2 There appears to be one capital crime—espionage—that was added since 1950. It was created by the Depart- ment of Defense Authorization Act for Fiscal Year (1986).
3 During the 1960s, the Supreme Court found that courts martial had jurisdiction to try servicemen only when the crime had a “service connection” ( O’Callahan v. Parker , 1969, p. 272). However, in 1987 the Court abandoned the “service connection” requirement, holding that court martial jurisdiction was established by one factor—the military status of the accused ( Solorio v. United States , 1987, p. 439).
4 The death penalty sections of Article 118 of the UCMJ as adopted in 1950 read as follows: “Any person subject to this code who, without justifi cation or excuse, unlawfully kills a human being, when he (1) has a premeditated design to kill; . . . or (4) is engaged in the perpetration or attempted perpetration of burglary, sodomy, rape, robbery, or aggravated arson; is guilty of murder, and . . . shall suffer death or imprisonment for life as a court martial may direct.”
5 See for example Rule 1004(c)(3) (accused had intent (i) to “cause substantial damage to the national security of the United States”), Section (c)(2)(B) (ii) (accused “knowingly created a grave risk of substantial damage to a mission, system, or function of the United States” if such damage “would have resulted had the intended damage been effected”), or Section (c)(5)(“the accused committed the offense with the intent to avoid haz- ardous duty”).
6 For example, a study in Maryland found that prosecutors advanced to trial seeking a death sentence in 27% of the death-eligible cases (353/1311) (Paternoster, Brame, Bacon, & Ditchfi eld, 2004, p. 24). Similarly, a Virginia study of cases prosecuted between 1995 and 1999 found the state sought a death penalty 30% of the time during that period (Joint Legislative Audit, 2002, p. 51 tbl. 17).
7 The cases of eight additional accused who were charged capitally but acquitted of capital murder by members are included only in the analysis of convening authority charging decisions.
8 The three different decision points were capital charging decisions by convening authorities, guilt trial decisions by courts-martial members, and death-sentencing decisions by members in a capital sentencing hearing.
Catherine M. Grosso
9 Here, “civilianize” refers to the procedural protections imported from the civilian courts in an effort to reform the military system.
10 Wiener later argued that the Sixth Amendment right to counsel does not apply to the military justice sys- tem (Wiener, 1958a, p. 49). At the same time, in a second 1958 paper, Wiener wrote with favor about the rights accorded members of the military by Congress and seemed to approve of the reforms (Wiener, 1958b, pp. 303–304).
11 Hennis was convicted of murder and sentenced to death in 1986 for raping and murdering a woman (by stabbing) and then killing her two young daughters by slitting their throats. Following a retrial after appeal, a new jury acquitted him in April 1989. The military opened a case against him in 2006 after DNA evidence implicated him more clearly and civilian authorities were barred by the constitutional protection against double jeopardy.
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Joint legislative audit and review commission of the Virginia General Assembly, review of Virginia’s system of capital punish- ment (2002, January). Retrieved from http://jlarc.state.va.us/reports/rpt274.pdf
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28 The Death Penalty and the U.S. Armed Forces
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January 24). Model Penal Code, Section 210 (withdrawn 2009). Uniform Code for Military Justice (UCMJ), 10 U.S.C.A. Subt. A, Pt. II, Ch. 47 (2017).
The Death Penalty’s Consequences