U.S. Military

The Death Penalty in the U.S. Military

The U.S. military has its own laws and court system separate from those of the states and the federal government. Although the military justice system allows the death penalty, no executions have been carried out in over 50 years. The last execution was the hanging on April 13, 1961 of U.S. Army Private John Bennett for rape and attempted murder. The military death penalty law was struck down in 1983 but was reinstated in 1984 with new rules detailing the aggravating circumstances that make a case death-eligible. Only about one-third of the capital cases tried under this law resulted in a death sentence. As of 1997, military law allows for an alternative sentence of life without parole. Six men are currently on the military death row, which is housed in the disciplinary barracks at Fort Leavenworth, Kansas. The President has the power to commute any military death sentence. A 2012 study indicated that defendants of color in the military were twice as likely to be sentenced to death as white defendants.

INTERNATIONAL: German Officials Refuse to Cooperate in Possible Death Penalty Case

German officials are withholding significant evidence in a murder case involving U.S. servicemen because of Germany's opposition to the death penalty. Sean Oliver has been charged with the murder of another member of the U.S. military, Dmitry Chepusov, in Germany. The U.S. Air Force has jurisdiction over the case, but Germany is withholding cooperation unless the U.S. military agrees not to seek a death sentence. German police discovered the body and conducted the autopsy, and are now refusing to hand over several pieces of physical evidence. Germany abolished the death penalty in 1949 and authorities are banned by law from cooperating in foreign cases that could result in the death penalty. The victim's family is also opposing capital punishment for Oliver. Dennis Bushmitch, the victim's brother, said, “We are urging the Americans not to pursue the death penalty.” In 1985, the German government successfully fought extradition of a German citizen accused of two murders in Virginia until a decision was made not to seek a death sentence.

MILITARY DEATH PENALTY: Armed Services Rarely Carry Out Executions

Criminal cases in the U.S. Military are conducted in special courts and under laws that differ from the rest of the country's justice system. Executions in this system are extremely rare. There have been no executions since 1961. "The military is a community of solidarity, a brotherhood and sisterhood, all to its own," said Teresa Norris, a former military defense lawyer who still represents a soldier on death row. "There is a real reluctance to execute fellow soldiers unless it's absolutely the worst kind of case and this is the only way." In 1983, a number of death sentences were commuted to life when a military appeals court found the military death penalty unconstitutional. The law was revised in 1984. One of the most significant concerns about capital punishment in the military is the decentralized nature of its judicial system. Dwight Sullivan, a former Marine prosecutor, said, "Even if you have 2 identical cases, one being prosecuted by one commander at one base and the other being prosecuted by a commander at another base, you may have different outcomes because the commanders may have different philosophies.” There are currently five inmates on the military death row in Fort Leavenworth, Kansas, all of whose cases are under legal review. Three are black, two are white. The trial of Army Maj. Nidal Hasan, a psychiatrist charged with a deadly shooting rampage at Fort Hood, Texas, is scheduled to begin August 6.

U.S. MILITARY: Latest Sentence Reversal Follows Trend of Rarely Using Death Penalty

The U.S. Military has not carried out an execution of a service member for 50 years. Of the 11 military death sentences that have completed direct appeal, 9 (82%) have been reversed.  On August 22, the Navy-Marine Corps Court of Criminal Appeals overturned the death sentence of former Lance Corporal Kenneth G. Parker, the only Marine on the military's death row. The court also overturned one of Parker’s two murder convictions after finding that his guilt was not proven beyond a reasonable doubt.  Judge J.A. Maksym, while condemning Parker's actions, said, “We have upset aspects of this verdict and will set aside the death penalty due to numerous and substantive procedural and legal failures at trial.”  Parker is now facing a life sentence without parole at the U.S. Disciplinary Barracks in Fort Leavenworth, Kansas. Parker's co-defendant, Wade Walker, had also been sentenced to death but had his sentence reduced to life earlier.  Since 1984, 11 out of 16 military death sentences have been overturned. The last military execution occurred in 1961.

