In a comment to Cully Stimson’s post below, the No Man asks about military death penalty stats since the 2001 adoption of a statutory requirement to have a minimum of 12 members on most capital court-martial panels.  Since Article 25a took effect, there have been four capital courts-martial tried, two of which (Akbar and Witt) resulted in death sentences and two of which (Hill and Martinez) resulted in acquittals.

Let’s open the lens a bit wider and look at all of the military death penalty cases tried since 1984, when President Reagan issued an Executive Order promulgating the current military death penalty system. 

At the base of the pyramid, there are 49 cases that have actually been tried capitally (that includes two capital trials in the Dock case — his original trial that resulted in a death sentence later overturned on appeal and his capital retrial). 

The next level of the pyramid has 46 cases — 49 minus the 3 that resulted in complete acquittals (Hill, Martinez, and Chrisco). 

The next level has 30 cases — 46 minus the 16 cases that resulted in non-unanimous findings of guilty to the death-eligible offense or offenses. 

The next level has 15 cases — 30 minus the 15 cases in which the members imposed a sentence other than death.  This level represents the 15 capital courts-martial that have resulted in adjudged death sentences.

The next level has 13 cases — the 15 cases in which members adjudged death sentences minus the 2 in which CAs commuted the death sentence (Turner and Gibbs). 

The next level has 8 cases — 13 minus the 5 in which the death sentence has been reversed and replaced with confinement for life (Dock I, Curtis, Simoy, Thomas, Kreutzer). 

The next level has 5 cases — 8 minus the 3 cases in which the death sentence has been reversed on appeal but rehearings haven’t been held and reimposition of a death sentence remains possible (Quintanilla, Walker, and Murphy). 

The next level has 2 cases — 5 minus the 3 cases that remain on direct appeal (Parker, Witt, and Akbar).

The next level has 1 case — 2 minus 1 case in which the President has not yet acted (Loving).

At the top of the pyramid is Gray, a case in which the President has approved the death sentence and which is currently undergoing habeas review in the U.S. District Court for the District of Kansas.

14 Responses to “Military death penalty stats: building the pyramid”

  1. No Man says:

    DOH! Guess my comment logic just went out the window.

  2. Anon says:

    Col Sullivan, great review as always. Thanks for being our military justice North Star! Keep up the great work in 2010.

  3. anonymous says:

    I echo “Anon” comment at 1240. I would also be curious to know som additional data. Looking at each level above 46, how many victims died as a result from the crimes committed, at each level of the pyramid. Assuming (without knowing for sure) that each of the 46 cases tried capitally (which resulted in a conviction) resulted from at least one murder, that makes the score at least 46-0 in favor of the criminals. At best, the Government can obtain 8 executions in the future (If I read the pyramid correctly), making the best theoretical score 46-8.

    So it should be clear to everyone that under the present capital system, the Government (and the victims and their survivors) are losing rather badly. This cries out for sentencing reform, does it not? Put differently, if there were a battle in which the good guys had 46 killed, while possibly killing only 8 bad guys, there would be a lot of attention paid to that.

  4. Southern Defense Counsel says:

    Anon 0913,

    Your assumption is that the only appropriate sentence for premeditated murder in a capital referred case is death. Even the Feds don’t go that far. For premeditated murder, there is a mandatory minimum of life with parole. The system only “cries out” for sentencing relief if you believe that every time the government goes capital and gets a conviction they should get what they asked for.

    Now, no surprise here, I’m no proponent of the death penalty. But, we must play under the rules… So, to assume that the DP is a viable and necessary punishment, as we must if we believe that the system now is correct the numbers do indicate that the government has either (a) not found the right case to try capitally, or (b) has not secured the “proper” sentence, either through lack of effective advocacy by government lawyers, or due to a systemic failure (hence the alleged need for sentencing reform). I’d be interested in discussing those issues more (without debating the propriety of the DP, this isn’t that type of blog). But it strikes me as distasteful to “keep score” when it comes to capital litigation.

  5. anonymous says:

    It has been explained to me, at various capital litigation conferences, that anyone who has ever defended a capital case knows that their job is to represent the defendant as zealously as possible. Capital defense attorneys say that best way to do that is to make the case personal — it is the defense attorney and the client against the prosecutor, who is trying to kill the client, and the alleged victim’s family members who want to conspire to kill the client. It is that mentailty which is “distasteful.”

  6. Anonymous says:

    I’m curious anon 913 how do you propose we do “sentence reform” that makes it more likely that an accused receives the death penalty?

  7. anonymous says:

    Wow! Some guy wonders how many victims the people who were convicted of capital crimes killed, and that gets enough Thumbs Downs to be censored?

  8. Anonymous says:

    That’s a pretty inaccurate and incomplete summary of what anon 913 said.

  9. Dwight Sullivan says:

    Anon 0913, interestingly one of the cases that was tried capitally did NOT include any murder charge (though it did include an attempted murder charge). In the case of United States v. Straight, 42 M.J. 244 (C.A.A.F. 1995), the Navy sought a death sentence where the only capital offense was rape. The members’ finding of guilty to the rape charge wasn’t unanimous, id. at 247, so a death sentence was no longer authorized when the case reached the sentencing phase. The members ended up adjudging a DD, confinement for 15 years, total forfeitures, and reduction to E-1. The CA reduced the confinement to 13 years (which seems an odd thing to do in a case where the government initially sought a death sentence).

