Among the many reforms to military justice in the 2016 Military Justice Act are two related changes to the military’s death penalty system. Each of these changes are intended to address criticisms of the military death penalty process and like other reforms more fully align the military system with its civilian counterparts. The two changes focus on the appointment of military defense counsel at both the trial and appellate stages. Article 27 was amended and now requires that in capital cases, to the greatest extent possible one of the defense counsel must be learned in the law of capital cases. Article 70 was also changed to require to the greatest extent possible at least one appellate defense counsel in capital cases to be learned in the law of capital cases. What this means in practice is that at least one defense counsel in all capital cases at all stages of the process must have prior experience in capital litigation. Of course the changes qualify this “requirement” by recognizing that it may not be possible to find a military defense counsel with that level of experience, thus the requirement may be more aspirational than real.
These changes to Articles 27 and 70 are among a series of changes to the military’s death penalty system over the past few years. The other most recent notable change was to Article 25(a) that now requires all death penalty cases to have a panel of 12 members, as opposed the panel of 8 members required for all other non-capital general courts-martial.
These changes clearly indicate that the military death penalty system has gotten the attention of those looking to both modernize and civilianize military justice. However, with all this attention what has been lacking is a much more in-depth and critical examination of the role of capital punishment in the military. The fact is that the military does not actually have a capital punishment system. Rather, it has a capital sentencing system. The military has not actually carried out a death sentence in over 50 years. The last service member executed was Army Private John A. Bennett in 1961 for the crimes of rape and attempted murder. The Navy has not executed a service member since 1848. Given this reality, the question that reformers should be asking is not how to make military capital punishment more like civilian systems but rather, does the military even need capital punishment.
The fundamental rationale for the military justice system is to ensure good order and discipline within the ranks. It would be hard to argue that a capital punishment system that had not been used in over half a century is an essential part of military justice or good order and discipline. Maybe it is time to ask whether capital punishment, like branding and like confinement on bread and water has outlived its usefulness.
Prof. Victor Hansen