United States v. Matthews:
The Constitutionality of the
Military Death Penalty Procedures
Independent Research
for
Professor Benson
by
Marc Epstein
Spring 1984
01)049
The death penalty has been the focus of controversy and
fascination in recent years.
Prior to 1972, the majority of
American death penalty statutes allowed the sentencing judge
or jury absolute discretion in implementing the sentence."1"
However, during the latter part of the 1960's, several groups
led by the NAACP Legal Defense and Education Fund, Inc. and
the American Civil Liberties Union launched an attack upon
2
the constitutionality of the death penalty.
The zenith of
their success
3 was the 1972 Supreme Court decision of Furman
v. Georgia.
The Furman Court ruled that virtually all the
existing death penalty statutes at that time were unconstitutional.
The unguided discretion of the sentencing authorities
permitted death penalties to be "randomly,"
"capriciously,"
4
"arbitrarily," and "freakishly" imposed.
Nevertheless, sub-
sequent to this landmark decision, the constitutionality of
the death
5 sentencing provisions of the Uniform Code of Military
Justice has not been directly addressed on the merits by the
g
United States Supreme Court, and has been previously addressed
7
by only a limited number of military appellate courts
until
the Army Court
of Military Review decided United States v.
o
Matthews, and the Court of Military Appeals subsequently
9
reversed that decision.
This paper analyzes the ramifications of the Matthews
decision on military death penalty provisions.
In this light,
the history of Supreme Court decisions in the death penalty
mmn
area will be analyzed and applied to the applicable death
penalty procedures.
Additionally, a discussion of the recent
amendment to the Manual for Courts-Martial will be included
to evaluate whether the death penalty provisions satisfy the
constitutional rigors of current Supreme Court requirements.
It is observed that the Uniform Code of Military Justice
was developed by the armed forces subsequent to World War II,
and was enacted by the United States Congress in 1950. 10
In
the approximate thirty year period since its enactment, thirtyseven soldiers have been sentenced to death pursuant to the
Uniform Code of Military Justice's provisions, and ten soldiers
have been executed."*""*"
The most recent death sentence carried
12
out by the military was imposed in 1955, and executed in 1961.
No death sentences have been adjudged and affirmed by the
military courts since the Furman decision until 1979, when
Private First Class Wyatt
13Matthews was sentenced to death by
a general court-martial.
Matthews was convicted of the
rape and premeditated murder of a military dependent on a
military installation in the Federal Republic of Germany,in
violation of Articles 118 and 120 of the Uniform Code of Military
14
Justice.
It is noted that the convening authority was
instructed in the post trial review that the maximum sentence
available for rape was life imprisonment, and the death penalty
was approved solely on the premise of the premeditated murder
conviction. 15 The case was appealed to the United States Court
of Military Appeals, and as emphasized earlier, represented
one of the first appellate reviews of the Uniform Code of
Military Justice's death penalty procedures since the Furman
decision and its progeny established guidelines for imposing
the death sentence.^
Power of the Court of Military
Appeals to Rule on
Constitutional Issues
The initial barrier that the Matthews court had to over
come, however, was simply establishing its power to rule on
17
the constitutional issues.
Specifically, it was asserted
that since the Court of Military Appeals was established under
Article I rather than Article III of the United States
Constitution, the court lacked the requisite authority to rule
on the constitutionality of
18 the provisions of the Uniform
Code of Military Justice.
This assertion, the court
observed was subdivided into two propositions.
"The first is
that Congress can not confer upon an Article I court the power
to adjudicate the constitutionality of a provision of the Code
- or
presumably of any other Federal statute.
The second
proposition is that, even if Congress could have
granted . . .
19
[the] court such authority it never did so."
One authority cited in support of the absence of legisla20
tive power was "the principle" espoused in Johnson v. Robison.
The principle being, "that '[a]djudication of the constitutionality
ftonre
3
of congressional enactments has generally been thought beyond
21
the jurisdiction
of administrative agencies.1"
This propo-
sition, however, was declared not to be controlling as the
Court of Military22 Appeals is not considered to be an administrative agency.
"[I]n any view, the Court of Military
Appeals appears . . . to be a court in every significant
respect, rather than an administrative agency.
Certainly
Congress intended that in its dignity and in its standards of
administering justice the [c]ourt . . . should be assimilated
to and equaled with the established courts of the federal
23
system."
Alternatively, it was contended that even a "court"
established under Article I, rather than Article III may not
decide constitutional issues surrounding congressional enactments. 24 This contention, likewise, proved to be unpersuasive.
The court noted,
[a]t one time, . . . (the Supreme Court)
suggested a rigid distinction between those
subjects that could be considered only in
Art. Ill courts and those that could be
considered only in legislative courts
. . . . But this suggested dichotomy has
not withstood analysis . . . .
[The
Supreme Court's] more recent cases clearly
recognize that legislative courts may be
granted jurisdiction over some cases and
controversies to which the Art. Ill judi~ 25
cial power might also be extended . . . .
Further, the military appellate court observed that the United
States Supreme Court has declared that "within their proper
sphere, courts-martial are constitutional instruments to carry
26
out congressional and executive will."
0(105-3
Accordingly, while recognizing the full ramifications
of Northern Pipeline Construction Co. v. Marathon Pipe Line
27
Co.,
the Court of Military Appeals did not believe that the
Supreme Court intended to prevent Article I courts from
considering any constitutional issues that may arise within
their jurisdiction, even if the issues
involved the consti28
tutionality of a federal statute.
"Indeed, . . . [the
Court of Military Appeals perceived] nothing in the language
concerning '[t]he judicial power' in Article III section 2,
of the Constitution which would support any such constitutional
limitation on the questions to be considered by Article I
judges.1,29
Thus the Court of Military Appeals concluded that Congress
intended for the court to possess "unfettered power to
decide constitutional issues -30
even those concerning the
validity of the Uniform Code."
In sum, Congress made the court responsible for "'the
protection and preservation of the constitutional rights of
persons in the armed forces.'" 31 Further, Congress "'confer[red]
upon' . . . [the court] 'a general supervisory power over the
32
administration of military justice.'"
Accordingly, having
entrusted the Court of Military Appeals with such responsibilities, "Congress could hardly have intended to deny . . .
[the court] the important power to determine the constitutionality of Federal statutes applicable to cases . . . [the court]
review[s]." 3 3
(tftof>4
The Applicability of Civilian
Precedent to Military Cases
The next significant issue that required resolution by
the Court of Military Appeals was the applicability of
34
civilian precedent to military law.
Precisely, any discus-
sion of the constitutionality of the sentencing provisions of
the Uniform Code of Military Justice, in light of Furman and
its progeny, must commence with the question of whether and
35
to what extent those cases apply to military procedure.
One commentator observed that recently Chief Judge Everett of
the Court of Military Appeals stated in an opinion:
"The
time has long since passed when scholars disputed the 3appli6
cability of the Bill of Rights to service personnel."
It
is cautioned, however, while only the Fifth Amendment, expressly
excepts the military from a constitutional requirement, i.e.,
the requirement for indictment by grand jury, "the application
of the remaining constitutional amendments to the military has
not been as clear or as simple as the Chief Judge's comment
• -j •
H 37
implies.
Specifically, in deferring to congressional policies and
regulations that may limit servicemembers1 constitutional rights
federal courts often invoke the doctrine of "military necessity.
This doctrine espouses a "different application" of constitu39
tional protections in the military.
