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Resistance in the Noncapital Context

In the noncapital context, military leaders resisted a number of civilianizing reforms. The same leaders perceived the adoption of the Uniform Code of Military Justice (UCMJ) in 1950 as unnecessarily imposing civilian procedures on military courts for the “primary purpose” of “creat[ing] a system that would be regarded with favor by the public, which would earn and hold the public’s confi dence” (Prugh, 2000, p. 25). Offi cers raised concerns that adopting the UCMJ “made the effective [and effi – cient] administration of military discipline within the Armed Forces more diffi cult” (29–30). Colo- nel Frederick Wiener, who was at one time a strong voice for those opposing civilianizing changes, argued that the requirement that the accused in a military trial be represented by qualifi ed lawyers (as imposed by the UCMJ in 1950) was unnecessary and impractical (Barry, 2002, p. 72). 10 At least one offi cer argued, “The pendulum has swung . . . from too much emphasis on the ‘military’ aspect of military justice to too much emphasis on the civilian procedural aspects of law” (Prugh, 2000, p. 30).

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While acceptance of the UCMJ grew over time, the resistance to imposing civilian procedures and protections on military justice continues until today. This is refl ected in resistance to suggestions by the 2001 Commission on the 50th Anniversary of the Uniform Code of Military Justice (the “Cox Commission”) that the convening authority, a senior offi cer who functions as the prosecutor in military cases, relinquish control over the selection of the members who serve in courts martial (Cox, 2001). The Cox Commission recommended limiting the role of the convening authority, com- menting that “the far-reaching role of commanding offi cers in the court martial process remains the greatest barrier to operating a fair system of criminal justice within the armed forces” (7–8). This recommendation refl ects the concern that members may feel the need to vote to convict the accused to curry favor with their commanding offi cer who, in fact, prosecutes the case.

The Cox Commission report anticipated that this recommendation would engender controversy, and it did. Scholars argued that limiting the role of the convening authority would be inconsistent with the needs of military command (e.g., Essex & Pickle, 2002; Behan, 2003). No action has been taken to implement this recommendation. Similar concerns appeared in the face of parallel reforms with respect to sexual assault (Murphy, 2014).

The Capital Context

Grosso, Baldus, and Woodworth (2010) used the same data used in the race study to examine this issue in the capital context. Their analysis turns on the treatment of “military murders.” A military murder is not “a murder committed by a member of the U.S. armed forces.” Every murder in the study was committed by U.S. military personnel. “Military murder” concerns the nature of the murder rather than the perpetrator. A “military crime” in this context is a crime that has a “reasonably direct and palpable” impact on “good order and military discipline” (Winthrop, 1920, p. 723; see also Duke & Vogel, 1960). This might include some crimes that could also be recognized in civilian courts, but if the circumstances in which they occurred “directly affect military relations and prejudice military discipline” they may be considered military crimes (Winthrop, 1920, p. 724). As applied in this study, two characteristics led to coding a case as “military murder”: an attack on an offi cer or a race motive. We coded all other cases as “civilian cases.”

Grosso and colleagues found an abrupt distinction between the charging and sentencing practices in the fi rst six years after the 1984 order and the charging and sentencing practices after 1990. Until



Catherine M. Grosso


1990, the military administered the death penalty as required by the written law. In contrast, after 1990 charging and sentencing practices turned many of the civilianizing aspects of the 1984 order into dead letter. In the cases between 1990 and 2005, the death penalty was reserved for a distinct subset of “militarily implicated” cases.

Table 28.2 updates their research by including the two death sentences imposed since 2005 and illustrates their fi ndings among the death sentenced defendants. All of the cases in the table arose under Section 118 (murder). Table 28.2 presents a list of these cases with a few details of the crime and the year the sentence was imposed. Table 28.2 also characterizes the status of the murder as typical of “civilian” murders or somehow uniquely “militarily implicated.”

Table 28.2 Death Sentenced Accused, 1984–2017 (by year of sentence)


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