“The more things change, the more they stay the same” is a common cliché. Even its French origin – “Plus ça change – plus ç’est la même chose” – is comfortably familiar. Less well known is its source. The phrase’s author was Alphonse Karr, a French journalist and novelist. The epigram appeared at the end of a short item in the January 1849 issue of his monthly periodical, Les Guêpes (The Wasps). ALPHONSE KARR, LES GUÊPES. SÉRIE 6 (ED. 1867-74) at 305. The essay that preceded it argued in favor of capital punishment. Id. at 304-05. That placement seems appropriate for a discussion of the state of the military death penalty. There have been some significant recent developments. Yet the more things change, the more they stay the same.
Starting with Gary Gilmore’s death-by-firing-squad on January 17, 1977, 34 states and the federal government have carried out 1477 post-Furman executions. Yet, despite court-martial panels adjudging 17 death sentences since President Reagan promulgated the U.S. military’s post-Furman death penalty system on January 24, 1984, the military has carried out none. Fifty-seven years have passed since the last military execution.
Today there are four inmates confined in a pod in the U.S. Disciplinary Barracks’ special housing unit that is military death row: Ronald Gray, Hasan Akbar, Timothy Hennis, and Nidal Hasan. All were convicted by an Army court-martial of at least two premeditated murders. The man who has been there the longest, Gray, was sentenced to death on April 12, 1988 for a series of murders and rapes in the Fort Bragg area. On July 28, 2008, President George W. Bush approved his death sentence – the first time a President approved a military death sentence since the Eisenhower administration. Almost a decade later, on June 28, 2018, the Supreme Court denied certiorari in Gray’s case, declining to review the U.S. Court of Appeals for the Armed Forces’ dismissal with prejudice of his writ-appeal. United States v. Gray, 77 M.J. 5 (C.A.A.F. 2017) (per curiam), cert. denied, 86 U.S.L.W. 3650 (June 28, 2018). Gray will presumably now return to the U.S. District Court for the District of Kansas to resume his collateral attack on his death sentence.
The news on June 28, 2018 was considerably better for another military death row inmate, Timothy Hennis, whose death penalty case is currently being briefed at CAAF. In Gamble v. United States, the petitioner was first convicted in Alabama state court of being a felon in possession of a firearm. For that and marijuana possession, he was sentenced to confinement for a year. Gamble was then tried in U.S. district court for being a felon in possession of a firearm arising from the same incident that led to his state conviction. After unsuccessfully arguing that his conviction in federal court was barred by the Fifth Amendment’s double jeopardy clause, Gamble was sentenced to 46 months’ imprisonment, three years of supervised release, and a $100 assessment. On the same day that it denied certiorari in Gray’s case, the Supreme Court granted certiorari in Gamble’s to answer this question: “Whether the Court should overrule the ‘separate sovereigns’ exception to the Double Jeopardy Clause.” Gamble v. United States, 86 U.S.L.W. 3650 (No. 17-646). If Gamble prevails, Hennis will be an even bigger winner. In 1989 – after having previously been convicted and sentenced to death in North Carolina state court only to have that death sentence overturned on appeal – Hennis was acquitted of three murders and rape in a second state trial. Under the separate sovereigns doctrine, he was convicted by a court-martial of those same crimes and sentenced to death in 2010. If the Supreme Court invalidates the separate sovereigns doctrine in Gamble, military death row’s population will likely decrease by one.
On Friday, July 6, 2018, an Air Force court-martial panel in Kansas declined to increase military death row’s population by one. The panel resentenced Andrew Witt to confinement for life without eligibility for parole for two murders and one attempted murder committed in 2004, his previous death sentence for those offenses having been reversed by CAAF. United States v. Witt, 75 M.J. 380 (C.A.A.F. 2016). Witt was the 13th service member under the current military justice system to have his death sentence set aside by one means or another. None has had his death sentence reimposed. Witt was the third to face an actual capital resentencing proceeding. Like Todd Dock and Wade Walker before him, he received a non-capital sentence at his retrial.
The Military Justice Act of 2016 will change the military death penalty system in several important ways. Effective January 1, 2019, it will eliminate the convening authority’s power to commute a death sentence – a power that survived Congress’s 2013 limitations on convening authorities’ clemency powers. See National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113–66, div. A, title XVII, § 1702(b), 127 Stat. 955 (2013). Of the 17 adjudged death sentences in the current system, two were commuted by convening authorities – though the more recent of those two commutations occurred in 1990. An accused will be allowed to enter a guilty plea to a capitally referred charge. The number of members in a capital court-martial panel will be fixed at 12, rather than 12 being the minimum. And a learned defense counsel requirement – subject to an impracticability exception – will apply at both the trial and appellate levels.
Yet despite those reforms, the military justice system remains for now what it has been for decades: a death penalty jurisdiction in theory but not execution. Plus ça change. . . .
[Disclaimer and Disclosure: The views presented are those of the author and do not necessarily represent the views of DoD or its components; they are made in the author’s personal capacity and should not be imputed to anyone else. The author has served as an appellate defense counsel in four military capital cases, including the Witt and Walker cases mentioned in this post.]