The doctrine recognizes
that military society and its system of justice is inherently
different from civilian society and its criminal justice system.
nonf»5
In short, the doctrine makes "permissible within the military
that which would be constitutionally impermissible outside
41
it."
The doctrine has been invoked to justify stricter
limits on free speech and rights to petition the government,
a different level of search and seizure protection,
and a
42
different standard of procedural due process.
However it
is emphasized that the doctrine of military necessity can
not be invoked, "as a mere talisman to vitiate
the basic con43
stitutional rights of service members."
Although other constitutional protections have been
extensively litigated, the question of how the Eighth Amendment's
ban on cruel and unusual punishment
applies to the military
44
has not been fully adjudicated.
It is observed that historically, the amendment was not considered applicable to the
military. 45 This apparently prompted Congress xn enacting46
the Uniform Code of Military Justice to include Article 55
to deal with this issue. 47
However, since its enactment, courts
have declared that the Bill of Rights generally applies to the
48
military.
"However, since constitutional rights have not
been applied to the military in the same manner as applied to
civilian society, the question more properly is whether
the
49
Furman series of cases applies to the military."
The court in Matthews recognized that the resolution of
this issue was essential as the court noted that, "most successful constitutional attacks on capital punishment have invoked
7
mom
the Eighth Amendment, which prohibits 'cruel and unusual
50
punishments.'"
The court then observed that Article 55 of
the Uniform Code provided a servicemember with comparable
51
protection.
The article prohibits, "[p]unishments by
flogging, or by branding, marking, or tattooing on the body,
52
or any other cruel or unusual punishment."
The military
court then noted that in enacting Article 55, "Congress
'intended to grant protection covering even
53 wider limits' than
'that afforded by the Eighth Amendment.'"
The Matthews
court emphasized however, that there are circumstances under
which the provisions governing capital sentencing of 54
service
members will vary from those applicable to civilians.
Pre-
cisely, "[t]his possibility is especially great with respect
to offenses committed under combat conditions when maintenance
of discipline may require swift, severe punishment,
or in
55
violation of the law of war, e.g., spying."
However, as the military appellate court observed, the
murder and rape committed by Private Matthews possessed none
of the characteristics which would distinguish them from
similar crimes tried in state and federal courts.^
Accordingly,
since a service member is entitled by statute and under the
Eighth Amendment to protection against cruel or unusual punishments Furman and its progeny were applicable to the case at
hand. 57
8
0 0 0 5 7
Supreme Court Precedent Examined
It has been observed that the United States Supreme Court,
"has slowly, almost painfully come to grips with the implications" of the Furman decision. 58
Precisely, in Furman, the
Supreme Court reversed two hundred years of precedent, as well
59
as it's own decision in McGautha v. California,
by holding
"that existing state capital punishment statutes violated the
Eighth Amendment because they permitted exercise of uncontrolled
discretion by sentencing authorities in determining
fi n whether to
impose capital punishment in any specific case."
Prior to
the Furman decision, the constitutionality of the death penalty
had been either assumed or upheld
in the decisions of the
61
United States Supreme Court.
It has been observed that the per curiam opinion in Furman
is a "judicial nightmare" of nine separate opinions, "and the
specifics of the
6 2opinions are of limited practical and precedential value."
Nevertheless, despite the fact that the
Justices' opinion were scattered "like a covey of quail, there
clearly was agreement that uncontrolled
6 3 sentencing discretion
was not constitutionally permitted."
The so called plurality
viewpoint of Furman may be said to include the opinions of
Justices Marshall, Brennan, White, Steward, and Douglas.
The
dissent included Chief Justice Burger, and Justices Powell,
Rhenquist, and Blackmun.
The case itself, involved
three
64
petitioners whose cases were joined on appeal,
and each lower
court decision was "reversed insofar as it leaves undisturbed
(Hfrih
214
the death sentence imposed."
Although the concurring opinions
advocated divergent viewpoints, "they all agreed that the
sentencing procedures in Georgia and Texas improperly afforded
juries unfettered discretion to impose the death penalty."^6
Two of the justices espoused the viewpoint that the death
penalty constituted cruel and unusual punishment per se.
Justice Marshall after an indepth analysis of the history of
capital punishment and the punishment prohibtion of the Eighth
Amendment concluded that the death penalty is "morally unacceptable to the people of the United States at this time in their
67
history."
Justice Brennan found that the definition of the
Eighth Amendment's prohibition was neither static nor limited
to those punishments prohibited when the Constitution was
established, but drew its "meaning from the evolving standards
68
of descency that mark the progress of a maturing society."
Brennon found that capital punishment did not comport with the
concept of human dignity.^9
Death is an unusually severe and degrading punishment;
there is a strong probability that it is inflicted
arbitrarily; its rejection by contemporary society
is virutally total; and there is no reason to believe
that it serves any penal purpose more effectively
than the less severe punishment of imprisonment.
The function of these principles is to enable a court
to determine whether a punishment comports with human
dignity. Death, quite simply, does not.7 0
It is emphasized, however that these abolitionist views were
71
not adopted as the rule xn exther Furman or xts progeny.
In contrast, the opinions of the other members of the
plurality have been emphasized in subsequent death sentencing
10
m )059
decisions.
For example Justice Douglas voiced the following:
The high service rendered by the 'cruel and unusual'
punishment clause of the Eighth Amendment is to
require legislatures to write penal laws that are
evenhanded, nonselective, and nonarbitrary, and to
require judges to see to it that general laws are
not applied sparsely, selectively, and spottily
to unpopular g r o u p s .
Justice Steward enunciated the following:
These death sentences are cruel and unusual in the
same way that being struck by lightning is cruel and
unusual. For, of all the people convicted of rapes
and murders in 1967 and 1968, many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence
of death has in fact been imposed. My concurring
Brothers have demonstrated that, if any basis can
be discerned for the selection of these few to be
sentenced to die, it is the constitutionally impersible basis of race . . . .
I simply conclude
that the Eighth and Fourteenth Amendments cannot
tolerate the infliction of a sentence of death
under legal systems that permit this unique penalty
to be so wantonly and so freakishly imposed.
It has been suggested that this later became the recognized
74
holding of Furman.
It is noted that Justice White primarily focused on the
societal goal of deterrence, and found that the death penalty
was so infrequently imposed that it no longer was an effective
deterrent to crime, and served little or no societal or public
purpose. 73
The death penalty is a "pointless and needless
extinction of life with only marginal contributions to any
76
discernible social or public purposes."
As one commentator suggests, it is impossible to derive
an all-inclusive rational that would encompass
the opinions
77
of Justice Douglas, Steward and White.
oftnfio
However, the evil that they perceived
. . . was the unbridled discretion of the
jury in imposing a death sentence. This
proposition is somewhat shocking, as the
Court had held only one year before in
McGautha that this type of jury discretion
was unavoidable and did not violate the
due process clause of the Fourteenth
Amendment.78
In response to the Furman decision, many states enacted
revised capital sentencing statutes, intending to comply with
79
the mandates of the decision.
Specifically, after Furman,
at least thirty-five states revised their capital sentencing
statutes, however the United States Supreme Court did
8 0 not grant
reviews to any of the revised statutes until 1975.
In that
year the decisions of Gregg v. Georgia, 81 Proffitt v. Florida,82
and Jurek v. T e x a s ^ were announced on the same day.**
In Gregg, the revised Georgia statute was examined.
The
facts in the case reveal that Troy Leon Gregg was convicted of
armed robbery and murder and was sentenced to death pursuant
85
to the Georgia death penalty statutory scheme.
