Can Soldiers Be Sentenced to Death for Killing Civilians?

View a slide show of Afghan civilians caught in the crossfire.

The Washington Post reported on Sunday that five U.S. service members have been charged with the premeditated murder of three Afghan civilians earlier this year. In addition to the coldblooded murders, the five allegedly kept photos and grisly souvenirs of the bodies and intimidated a fellow soldier who threatened to report them. Preliminary hearings in military court for the accused — who deny the charges — will begin in a few weeks. If convicted, could they be sentenced to death?

Yes, but it could take a long time for the sentence to be carried out. The Uniform Code of Military Justice, which applies to all U.S. military service members worldwide, allows for both the death penalty and life imprisonment in cases of murder, no matter the nationality of the victim. The mandated method of execution is lethal injection.

An estimated 465 U.S. soldiers have been executed since the Civil War — most for desertion or mutiny — though no death sentences have been carried out since 1961. The practice was found unconstitutional by a military appeals court in 1983, but reinstated one year later by President Ronald Reagan with much stricter sentencing guidelines. Technically, there are 15 offenses for which service members can be executed, but some of these, like desertion and disobeying orders, apply only during wartime.

Six men currently sit on the U.S. military death row at Fort Leavenworth, Kansan, all convicted of premeditated murder. The last person killed by U.S. military execution was Pvt. John Arthur Bennett, who was convicted of the rape and attempted murder of an 11-year-old Austrian girl and hanged on April 13, 1961.

Part of the reason why the military so rarely executes anyone may be political. Regulations require that the president himself issue an affirmative confirmation of the death sentence before the execution can proceed — unlike in civilian cases where the president can overturn a death sentence but is not required to order it. Since Bennett’s execution, ordered by President Dwight Eisenhower, most commanders in chief have been reluctant to carry out this particular duty. No death sentences were approved until 2008, when President George W. Bush ordered the execution of Pvt. Ronald Gray, who was charged with four murders and eight rapes while serving in Fayetteville, North Carolina, in the late 1980s. Gray was granted a stay of execution several months later and his case is still pending.

President Barack Obama has been skeptical of the death penalty’s effectiveness in the past, but says he supports it for “the most egregious of crimes.”

Other residents of Fort Leavenworth’s death row include Army Sgt. Hasan K. Akbar, sentenced in 2005 for a grenade attack on his fellow soldiers in Iraq; Kenneth Parker, a Marine lance corporal who murdered two fellow officers with a shotgun in 1992; and Andrew Witt, an Air Force airman who was convicted in 2005 of stabbing a fellow airman and his wife to death. While Fort Leavenworth hosts death row inmates from all branches of the military, it doesn’t actually have facilities for executing people. Had Gray’s sentence been carried out, he would have been executed at the federal correctional complex in Terre Haute, Indiana.

Before trial, military officers are entitled to an “Article 32 hearing” — similar to a civilian grand jury — in which an investigating officer reviews the evidence, decides whether the death penalty should be sought, and assigns 12 fellow service members to serve as a jury. This panel decides a sentence and must agree unanimously in the case of a death sentence. Like its civilian counterpart, critics have charged that the military death penalty is racially biased. Four of the six men currently sitting on death row are African-American.

The Army might be breaking new ground if it chooses to seek the death penalty in the Afghanistan murders. None of those currently sentenced to die were charged with killing civilians during wartime. Of course, murder can be hard to define in an environment where soldiers are expected to kill the enemy and civilian casualties are inevitable, but the premeditated nature of these killings certainly seems to fit the bill. In the infamous Mahmudiyah case — the gang rape and murder of an Iraqi teenager and the killing of her family by U.S. soldiers in 2006 — the most severe sentence issued was 110 years in prison.

Thanks to Eugene Fidell, professor of military law at Yale Law School and director of the National Institute of Military Justice.