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Are Military Death Sentences Unconstitutional? SCOTUS May Decide.

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By Casey C. Sullivan, Esq. on May 10, 2016 1:06 PM

In 2003, at the start of the Iraq war, a U.S. Army Sergeant Hasan Akbar turned on his fellow soldiers, tossing three grenades into the tents of the sleeping 101st Airborne Division, then opening fire as the soldiers fled. Two men were killed, 14 wounded. Akbar, who had been suffering from psychiatric problems, was court-martialed and sentenced to death.

Now, as Steve Vladeck notes in the Just Security blog, the Supreme Court could soon decide to review his case. But it's not Akbar's crimes that are in question, it's whether the way the military imposed his capital conviction is constitutional. And it's a case that could undermine every military death sentence.

Capital Punishment in Courts-Martial

Under the Rules for Courts-Martial, an individual may be sentenced to death only if members of the court-martial find one or more aggravating factors. Those aggravating factors, and indeed, the entire Manual for Courts-Martial, are created by executive order of the president. Those rules implement and expand upon the Uniform Code of Military Justice, as established by congress. Akbar argues that this process is unconstitutional.

As Vladeck notes, the Supreme Court has already upheld the court-martial capital punishment scheme, in 1996's Loving v. U.S. But we're a ways away from '96 now.

In 2002, the Supreme Court ruled in Ring v. Arizona that aggravating or sentencing factors in capital cases were elements of a crime if they lead to greater punishment for the defendant. And only congress, not the president, can establish the elements of a federal crime.

What's Ring Mean for Loving?

The question presented by Akbar, as phrased in the petition for cert, is:

Whether it violates the constitutional separation-of-powers or exceeds statutory authority for the President, rather than Congress, to prescribe the aggravating-factor elements that permit a court-martial to impose a death sentence on a member of the armed forces.

But that question can be phrased more simply, as well: Does Loving survive Ring?

In affirming Akbar's capital sentence, the Court of Appeals for the Armed Forces answered that question with a resounding "meh." Vladeck explains:

Quoting the Supreme Court's admonition that lower courts should not assume that the Supreme Court has overruled its earlier decisions sub silentio, Judge Ohlson explained that "we will continue to adhere to the holding in Loving unless the Supreme Court decides at some point in the future that there is a basis to overrule that precedent." Thus, Akbar presents a major (and novel) constitutional challenge to how capital punishment is imposed by the military, a challenge that the Court of Appeals held only the Supreme Court properly can resolve, and a challenge that, if meritorious, would call into question all military death sentences.

You'd think that such a significant constitutional issue would be ripe for Supreme Court review. But, as Vladeck notes, the Court may pass -- as it does on almost all such cases. It's been just under 20 years since the Supreme Court last granted plenary review of a servicemember's challenge to court-martials.

But, if the Court decides to buck that trend, Akbar could be its chance. The government has until June 8th to respond to Akbar's petition, after which the Court could grant review, take a pass, or hang onto the petition until next term.

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