Gregg
attacked his sentence on multible grounds, including one issue
not fully settled in Furman,
namely the per se unconstitution86
ality of the death penalty.
The plurality authored by
Justice Steward and joined by Justices Powell and Stevens,
declared however that, "the death penalty
8 7 is not a form of
punishment that may never be imposed."
The Court explained:
While Furman did not hold, that the infliction
of the death penalty per se violates the
Constitution's ban on cruel and unusual
punishments, it did recognize that the
penalty of death is different in kind from
any other punishment imposed . . . .
Because of the uniqueness of the death
penalty, Furman held that it could not
be imposed under sentencing procedures
that created a substantial risk that it
would be inflicted in an arbitrary and
capricious manner . . . .
Furman mandates
that where discretion is offered a
sentencing body on a matter so grave as
the determination of whether a human life
should be taken or spared, that discretion
must be suitably directed and limited so
as to minimize the risk of wholly arbitrary and capricious action.
The Georgia death penalty statutory scheme was thus evaluated
under this rubric.
The revised Georgia statutory scheme contained several
innovations to protect the accused.
Specifically, the scheme
89
"retains the death penalty for six categories of crime(.)"
The accused convicted of one of these crimes then enters
a
bifurcated sentencing procedure where "'evidence in mitiga-
90
tion, extenuation, and aggravation of'" the crime is presented.
In the assessment of the appropriate sentence, the judge is
required to consider or to include in his instructions to
the jury "'any mitigating circumstances or aggravating circumstances otherwise authorized by law and any of [10] statutory aggravating circumstances
which may be supported by the
91
evidence . . . .'"
After this hearing, the death penalty
may only be imposed if the sentencing body "find[s] beyond a
reasonable doubt" that one or more of the ten statutory aggravating circumstances are present. 92 The judge or jury must
then specify which of the ten circumstances were found present.
It is noted that in jury cases, the trial judge is bound by
94
the jury's recommended sentence.
Further, in addition to
qqimz
93
the conventional appellate process available, the statute
provides, "for special expedited direct review by the Supreme
95
Court of Georgia"
which makes findings as to:
(1)
Whether the sentence of death was
imposed under the influence of
passion, prejudice, or any other
arbitrary factor, and
(2)
Whether, in cases other than treason
or aircraft hijacking, the evidence
supports the jury's or judge's finding
of a statutory aggravating circumstance
. . . and
(3)
Whether the sentence of death is
excessive or disproportionate to
the penalty imposed in similar cases,
considering both the crime and the
defendant . . . . 9 6
The United States Supreme Court approved the statutory
scheme
because it,
focus[ed] the jury's attention on the particularized nature of the crime and the particularized
characteristics of the individual defendant. While
the jury is permitted to consider any aggravating
or mitigating circumstances, it must find and
identify at least one statutory aggravating factor
before it may impose a penalty of death. In this
way the jury's discretion is channeled. No
longer can a jury wantonly and freakishly impose
the death sentence; it is always circumscribed by
the legislative guidelines. In addition, the review
function of the Supreme Court of Georgia affords
additional assurance that the concerns that
prompted our decision in Furman are not present
to any significant degree in the Georgia procedure
applied here.
It is observed, that while stressing the salient features
of the Georgia system, the Court emphasized that these were
not the only features which could satisfy the rigors of Furman,
rather "each distinct system must be examined on an individual
The Florida statutory scheme analyzed in Proffitt was
substantially similar to that in Gregg.
The new capital sen-
tencing procedure was patterned in large measure on the Model
99
Penal Code.
Like the Georgia statutory scheme, it demanded
a separate (bifurcated) hearing and set out a number of
legislatively specified aggravating circumstances. 100
The
statute also specified seven mitigating circumstances.10"1"
Further, at the conclusion of the bifurcated hearing the jury
was required to consider "'[w]hether sufficient mitigating
circumstances exist . . . which outweigh the aggravating circumstances found to exist; and . . . [biased on these considerations, whether the defendant
should be sentenced to life
[imprisonment] or death.'" 102 It is noted, however that the
103
jury's verdict was only advisory,
as the actual sentence
was determined by the trial judge, 104 who was directed to
"'set forth in writing . . . [his] findings
upon which the
105
sentence of death is based . . . .'"
establish:
"'(a)
These findings must
[t]hat sufficient [statutory] aggravating
circumstances exist . . . and (b) [t]hat there are insufficient [statutory] mitigating circumstances . . .
the aggravating circumstances.'"10^
to outweigh
Review by the Supreme
Court of Florida was automatic, although no specific form was
required. 107 According to the State Supreme Court, like it's
Georgia counterpart,
[it] considers it's function to be to '[guarantee]
that the [aggravating and mitigating] reasons
present in one case will reach a similar result
to that reached under similar circumstances in
another case . . . .
If a defendant is sentenced
mm
to die, this [State Supreme] Court can review that
case in light of the other decisions and determine
whether or not the punishment is too great.'-'-08
Justice Steward explained in approving this statutory
scheme that the United States Supreme Court, "never suggested
that jury sentencing is constitutionally required.
[I]t . . .
appear[s] that judicial sentencing should lead, if anything
to even greater consistency in the imposition . . . of capital
punishment, since a trial judge is more experienced in sentencing than a jury." 109
The third statutory scheme to receive Supreme Court
approval was that of Texas in Jure}:.110
It has been observed
that the statutory scheme 111 reviewed in Jurek reached the
same result as the statutory schemes expoused in Gregg and
112
Proffitt but by a different method.
The lead opinion in
Jurek, again written by Justice Steward and only a plurality
opinion, observed that the statute provided for a bifurcated 113
trial and special appellate reveiw as in Gregg and Proffitt.
The significant difference was in the manner in which the
114
discretion of the jury was guided..
The process was
essentially reversed, as the aggravating factors were considered first, at that trial stage, instead of at the sentencing
115
phase.
Specifically, the only crimes for which a capital
sentence was available were murder of a police officer or
fireman, felony murder, murder
for hire, murder
116 in an escape
attempt, and murder of a guard by an inmate.
Further, if
the accused was convicted of one of these crimes, the
jury
was required to make additional findings during the sentencing
117
phase, resolving three questions laid out in the statute.
The questions to be answered were as follows:
(1) whether the conduct of the defendant that
caused the death of the deceased was committed deliberately and with the reasonable
expectation that the death of the deceased
or another would result;
(2)
whether there is a probability that the
defendant would commit criminal acts of
violence that would constitute a continuing threat to society; and
(3)
if raised by the evidence whether the
conduct of the defendant in killing the
deceased was unreasonable in response to ,,„
the provocation, if any, by the deceased.
Accordingly, only if the offense was committed deliberately
and without excuse, and if there was a probable likelihood that
the defendant would pose as a continuing threat to society, may
119
the jury impose the death sentence.
It is essential to note that the plurality opinion found
that the second statutory question was interpreted by the
Texas courts to mean that the accused may introduce any relevant information in mitigation. 120 The opinion concluded by
declaring the following:
We conclude that Texas' capital-sentencing procedures, like those of Georgia and Florida, do not
violate the Eighth and Fourteenth Amendments. By
narrowing its definition of capital murder, Texas
has essentially said that there must be at least
one statutory aggravating circumstance in a firstdegree murder case before a death sentence may even
be considered. By authorizing the defense to bring
before the jury at the separate sentencing hearing
whatever mitigating circumstances relating to the
individual defendant [that] can be adduced, Texas has
Ciff^ftC
ensured that the sentencing jury will have adequate
guidance to enable it to perform its sentencing
function. By providing prompt judicial review of
the jury's decision in a court with statewide jurisdiction, Texas has provided a means to promote the
evenhanded, rational, and consistent imposition of
death sentences under law. Because this system
serves to assure that sentences of death will not
be 'wantonly' or 'freakishly' imposed, it does not
violate the Constitution. 12 !
