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August 16, 2011

Intriguing Sixth Circuit opinion spotlights differences between military and civilian sentencing justice

Though the underlying crime is what gets one's attention in today's Sixth Circuit panel ruling in US v. Green, No. 09-6109 (6th Cir. Aug. 16, 2011) (available here) the start of the opinion shines a light on a notable difference between federal military and federal civilian sentencing law:

Steven D. Green was convicted and sentenced to life in prison for participating in a sexual assault and multiple murders while stationed in Iraq as an infantryman in the United States Army.  Before senior Army officials became aware that Green and three fellow servicemembers were involved in these crimes, Green was discharged due to a personality disorder.  When officials discovered Green’s involvement in the crimes, his three coconspirators were still on active duty in the Army and thus subject to the Uniform Code of Military Justice.  They were tried by courts-martial and each sentenced to between 90 and 110 years imprisonment, which rendered them eligible for parole in ten years. However, the Army had no authority to court-martial Green because he had already been discharged.  Thus, civilian prosecutors charged Green under the Military Extraterritorial Jurisdiction Act, which extends federal criminal jurisdiction to persons who commit criminal acts while a member of the Armed Forces but later cease to be subject to military jurisdiction.  A federal court jury convicted Green of a number of crimes, including murder and sexual assault, and the district court sentenced him to five consecutive life sentences.  Green claims that the district court lacked jurisdiction to try him because he was never validly discharged from the Army and thus never ceased to be subject to military law as required by MEJA.  Furthermore, he claims that MEJA is unconstitutional because it violates the separation-of-powers principle and the nondelegation doctrine, equal protection, and due process.  We find that these arguments fail and thus AFFIRM the decision of the district court.

I always find fascinating when co-conspirators, simply by virtue of being lawfully subject to different bodies of law, end up receiving different sentences for the same crime.  Here this story is especially notable because a form of federal law is being applied to everyone; still, Green is fated to die in prison because he was subject to civilian law, whereas his co-conspirators are now only a few years from being able to gear up for a possible parole hearing.

A quick review of the procedural history of Green's prosecution further reveals that he was in a sense lucky only to get life imprisonment.  The feds sought, but the jury was unable to reach a unanimous decision on, a death sentence.

August 16, 2011 at 03:12 PM | Permalink


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Okay, but, realistically, what are the chances that his coconspirators -- even if theoretically eligible for parole in ten years -- will actually ever be released given the crimes for which they were convicted? (Were they actually charged with and convicted of the military-equivalent offenses for the same acts that Green was charged with and convicted of in civilian court?) If the prospect of parole is more theoretical than real, it's not obvious to me how different a sentence it really is.

Moreover, Green evidently enjoyed trial rights in civilian court that his non-discharged friends wouldn't have enjoyed, e.g., requirement of unanimous jury. Considering that he was charged with a capital offense, and that lack of unanimity blocked the return of a death sentence, his civilian counsel would doubtless agree that this was a very important right. (IIRC, military juries can convict on a two-thirds vote. Does anyone know, though, whether unanimity is required for a military jury to recommend/return a death sentence, or whether death sentences are possible in court-martials even when the military jury isn't unanimous? That, I'm not sure about.)

Posted by: guest | Aug 16, 2011 6:22:06 PM


I am pretty sure that a court martial does not need to be unanimous to return a death sentence.

Posted by: Soronel Haetir | Aug 16, 2011 7:03:27 PM

Actually, a court-martial panel DOES have to be unanimous to hand down a death sentence. See R.C.M. 1004(b)(4)(C) (panel must unanimously find aggravating factors substantially outweigh mitigating factors); id. at 1006(d)(4)(A) (panel must unanimously vote for death sentence). A sentence of life or over ten years requires a 3/4 vote, and any other sentence requires a 2/3 vote. Id. at (d)(4)(B)-(C). [http://www.au.af.mil/au/awc/awcgate/law/mcm.pdf]

Posted by: Jason | Aug 16, 2011 10:01:43 PM

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