“Traditionally,” wrote Justice Black in 1957, “military justice has been a rough form of justice.” But clemency always played a big role. For centuries – dating at least to the Articles of War established in 1806 – American military commanders had the final say over whether any court-martial sentence would actually be executed.

But that power was significantly curtailed in 2014, when Congress amended Article 60 in the wake of the Wilkerson court-martial. Other clemency powers, however, remain within the UCMJ. They include a Presidential clemency power in Article 71(a), and Secretarial clemency powers in Articles 71(b) and 74. The Article 74 Secretarial clemency power is particularly significant because it may be delegated to commanding officers (and in some services it is delegated all the way to the general court-martial convening authority). The President also has the independent, constitutionally-based power to grant reprieves and pardons.

Two significant acts of clemency in military justice cases make commutations and clemency the #9 Military Justice Story of 2017: The commutation of the death sentence for Private Loving, and the commutation of Private Manning’s 35-year sentence for espionage.

Private Loving murdered two taxicab drivers in Killeen, Texas (near Fort Hood), and attempted to murder a third, on December 12, 1988. He was apprehended the next afternoon and confessed to the crimes. A general court-martial composed of just eight members convicted Loving of various offenses including premeditated murder, and sentenced him to death. The Supreme Court granted certiorari and affirmed in 1996.

Private Manning stole hundreds of thousands of classified documents and gave them to Wikileaks. Manning’s subsequent pretrial confinement generated its own headlines, and media organizations fought for broad access to the trial proceedings. Manning eventually pleaded guilty to some offenses, was convicted of others, and received a sentence that included confinement for 35 years.

President Obama commuted both sentences on January 17, 2017; three days before the end of his second term. Loving’s death sentence was commuted to life without the possibility of parole. Manning’s 35-year sentence to confinement was commuted to confinement until May 17, 2017 (effectively a 7-year term).

Loving’s commutation reduced the population of military death row to just four: Gray, Akbar, Hennis, and Hasan (Witt is pending a sentence rehearing). But Loving remains confined.

Manning was released and remains something of a media darling who was briefly slated to be a visiting fellow during the 2017-18 academic year at the Institute of Politics (IOP) at Harvard Kennedy School. Public outrage led to a quick reconsideration.

Both commutations are controversial and seem rather undeserved. Manning’s commutation is particularly dubious, since the findings and sentence hadn’t yet been reviewed by any appellate court (and seemingly won’t be, as Manning’s public comments suggest that appellate review was withdrawn). It’s hard to tell just why President Obama decided to act in these two cases in particular. But the President has the power, and last-minute executive actions are often controversial.

Nevertheless, clemency is about mercy and compassion. Hopefully we’ll see more of that in the otherwise rough military justice system.

5 Responses to “Top Ten Military Justice Stories of 2017 – #9: Commutations & Clemency”

  1. Scott says:

    It’s hard to evaluate the real impact of the limitations on convening authority clemency.  In the years leading up to the change, despite a few high profile cases, it was almost never exercised in a significant way, so the accused only lost an avenue of relief that wasn’t overly wide to begin with.  Clemency in sexual assault cases was effectively eliminated via pressure (e.g. Barry) before it was officially eliminated via legislation. 
     
    On the other hand, from a theoretical level, convening authority clemency played a unique role in the unique MJ system.  In a system where preliminary hearing determinations are not binding, and SMs can be convicted without an  unanimous verdict, the risk of unjust convictions is necessarily increased.  An early-stage shot at clemency under these circumstances makes sense as a bulwark against bad convictions.  
    Maybe a more practical impact of the elimination of convening authority clemency, is the inability to grant limited relief for alleged procedural error in order to stave off potential issues on appeal.  It used to be common for SJAs to recommend some form of sentence reduction in response to legal error raised by the defense in clemency matters.  Then if the appellate court agreed that there was error, a sentence reassessment might be avoided because the sentence had already been reassessed and reduced.  

  2. Charlie Gittins says:

    I saw the practical application of the CA’s Clemency power when I was SDC in Okinawa. A young Sergeant had sexx with a local national.  The Marine was Afro-American.  The local national’s boyfriend found out about her sexcapade, so when he confronted her with it she claimed rape “He laped me.”  The Marine was charged with rape and forcible sodomy because she also did a sword swallowing act that she said was forced.  The SGT testified at trial.  He denied forced sex and he was a convincing witness.  She was not so.  The members were instructed on the LIO of consensual sodomy because in the SGT’s testimony he acknowledged consensual BJ.  The members acquitted of the force offenses, but convicted on consensual sodomy.  Apparently, there was some “disagreement” in the deliberation room about who in that room might also have been guilty of such an offense.  The did convict but sentenced the SGT to a reprimand at a GCM.  The GCMCA set aside the finding of guilty and dismissed the charge when the case came to him for action.  Not sure that can happen these days, but it was certainly the right thing then and would be now under the same circumstances.    

  3. stewie says:

    What detailed information do you have to say that either clemency was “undeserved?” I have little information to say they were either deserved or not, although I have some information on one of them to suggest this isn’t out of left field.
     
    He gave clemency to Loving but not the other death row inmates…does that not suggest he was presented with some sort of compelling to him information that made him treat Loving differently? Doesn’t mean that was the “right” answer, but doesn’t make it undeserved either.

  4. Zachary D Spilman says:

    I don’t say that it was undeserved, stewie. I say that it seems that way. And it does.

    President Obama didn’t explain why he granted clemency to Loving or Manning, and he doesn’t have to. I wonder why he did it, but I don’t fault him for doing it. Rather, as I wrote, I hope we’ll see more of it in the otherwise rough military justice system.

    Another reader sent me a note highlighting that Loving’s case was on President Obama’s desk for final action under Article 71(a), so the commutation was in the context of otherwise-routine action. I suppose that counts for something. But clemency isn’t a zero-sum game; there’s no limit. So when the power is exercised in certain cases but not others, I think it’s entirely fair to make comparisons and wonder why.

  5. stewie says:

    “Seems” undeserved how then? Based on what? If you only ever judged clemency on solely the offense, you’d think it “undeserved” more times than not…but that’s usually not what clemency is based on.