Soldiers Sentenced to Die, but No Executions on Military Death Row Since 1961

by Joe Watson

The guilty verdict and death sentence handed down on August 28, 2013 against U.S. Army Major Nidal Malik Hasan for a 2009 shooting rampage at Fort Hood, Texas that left 12 soldiers and one civilian dead and more than 30 others wounded highlighted a curious fact: no one on the military’s death row at the U.S. Disciplinary Barracks in Fort Leavenworth, Kansas has been executed since 1961.

Lawyers and military experts say that statistic is driven by the complexities of the military’s judicial system, legal questions surrounding the crimes for which capital punishment is an option and the often-secluded culture of military service.

“The military is a community of solidarity, a brotherhood and sisterhood, all to its own,” defense attorney Teresa Norris told CNN for a special report. “There is a real reluctance to execute fellow soldiers unless it’s absolutely the worst kind of case and this is the only way.”

Norris, a former military defense attorney turned civilian, represented former Army Pfc. Dwight Loving, who was sentenced to die in 1989 after robbing and killing two cab drivers – a retired sergeant and a soldier working part-time for extra money – at Fort Hood.

When he was sent to the U.S. Disciplinary Barracks, to a now-obsolete prison known as “The Castle,” Loving expected he would be the first person put to death by the military since Army Pvt. John A. Bennett was hanged six years after his 1955 conviction for the rape and attempted murder of an 11-year-old Austrian girl.

“Me and my client were essentially expecting an execution within 18 months, and here we are all these years later,” Norris said of Loving, who now awaits execution in Leavenworth’s new, so-called “state-of-the-art” military prison, which holds a half-dozen men on death row. Of those six, Loving and fellow prisoner Ronald Arthur Gray have been incarcerated for more than 25 years after being sentenced to death.

According to the non-profit Death Penalty Information Center in Washington, D.C., the U.S. military has executed 135 men since 1916 for crimes that include murder and rape. The rate of executions slowed considerably, however, in the years following World War II, and by 1983 several death sentences had been overturned and converted to life sentences after an appeals court held that the death penalty was unconstitutional based on the armed forces’ sentencing guidelines, mirroring the controversy surrounding capital punishment in civilian courts.

Even though then-President Ronald Reagan reinstated the military’s death penalty a year later, 11 of the 17 servicemen sent to death row since 1984 have had their sentences overturned – two by commanding generals and nine by military appeals courts based on how generals applied the law. Because commanding generals retain discretion in deciding who lives and who dies, regardless of what a jury elects, the system has drawn heavy criticism.

“Even if you have two identical cases, one being prosecuted by one commander at one base and another being prosecuted by a commander at another base, you may have different outcomes because the commanders may have different philosophies,” explained Dwight Sullivan, a former Marine prosecutor and judge who now works as a civilian attorney focused on military death penalty appeals.

Since the Gulf War of 1991, the United States’ first major deployment of troops since Vietnam, and the military’s adoption of life without parole sentences in 1997, fewer death penalty cases have been prosecuted, signaling a reluctance by the military to execute personnel who have served in armed conflicts in Iraq and Afghanistan.

Legal experts have also questioned whether capital punishment is an appropriate sentence for all of the offenses for which military law states it may be imposed. The key issues, they say, are desertion and misbehavior before the enemy during a time of war, for which the death penalty is a possible sentence.

The last execution for desertion occurred in January 1945, when Pvt. Edward D. Slovik was executed by firing squad in France, becoming the only U.S. service member executed for a purely military offense since the Civil War. Supreme Allied Commander Gen. Dwight D. Eisenhower ignored Slovik’s plea for leniency, hoping to stem a rising tide of desertions by making his execution an example to other soldiers.

More recently, the military death penalty was thrust into the limelight when the Army filed charges against Sgt. Bowe Bergdahl on March 25, 2015, for desertion and misbehavior before the enemy for walking away from his post in Afghanistan on June 30, 2009. Bergdahl was captured by the Taliban shortly thereafter and held prisoner for almost five years; some members of his former platoon have blamed him for the deaths of up to six U.S. soldiers during search operations after he abandoned his post. The Taliban returned him to the U.S. in May 2014 in exchange for five prisoners held at the military prison in Guantanamo Bay, Cuba.

Noel Tipon, an attorney in Hawaii who specializes in defending service members, said that while the death penalty was an option for Bergdahl, it was highly unlikely because he was not directly involved in any of the other soldiers’ deaths.

“The decision to refer something capital, especially in a case where an action didn’t lead to the death of another individual as a result of that misconduct, is undertaken very soberly and very deliberately,” Tipon said. “That’s such a tough call to make because typically a death-penalty-eligible case is for murder. It isn’t second- or third-order effects, as they say in the military, of what the misconduct was.”

Another issue, Tipon noted, is whether the United States was actually at war when Bergdahl left his post. The “Authorization for Use of Military Force,” passed by Congress and signed by President George W. Bush on September 18, 2001, is not the same as a Congressional declaration of war. Tipon said it was “unclear” whether the 2001 authorization could be used in applying the death penalty.

Navy attorney Lt. Cmdr. Rich Federico called on Congress to abolish capital punishment for unique military, non-homicide offenses in a 2013 paper published in the Berkeley Journal of Criminal Law, claiming that since 1984, no U.S. service member has faced the death penalty for a crime that would not carry the same penalty in a civilian court.

In Major Nidal Hasan’s case, the death penalty triggered a lengthy military appeals process, starting with a January 29, 2015 hearing. The lead counsel for Hasan’s defense has since become an Army judge, and nearly 18 months after Hasan was sentenced to death, Fort Hood officials had not yet reviewed his case – a mandatory step in the appellate process.

While the death penalty may have lost its luster in military courts, Army spokesman Lt. Col. S. Justin Platt said that doesn’t mean executions won’t be carried out in the future.

“Adherence to the law, due process, and respect for the rights of someone accused of crime, combined with respect for civilian oversight of the military justice system, should not be mistaken for an unwillingness to execute the law,” Platt stated.

In regard to Sgt. Bergdahl, Pentagon officials have declared there is no evidence that the abandonment of his post resulted in the deaths of other soldiers, and in October 2015, following an Article 32 proceeding, an Army officer recommended that Bergdahl face a special court martial but not serve any jail time.

Sources: www.cnn.com, www.stripes.com, www.mcclatchydc.com, www.theguardian.com, www.military.com