In contrast to Jurek, it is noted that the Supreme Court
disapproved of two mandatory death penalty statutory schemes
122
which totally removed "unbridled
jury discretion."
The
unconstitutional mandatory schemes designated a limited
number of capital offenses and required that the death sentence be imposed if the jury found the accused guilty of one
123
124
of these statutory offenses.
In Woodson v. North Carolina
Justice Steward, announcing the judgment in an opinion joined
by Justices Powell and Stevens, analyzed the history of mandatory death sentences and concluded that such sentences have
125
been renounced and rejected by judicial practice.
Further,
the mandatory death sentence did "not fulfill Furman's basic
requirement by replacing arbitrary and wanton jury discretion
with objective standards to guide, regularize, and make
rationally reviewable the process for imposing a sentence of
1 ? fi
death."
Additionally, the mandatory death statute failed,
"to allow the particularized consideration of relevant aspects
of the character and record of . . . [the]
defendant before
127
imposition . . . of a sentence of death."
significant because,
(IftHfc7
This defect was
[a] process that accords no significance to
relevant facets of the character and record
of the individual offender or the circumstances
of the particular offense excludes from consideration in fixing the ultimate punishment
of death the possibility of compassionate or
mitigating factors stemming from the diverse
frailties of humankind.
In Roberts v. Louisiana
129
the Louisiana scheme likewise
completely removed sentencing discretion by making death a
130
mandatory punishment for five categories of murder.
The
system was classified an unconstitutional mandatory scheme
despite the fact that unlike North Carolina, the statute
authorized the jury to be presented with instructions on all
lesser included offenses, whether raised by the evidence or
131
not.
This statutory scheme, likewise, failed to pass
constitutional muster as, "[t]he constitutional vice of mandatory death sentence statutes - lack of focus on the circumstances of the particular offense and the character and propensities of the offender - is not resolved by Louisiana's
limitation of first degree murder to various categories of
132
killings."
Thus, it is established that a mandatory death
penalty scheme constitutes an unconstitutional manner of
imposing a death sentence.
Since the publication of these five landmark decisions,
the United defining
States Supreme
Court has
rendered
several
133 other
decisions
and redefining
their
position.
A
selection of these other cases merit discussion. In 1978,
134
the Court decided the companion cases of Lockett v. Ohio
135
and Bell v. Ohio
examining the Ohio deathpenalty provisions.
The plurality opinion, authored by Chief Justice Burger found
that the Ohio sentencing scheme failed to adequately focus on
o m m
the character of the defendant because the scheme limited
the mitigating evidence that could be considered by the
136
sentencing authority.
In Lockett, the facts reveal that
the accused Sandra Lockett was charged with murder as an
aider and abetter pursuant to an indictment which alleged the
following aggravating circumstances:
"(1) [T]hat the murder
was 'committed for the purpose of escaping detection, apprehension, trial or punishment' for aggravated robbery, and
(2) that the murder was 'committed while . . . committing,
attempting to commit, or fleeing immediately after committing
137
or attempting to commit . . . aggravated robbery,1"
Under
the Ohio scheme, because her conviction did not negate these
circumstances, the sentencer had to impose the death penalty
unless one or more of the following statutory mitigating
factors were present:
(1) The victim of the offense induced or
facilitated it.
(2)
It is unlikely that the offense would have
been committed but for the fact that the
offender was under duress, coersion, or
strong provocation.
(3)
The offense was primarily the product of
the offender's psychosis or mental deficiency though such condition is insuffi^g
cient to establish the defense of insanity.
However, after considering the reports and hearing argument,
the judge concluded that the offense was not the "product of
139
psychosis or mental deficiency."
Further, "[w]ithout
specifically addressing the other two statutory mitigating
20
factors, the judge said that he had 'no alternative, whether
[he] like[d] the law or not' but to impose the death penalty.
He then sentenced Lockett to death." 140
The Court held that Lockett's death sentence was invalid,
"because the statute under which it was imposed did not permit
the sentencing judge to consider, as mitigating factors, her
character, prior record, age, lack of specific intent to cause
death, and her relatively minor part in the crime." 141
The
Supreme Court declared that "the Eighth and Fourteenth Amendment
require that the sentencer . .. not be precluded from considering
as a mitigating factor, any aspect of a defendant's character
or record and any of the circumstances of the offense that the
defendant proffers as a basis for a sentence less than death." 14 2
14 3
In similar vein, the Supreme Court in Eddings v. Oklahoma
utilized the Lockett rationale to invalidate a death sentence 144
imposed upon an Oklahoma youth who murdered a state patrolman.
The Court bypassed the issue of the defendant's youth, and
instead focused on the mitigating factors considered by the
145
trial judge.
The United States Supreme Court observed that
the trial judge failed to consider certain aspects of the
defendant's character and background in mitigation because
he
146
found he could not consider them as a matter of law.
Speci-
fically, the trial judge declared, "[n]or can the [c]ourt in
following the law, in my opinion,
147 consider [certain aspects
of character and background]."
The Supreme Court viewed
that this position violated the Eighth Amendment for the reasons
announced in Lockett.
148
A sentencing authority must be free
149
to consider any relevant mitigating circumstance.
Speci-
fically, the Court enunciated, "[j]ust as the state may not
by statute preclude the sentencer from considering any mitigating factor, neither may the sentencer refuse to consider,
as a matter of law, any relevant mitigating evidence." 150
More recently, the United States Supreme Court issued
several decisions which warrant brief discussion.
151
Stephens,
In Zant v.
the Court further specified the requirements of
a statutory "aggravating circumstance" in a death penalty
statute.
In short, the Court observed to pass constitutional
inspection each aggravating circumstance upon which a death
penalty is premised, "must genuinely narrow the class of
persons eligible for the death penalty and must reasonably
justify the imposition of a more severe sentence 152
on the defendant compared to others found guilty of murder."
Further,
"[w]hat is important at the . . . [punishment] stage is an
individualized determination on the basis of the character
of the individual and the circumstances of the crime." 153
154
In California v. Ramos,
the United States Supreme
Court considered the constitutionality of a California requirement instructing the jury that a life imprisonment sentence
without possibility of parole may be commuted by the state
governor to a sentence which possesses the opportunity for
1 55
parole.
In declaring the requirement within the bounds of
the Constitution, the Court observed that,
mrn
[i]n ensuring that the death penalty is not meted
out arbitrarily or capriciously, the Court's principal concern has been more with the procedure by
which the State imposes the death sentence than
with the substantive factors the State lays before
the jury as a basis for imposing death, once it
has been determined that the defendant falls within
the category of persons eligible for the death
penalty.156
The Court remarked that the instruction did "not limit the
jury to two sentencing choices," but simply provided an addi157
tional factor for the jury's consideration.
The Court
concluded:
In returning a conviction, the jury must satisfy
itself that the necessary elements of the particular
crime have been proved beyond a reasonable doubt.
