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August 28, 2011

Notable new reporting on the US military's (mis)use of the death penalty

HXz8c.Sm.91 McClatchy Newspapers has produced a series of new article concerning the modern operation of the death penalty in the US military. Here are links to these pieces:

Here are excerpts from the first and second pieces in this series:

Of the 16 men sentenced to death since the military overhauled its system in 1984, 10 have been taken off death row.  The military's appeals courts have overturned most of the sentences, not because of a change in heart about the death penalty or questions about the men's guilt, but because of mistakes made at every level of the military's judicial system.

The problems included defense attorneys who bungled representation, judges who didn't know how to properly instruct a jury and prosecutors who mishandled evidence.  In all of the cases, the men have been resentenced to life in prison. Eventually, they could be eligible for parole.

Yet by many measures, they're the military's worst of the worst. Convicted of crimes such as serial murder and rape, they're the kinds of criminals that many people would agree the death penalty should be reserved for.  Then why have they been spared?

Critics say the military botched the cases because its judicial system lags behind civilian courts and isn't equipped to handle the complex legal and moral questions that capital cases raise.

Civilian courts have demanded that experienced lawyers be appointed in capital cases and have pushed for a more uniform application of the death penalty.  The military, however, hasn't made any major institutional changes to address such problems in more than 25 years.  At almost every level — from trial to appeals — young, inexperienced lawyers routinely have been appointed to represent capital defendants....

Ten of the 16 men whom the military has sentenced to death in the last 27 years share another common characteristic: They're all minorities. The racial imbalance in the military's death penalty isn't new. As far back as the early 1970s, the military has acknowledged racial bias in its judicial system.  The civilian court systems have similar disparities.

But one recent statistical analysis has found that the problem endures and is in some ways worse than on the civilian side.   A study by a group of law and statistics professors found that minorities in the military were twice as likely to be sentenced to death as their white counterparts, a statistic higher than is known to exist in most civilian court systems.

August 28, 2011 at 09:17 PM | Permalink


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"Civilian courts have demanded that experienced lawyers be appointed in capital cases and have pushed for a more uniform application of the death penalty."

Whilst this may be the current trend (or was prior to the current financial crisis in the US), it is by no means a generalized truism across the US. Even less is it true in the cases of hundreds of inmates who have languished on numerous death rows for a decade or more, some awaiting execution, others in limbo where execution may or may not eventually be carried out. Meanwhile, in those cases that are fortunate to be subject to active review, findings of innocence or of similarly legal malpractice continue to be found.

Posted by: peter | Aug 29, 2011 6:27:17 AM

Do we really need a separate criminal justice system for the military? Ok, I (almost) understand a set of procedures for offenses committed on foreign soil during active combat and I appreciate the potential utility of Article 15 type punishment for "military-type" offenses like AWOL and disrespect, but why can't the local Georgia courts handle assaults and rapes, etc. committed by soldiers at Ft Benning? Getting rid of the separate system might even save the Defense Department some monies.

Posted by: alan chaset | Aug 29, 2011 9:03:31 AM


You want a commander who is about to deploy to leave a soldier behind so he can be tried for a DUI or a theft offense from the PX or for cocaine possession offense? Take a stripe at a summary court-martial or Art 15 and send him overseas. We have a separate military justice system because national security demands it.

As far as experienced JAG counsel, while few have the specialization of capital trial unit attorney, most have tried more felony trials than their civilian sector prosecutor or public defender peers. Indeed, give me an applicant who with JAG for 5 years than a lawyer who was with a DA's office for that amount of time every day of the week.

Posted by: speaking just for me.... | Aug 29, 2011 11:21:51 AM

@ Alan:

Not sure how we'd find the appropriate triers of fact for offenses for which there's just no civilian counterpart (e.g., "conduct unbecoming") among the civilian population. One of the things that separate systems does is recognize that members of the military are subject to standards and rules that simply don't apply to civilians.

Posted by: guest | Aug 29, 2011 11:39:28 AM

Putting these charges of JAG racism aside, and though I am chary to be irrelevant,
please consider the following from Kent Scheidegger:

Death row population of 2009: 3,173, of whom 1,317 were BLACK, or 41.5% .
(BJS, Capital Punishment in the U.S., 2009, Table 4.) 

Why not 12.6%, like the overall population of Afro-Americans? ? ?

Because for 2009, single-offender, single-victim homicides with known race of the offender, there were 6,631 total with 3,106 BLACK perpetrators, or 46.8%! ! !
(Sourcebook of Criminal Statistics, Table 3.129.2009.) 

People of color should unite against those who cry wolf (racism) and
thereby diminish the believability of the true victims.

[Fortunately, I have had little contact with military lawyers other than wills & POA at depolyment times.]

Posted by: adamakis | Aug 29, 2011 2:06:59 PM

If I were a commander, I wouldn't want to deploy with anybody whose judgment and sobriety and honesty I could not depend upon. When bad guys are firing real weapons at you and the other young men in your charge, I would prefer to let the thief and the drunk stay at home. We lowered standards during Vietnam to make our monthly quotas and we played the "go to jail or go to the army game" with too many misfits - my experience at the military prison in Leavenworth demonstrated the failure of those endeavors. And we don't need civilian counterparts to sanction "conduct unbecoming" because we can indeed handle that kind of offense with some non-judicial wrist slap. And remember, we are dealing with volunteers: if folks violate the standards and rules that they have agreed to follow, then fire them.

Posted by: alan chaset | Aug 29, 2011 3:14:47 PM


My combat experience is such that I have learned that the thief and the drunk may be the best you want. Those who are willing to take chances to break the law are often those who you want in combat who take chances to break the enemy's will. Indeed, Gen Chesty Puller, the legendary Marine, is often noted to have said, "ain't one until they've had 'em", referring to Article 15's.

The best Marines and Soldiers I know didnt have perfect garrison records. You can't make good warriors politically correct, and vice versa.

Posted by: speaking just for me.... | Aug 30, 2011 12:33:53 AM

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