The President's Power to Promulgate Death Penalty Standards

• Author: Captain Annamary Sullivan
• Pages: 04

1. INTRODUCTION

   The Court of Militarg. Appeals ~n Cnited States L. Matthews' held that the system for assessing capital punishment in the military was defective because the sentencing procedures failed to require specific findings as to Individualized aggravating circumstances The Court indicated that either Congress or the President, in the exercise ofhis responsibilities as Commander m Chief and of the powers that Con-gress delegated to him? could take corrective action The President. not Congress, acted to correct the defectire sentencing procedures by promulgating Rule far Courts-Xartial 1004 '

   Thie article will explore the authority ofthe President to promulgate death penalty sentencing procedures. The areas to be explored will be those that the Court of Military Appeals suggested in .Matthews Congress's delegatmn to the President under Article 56. Uniform Code of hlilitary Justice IUCMJI. to set maximum punishments? Congress's delegation to the President under Article 36. UCMJ.' to prescribe

   Ct for R" offen. i the President ma)

   procedural court.martial rules. and the President's power ai Com. mander in Chief of the armed forces The article concludes that the President 5 power to set maximum penalties and to prescribe court. martial procedures giveshim the authority topiomulgatedeathpenal. ng procedures but that his authority a: Commander indes no additional support for that poiier

   11. BACKGROUND A. SLPREME COL-RT PRECEDE.VTS

   In 1972 the Supreme Court. inFiirrnan L Georgia.. inialidated the capiral punishment statutes of Georgia and Florida Although the Court was unable to muster a majority or even a plurality opinion ' ir nevertheless established one basic ground rule no capital punishment can be adjudged in a s~stemthat leaves the decision to the unguided n afthejur? .As the Court subsequeiitll explained its holding on pad that the death penalty 'could not be imposed under ng procedures that created a eubstantml risk that it would be inflicted man arbitrary andcapriciousmanner "YThe Court continued b\ explaining that 'nheiediscretian LS afforded a sentencing body on a matte, BO grate BS the determination of whether a human life should be taken or spared. that discretion must be suitablr directed and limited "I' The sentencing authority must be gi>en relevant mfmmation and standards iith which to guide the use of that information

   Several years later, in a flurry of decisions addresang the validit? of statutes enacted m response to theFwrnon ruling. the Supreme Couit elaborated on the constnutional requirements for capital punishment The Court upheld three different capital aentencing schemes in Gmgg

   19891 DEATH PEKALTY STAKDARDS

   i' Georgio.l2

   Profptt u. Flor~do'~and durek i Texas '' All three sys.

   terns provided for a bifurcated trial, that 1s. a sentencing proceeding separate from the gudt phase oftrlal They also mcluded provlsmns for judicial review by either the state supreme court or by a court with statewide junsdictmn. The bifurcated procedure salved the widen-tialy dilemma that existed when "information that ia relevant to the sentencing decision may have no relevance to the question of guilt, or may even be extreme15 prejudicial to a fair determination of that question.'"' The appellate review prowsmn assured that the death penalt? would not be imposed "on a capnaously selected group of convicted defendants ''I6

   Each state dealt in a different i+ay with the requirement that the sentencing authority be given standards to apply in making a deemon on capital punishment. The Georgia statate considered in Gregg listed ten aggravating circumstances, at least one of which had to be found beyand a reasonable doubt before the death penalty could be adjudged, nonstatutory aggravating and mitigating cmumstanees had to be considered, and the jury determination on Sentence was final."

   The Florida statute reviewed in Proffitt listed apecific aggravating and mitigating circumatances, and the jury was directed to consider whether sufficient mitigating circumstances existed to outweigh the existing aggravating circumstances.'' The jury's verdict was advisory only. but the standard for the sentencingjudge to order death after a jury adwsed life in prison was that the facta should be so clear and convincing that "virtually no reasonable person could differ ''19

   Finally, the Texas statute in Jureh, which did not list aggravating factors, limited capital murder to five narrow categoriesz0 and required the jury, in the sentencing proceeding, to answer three quea-

   '-Gr?gg, 418 U S st 162.68"Proffirt 428 U S at 248.49"Id at 249 lquofing Tedder % Florida 322 Sa 2d 908. 910 iFla 19i;lBl'"The five rateganesuere murderofapeaceafficerarfireman murdercommitfedin the courie of kldnapq burglars robbery forelbla rape UI arson murder rommmted far remuneration murder cammnted uhlle e~caplng or aitemptmg fa ebcape ilom a penal institution and murder committed by a prism inmsre %hen the v~cfirn \\ai B P~~~~~ ~,,d 428 US 26a