In fixing a penalty, however, there is no similar
central issue from which the jury's attention may
be diverted. Once the jury finds that the defendant
falls within the legislatively defined category of
persons eligible for the death penalty, as did
respondent's jury in determining the truth of the
alleged special circumstance, the jury then is free
to consider a myriad of factors to determine whether
death is the appropriate punishment.^8
159
Lastly, in Barclay v. Florida
the United States Supreme
Court further defined its position.
The Court remarked:
We have never suggested that the United States
Constitution requires that the sentencing process
should be transformed into a rigid and mechanical
parsing of statutory aggravating factors. But to
attempt to separate the sentencer's decision from
his experiences would inevitably do precisely that.
It is entirely fitting for the moral, factual, and
legal judgment of judges and juries to play a
meaningful rose in sentencing. We expect that
sentencers will exercise their discretion in their
own way and to the best of their ability. As long
as that discretion is guided in a constitutionally
adequate way, see Proffitt v. Florida, 428 U.S. 242
(1976), and as long as the decision is not so wholly
arbitrary as to offend the Constitution, the Eighth
Amendment cannot and should not demand m o r e .
1
The Court observed, "[a]ny sentencing decision calls for the
exercise of judgment.
It is neither possible nor desirable
for a person to whom the state entrusts an important judgment
to decide in a vacuum as if he had no experience." 161
The Supreme Court's Position Today
Due to the varying reasoning and general lack of consensus evidenced by the cases in this area, "the law must be
16 2
determined by the results."
It is apparent that the United
States Supreme Court has shifted, "at least in emphasis, from
the arbitrariness analysis
to the concepts of individualiza163
tion and reliability.
This is clearly evidenced by the
Lockett, Eddings, Zant and Barclay decisions. These cases indicate that the goal of uniformity so valued in the earlier Supreme
Court opinions, "is no longer of paramount importance and may
even be viewed as being at odds with the goal of individuali164
zation."
Lastly, it is suggested that the ramifications
of this apparent change in emphasis are potentially great, "as
uniformity was a primary basis in Gregg for
the requirement
165
to limit and guide the jury's discretion."
Despite this apparent change in focus, an analysis of
Supreme Court decisions reveal certain underlying principles.
Clearly, the Supreme Court, "considers that the death penalty
is unique and the procedure used to impose
X 6 6 it requires a
greater degree of judicial scrutiny."
cipal concern has been focused
Additionally, prin-
"at the procedure itself
OOflTH
[rather]
than at the particular substantive factors which a state
provides to the sentencing authority as a basis for imposing
16*7
capital punishment."
Further such procedures must ensure,
"that the death penalty is not meted out arbitrarily or
capriciously. "-1"68
Analysis of procedures approved by the Supreme Court,
reveal the following five factors which are essential to the
constitutionality of a sentencing scheme.
As stated by the
United States Court of Military Appeals in the Matthews
decision:
1.
A Bifurcated Sentencing Procedure Must Follow
the Finding Of Guilt Of a Potential Capital
Offense.
2.
Specific Aggravating Circumstances Must Be
Identified To the Sentencing Authority.
3.
The Sentencing Authority Must Select and Make
Findings On the Particular Aggravating Circumstances Used As a Basis For Imposing the Death
Sentence.
4.
The Defendant Must Have Unrestricted Opportunity
To Present Mitigating and Extenuating Evidence.
5.
Mandatory Appellate Review Must Be Required To
Consider the Propriety Of the Sentence As To
the Individual Offense and Individual Defendant
and To Compare the Sentence to Similar Cases
Statewide.
In sum, the sentence must be individualized as to the
defendant, and the sentencing authority must detail
specific factors that support the imposition of the
death penalty in the particular c a s e . 1 6 9
mm
Application of Supreme Court
Principles in the Military Justice System
It is noted that even prior to the recent prescribed
170
amendments to the Manual for Courts-Martial,
each of the
five factors derived from the above Supreme Court precedent
were present to a greater
or lesser degree in the court171
martial proceedings.
First, a bifurcated sentencing
procedure was utilized, and during the proceedings, the
court-martial members were
172 instructed by the judge as to
their specific duties.
Second, it is observed that even prior to the January
24, 1984 amendments there existed "certain" aggravating
circumstances.
The circumstances included such factors as
premeditation, specific intent, and felony murder.
These
circumstances had to be found
173 by the court members, however,
by only a two-thirds vote.
Thirdly, the military accused prior to the recent amendments, enjoyed "unlimited opportunity to present mitigating
and extenuating evidence; and in his instructions the military
judge must identify such evidence 174
to the court members for
their deliberations on sentence."
commentator convincingly
In explanation, one
suggests that a military accused
when compared to his civilian counterpart, enjoyed 175
substantially
greater opportunity to present favorable evidence.
For
example, a military accused may commence to establish his
176
defense prior to the trial by court-martial.
Specifically,
Oft 0 7 5
the Uniform Code of Military Justice requires an impartial pretrial investigation where the accused may introduce any evidence
he so desires.
177
This is in contrast to a civilian grand jury
investigation where the defendant has no right to be present
178
or to present evidence.
A potential benefit to the military
accused of this procedure is a complete and early discovery of
179
the government's case against him.
The same commentator also suggests that the procedure
during the sentencing stage of a court martial
is also in many
respects favorable to a military accused. 180 Specifically, in
presenting arguments and evidence to "aid the court in deter181
mining an appropriate sentence,"
the prosecutor may present
only certain kinds of evidence relating to the defendant's
18
prior service record and convictions within the past six years.
This rule therefore restricts the introduction of aggravating
circumstances to a greater degree than in most civilian crimi18 3
nal trials.
For example, the Federal Rules of Criminal
184
Procedure
provide, "'[n]o limitation . . . on the information
concerning the background, character, and conduct'" 1 ^ that a
sentencing authority may consider.
Further, in sharp contrast
to the strict limitations applicable to aggravating evidence
in a court-martial proceeding, "the standards of admissibility
for mitigating evidence are relaxed for the military defendant,"
as he or she may 186
introduce any evidence of apparent "authenticity
and reliability."
The standard of relevance is likewise
relaxed, "as the military accused may introduce any mitigating
ftWWC
evidence which may be helpful to the court in sentencing, or
18 7
which may serve as grounds for a later clemency action."
Fourth, "a mandatory review of the facts, the law, and
the appropriateness of the sentence is provided
188 by the convening
authority and the Courts of Military Review.
Further, auto-
matic review by the United States Court
of Military Appeals
is available as to all matters of law, 189 and ultimately,
190
"the President must approve all death sentences."
Addi-
tionally, the Matthews court detailed further provisions that
the military justice system provided regarding adequate appeli 4- review.
•
191
late
Defects in the Military
Justice System
The Matthews court, however found that neither the Uniform
Code of Military Justice nor the pre-amendment Manual for
Courts-Martial requires the court members to, "specifically
identify the aggravating factors upon which they have relied
192
in choosing to impose the death penalty."
The court further
observed that since no insight is provided into the court martial ' s deliberations, it is impossible to determine upon review
whether the court martial members made, "'an individualized
determination on the basis of the character of the individual
and the circumstances of the crime,' and whether the members
have 'adequately differentiate[d] this case in an objective,
evenhanded, and substantively rational way' from
other situa193
tions where the death penalty was not imposed."
ffifn 1 ??
It is noted that in Matthews, the government asserted
that the court-martial's finding that the murder was premeditated "narrows the class of murders subject to capital
punishment to whatever extent may be required by Zant v.
194
Stephens."
