March 26
OKLAHOMA:
Michael Portillo inspires Oklahoma to consider execution by nitrogen----As US
states look for alternatives to lethal injection Oklahoma is on the verge of
becoming the 1st to allow for asphyxiating death row inmates
Oklahoma is moving forward with plans to become the first US state to allow
executions using nitrogen gas after being inspired by a BBC documentary in
which Michael Portillo suggested it was the most painless way to implement
capital punishment.
States where the death penalty is imposed are scrambling for alternative
methods as pharmacies that provide drugs for lethal injection increasingly
refuse to do so on ethical grounds.
Later this week Oklahoma's Senate will vote on allowing death by "nitrogen
hypoxia". The proposal has already been approved by a large majority in its
lower house and it would become the state's first back-up option if lethal
injection drugs run out.
Mike Christian, the Republican state politician behind the plan, has said his
opinion on using nitrogen was "solidified" after he saw a 2008 BBC Horizon
documentary called How to Kill a Human Being in which Michael Portillo, the
former British Cabinet minister, searched for the most humane execution option.
In the film Mr Portillo, who as an MP voted both for and against the death
penalty, said: "After some investigation I think I've come up with a perfect
killing device, an entirely humane way of killing a prisoner who is under
sentence of death. It's nitrogen, which renders him at first euphoric, and then
makes him unconscious pretty quickly and he dies entirely without pain."
Mr Christian said recently: "I believe it's revolutionary. It's probably the
best thing we've come up with since the start of executing people by
government. You can pick up nitrogen anywhere they use it. Industrially, you
can pick it up at a welding supply company."
Condemned prisoners would be asphyxiated by putting a mask on them which would
be used to replace oxygen with inert nitrogen. Supporters say the person would
experience brief euphoria, lose consciousness after about 10 seconds, and their
heart would stop beating within 2 minutes. According to Amnesty International
no US state has ever used nitrogen gas to execute an inmate and it had no
reports of the method being used in other countries.
Ryan Kiesel, executive director of the American Civil Liberties Union in
Oklahoma, said: "We would be experimenting on the condemned using a process
that has been banned in many states for the euthanasia of animals."
In Oklahoma, where three people were scheduled to die next month, executions
are already on hold following a botched lethal injection last year. Clayton
Lockett, convicted of murder, took 43 minutes to die.
The US Supreme Court is reviewing the state's lethal injection procedures after
remaining death row inmates claimed they were inhumane.
Earlier this week Utah approved the firing squad as its back-up method if it
runs out of lethal injection drugs.
(source: The Telegraph)
CALIFORNIA:
Attorney General Reportedly Moving To Block 'Death Penalty For Gays' Ballot
Initiative
California Attorney General Kamala Harris is reportedly moving to prevent a
ballot proposal criminalizing sodomy and allowing the death penalty for anyone
who "touches another person of the same gender for purposes of sexual
gratification" from ever appearing on the California ballot, according to
Patrick McGreevy of the Los Angeles Times.
Huntington Beach attorney Matt McLaughlin filed papers to begin gathering
signatures for the ballot measure, known as the "Sodomite Suppression Act," on
February 26th. Harris??? move would effectively prevent signature gathering.
In California's "direct democracy" any citizen can follow procedures to propose
just about any law. That doesn't mean that any law could pass, and even if
passed, it doesn't mean that any law could actually go into effect. Even laws
passed by a majority of California voters may been overturned by judicial
review, as was the case in the Prop. 8 gay marriage debate.
This latest initiative is creating news not because of what it would do if
passed but because of the fact that it, so far, stopping it has not been
possible.
Along with the required $200 fee, McLaughlin's letter asking for certification
of his initiative includes the following language: "The abominable crime
against nature known as buggery, called also sodomy, is a monstrous evil that
Almighty God, giver of freedom and liberty, commands us to suppress on pain of
our utter destruction even as he overthrew Sodom and Gomorrha."
The Sacramento Bee reports that the Legislature's Lesbian, Gay, Bisexual and
Transgender Caucus has now written a letter to the State Bar calling into
question McLaughlin's fitness to practice law.
A petition to take away his law license already has over 40,000 signers.