   YILlTARP L A B REVIEW ;Val 125

   tmns. including one on the future dangerousness of the defendaOnl! if all three questions were answered affirmatmeli could rhe death sentence be impoaed The Court determined thar the Texas action in narroeing the categories of capital murder served "much the same purpose' as statutory aggravating ClrCUrnStanCe- 2'

   Thus all three statutes requned the sentencing authoran the particularized nature of the crime '" Furthei Georgiaexpressly provided for the considetation ofmitigatetances Similarly. ~n answermg the question on future dangerousness cing stage. the Texas jurj "may be asked to consider

   canstltutlanall) rufficient

   The Court at the Same time that It found the capital punishment satures of Georgia Florida. and Texas constitutional struck down atherstatutorrschemes in R'oodson L .Yorlh C'oi.olznn''andinRohertsI Louismna '"

   These tiio statutes mondoted the death penah far speahed affenaes Locket: i: O h d c mademitigatingevidence muztbeafactarm theConstitution iequirej that ' the ientencer,capital CBEB. not be precluded from conside

   anv aspect of a defendant B charactel or re stances of the offenie that the defendan sentence leis than death ' I"

   19891 DEATH PEXALTY STAXDARDS

   2. MILITARY PRECEDEKT

      In eaily 1979 Private First Class FVyatt L htlhews brutally raped and murdered Ph?llis Villanueva, an Army librarian in Germany " He was charged with these offenses and convicted of them b> a court-martial that. by unanimous xote. sentenced him to death "On appeal he attacked the constitutionalit) of the militar>'s capital punishment provisions The Courtofhbhtarg Appeals determinedthat therexaa no milltar> necessity for distinguishing between the murder and rape committed by Matthew and similar crimes tned m civilian courts 'we see no reason why Matthew should be executed for his murder and rape of hlrs Vil1anuei.a if the sentencing procedures used bv the court-martial failed to meet the standards established bv the Supreme Court for sentemingin capital cases in civilian courts '"Accordingly. the Cowt ruled that ~ivilianprecedent did apply KO military capital mltenclng

      Reviexing Supreme Court precedents. including rhose cases pre-v~oualy dimmed. .Motfheii.s found that certain common features appeared in a constitutionally valid death penalty procedure a bifurcated sentencing proceeding specific aggravating circumstancei identified to the sentencer. selection of and findings on the particular aggravating cmumstances used by the sentence, to impose the death penalts . unrestricted opportunity for the defendant to prejenr mitigating and extenuating evidence. and mandatory appellate reneiu of the appropriateness of the sentence ''

      The court then applied these pnnc~piisto the mihtarypstice sys- tem First. a bifurcated sentencing procedure 15 followed '' Second, "Iclertam aggravating circumstances, such as premedltarlon. spec~fic Intent. and murder during commission of specified felonies. must be found by the court members These findings identify the instances InahichanaccusediseligibleforthedeathpenaltS. Afterthefindmgs, ewdenee may be submitted to Identify other aggravating circumstances '"- Third. the defendant has an unlimned opportunity to put onevidenceInextenuatianandm~t,gation 3gXext. thereismandatory revim afthefacts, law, and sentence apprapnatenessm aeomparanve

      MILITARY LAK' REVIEW L"0l 125

      sense. boththroughout thejurisdictionby theconremng authoriti and throughout defendant's branch of service by the sen ice court of mill-tar? review Thereafter. the Court of Military Appeals must retieii cases ar to questions of law while the President. who can take an? lesser action on the sentence. must ultimately approve any death sentence ''

      Based upon this analys~r.the court held that most ofthe safeguards

      required b? the Supreme Court "ere already m place in the militar> Justice s:stem how eve^, because court-martial members iiere not required to identify spec~ficallythe aggravanngfactors ielied upon m assessing the death sentence. It ivm impossible for the appellare courts to determine whether they had made the necessary individualized sentencing determmation bared on the character ofthe defendant and the ~ r ~ u m s t a i i ~ e ~ of the cr~me.'~

      Additionally. the court rejected the government argument that a finding of premeditation narrowed the class of death-eligible offenses sufficiently to meet constltutlond re-quirements noting that the military premeditated murder scheme ck do*n on Constnutima1 grounds '. In sumtary Appeals "held that the sentencing proee-case was defective because of the failure IOrequire that the court members make apecific findings as to indindualired aggravating cireumstances-findings which can. in turn. be reviewed factually and legally."4'

      The court noted that Congress "obviously' intended that in cases of premeditated murder certain types of felony murder. and rape. the death sentence should be available and indicated that the necessary changes...