Death Penalty Cases In The Military

Death is the authorized punishment for a number of very serious crimes.  However, during peacetime the death penalty has only been sought and imposed in cases of felony-murder and premeditated murder.   If the convening authority approves the sentence, there is a process of mandatory review of the facts, law and appropriateness of the sentence in terms of other similar cases.  There is a right to petition the United States Supreme Court after the military appellate courts have reviewed a case.  The President of the United States must approve all death sentences and signs the death warrant.

Capital Crimes.  In order for a death penalty to be imposed the court-martial members (trial jurors) must reach a unanimous verdict that the servicemember is guilty of the crime.  In the sentencing portion of a court-martial, in addition to the court-martial procedures required for other serious crimes, the members are required to make a unanimous finding that one or more specified aggravating factors exist and that they substantially outweigh any extenuating or mitigating circumstances.  The military is what is called a "weighing jurisdiction."  Throughout the review process, the accused is entitled to free military appellate defense counsel, in addition to retaining a civilian attorney at no expense to the government.

Review Process.  A death sentence imposed by a court-martial must be approved by the convening authority and then reviewed by the appropriate Service Court of Criminal Appeals, and the U. S. Court of Appeals of the Armed Forces, prior to presidential review.  The accused may also petition the U. S. Supreme Court for review.  Assuming affirmation of the sentence at each stage of the review process, the Judge Advocate General (JAG) for a respective Service then forwards the case, with the JAG recommendation, to the Service Secretary.  The Secretary cannot remit or suspend any part of a death sentence.  The Service Secretary must forward the case to the President, usually with a recommendation by that Service Secretary.  The President may request and consider input from the Attorney General, or any other executive branch department.  The President then takes action approving, disapproving, or commuting the death sentence.

Habeas Corpus Petitions.  After the President signs a death warrant, the accused can seek a writ of habeas corpus in the appropriate federal district court.  The right of the accused to a military appellate defense counsel without cost extends to habeas corpus petitions filed in federal court, if requested by the accused.

Execution of Sentences.  Only the President can order the execution of a death sentence.  A sentence to death, which has been finally ordered executed, shall be carried out in the manner prescribed by the Service Secretary concerned.  Currently, executions are by lethal injection.