The Court of Military Appeals, however did not
195
fxnd merit in this contention,
as the court emphasized the
observation that, "Article 118(1) of the Code, which proscribes
premediated murder, 'parallels numerous statutes struck down
in Furman and its companions.'"19^
The court also emphasized that it is difficult to justify
the use of premeditation as a sole aggravating factor which
permits a court-martial to impose a death sentence, because
under military justice, evidence is sufficient to establish
premeditation which would not suffice for that purpose in most
jurisdictions. 197
Under the military definition,
A murder is not premeditated unless the thought
of taking life was consciously conceived and the
act or omission by which it was taken was intended.
Premeditated murder is murder committed after the
formation of a specific intent to kill someone
and consideration of the act intended. It is not
necessary that the intention to kill shall have
been entertained for any particular or considerable
length of time. When a fixed purpose to kill has
been deliberately formed, it is immaterial how
soon afterwards it is put into execution. The
existence of premeditation may be inferred fgom
the circumstances surrounding the killing.
The Court of Military Appeals then declared that, "[cjertainly
premeditation as thus interpreted falls far short of 'deliberation, ' which in several state capital punishment statutes is
used as an 'aggravating circumstance' that limits the class of
199
those subject to capital punishemnt."
Additionally, the Matthews court observed that under the
military justice system, "there is no guarantee that the members found premeditation unanimously." 200
The court explained:
Initially, only two thirds of the members need
concur in findings of guilty. There is no guarantee
of unanimity at this stage since no procedure exists
to discover if any member voted for a finding other
than premeditated murder.
Later, however, it becomes the duty of each
member to vote for a proper sentence for premeditated
murder; this is so, regardless of his or her possible
earlier vote on findings that the accused is either
innocent or guilty of some lesser offense not
requiring the forced choice of death or life
imprisonment. At this point, a death penalty
sentence must be unanimous. A "hold out" member
who voted during findings for other than premeditated
murder is compelled to vote the appropriate sentence
for a premeditated murderer-without regard to his or
her earlier opinion that the accused is not guilty of
that specific crime.
It follows that - even assuming that premeditation somehow becomes the military statutory aggravating/narrowing factors - there is no guarantgg^that
the members found premeditation unanimously.
Ultimately, in order to make the court-martial sentencing
procedure meet the standards of the Eighth Amendment, the
majority of the Matthews court provided for a ninety day
202
amending period.
The Court of Military Appeals also deter-
mined that if such change was implemented, a rehearing on the
applicability of the death sentence to 203
Private Matthews at
the trial court level was permissible.
In any event, the
death sentence that was adjudged was reversed. 204
Prior to discussing the 1984 amendments to the Manual for
Courts-Martial, the concurring opinion
205 in Matthews authored
by Judge Fletcher merits discussion.
This opinion warrants
analysis because, while the recent amendments to the manual
undoubtedly reflect the majority opinion in Matthews, they
likewise reflect several of the concerns of the concurring
opinion.
An interesting aspect of the court-martial process discussed by the concurring opinion is the "blue-ribbon" nature
of the military court members, i.e., the jury. 2 06
Specifically,
the military jury is specially qualified, and not selected
207
randomly as is a civilian jury.
The military court members
are those who, "are best qualified for the duty by reason of 208
age, education, length of service, and judicial temperament."
Further, by statute courts-martial are largely composed of
officer members, 209 although enlisted members may now serve
210
on the military jury.
Because of the nature of the military
jury, one post Furman Supreme Court case acknowledged that
military juries, "lack the 'vagaries' that make
211 discretionary
sentencing unacceptable in civilian courts."
Nevertheless
the concurring opinion concluded that the qualifications of
the military jury are analagous to the screening processes
employed in state systems which distinguish
212 qualified jurors
from a larger group of eligible jurors.
In this light, the
opinion concluded that, "military court members, as other
individuals, are subject to their own biases, prejudices, and
opinions, and must be
guided in their decisions in the same way
213
as civilian jurors."
In short, the failure to guide the
military jury's discretion, "seriously compromises the courtmartial sentencing procedure.
The potential for abuse of dis-
cretion is offset only partially, if at all, by the quality of
cmaso
the military jury." 214
Hence, the applicability of Furman
and its progeny is not altered by the "blue ribbon" nature
215
of the military jury.
Following a brief analysis of Furman, the concurring
opinion observed that the Uniform Code of Military Justice
and the Manual for Courts-Martial had
216 not been amended in
response to Furman and its progeny.
"Therefore, the present
military justice procedure for imposing the death penalty was
not designed with Furman . . . and the cases that followed as
217
a guide."
The opinion then noted that the lower court
held the procedure for imposing the death penalty had nonetheless satisfied Furman.
The concurring opinion then enunciated
that,
[t]his conclusion implied that, as a result of
overabundant concern for the rights of servicemembers, or as a result of mere happenstance, a
unique system for imposing the death penalty
evolved in the military without regard for
civilian practice. While such a phenomenon has
occurred in the past . . ., no authority has
been presented to this court which suggests
that such an enlightened procedure . . . was
though to exist in the military prior to Furman
or for that matter prior to this case. In
reality, the military . . . procedure . . . was
not considered unique and provided the members
of the court-martial with the same unfettered
discretion in sentencing, with the same type
of unstructured reference to their conscience
as was given in McGautha v. California, 402
U.S. 183 (1971)
Judge Fletcher then provided a very enlightening comparison
between the California system at issue in McGautha and the
219
military justice system prior to the 1984 amendments.
Precisely, the military provisions virtually paralleled the
32
00081
unconstitutional... California system. 214
The concurring
opinion emphasized that although the McGautha Court was divided
on the constitutionality of standardless jury sentencing, it
was very clear that the Court agreed that the California
statutory scheme imparted absolute discretion to the jury.
221
Further, since the military justice system prior to the 1984
amendments was virtually identical to the California sentencing
22?
procedures, "" Judge Fletcher concluded that the military
system permitted untrammeled sentencing discretion to the
223
military jury.
The Judge then emphasized that,
McGautha - type sentencing discretion was rejected
on cruel and unusual punishment grounds by the
decision in Furman, . . . and in those cases that
followed. [Accordingly] [s]ystems which were
virtually the same as [the pre-1984 amendment
military justice system] were rejected long ago
by the Supreme Court. To permit this legal
anarchronism to be revived ten years after Furman
would be to return the military justice system
to 'the dark ages', a„course contrary to the
intent of Article 55.
The concurring opinion also offered an alternative analysis
regarding the constitutionality of the military justice system
prior to the 1984 amendments.
While acknowledging that the
failure to require the military jury to specifically identify
the aggravating factors relied on to impose the death penalty
renders the procedure invalid, the opinion suggested that a
2
more fundamental flaw existed in the capital sentencing scheme.
Specifically, "[a]t the stage of the legislative definition,
the class of convicted murderers eligible for the death
penalty
225
is not adequately narrowed for the court members."
In
explanation, the Uniform Code of Military Justice article 118(1)
provides:
"Any person . . . who, without justification or
excuse, unlawfully kills a human being, when he . . . has a
227
premeditated design to kill. . . is guilty of murder."
In this context, premeditation constitutes an element of the
offense necessary to the
228 "guilt/innocence" determination of
the offense of murder.
Article 118 also provides that the
accused guilty of premeditated murder "shall suffer death or
229
imprisonment for life as a court martial may direct."
In this context, "premeditation is a factor found at the
guilt determination phase of the court-martial which narrows
the categories of murder for which a death penalty may ever
230
be imposed."