STUDIES: Military Death Sentence More Likely for Defendants of Color

A recent study published in the Journal of Criminal Law and Criminology about the U.S. Military death penalty system found that racial disparities among those sentenced to death are worse in the military than in other criminal courts.  The study, conducted by Catherine Grosso of Michigan State's College of Law, the late David Baldus of the University of Iowa College of Law, and others, reviewed all potentially death-eligible military prosecutions from 1984 to 2005 and identified 105 death-eligible murder cases. The study found that defendants of color in the military are twice as likely as white defendants to be sentenced to death. The researchers said the disparities against defendants of color “sharply distinguishes the military system from the typical civilian system” at a “magnitude that is rarely seen in court systems.” In typical studies on the civilian side, the likelihood of a death sentence increased when the victim in the underlying crime was white, and was even more pronounced if the defendant was a person of color. In U.S. military courts, however, discrimination based on the race of defendant - regardless of the race of victim - was more prominent. The researchers argued that limiting the military death penalty to the most aggravated and heinous crimes - e.g., murder of a commissioned officer or a premeditated attack on U.S. troops resulting in death - would reduce racial disparities. Grosso concluded, “If race is on the table, if it puts a thumb on the scale, that’s injustice.  These findings speak for themselves. They reflect how the military criminal justice system is operating, and it can do better.” Read the Study.

NEW VOICES: A Veteran's Perspective on the Death Penalty

Bob Van Steenburg (pictured), served for 27 years in the military and retired as a United States Army Colonel in 1991.  He currently serves as the President of the Board of Directors of the Texas Coalition to Abolish the Death Penalty.  On Veterans Day, he reflected on how his opposition to the death penalty grew from his commitments as a soldier.  He wrote, “A soldier stands for more than just him or herself.  A soldier stands for the nation and its citizens.  A soldier gives of his or her life to others, and some do that to the fullest extent.  A soldier’s life is about others. . . . We Americans are better people than what we demonstrate by our use of capital punishment. We proudly state that our nation was founded on the concepts of life and liberty. Congress has passed and the American people have approved amendments to our Constitution to protect the lives of our citizens. The death penalty stands in direct opposition to these concepts.” He concluded, “My service as a soldier was to protect and defend the nation. My work to end capital punishment is to protect and defend the ideals established with our nation’s founding.”  Read full text below.

High Percentage of U.S. Military Death Sentences Overturned

Of the 16 death sentences that have been imposed since the U.S. military made significant changes to its death penalty system in 1984, 10 have been overturned and all the defendants were resentenced to life.  There have been no executions, and the 6 remaining cases are still under appeal.  Military appellate courts overturned the sentences because of mistakes made at many levels of the military's judicial system, including inadequate defense representation, prosecutorial misconduct, and improper jury instructions.  Some observers attribute these widespread errors to an outdated system that has not enacted institutional changes to match current death penalty representation standards in civilian courts. Young, inexperienced lawyers are regularly assigned to represent capital defendants.  David Bruck, a veteran defense lawyer and director of the Virginia Capital Case Clearinghouse, said, "If you have a system where . . . where the lawyers are always trying their first capital case, you're going to guarantee the same kinds of mistakes . . . are going to be made over and over again."  A 2009 law requires the military to appoint qualified attorneys for terrorism suspects, but no such requirement exists for average service members who face criminal charges.  Military officials interpret its 80% death sentence reversal rate not as an indicator of the need for reform but as a natural part of the natural appeals process.

STUDIES: Significant Racial Disparities Found in Military Death Penalty

A soon-to-be-published study has found significant racial disparities in the U.S. military's death penalty. The study, which will be published in the Journal of Criminal Law and Criminology, found that minorities in the military are twice as likely to be sentenced to death as whites accused of similar crimes. The study examined all 105 potential capital cases since the military death penalty was reinstated in 1984.  Of the 16 death sentences handed down in that time, 10 were of minority defendants. The authors did not attribute the disparities to intentional bias: "There is no suggestion here that any participant in the military criminal justice system consciously and knowingly discriminated on the basis of the race of the accused or the victim," the authors said. "However, there is substantial evidence that many actors in the American criminal justice system are unconsciously influenced by the race of defendants and their victims." A New York Times editorial about the study noted how rarely death sentences are handed down in the military, that there have been no military executions since 1961, and that 8 out of 10 death sentences have been overturned. Six men are currently on the U.S. military's death row. The editorial concluded, "The de facto moratorium has not made the country or the military less secure. The evidence of persistent racial bias is further evidence that it is time for the military system to abolish the death penalty."