Year in Review

“The more things change, the more they stay the same” is how I characterized the state of the military death penalty more than four years ago.  Global Military Justice Reform: Death row SITREP (globalmjreform.blogspot.com).  As 2022 draws to a close, that description remains apt.
 
Ronald Gray has been a military death row inmate longer than anyone.  He 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 only time a President has approved a military death sentence since the Eisenhower administration.  Gray currently has a habeas petition pending in the United States District Court for the District of Kansas.  That petition has been stayed since March 2022 as the court and the parties await rulings from the 10th Circuit in two cases that could provide guidance concerning Article III courts’ scope of review when considering collateral attacks to court-martial proceedings.  Those two cases--Santucci (20-3149) and Bales (20-3167)—were each argued in September 2021, so decisions could be imminent.
 
Hasan Akbar has been Gray’s neighbor the longest.  Akbar was sentenced to death in 2005 for two specifications of premeditated murder and three specifications of attempted premeditated murder on March 22, 2003, when he attacked members of the 101st Airborne Division as they prepared to invade Iraq.  SCOTUS denied his cert petition in 2005, making the case ripe for presidential action.  (In the military justice system, the president must take the affirmative step of approving a death sentence to allow it to be carried out.  UCMJ art. 57(a)(3), 10 U.S.C. § 857(a)(3).  As Gray’s case demonstrates, however, even after presidential action, there will likely be a long delay before an execution actually occurs—if one ever does.)
 
Master Sergeant Timothy Hennis, U.S. Army (Ret.), arrived on military death row in 2010, having been sentenced to death by a court-martial for three murders in 1985 for which he was originally convicted and sentenced to death in a North Carolina state court and then, following the North Carolina Supreme Court’s reversal on evidentiary grounds, acquitted. SCOTUS denied cert in 2021, making the case ripe for presidential action.  It may be the most interesting case in the history of military justice.
 
The most recent arrival on military death row is Major Nidal Hasan, who was sentenced to death in 2013 for 13 specifications of premeditated murder and 32 specifications of attempted murder arising from his 2009 attack against personnel at Fort Hood.  ACCA affirmed the death sentence in 2020.  United States v. Hasan, 80 M.J. 682 (A. Ct. Crim. App. 2020) (en banc).  The case is currently being briefed at CAAF; appellant’s reply brief is due on Jan. 3, 2023.  An oral argument during calendar year 2023 seems likely.
 
No U.S. military execution has occurred since April 13, 1961.  Plus ça change . . . .

Dwight Sullivan

[Disclaimer:  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.]