There is a very interesting discussion about the military death penalty in the comments to the post on the new NMCCA Chief Judge. My upcoming article in the Military Law Review provides some data relevant to that discussion, so I’ll provide an executive summary here.
The basic structure of the current military death penalty system was put in place on 24 January 1984 when President Reagan signed Executive Order 12,460. With some extremely minor changes in wording, that system would become R.C.M. 1004 when the 1984 Manual took effect on 1 August 1984.
Since 24 January 1984, the military has actually tried about 46 capital courts-martial. (Only the Army actually tracks this number and, interestingly enough, its number was wrong because its database omitted one case that had been tried capitally.) The number of adjudged death sentences is probably 15. Convening authorities set aside 2 of those death sentences. The number of death penalties that have gone on to appellate review is almost certainly 13 (Dock, Gray, Loving, Murphy, Curtis, Thomas, Simoy, Walker, Parker, Kreutzer, Quintanilla, Akbar, Witt).
9 of those 13 cases have completed their direct appeal. In 7 of those, the death sentence was reversed (Dock, Murphy, Curtis, Thomas, Simoy, Kreutzer, Quintanilla). In 2 the death penalty was affirmed (Loving, Gray). In 1 of those 2 cases, CAAF has ordered a DuBay hearing on IAC — an order that came out 10 years after the completion of the direct appeal but before the President had taken action on the death sentence. Loving v. United States, 64 M.J. 132 (C.A.A.F. 2006).
Here are comparable figures for state death penalty systems, provided by Columbia Law School Professor James Liebman and his colleagues in their “Broken System” series of studies, which analyzed every state death sentence adjudged between 1973 and 1995. See, e.g., James S. Liebman, et al., A Broken System, Part II: Why There Is So Much Error in Capital Cases, and What Can Be Done About It (Feb. 11, 2002).
A total of 5,760 death sentences were adjudged by civilian courts. Of those, direct appeals had been completed in 79% of the cases (4,578). Of those, the death sentence was reversed in 41% of the cases. Liebman then looked at the reversal rate during post-conviction review in a 28-state subgroup. (These 28 states were those in which at least one case had gone through the entire review system, including federal habeas review.) State post-conviction resulted in the reversal of about another 6% of the capital cases in which appellate review was complete (248/4,364). So the “direct appeal plus state postconviction reversal rate” was at least 47%, though it was probably actually a bit higher because any additional state post-conviction reversals from a state not in the 28-state study group would increase that reversal rate.
For reasons that I discuss in the article, the military direct appeal reversal rate is conceptually most comparable to the state direct appeal plus post-conviction reversal rate. So the military’s 77.78% reversal rate compares to a state reversal rate of approximately 47%.
No military death penalty case adjudged under the current system has yet gone on to federal habeas review, so the final military reversal rate may be even higher. (The military reversal rate may also climb if, say, Loving’s DuBay hearing leads to relief or if another military death penalty case currently on appellate review results in relief.)
For state systems, in the 28-state study group, the federal habeas reversal rate was 21%. So Professor Liebman and his colleagues conclude that “[n]ationally, over the entire 1973-1995 period, the overall error-rate in our capital punishment system was 68%.” James S. Liebman, et al., Capital Attrition: Error Rates in Capital Cases, 1973-1995, 78 TEX. L. REV. 1840, 1850 (2000).
Because of the small number of military death penalty cases, however, the differences between the military and civilian system weren’t statistically significant. And, interestingly, one state — Wyoming — had a reversal rate identical to the military’s (7/9). James S. Liebman, et al., A Broken System: Error Rates in Capital Cases, 1973-1995 at 58 (June 12, 2000).
My article doesn’t draw any particular policy conclusions from these numbers. It just lays out the data to promote informed debate and for counsel and convening authorities to use as they execute their duties in potentially capital cases.
By the way, the Columbus Clipper suggested the title for the article: Killing Time: Two Decades of Military Capital Litigation. But in light of his imminent deployment to Afghanistan, Marcus will now be known as the “Kabul Clipper.”