(source: CBS news)
WASHINGTON:
Life or death? Penalty phase next for McEnroe, found guilty in Carnation
slayings
The same jurors who concluded Joseph McEnroe killed 6 members of a family in
Carnation will now decide if he should live or die.
The King County jury on Wednesday found McEnroe guilty of 6 counts of
1st-degree aggravated murder in the fatal shootings during a holiday gathering
on Christmas Eve 2007. The jurors found the murders included aggravating
circumstances, because of the number of victims, because they were part of a
common scheme or plan and because some were committed to conceal a crime.
As a result, McEnroe faces 1 of 2 possible sentences: life in prison without
parole, or death.
Starting on Tuesday morning, the jury will determine the sentence during a 2nd
trial called the "penalty" phase. During the trial, which is expected to last 3
weeks, the defense will present mitigating evidence about McEnroe's troubled
past in hopes of winning leniency.
It's the state's job to prove "there's not enough mitigating circumstances to
warrant life," said King County Senior Deputy Prosecutor Scott O'Toole, who
tried the case. But at the end of the day, what happens to McEnroe "will be
(the jury's) call."
If the jury decides on a death sentence, McEnroe will be the 1st person
condemned to death in King County since 2010, when Conner Schierman was
convicted of killing a Kirkland family of 4.
The jury returned the 6 guilty verdicts in a hushed and crowded Seattle
courtroom just after 1:30 p.m. Wednesday after deliberating for about a day and
a half. McEnroe, 36, appeared to show little emotion when the verdict was read.
Pam Mantle, the mother of Erica Anderson, one of the victims, said the verdict
was a relief, while acknowledging there will never be any closure for relatives
of the 6 victims, who included 2 young children.
"I needed to hear somebody say 'guilty,'" she said.
"We're very pleased with the verdict that came back from the jury," added
O'Toole. "There's still more to go."
During 2 months of testimony and closing arguments earlier this week, jurors
heard grisly details of the mass slayings, which took the lives of 3
generations of the Anderson family during a holiday gathering. It was the
deadliest act of violence in King County since Kyle Huff, 28, fatally shot 6
people and wounded two before taking his life on March 25, 2006, on Seattle's
Capitol Hill.
Because of taped confessions and jailhouse interviews given by McEnroe and
co-defendant and former girlfriend Michele Anderson, the facts of the slayings
were hardly in dispute during the trial. Anderson, 36, who is also charged with
6 counts of aggravated murder and could also face the death penalty, will be
tried later this year.
Horrific crime
According to testimony, McEnroe and Anderson armed themselves and drove their
pickup to the home of her parents, Wayne Anderson, 60, and Judy Anderson, 61,
on the afternoon of Dec. 24, 2007.
Once inside, McEnroe distracted Judy Anderson, who was wrapping Christmas
gifts, while Michele shot her father, O'Toole told the jury. After Michele's
gun jammed, McEnroe then killed Wayne and Judy Anderson, O'Toole said.
The 2 then hid the bodies and carefully cleaned the home and waited for Michele
Anderson's older brother, Scott, his wife, Erica, both 32, and their 2 young
children, O'Toole said.
Once the family arrived, Michele Anderson shot her brother, according to
O'Toole. McEnroe then shot Erica Anderson and the children, 5-year-old Olivia
and 3-year-old Nathan, because he didn't want witnesses, O'Toole said.
The bodies were discovered 2 days later when a co-worker of Judy Anderson's
went to the home to see why she was absent from work. While King County
detectives were at the property, McEnroe and Michele Anderson drove up and were
questioned and arrested.
O'Toole told jurors the motive for the killings was money and Anderson's belief
she had been slighted and mistreated by her parents and brother.
McEnroe and Anderson were angry because her parents wanted the couple to pay
rent for the trailer where they lived on the family's property. They also
believed that Scott owed his sister money for a car, O'Toole said.
"Joseph McEnroe is the reason these murders happened," O'Toole told the jury
during his closing argument Monday, noting McEnroe shot 5 of the 6 victims,
including Nathan, who was still in diapers. The defense's case
McEnroe's defense team blamed the slayings on Anderson, claiming she wielded
such psychological control over McEnroe that he was essentially powerless to
defy her plans to kill her family.
