-martial have resulted in death sentences.

* In the few instances where servicemembers have been sentenced to death and appellate review is complete, the death sentence has been overturned on appeal 3.5 times more often than it has been affirmed (7 to

2).

* Overturned death sentences tend to be replaced with non-capital sentences. So far, no military death sentence that has been overturned on appeal has been reinstated.

* The military's capital reversal rate is far higher than the civilian average. In the military justice system, the direct appeal functions like a combined state direct appeal and post-conviction proceeding. The current direct appeal reversal rate of military death sentences is 77.78%,

while the aggregate state direct appeal plus post-conviction reversal rate (albeit for a somewhat different time span4) is 47%. But due to the extremely small number of military capital cases, the difference between the military system and the civilian system is not statistically significant. Thus, the difference between the military and civilian systems-though real-has limited predictive and explanatory value.

* No execution has occurred under the current military death penalty system and none is imminent.

* Military death penalty cases average more than eight years between sentencing and resolution of the direct appeal. The average capital appellate delay is longer in the military system than in the state systems.

To quote the familiar mutual fund disclaimer, "Past performance is no guarantee of future results."5 But policymakers considering military justice revisions and convening authorities considering referral of potentially capital charges should be aware of the military death penalty system's track record as they make their decisions.

II. The Current Military Death Penalty System's Origins

The U.S. Supreme Court's 1972 Furman v. Georgia6 decision effectively invalidated every state death penalty system that existed at the time. Furman featured a scant 206-word per curiam opinion briefly identifying the three death sentences at issue and holding "that the imposition and carrying out of the death penalty in these cases constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments."7 Voting 5-4, each of the nine justices wrote a separate opinion concurring in or dissenting from this outcome.8 Synthesizing the

justices' disparate opinions is difficult.9 But Furman generally has been interpreted as holding that the Eighth Amendment requires that death penalty procedures "channel the discretion of sentencing juries in order to avoid a system in which the death penalty would be imposed in a 'wanton' and 'freakish' manner."10

In the four years that followed Furman, thirty-five states and the federal government revised their capital punishment systems.11 In 1976, the Supreme Court held that the new Georgia, Florida, and Texas death penalty systems were constitutionally permissible.12 The "modern era of capital punishment" in the United States had begun.13 But neither Congress nor the President reformed the military death penalty system.14

Instead, just as before Furman, in any case that resulted in a finding of guilty under Article 118(1) (premeditated murder) or 118(4) (felony murder), the members exercised unfettered discretion to choose between the only two congressionally authorized sentences: confinement for life and death.15

Between 1979 and 1983, courts-martial sentenced seven servicemembers to death.16 Each had been convicted of premeditated

murder or both premeditated murder and felony murder.17 In June of 1983, the Air Force Court of Military Review reversed the death sentence of Airman Robert M. Gay-the only member of the Air Force then on military death row.18 The Air Force Court based this result on its

conclusion that Furman invalidated the military capital punishment system. Four months later, the Court of Military Appeals (COMA) reached a similar conclusion in the landmark case of United States v. Matthews.19 Matthews was a bold opinion. It invalidated the existing military death penalty system, ultimately leading to the reversal of the death sentences of every inmate on military death row at the time.20 It also proclaimed the COMA's power to hold congressional statutes unconstitutional, despite its status as an Article I court.21 And in what was destined to become the most contentious portion of the decision, the majority opinion's decretal paragraph suggested that either "the President or Congress" could establish "constitutionally valid procedures" for the military death penalty system.22

On 24 January 1984, President Ronald Reagan signed Executive Order 12,460.23 That Executive Order amended the 1969 (Revised) Manual for Courts-Martial (MCM) by establishing a new military death penalty system. With only minor modifications in wording, this new

system would become Rule for Courts-Martial (RCM) 1004 when the 1984 MCM went into effect on 1 August 1984.24

The system that Executive Order 12,460 established, as codified by the 1984 MCM, allowed the members25 to adjudge a death sentence if three conditions were satisfied: (1) the accused was found guilty of an offense for which death was an authorized punishment;26 (2) the

members unanimously found beyond a reasonable doubt that one of the "aggravating circumstances" (later renamed "aggravating factors"27) set out in RCM 1004(c) existed;28 and (3) the members unanimously found that any extenuating and mitigating circumstances were "substantially outweighed by any aggravating circumstances," including the "aggravating circumstances" (later renamed "aggravating factors") listed in RCM 1004(c).29

Since RCM 1004 was promulgated in 1984, the military death penalty system has been altered twice by statute30 and six times by

executive orders amending the MCM.31 The resulting changes fall into three groups: (1) those broadening the death penalty's availability by creating a new capital offense or new aggravating factor;32 (2) those providing additional procedural protections to the accused;33 and (3) one resolving an ambiguity in the original RCM 1004.34

III. The Military Death Penalty at the Trial Level

Capital prosecutions under RCM 1004 have been rare, though no one knows precisely how many military capital cases have been tried since the current system took effect in 1984. The various services' recordkeeping on this issue is neither uniform nor complete. Further uncertainty arises because convening authorities have, on occasion, inadvertently authorized capital courts-martial for death-eligible charges

such as rape.35 Until recently, a death-eligible offense at a general court-martial was referred capitally unless the referral included express instructions precluding a death sentence.36 So, for example, every premeditated murder, felony murder, rape, and willfully hazarding a vessel charge referred to a general court-martial was death-eligible unless the referral block contained an instruction indicating that the case was non-capital. Under a 2005 MCM amendment, a case is now referred non-capitally unless the referral block specifically indicates the convening authority's intent to make the case death-eligible.37 This change better reflects the actual practice in which non-capital referrals are the norm and capital referrals are the exception.

Requests to the military services, LEXIS and WESTLAW searches, and interviews with academicians and military justice practitioners over a three-year period have identified forty-seven court-martial cases that were tried capitally from the inception of the current military death penalty system in 1984 to the end of this article's study period, 31 December 2006. For purposes of this analysis, a capital court-martial is defined as a case that remained death-eligible at the conclusion of the presentation of evidence on the merits. Many other cases that were initially referred capitally but, for various reasons including pretrial agreements, did not result in a death-eligible trial are not included in this survey, nor are known cases of inadvertent capital referrals. 38

Of the forty-seven known capital cases, ten were tried by the Air Force.39 Eighteen were Army cases,40 including both a capital trial in United States v. Dock41 and a capital retrial42 after the results of the original court-martial were set aside on appeal.43 Thirteen of the...