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The Death Penalty In The Military

© Glenn Arnold

With the majority of the debate focused on legislation at the state level, the death penalty in the military is quite often overlooked; even some of the most fervent capital punishment supporters and abolitionists have only a vague knowledge of the death penalty's application in all branches of the armed forces. Currently, seven inmates are on military death row at Fort Leavenworth, Kansas. Two of those inmates are awaiting retrial or re-sentencing and all seven are on death row for felony murder convictions.

Since 1916, 135 people have been executed by the United States Army, although no one has been put to death since 1961. Eleven years after the reinstatement of capital punishment in 1972 through the Furman v. Georgia decision, the Armed Forces Court of Appeals ruled that the military death penalty violated the Constitution (U.S. v. Matthews, 16 M.J. 354). However, one year later in 1983, President Ronald Reagan reenacted the death penalty in the military when he signed an executive order that adopted detailed new rules for capital courts-martial. Recently, an amendment to the Uniform Code of Military Justice was adopted which allows for a life sentence without the possibility of parole, thus lowering the number of death penalty sentences sought by the military.

Much like the federal death penalty, the minimum age to receive the death penalty in the military is 18. The president is the only one who can commute a military death sentence and an execution can not be carried out without direct approval from the president. Under the Uniform Code of Military Justice, 15 offenses are punishable by the death penalty, mostly in times of war. Every military capital case is resolved before a panel of at least five service members and the convening authority (usually a high-ranking commanding officer) picks those who will serve on the panel.

This last aspect of the military death penalty has become a focal point of anti-death penalty sentiments. Opponents claim that a defendant's rights are violated because many military cases utilize less than 12 jury/panel members, unlike civil capital cases. By increasing the number of jurors, they argue, the standard for conviction is increased to the same level as that of civil cases. Furthermore, the convening authority that decides to press capital charges also chooses the panel. Proponents of the system argue that defendants have more legal recourse in military capital cases. Not only are defendants allowed appeals in military courts, but they are able to take their case to civil courts and have the option of two appeals to the U.S. Supreme Court. To date, however, military appellate courts have rejected all challenges to the 5-member minimum requirement for capital case panels.

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