Defense witness Dr. Donald Dutton, a professor of psychology at the University
of British Columbia, testified that McEnroe and Anderson together suffered from
"folie a deux," a rare mental disorder in which 2 people share similar
delusional beliefs. Living with Anderson in isolation, with her voice
constantly in his ear, McEnroe became convinced that she was telling the truth
when she said she had been abused by her parents and that her father was
sadistic and vicious, Dutton told jurors.
Defense attorney Leo Hamaji, addressing jurors on Monday, said McEnroe was at
most guilty of second-degree murder.
During the years leading up to the trial, defense attorneys had repeatedly said
McEnroe would change his plea to guilty if the prosecution took the death
penalty off the table.
But in announcing his office would seek the death penalty in October 2008, King
County Prosecutor Dan Satterberg had said the number of victims and the ages of
the 2 children warranted the death penalty.
"Given the magnitude of these alleged crimes, the slaying of 3 generations of a
family, and particularly the slaying of 2 young children, I find that there are
not sufficient reasons to keep the death penalty from being considered by the
juries that will ultimately hear these matters,"
Satterberg wrote in a statement.
Costs near $10 million
McEnroe met Anderson on an online dating site in about 2002 while he was living
in Glendale, Ariz., his mother, Sean Johnson, of Minneapolis, told The Seattle
Times in 2007. He moved to the Puget Sound region shortly after they met and
planned to marry Anderson, Johnson said.
The cases against both McEnroe and Anderson experienced a number of delays,
largely due to repeated trips to the state Supreme Court.
The justices have reversed Superior Court Judge Jeffrey Ramsdell???s orders on
3 separate occasions, including 2 challenges to the death penalty.
The delays helped push the combined cost of the prosecution of both McEnroe and
Anderson to close to $10 million through October. At that time, the defense
cost had totaled $4.06 million in McEnroe's case, and $4.58 million in the case
against Anderson, according to the King County Department of Public Defense.
The combined cost of prosecuting both defendants - which does not include costs
associated with the criminal investigation or work done by the State Patrol's
crime lab - was roughly $1.06 million through November, according to the
Prosecutor's Office.
If McEnroe is sent to death row, he will not be executed while Gov. Jay Inslee
is in office. Last year, Inslee announced that no one would be executed while
he's governor, although there is the potential for future governors to
reinstate the death penalty.
The last person to be executed in Washington state was Cal Coburn Brown, in
September 2010, for abducting and killing Holly Washa near Seattle-Tacoma
International Airport on May 23, 1991.
(source: Seattle Times)
USA:
"We're seeing it among Evangelicals": How death penalty politics radically,
shockingly changed ---- Death row's days are numbered, the National Coalition
to Abolish the Death Penalty's Diann Rust-Tierney tells Salon
The recent release of Debra Milke, an Arizona woman who spent 23 years on death
row for a crime she did not commit, is 1st and foremost a tragic story of
injustice. But it's something else, too: another arresting example of how the
reality of the criminal justice system in the U.S., which has come under
increasing scrutiny in recent years, falls well short of its supposed
intentions. As Supreme Court Justice Anthony Kennedy, who was appointed by
law-and-order drug warrior Ronald Reagan, told Congress earlier this week, the
system is, "[i]n many respects ... broken."
Politicians on both sides of the aisle are more willing to discuss making
serious changes to American justice than they have been in more than a decade,
but one of the most stark and disturbing manifestations of the system's flaws
still often goes unmentioned. We're thinking, of course, about the death
penalty. But if one considers the great attention paid by the media and the
public to recent botched executions in Oklahoma and Arizona - as well as Utah's
decision to bring back firing squads - there's reason to think that, too, may
soon change.
Recently, Salon spoke over the phone with National Coalition to Abolish the
Death Penalty executive director Ann Rust-Tierney about her group's work and
the changing politics of capital punishment. Our conversation is below and has
been edited for clarity and length.
If you had to describe the current politics of the death penalty in America,
how would you say things have changed from, say, the '90s?
I would say that the most significant change since the '90s is that the death
penalty is really being looked at and approached for the 1st time as a real
public policy issue. For many years, the death penalty was an idea, an abstract
conversation point, and it wasn't held to the same kinds of standards we hold
other policy institutions to. I think one of the things that's happened most
significantly is that policymakers are looking at the death penalty in
virtually every state that has it, and they're beginning to hold it to the same
standards to which we hold every other program in our country to - is it
effective? Does it work? Is it cost-effective? Is it consistent with our
values? When you look at the death penalty and hold it to those standards, it
can't survive. I think that's what we're seeing state after state that takes a
careful look at the death penalty rejecting it.