However, the article provides the alternative
punishment of life imprisonment.231
Judge Fletcher then observed that "'an aggravating circumstance must genuinely narrow the class of persons eligible
for the death penalty and must reasonably justify the imposition of a more severe sentence on
the defendant compared to
232
others found guilty of murder.'"
Further, the opinion noted
that not a single post Furman decision from a civilian court
supports the contention that premeditation by itself "adequately"
or "genuinely" narrows
the class of defendants eligible for the
233
death sentence.
Judge Fletcher then emphasized that Jurek
cannot be construed as approving premeditation as a circumstance which "genuinely narrows" the class of murderers eligible
34
mmn
for the death sentence, because in Jurek a finding of premeditation (in actuality its functional equivalent) was employed
only for the purpose of determining whether the death sentence
was appropriate for an accused already eligible for the
penalty.
234
Judge Fletcher ultimately concluded:
To hold ten years after Furman that the use of
premeditation . . . now adequately satisfies
its concerns would seriously undermine the
vitality of that decision. The commonsense
import of Furman and its progeny is that
premeditation is too broad a concept to accomplish the 'genuine narrow[ing]' required at
the stage of legislative definition to determine the class of convicted murderers eligible
for the death penalty. 235
Lastly, it is noted that the concurring opinion also
suggested that the trial judge failed to give proper instructions to the court members in accordance with the Manual for
236
Courts-Martial.
The manual requires that, "[t]he instruc-
tions should be tailored 237
to the facts and circumstances of the
individual case . . . ."
Accordingly, specific instruc-
tions which emphasized the "uniqueness and primacy" of the
death sentence could and should have been given by the trial
• ^
238
judge.
Amendments to the Manual
for Courts-Martial
In response to the Matthews decision an Executive Order
239
was issued by Ronald Reagan on January 24, 1984.
The
Executive Order prescribed amendments to the Manual for Courts-
Martial. 214
The order primarily amended paragraph 75 of the
Manual for Courts-Martial to conform to the mandates of
Furman and its progeny. 241
Specifically, paragraph 75 entitled
"Presentencing Procedure" was amended by adding subsequent to
24 2
paragraph 75f several new provisions.
Specifically para-
graph 7 5g was added providing the following:
g. Capital cases.
(1) In general. Death may be adjudged only when:
(a) Death is expressly authorized under the
code and this Manual for an offense of which
the accused has been found guilty or is authorized under the law of war for an offense of
which the accused has been found guilty under
the law of war; and
(b) The requirements of 75g(2) and (3) have
been met.
(2) Procedure, In addition to the other provisions
in 75, the following procedures shall apply in
capital cases—
(a) Notice. Before arraignment, trial counsel
shall give the defense written notice of which
aggravating circumstances under 75g(3) the prosecution intends to prove. Failure to provide
timely notice under this subsection of any
aggravating circumstances under 75g(3) shall
not bar later notice and proof of such additional aggravating circumstances unless the
accused demonstrates specific prejudice from
such failure and that a continuance or a recess
is not an adequate remedy.
(b) Evidence of aggravating circumstances.
Trial counsel may present evidence in accordance
with 75b(4) tending to establish one or more of
the aggravating circumstances in 75g(3).
(c) Evidence in extenuation and mitigation.
The accused shall be given broad latitude to
present evidence in extenuation and mitigation.
(d) Necessary findings. Death may not be
adjudged unless the members find:
(i) Beyond a reasonable doubt that one
or more of the aggravating circumstances
under 75g(3) existed; and
(ii)That any extenuating or mitigating
circumstances are substantially outweighed
36
dmn5
by any aggravating circumstances including
such circumstances under 75g{3) as the
members have found existed.
(e) Basis for findings. The findings in 75g(2)(d)
may be based on evidence introduced before the
findings on the issue of guilt, during the sentencing proceeding, or both.
(f) Instructions. In addition to the instructions
required under 76b(1), the military judge shall
instruct the members on such aggravating circumstances under 75g(3) as may be in issue in the
case and on the requirements and procedures under
75g(2)(d),(e),(g) and (h). The military judge
shall instruct the members that they must consider
all evidence in extenuation and mitigation before
they may adjudge death.
(g) Voting. In closed session, before voting on
a sentence, the members shall vote by secret
written ballot separately on each aggravating
circumstance under 75g(3) on which they have been
instructed. Death may not be adjudged unless all
members concur in a finding of the existence of
at least one such aggravating circumstance. After
voting on all the circumstances on which they
have been instructed, the members shall vote on a
sentence in accordance with 76b(2) and (3).
(h) Announcement. If death is adjudged, the
president shall, in addition to complying with 76c,
announce which aggravating circumstances under 75g(3)
were found by the members.
(3) Aggravating circumstances. Death may be adjudged
only if the members find, beyond a reasonable doubt,
one or more of the following aggravating circumstances:
(a) That the offense was committed before or in
the presence of the enemy, except that this circumstances shall not apply in the case of a violation of Article 118 or 120;
(b) That in committing the offense the accused
intended to:
(i) cause substantial damage to the national
security of the United States; or
(ii)cause substantial damage to a mission,
system, or function of the United States,
provided that this subparagraph shall apply
only if substantial damage to the national
security of the United States would have
resulted had the intended damage been
effected;
(c) That the offense caused substantial damage to
the national security of the United States, whether
or not the accused intended such damage,
except that this circumstance shall not applyin the case of a violation of Article 118 or
120;
(d) That the offense was committed in such a
way or under circumstances that the lives of
persons other than the victim, if any, were
unlawfully and substantially endangered, except
that this circusmtance shall not apply to a
violation of Article 120;
(e) That the accused committed the offense with
the intent to avoid hazardous duty:
(f) That, only in the case of a violation of
Article 118 or 120, the offense was committed
in time of war and in terriroty in which the
United States or an ally of the United States
was then an occupying power or in which the
armed forces of the United States were then
engaged in active hostilities:
(g) That, only in the case of a violation of
Article 118 (1):
(i) The accused was serving a sentence
of confinement for 30 years or more or for
life at the time of the murder.
(ii) The murder was committed while the
accused was engaged in the commission or
attempted commission of any robbery, rape,
aggravated arson, sodomy, burglary, kidnapping, mutiny, sedition, or piracy of
an aircraft or vessel, or was engaged in
flight or attempted flight after the commission or attempted commission of any
such offense;
(iii) The murder was committed for the
purpose of receiving money or a thing of
value;
(iv) The accused procured another by
means of compulsion, coercion, or a
promise of an advantage, a service, or
a thing of value to commit the murder;
(v) The murder was committed with the
intent to avoid or to prevent lawful
apprehension or effect an escape from
custody or confinement;
(vi) The victim was the President of the
United States, the President-elect, the
Vice-President, or, if there was no Vice
President, the officer next in the order
of succession to the office of President
of the United States, the Vice-President-
o m R 7
elect, or any individual who is acting
as President under the Constitution and
laws of the United States, any Member of
Congress or Member-of-Congress elect,
or any judge of the United States;
(vii) The accused then knew that the
victim was any of the following persons
in the execution of office: a commissioned,
warrant, noncommissioned, or petty officer
of the armed services of the United States;
a member of any law enforcement or security
activity or agency, military or civilian,
including correctional custody personnel;
or any firefighter;
(viii) The murder was committed with
intent to obstruct justice;
(ix) The murder was preceded by the intentional infliction of substantial physical
harm or prolonged, substantial mental or
physical pain and suffering to the victim;
or
(x) The accused has been found guilty in
the same case of another violation of
Article 118;
For purposes of this paragraph, 'national
security' means the national defense and
foreign relations of the United States and
specifically includes: (a) a military or
defense advantage over any foreign nation
or group of nations, (b) a favorable foreign
relations position, or (c) a defense posture
capable of successfully resisting hostile
or destructive action from within or without,
overt or covert. Examples of substantial
damage to the national security of the United
States may include: impeding the performance
of a combat mission or operation; impeding
the performance of an important mission in a
place subject to hostile fire or imminent
danger pay (see 37 U.S.C. section 310(a))
and disclosing military plans, capabilities,
or intelligence such as to jeopardize any
combat mission or operation of the armed
services of the United States or its allies
or to materially aid an enemy of the United
States.
