Here’s the news. This marks the first time a president has approved a military death sentence in 51 years. The last president to do so was President Eisenhower, who approved Army Private John A. Bennett’s death sentence on 2 July 1957. Following unsuccessful habeas challenges in the Article III courts and an unsuccessful petition to CMA for a writ of error coram nobis, PVT Bennett was executed at the USDB on 13 April 1961 after President Kennedy declined to grant clemency.
Article 71(a) of the UCMJ provides, “If the sentence of the court-martial extends to death, that part of the sentence providing for death may not be executed until approved by the President.” 10 U.S.C. § 871(a). The last time a president acted under Article 87(a) was on 12 February 1962, when President Kennedy commuted a Sailor’s death sentence to a dishonorable discharge, total forfeitures, and confinement for life.
Gray was sentenced to death by a court-martial at Fort Bragg, NC, on 12 April 1988. The Army Court of Military Review affirmed Gray’s death sentence in two opinions isused in 1992 and 1993. United States v. Gray, 37 M.J. 730 (A.C.M.R. 1992); United States v. Gray, 37 M.J. 751 (A.C.M.R. 1993).
CAAF affirmed Gray’s death sentence in a 3-2 opinion in 1999. United States v. Gray, 51 M.J. 1 (C.A.A.F. 1999). The Supreme Court denied cert on 19 March 2001. Gray v. United States, 532 U.S. 919 (2001). The Court denied a rehearing petition on 14 May 2001. Gray v. United States, 532 U.S. 1035 (2001). The case has been ripe for presidential action ever since.
In all likelihood, Gray’s counsel will now file a petition for habeas corpus in the U.S. District Court for the District of Kansas under 28 U.S.C. § 2241.