It seems like the debate has shifted away from arguing over values and now has
more of a focus on metrics - i.e., instead of fighting about whether the death
penalty is right or wrong, it's a fight over whether it works even on its own
terms. But are there any dangers to having a conversation about making it work
if you fundamentally would rather it not exist at all?
Our organization is not engaged in the business of making the death penalty
work; we believe it's unworkable and we think 30-plus years of experimenting
has shown that it can't work. There's the idea that we can have a fair system
that sends people to death row and executes them in a way we can all feel
comfortable with, but what we've seen over and over again is that that's just
not possible.
What we're trying to do is help the public and policymakers really focus in on
the death penalty in practice. The conversation that was talking place before
now was really about the death penalty in the abstract but the abstract idea
that it's possible to do this well is not consistent with the reality. The
difference now is that we're confronting the reality of the death penalty.
We're confronting the fact that it is not possible to do it in a way that
ensures that we don't execute innocent people; that it is not possible to do it
in a way that ensures that race doesn't influence the decision. This country is
in the midst of a discussion about the impact of race on our criminal justice
system and the fact that citizens living in the same community have very
different experiences with the criminal justice system based on their race.
That's not a system that any one of us can believe will produce a result we can
stand by. Plus, we have nothing to show for all the effort and pain we've put
into the death penalty. The states that have the death penalty and use it can't
boast that they have lower homicide rates; in fact, some of them have higher
rates. It's not keeping us safe and it is undermining our other values about
racial justice and about making sure that justice isn't based on how much a
person can pay. For us, this is not a conversation about getting it fixed, it's
a conversation about exposing to the public the way in which this institution
operates and showing them that it doesn't operate close to how they would hope
or expect.
The issue of mass incarceration in general has become a major topic of debate,
nationally. Do you think that broader conversation has something to do with the
recent increase in attention paid to death penalty cases and issues?
I do think it's part of a broader reevaluation but I can't say that there's
more movement on the death penalty because of the new focus on mass
incarceration. It is evidence of an evolution, I think, in our thinking as a
country and as a society. The focus on mass incarceration is at its heart about
reevaluating how we see people and about reaffirming the value of human beings.
Many of the conservatives that are very engaged in the effort to address mass
incarceration come to that perspective from a faith-based view that the
criminal justice system has to contemplate that rehabilitation is possible and
redemption is possible, and that same understanding undergirds a conversation
about the death penalty.
I think it's an incredibly positive thing that we're really looking at these
difficult issues in a serious way and, more importantly, that communities that
had not up to this point been engaged in really looking at the root causes of
crime and violence are becoming engaged in looking at prevention measures. All
of that is very positive when it comes to the death penalty, because the death
penalty represents a failure to do those things. If we are really going to
focus on the root causes of crime and on making sure we care for all victims of
crime and give them what they need to heal, we're going to have to recognize
that we have to recognize people's humanity and provide opportunity for
redemption and rehabilitation. I see that going hand in hand with amending the
death penalty.
Has there been a shift within religious communities over the past generation or
so in terms of how they approach the death penalty?
I think so. I saw this happen with Michelle Alexander's book "The New Jim
Crow." We saw churches reading that book as a book club and discussing it - not
just reading the book but then taking action. I do think there has been a
resurgence in the faith community going back, in some ways, to their roots of
ministering to those in prison and helping families in communities. I do think
there is a new energy coming from people of faith across the board. We're
seeing it among Evangelicals, we're seeing it among Catholics; all across the
board people are going back to the core values of faith, which has always been
about caring for the least of us. Millennials, as we know, are looking for ways
of making a difference and they see that as part of their mission. We're seeing
young people getting engaged and seeing that it's their time to take up the
mantle, so it's really very positive and I do think the faith community is a
big part of it.
In terms of the increased media focus on pending executions - and problems with
those executions - do you think that's a byproduct of technology making it
easier for people to report on and read about these things? Or are botched
executions happening more often? Or both?
