On 2 July 1957, President Eisenhower approved Army PFC John A. Bennett’s death sentence for the rape and attempted murder of an 11-year-old Austrian girl. On 13 April 1961, PFC Bennett was executed. For 51 years after President Eisenhower acted, no President approved a military death sentence — a statutory prerequisite for the military to carry out an execution.

President Bush ended that half-century hiatus when he approved the death sentence of Army Spec 4 Ronald A. Gray in July. The Army then set a 10 December execution date. The Army planned to carry out the execution at the civilian federal death chamber at Terre Haute, Indiana, but using its own personnel. Then Gray sought a pre-habeas petition stay of execution from the United States District Court for the District of Kansas, which Senior Judge Rogers granted. Judge Rogers turned down the United States’ reconsideration request and entered a scheduling order under which Gray’s habeas petition is due on 1 April 2009.

This development is significant not only on its own terms, but also as an indication that the death penalty had not, as one commentator had argued, “effectively been abolished in the military justice system.” The launching of a habeas challenge to an approved death sentence probably also represents the greatest hope to bring consistency to the various circuits’ scopes of review that they apply when conducting collateral reviews of court-martial convictions, a problem that we discussed all the way back in the summer of 2007 here and, even earlier, here, where we noted this quotation from a brief by the Solicitor General:

As one court of appeals recently noted, since this Court’s decision in [Burns v. Wilson, 346 U.S. 137 (1953),] “[t]he degree to which a federal habeas court may consider claims of errors committed in a military trial has * * * been the subject of controversy and remains unclear.” Brosius v. Warden, U.S. Penitentiary, 278 F.3d 239, 242 (3d Cir.) (Alito, J.), cert. denied, 537 U.S. 947 (2002).

Brief for the Respondents in Opposition, New v. Gates, No. 06-691, at 12 (March 2007).

On the other hand, here’s an interesting (but no doubt heterodox) law review article in which Professor Amanda Frost of AU’s Washington College of Law argues that SCOTUS gives too much weight to resolving circuit splits when deciding which cases to grant and that it should “adjust its case selection process to de-emphasize uniformity in favor of other values.” Amanda Frost, Overvaluing Uniformity, 94 Va. L. Rev. 1567, 1630-39 (2008).

We’ll continue to follow the habeas litigation in Gray in 2009.

Happy New Year, everyone! We’ll post #3 in the top 10 list next year — er, tomorrow.

One Response to “Top 10 military justice stories of 2008 — #4: The President’s approval of a military death sentence”

  1. Dew_Process says:

    What’s interesting is that Gray’s case languished in the ether of the DoD for so long, knowing of the CinC’s proclivity to deny all clemency, even of actual innocence.