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July 29, 2008

President Bush OKs Military Execution

As detailed in this NY Times article, President Bush recently made history by approving the first execution by the military in nearly 50 years:

As commander in chief, the president has the final authority to approve capital punishment under the Uniform Code of Military Justice, and he did so on Monday morning in the case of Pvt. Ronald A. Gray, convicted by court-martial for two killings and an attempted murder at Fort Bragg, N.C., the White House said in a statement.

Although the Supreme Court upheld the constitutionality of the death penalty in the military in 1996, no one has been executed since President Ronald Reagan reinstated capital punishment in 1984 for military crimes.

The last military execution was ordered by President Dwight D. Eisenhower in 1957, although it was not carried out by hanging until 1961.  President John F. Kennedy was the last president to face the question, in 1962, but commuted the sentence to life in prison.

* * *

Mr. Bush, a supporter of the death penalty, approved the sentence after Private Gray’s case wound its way through the Army’s legal bureaucracy and the military’s courts of appeal.  The secretary of the Army sought Mr. Bush’s final approval.

There are six people on the military’s death row at Fort Leavenworth, Kan. but Private Gray was the first whose sentence went to the president.  Unlike in the civilian courts, where the president can overturn or commute a sentence, in the military system, he is required effectively to approve it.

It can still be appealed, which the White House suggested was all but certain, meaning an execution is not expected to occur soon, possibly not during Mr. Bush’s remaining months in office.

The article does not explain why it has taken nearly 20 years for the case to work its way through the military justice system—even longer than the average civilian death penalty case—or how much additional process may still follow.  Readers are invited to share their knowledge in this area.

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July 29, 2008 at 01:52 PM | Permalink


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The delay in the military execution is hard to explain from a strict procedural point of view. As in civilian federal death penalty cases, there should be one series of direct appeals and then one series of habeas appeals, although this case predated some of the statutory provisions aimed at limiting repeat habeas filings and it isn't obvious to me that those laws apply to military justice in any case.

In contrast, in state death penalty cases, there is usually one series of direct appeals, a series of state habeas appeals, and then a series of federal habeas appeals.

Thus, generally, the process should be fasters at the federal level than the state level, and generally, the quality of proceedings in the federal system reduces the room for procedural attacks available in state courts with less robust protections for defendants and less able public defenders.

Still, one supposes that the fact that there are no post-repeal and reinstatement precedents for a military execution leaves a great many open issues to be resolved through litigation.

The twenty year time span is certain a counter-example to the notion that military justice (e.g. in Guantanamo Bay's military commissions) is faster or more certain than the civilian criminal justice system.

Posted by: ohwilleke | Jul 29, 2008 2:22:05 PM

any thoughts on sentencing of NBA ref or Newark mayor? is there anyway place to see federal sentencing trends? i feel like sentences have been lighter since recent scotus rulings.

Posted by: DAG | Jul 29, 2008 6:47:28 PM


There is a certain economy to executions. Like all things governmental, certain "efficiencies" are achieved through large numbers. Execution one takes monumentally longer and expends more money to achieve than execution 20 or execution 200 on average. With that said, Mr. Gray still has federal habeas corpus review left, meaning an execution won't occur until a President Obama or President McCain is running for reelection or well in to their respective term.

Posted by: karl | Jul 29, 2008 9:50:41 PM


In the military system it generally goes like this

1. Court martial
2. Review by convening authority
3. Review by Service Court of Appeal (mandatory)
4. Review by Court of Appeals for the Armed forces (non-discretionary in capital cases)
5. cert. petition to the SCOTUS (currently there is no statutory appeal from a non-cert. granted case to the SCOTUS)
6. Death sentence must then be approved by the POTUS
7. Habeas at DCT
8. Appeal
9. Cert. Grant.
(chance to ask for pardon)

Posted by: S.cotus | Jul 30, 2008 10:31:11 AM

The man should be released to the mercies of dueling. Dueling was the preferred means of justice among gentlemen in the 1700s. And all men should be considered gentlemen by now.

The government does not have the right end any life. Nor should society deprive liberty nor pay the burden of imprisonment. The man is also military and black. Yes equal percentages of whites and women must be shown to be executed first before society can act.

Posted by: | Aug 6, 2008 8:20:18 AM

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