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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).

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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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of the death penalty: The experience of the United States Armed Forces (1984–2005). Journal of Criminal Law & Criminology , 101 , 1227.

Baldus, D. C., Woodworth, G., & Pulaski, C. A., Jr. (1990). Equal justice and the death penalty . Boston: Northeast- ern University Press.

Barry, K. J. (2002). A face lift (and much more) for an aging beauty: The Cox Commission recommendations to rejuvenate the Uniform Code of Military Justice. Law Review of Michigan State University-Detroit College of Law , 2002 , 57.

Behan, C. W. (2003). Don’t tug on superman’s cape: In defense of convening authority selection and appoint- ment of court-martial panel members. Military Law Review , 176 , 190.

Brooks, D. (2016, December 22). Military to execute murderer and rapist Ronald Gray, a former soldier, after 8-year delay. Fayetteville Observer . Retrieved from http://www.fayobserver.com/af4d3fd2-67d8-50f2-b794- eecc9f703c7c.html.

Cox III, W. T. (chair). (2001). Report of the commission on the 50th anniversary of the Uniform Code of Military Justice (May). Retrieved from www.loc.gov/rr/frd/Military_Law/pdf/Cox-Commission-Report-2001.pdf

Duke, R. D., & Vogel, H. S. (1960). The constitution and the standing army: Another problem of court-martial jurisdiction. Vanderbilt Law Review , 13 , 435.

Essex, T., & Pickle, L. T. (2002). A reply to the report of the commission on the 50th anniversary of the Uniform Code of Military Justice (May 2001): “The Cox Commission.” Air Force Law Review , 52 , 233.

Grosso, C. M., Baldus, D. C., & Woodworth, G. (2010). The impact of civilian aggravating factors on the military death penalty (1984–2005): Another chapter in the resistance of armed forces to the civilianization of military justice. University of Michigan Journal of Law Reform , 43 , 569.

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

Lilly, J. R., & Thomson, M. (1997). Executing U.S. soldiers in England, World War II: Command infl uence and sexual racism. British Journal of Criminology , 37 , 262.

Lindley, J. M. (1990). “A soldier is also a citizen”: The controversy over military justice, 1917–1920 . New York and London: Garland Publishing.

MSNBC. (2005, April 29). Soldier gets death penalty for killing offi cers in Kuwait. MSNBC . Retrieved from http://msnbc.msn.com/id/7667169

Murphy, E. (2014). The military justice divide: Why only crimes and lawyers belong in the court-martial process. Military Law Review , 220 , 129.

Myers, S. L. (2008, July 29). Execution by military is approved by president. New York Times , A13. Paternoster, R., Brame, R., Bacon, S., & Ditchfi eld, A. (2004). Justice by geography and race: The administration

of the death penalty in Maryland, 1978–1999. Margins: University of Maryland Law, Journal of Race, Religion, Gender & Class , 4 , 1.

Prugh, G. S., Jr. (Maj.). (2000). Observations on the Uniform Code of Military Justice: 1954 and 2000. Military Law Review , 165 , 21.

Schlueter, D. A. (2008). Military criminal justice: Practice and procedure (7th ed.). New York: Matthew Bender. Serrano, R. A. (1994, July 12). Last soldier to die at Leavenworth hanged in an April storm. Los Angeles Times , 14. Turley, J. (2002). Tribunals and tribulations: The antithetical elements of military governance in a Madisonian

democracy. George Washington Law Review , 70 , 649.



28 The Death Penalty and the U.S. Armed Forces


United States. (1972). Report of the Task Force on the Administration of Military Justice in the Armed Forces. Washington, D.C.: U.S. G.P.O.

Wiener, F. B. (1958a). Courts-martial and the bill of rights: The original practice (pt. 1). Harvard Law Review , 72 , 1. Wiener, F. B. (1958b). Courts-martial and the bill of rights: The original practice (pt. 2). Harvard Law Review ,

72 , 266. Execution of ex-soldier is stayed. (2008, Dec. 3). Wall Street Journal . A13. Winthrop, W. (1886). Military Law, Vol. 1 . Boston: W.H. Morrison. Winthrop, W. (1920). Military Law and Precedents (2nd. ed.) Washington, D.C.: Government Printing Offi ce. Ziering, A., Barklow, T. K. (Prod.), & Kick, K. (Dir.). (2012). The Invisible War [Motion picture] (U.S.A: 2012).

Cases Cited

Coker v. Georgia , 433 U.S. 584 (1977). Furman v. Georgia , 408 U.S. 238 (1972). Gregg v. Georgia , 42 U.S. 153 (1976). Kennedy v. Louisiana , 370 U.S. 660 (2008). McCleskey v. Kemp , 481 U.S. 279 (1987). O’Callahan v. Parker , 395 U.S. 258 (1969). Proffi tt v. Florida , 428 U.S. 242 (1976). Schick v. Reed , 419 U.S. 256 (1974). Solorio v. United States , 483 U.S. 435 (1987). United States v. Easton , 71 M.J. 168 (C.A.A.F. 2012). United States v. Gay , 16 M.J. 586, 596 (en banc) (A.F.C.M.R. 1983). United States v. Gay , 18 M.J. 104 (C.M.A. 1984). United States v. Matthews , 16 M.J. 354 (C.M.A. 1983). United States v. Rojas , 15 M.J. 902 (N.M.C.M.R. 1981). Willenbring v. Neurauter , 48 M.J. 152 (C.A.A.F. 1998).

Statutes & Executive Order

Articles of War (1863). 12 Stat. 731. Articles of War (1916). 39 Stat. 619. Department of Defense Authorization Act for Fiscal Year 1986, Pub. L. No. 99-145; 99 Stat. 583 (1985). Elston Act (Selective Service Act), ch. 625, § 235, 62 Stat. 604 (1948). Elston Act in 1948. Pub. L. No. 759, § 235, 62 Stat. 604 (1948). Executive Order, Amendments to the Manual for Courts Martial, United States, 1969 (Revised Edition) (1984,

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




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