I think it's a combination of both. The flaws we've been seeing and focusing in
on - racial bias, people with mental illness facing the death penalty, the
botched executions - have always been part of the problem, but I also think
that the technology has really enabled advocates and others to get this in
front of the public in real time. I'm thinking about the botched execution in
Oklahoma, which came out on Twitter; that opportunity to give people an almost
real-time experience of what was going on had an enormous impact. One of the
biggest challenges we've had is that most people don't think a lot of the death
penalty on a daily basis, and I think that's in large part what I consider to
be passive acquiescence towards it, if not support.
When you put it right in front of people, they see that they can't square it
with the things they really believe, with the abstract ideas that it can work
cleanly and effectively. When you confront people with the reality, that's
where you see the increase in opposition to the death penalty and, I think, a
weakening in support for it overall. The problems have always been there, but
the new opportunity for people to see in real time how the system breaks down
on a daily basis is something that has been really helpful.
For people who aren't as plugged into the issue, what are some the next steps
you're taking to address the larger, overarching goal of a nationwide
conversation about ending the death penalty?
We've launched a campaign called the 90 Million Strong campaign, the goal of
which is to really engage more and more people in the struggle to end the death
penalty. There is an enormous public out there that knows that the death
penalty is wrong and needs to get engaged, so what we've done is reached out
and gotten 50 national organizations to collectively get the information out
and encourage people to speak with their networks and their friends to get them
engaged. We???re encouraging people to be active in state efforts to end the
death penalty, in state efforts to stop individual executions.
Our job really is to continue to mobilize what we believe is a significant
number of people in the country who know that the death penalty is wrong and
are going to say that now is the time to stop it. Through this next year we
want to double the number of organizations engaged in this effort and further
expand the number of people who are engaged. We want to see more states move
towards ending the death penalty, and we want to provide the information
necessary for them to do that. We believe that this is an idea whose time has
come, and our job over the next year is to enlist more and more people in this
effort from all across the political spectrum and from all walks of life to
really make this a grassroots effort to end the death penalty.
(source: Elias Isquith is a staff writer at Salon, focusing on politics)
*****************************
Why we execute people is the big question, not how
"There's no nice way to kill someone," a man facing execution once told me,
raising heavy eyes.
From my work as a licensed death penalty investigator, I know this too, which
is why Utah's decision to reinstate the firing squad for executions doesn't
trouble me the way it might trouble others.
Attorneys hire me to find out the truth. I'm the one who ferrets out long-lost
witnesses, digs into dusty basements to unearth ancient records, and finds the
evidence that exonerates, or - more often - explains.
I love my job, because I am the 1 person who gets to understand why.
Why do people do such terrible things to each other? Why is our country so
enthralled with murder that we bookend one death with another?
For many years, lethal injections were the popular way to execute people in the
US.
Lethal injections seemed humane, whereas gas chambers were too grotesquely
evocative of the Holocaust, and guillotines just too French for a country that
prides itself on provincialism.
But there have been problems with lethal injections, as several recent botched
executions of writhing, convulsing men demonstrated. In 2014 a man being
executed in Oklahoma spent his final moments writhing and thrashing in a scene
that witnesses said was like a horror movie.
Medical companies began refusing to supply the drugs, unwilling to be
manufacturers of death.
Enter Utah, which on 23 March returned to the firing squad as an alternative,
if no such drugs are available.
For some, the firing squad has a certain 2nd-amendment, bloody finality about
it, with the punch of bullets on a backboard, and no end to the men who
volunteer for the honour.
But for others, it causes qualms.
There is nakedness to the firing squad; it is an unequivocal act. Someone gets
shot, obviously, and other people, most likely inmates, have to go in later and
clean up the blood and brain matter. Even Utah's governor, Gary Herbert,
admitted it is "a little bit gruesome".
This is why I think Utah is doing us a favour.
One of the unexpected curses of lethal injection was that it cloaked executions
with the veneer of medical legitimacy. Executions were depicted as painless,
gentle - even kind. Death lost its punch.
The myth of the humane execution began with lethal injections.
If doctors were willing to administer executions, the public began to think,
then executions must be OK. Executions retreated behind a medical curtain,
residing in the shadowland where the American public hides most death.
