“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.