  10. Cossio says:

    anonymous: Wow! Some guy wonders how many victims the people who were convicted of capital crimes killed, and that gets enough Thumbs Downs to be censored?

    First, Death Penalty “awards” have plumeted nationwide, not just the Military (which has always been comparatively low)

    Most “lawyers” are “liberal” and against the death penalty, even if they are JAGs, some even hate the Military themselves, a walking paradox they are. The same mindset has them saying that a Court-Martial of Navy Seals suspected of punching a terrorist in the stomach and lying by saying the terrorist appeard in good health is OK.

    They think these things under the black and white view of “well they broke the law” while going home to their spouses (God knows who else) and committing acts of sodomy and rolling out to their jobs at 0915 to charge a soldier with being to work fifteen minutes late.

    In a word: outstanding.

    Liberalism aside, now back to the death penalty stuff.

    I wrestled with the idea of Capital Punishment.

    On one hand CP satisfies the victim’s families (most of the victim families support CP, in some cases they ask the prosecutor to spare the life of the accused).

    In addition CP is the ultimate form of “Lex Talionis”. From the time of Moses and earlier to Hammurabi’s code lex talionis is the Morally justified and Righteous punishment for any offense. People who make the argument that no loss of life is justified and that “eye for an eye leaves everyone blind” are fools and I long given up debating with them.

    On the other hand my time in jail has made one thing clear: Jail sucks.

    It sucks to be in a segregation cell against your will, and in California’s Death row a lot of inmates just go ahead and kill themselves.

    Thus, Capital Punishment is more humane then life in prison and under segregation 23 hours a day as indicated by the suicide rate

    Because I know personally how the mental anguish is for anyone to be caged like an animal I now switched my opinoin in favor of confinement under segregation, also the death penalty is, I believe from what I read (going off memory) more costly.

    Death Penalty Reform

    Hypothetically, and this is pure fantasy, but I would start off by making CP available only to those cases where there is no doubt (as opposed to reasonable doubt) that the Defendant Committed the Murder. Catching the perp on video, multiple witnesses, a taped confession and conclusive DNA evidence would satisfy this burden. Once that threshold is met, the decision to go for the death penalty should go to the next of kin for the victim or the State where no next of kin can be found.

    If ajudicated there should be one streamlined appeal to the respective Supreme Court and boom, that’s it. None of this wait for ten years crap.

    In other cases where the Jury found the Defendant Guilty beyond a reasonable doubt, but not conclusive enough to know for sure (like Scott Peterson) the Death Penalty should be off the table replaced with life in prison with no parole, locked up for 23 hours, Bread and Water, and forced to watch reruns of A.L.F. starring Max Wright.

    I also support the idea of Penal Colonies with the proceeds going toward a victim’s survivor fund.

    Newsroom / Supreme Court: Death Penalty Is ‘Totally Badass’:

  11. Anonymous says:

    I’m convinced you are part of a performance art troupe, portraying various stereotypes online.

  12. Cossio says:

    You aren’t too far off on my performance.

    But indulge me exactly what you find objectionable.

    1. Simply put I think locking someone up in a segregation cell for 23 hours a day for the rest of their life is a greater punishment then the death penalty.

    2. I believe the Victim’s family should have the say as to whether the death penalty is to be sought. In some instances this is already the practice.

    3. I think the Death Penalty should also only be sought when there is clear and convincing evidence that the person is guilty (i.e. confession, insurmountable DNA evidence with forensics, video tape).

    4. I believe the death penalty should be streamlined with one appeal on cases were the person is overwhelmingly guilty.

    Do you agree/disagree?

  13. Southern Defense Counsel says:

    In reviewing the death penalty rules for the military and the states a few things strike me. First, both the military and the civilians require that there be a unanimous verdict of 12 (or more) jurors in order for a punishment of death to be instituted. This is the norm for the civilian practice, as a non-unanimous verdict means a hung jury. In the military, it will be an conviction unless the verdict is less than 2/3 for guilt. Thus, what would qualify for a mistrial in the civilian world can be LWOP in the military.

    Second, the jury in both jurisdictions vote on the death penalty. However, and this is the one area where Anon 0913’s issue may be, the judge does not have the authority to impose a penalty of death in cases where the jury did not reach that decision unanimously. Some states, such as Indiana, do allow a judge to impose a penalty of death arrived at by a majority of jurors but not unanimously.

    All in all, the penalty phase both civilian and military look strikingly similar. I would also note, that for the time period of 1990-2000 Indiana had over 4000 homicides. Of those the prosecutors sought the death penalty in 153, and a sentence of death was handed down in 25.

    So, the real question here is, is there really a problem? As pointed out numerous time, military society is not civilian society, and the career criminal will generally not last long in the military system (George Carlin not withstanding ;) ). So, Anon 0913, my question to you is, what of these facts makes the military system “cry out” for change? What change could we institute system wide to “even the score.” And, in view of the numbers cited above, do you really still believe that the “score” is so lopsided still?

  14. Phil Cave says:

    http://blogs.findlaw.com/blotter/2009/12/states-death-penalty-rates-see-decline.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+Blotter+%28FindLaw+Blotter%29