By bringing back the firing squad, Utah has brought executions from behind the
curtain. They unholstered the gun. Executions are real again, and that means we
can talk about them.
I believe we need to start with why so many people support executions.
Even in countries such as the UK, where capital punishment has been outlawed
for years, up to half of people still favour executions.
I have sat with families of victims, and felt their terrible, all-encompassing
pain wash over me. One cannot imagine such pain, and yet one knows it
instinctively. It is our absolute worst fear. If one of my children was hurt
I'd want revenge, too.
The myth of the humane execution began with lethal injections
I believe any starting point to discuss capital punishment has to honour this
desire for revenge. It is deep, human and rooted in our impossible love for
each other. Only then can we can talk about justice.
We can talk about what law enforcement agencies need to do their job properly.
We can talk about the flaws in capital punishment, including the 151 people
exonerated while on death row in the US. Those are the ones who weren't
executed before they were proved innocent. We can talk about a financially
driven prison industry. We can talk about how crimes still go unsolved, and
what we can do to change that.
We can talk about the needs of victims to be heard and seen and have their
loved ones honoured.
We can talk about creating a society where the names of victims are remembered
more than the accused.
Maybe we can even talk about what connects us - our love for our families - and
perhaps about creating a society that prevents death instead of adding to it.
Sometime soon, a person facing execution in Utah will stand in front of a
firing squad, instead of having a lethal injection. They might be guilty. They
might not.
But they won't die nice. No one ever does.
(source: Rene Denfeld, The Guardian)
*********************
No humanity in the death penalty
Debra Milke can finally take a breath of fresh air without guards watching her
every move. After being on death row for 22 years in Arizona, a judge declared
her innocent of all charges. Her crime: conspiracy to murder her son for a
$5,000 life insurance policy - her roommate and his friend remain on death row
after being convicted of taking her son to a secluded ravine and shooting him 3
times in the head. Her conviction was based on the testimony of a shady
detective who said she had confessed to the conspiracy. The detective, Armando
Saldate, had a history of lying under oath.
Now, at the age of 51, Milke is a free woman. It's not fair to say justice has
been served (now she is free!), as not only did she lose her son, but she lost
22 years of her life. Further, had she been denied her appeals, she may never
have be exonerated. Perhaps that's the one good thing about the death penalty -
the appeal process is practically indefinite (and extremely costly). On the
other hand, though, being only the second woman to be exonerated and freed from
death row, the odds were not in her favor and she may have been more likely to
have ended up dead rather than free.
Adjacent to Arizona, however, Utah is not only firm on the apparent justice
that death penalty convictions carry out, but the governor has brought back
death by firing squad. But it???s not as if Gov. Gary Herbert did so just for
the spirit of blood sport. Lethal injection drugs are merely hard to come by
these days. So instead of reforming the death penalty by opting for a more
humane solution - such as life in prison - Herbert apparently thought that
pummeling the convicted with bullets is a much better approach. We wonder what
Milke has to say about that.
In a world where we still witness the most despicable treatment, where a man
was set on fire and left to burn in a cage, where a woman was stoned to death
for accusations of adultery by a mob of men, including her own father, where a
child was shot in the face for her commitment to getting an education - most of
which was caught on video and put up on the internet as some sort of trophy -
one would think the U.S., a land full of the heirs of immigrants who made
arduous journeys to escape such deprivation, would boast of our tolerant and
actually humane treatment of the criminally minded. Instead, if we can't kill
them with gentle ease through injection, then - shoot 'em! Have we gone mad?
We are relieved for Milke's exoneration but we can't mask our disgust regarding
the barbaric practice of an-eye-for-an-eye treatment. We are supposed to be
more civilized than those we convict and imprison. In what way is the death
penalty any better than those who commit murder? Even worse, how many like
Milke must waste away in prison with death as the ultimate punishment on the
horizon due to corruption in the ranks of those paid to serve and protect us?
The death penalty is archaic, barbaric, inhumane in every way. It's time to
move forward with actual humane ways to treat the worst offenders. It's time to
stop justifying murder as justice.
(source: Editorial, Ventura County Reporter)
US MILITARY:
Death penalty rarely used for desertion conviction----Army charges Sgt. Bowe
Bergdahl with desertion
The Army announced Wednesday that Sgt. Bowe Bergdahl, who disappeared from his
unit in Afghanistan in 2009, has been charged with desertion and misbehavior
before the enemy, offenses which could send him to prison for life.
What punishment could Bergdahl face?
Military authorities will have to weigh a range of factors, including what Army
Sgt. Bowe Bergdahl did, the effect on his fellow soldiers and what's best for
the U.S. military as a whole.
The Department of Defense broke the law when it traded Army Sgt. Bowe Bergdahl
for 5 Taliban prisoners in May, the Government Accountability Office said in a
legal opinion issued Thursday.
While the death penalty is a possible punishment in cases of desertion or
misbehavior before the enemy - the charges leveled Tuesday against Army Sgt.
Bowe Bergdahl - that sentence has rarely been imposed.
"On the books, it is an option," said Noel Tipon, an attorney in Hawaii who
specializes in defending servicemembers facing Article 32 hearings and
courts-martial.
But it would be an "unlikely event" for a case to be referred as capital where
a death was not directly involved, he said.
Under the Uniform Code of Military Justice, the death penalty may be imposed
for either desertion or misbehavior before the enemy - but only during times of
declared war.
When the Army announced the charges against Bergdahl, it did not address the
issue, saying only that his maximum penalty could be life in prison.
The only U.S. servicemember to be executed for a purely military offense -
desertion - since the Civil War was Edward D. Slovik, who was executed by
firing squad in January 1945 in France.
In a letter to Gen. Dwight D. Eisenhower, Slovik pleaded for leniency. But the
American forces were rife with desertions at that time, and Eisenhower wanted
to stem the tide by making the private's execution an example.
Congress issued formal declarations of war on Germany and Japan for World War
II, which clearly created a "time of war" in regard to the UCMJ's requirements.
But the Authorization for Use of Military Force passed by Congress and signed
by President George W. Bush on Sept. 18, 2001, is a slightly different creature
than a "declaration of war."
Tipon said it is "unclear" whether the 2001 authorization rises to the level of
a declared war in regard to application of the death penalty.
He said it's the prerogative of the court-martial convening authority to decide
whether the charges will be referred as capital.
Desertion could lead to the death of soldiers left behind in certain
extraordinary cases.
"I understand that argument," Tipon said. "Sure, if something had gone wrong,
then it could have led to the death of other soldiers, other servicemembers."
But without Bergdahl being directly involved in one of those soldiers' deaths,
the convening authority would not likely refer it as a capital case, he said.
"The decision to refer something capital, especially in a case where an action
didn't lead to the death of another individual as a result of that misconduct,
is undertaken very soberly and very deliberately," Tipon said.
Some soldiers who served with Bergdahl say some soldiers died in the search for
Bergdahl after he walked off his post in Afghanistan in June 2009. Some of his
platoon mates have publicly held him responsible for those deaths.
"That might be a game changer for the powers that be who are making the
decision whether or not to refer capital," Tipon said. "But again, that's such
a tough call to make because typically a death-penalty-eligible case is for
murder. It isn't 2nd- or 3rd-order effects, as they say in the military, of
what the misconduct was."
Some in the military law community have questioned whether desertion still
meets society's expectation of a capital crime.
Navy attorney Lt. Cmdr. Rich Federico wrote a 2013 paper in the Berkeley
Journal of Criminal Law calling for Congress to abolish the death penalty for
unique military, nonhomicide offenses.
Since the military revamped its death penalty policies in 1984, no
servicemember has been tried capitally for a crime that wouldn't carry a death
penalty in a civilian court, according to Federico.
The last servicemember to walk away from his unit in a combat zone was Marine
Cpl. Wassef Ali Hassoun, who disappeared from a U.S. military base in Iraq in
2004 and who abandoned his Marine unit at Camp Lejeune in 2005. In February, he
was found guilty of 2 counts of desertion and sentenced to 735 days in prison,
reduction of rank, forfeiture of pay and allowances and dishonorable discharge.
Federico argued that crimes like desertion do not fit "the modern civilian view
that the death penalty must be limited to a narrow class of defendants who
commit ... the most serious crimes and whose extreme culpability makes them the
most deserving of execution."
(source: Stars & Stripes)
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