(h) That only in the case of a violation of
Article 118(4), the accused was the actual perpetrator of the killing;
(i) That, only in the case of a violation of
Article 120;
(i) The victim was under the age of 12; or
(ii) The accused maimed or attempted to
kill the victim; or
(iii) That, only in the case of a violation
of the law of war, death is authorized under
the law of war for the offense.
(4) Spying. If the accused has been found guilty of
spying under Article 106, 75g(l)(b), (2), and (3), and
76 shall not apply. Sentencing proceedings in accordance with 75 a through f shall be conducted, but the
military judge shall announce that by operation of
law a sentence of death has been a d j u d g e d . 2 4 3
It is observed that the prescribed amendments to the Manual
for Courts-Martial appear to be in large measure premised on
244
the Model Penal Code,
although somewhat modified to conform
with the military justice system.
It is noted that the Model
Penal Code was adopted by twenty-nine of the thirty-nine states
that enacted revised capital
sentencing statutes subsequent
245
to the Gregg decision.
In analyzing the amendments, it is noteworthy that although
the Model Penal Code and several state statutes provide an
extensive list of mitigating circumstances, no such list
included in the recent amendments.
is
Justification for this
omission is that the military court members are free to consider
any mitigating evidence presented to them, and in this light
the accused is "given broad latitude
to present evidence in
246
extenuation and in mitigation."
Further, "[i]t appears more
favorable to the [military] defendant to allow the jury complete
discretion to select any mitigating factor they think significant enough to call for leniency, without implying that some
mitigating factors should be given more wieght than others." 247
ftftOflfl
It is emphasized that the addition of the detailed list of
aggravating circumstances,248 one or more of which must be
found beyond a reasonable doubt before death may be adjudged,
clearly facilitates the movement of the military justice system
within the mandates of Supreme Court constitutional guidelines. 24
Of great constitutional significance are the notice pro250
visions
and the specification of findings necessary to insti251
tude the death penalty.
The requirement of early notice
of which aggravating circumstances the prosecution intends to
prove provides the military accused with
552a full and complete
understanding of the case against him.
litates trial preparation.
This certainly faci-
Of equal constitutional signifi-
cance is that death may not be adjudged unless, "any extenuating or mitigating circumstances are substantially outweighed
by any aggravating circumstances . . . as the members have
found existed."
253
This plainly offers the accused additional
protection and parallels the language of many constitutionally
254
approved state statutory schemes.
Further, the amendments
require detailed instructions by the trial jury, demanding
that the jury consider all evidence in extenuation and miti255
gation before the jury may implement the death sentence.
The voting requirement, that all members of the military
jury concur on a finding of at least one statutory aggravating
circumstance pursuant to a secret written ballot, also provides
protection for the military accused. 2 5 6 Lastly, "[i]f death
41
(Mingo
is adjudged the president shall . . . announce which aggravating circumstances were found by the members" 257 satisfies
2 58
a principle concern of the Matthews court.
In short, it appears that the Executive Order promulgated
by President Reagan in response to the Matthews decision brings
the military death sentencing procedures into compliance with
Supreme Court constitutional requirements.
Conclusion
This analysis demonstrates that the ramifications of the
Matthews decision were monumental.
The decision, representing
one of the first appellate reviews of the military justice
system since Furman, demonstrated the constitutional infirmities of the military's implementation of the death sentence.
Specifically, while the United States Court of Military Appeals
in Matthews acknowledged there may indeed be circumstances when
certain procedural requirements prove inimical to military
necessity, this is not the case in most prosecutions for
premeditated murder.
Accordingly, the military justice system
is required to provide sentencing guidelines to their juries.
The 1984 amendments to the Manual for Courts-Martial, prescribed in response to the Matthews decision, brings the military death sentence procedure within the established mandates
of Supreme Court precedent.
Clearly, the new procedure focuses
the military jury's "attention on the particularized nature of
42
the crime and the particularized characteristics of the
259
individual defendant."
Since the military jury's discre-
tion is channeled, "[n]o longer can . . .[it] wantonly and
freakishly impose the death sentence; it is
260 always circumscribed by . . . legislative guidelines."
In sum, the
concerns that prompted Furman and its progeny are no longer
present in any significant degree in the military justice
system's implementation of the death penalty.
43
o r m s
ENDNOTES
1.
Comment, The Death Penalty in Military Courts: Constitutionally Imposed?, 30 U.C.L.A. L. Rev. 366, 366 (1982).
2.
Pavlick, The Constitutionality of the U.C.M.J. Death
Penalty Provisions, 97 Mil. L. Rev. 81, 81 (1982).
3.
408 U.S. 238 (1972) (per curiam).
4.
See e.g., id. at 248-49 (Douglas, J., concurring) ("arbitrarily");
id. at 291-95 (Brennan, J., concurring) ("capricious");
id. at 309-10 (Steward, J., concurring) ("freakishly").
See also comment, supra note 1, at 367.
5.
Uniform Code of Military Justice, 10 U.S.C. §§801-940
(1976) (hereinafter cited as U.C.M.J.).
6.
Pavlick, supra note 2, at 82. Note that arguably the Supreme
Court addressed the issue on one occasion. In Shick
v. Reed, 419 U.S. 256 (1974) the Court considered the
constitutional challenge of the capital punishment
provisions of the U.C.M.J, and,the President's authority
to commute the death sentence to life imprisonment
without parole. The Court, however, decided the case
on the basis of the latter challenge, upholding the
President's authority never reaching the question of
Furman's applicability to the military. Pavlick,
supra note 2, at 82 n. 4.
7
•
Id.
See United States v. McReynolds, 9 M.J. 881, 882
(A.F.C. M.R. 1980) providing that the death penalty
is grossly disproportionate and excessive punishment
for the offense of rape of an adult female when the
victim was not killed. See United States v. Gay,
16 M.J. 586, 597 (A.F.C.M.R. 1983) declaring the
statutory military death penalty procedure unconstitutional. See infra note 196 and accompanying
text.
8.
13 M.J. 501 (A.C.M.R. 1982), rev'd, 16 M.J. 354 (C.M.A. 1983).
9.
16 M.J. 354 (C.M.A. 1983).
10.
Comment, supra note 1, at 369.
11.
Id.
o r m m
12.
13.
See id. at 369.
14.
Matthews, 16 M.J. at 359.
It is noted that U.C.M.J., supra
note 5, art. 118 provides:
Any person subject to this chapter who, without
justification or excuse, unlawfully kills a
human being, when he (1) has a premediated design to kill;
(2) intends to kill or inflict great bodily
harm;
(3) is engaged in an act which is inherently
dangerous to others and evinces a wanton disregard for human life; or
(4) is engaged in the perpetration or attempted
perpetration of burglary, sodomy, rape, robbery,
or aggravated arson; is guilty of murder, and
shall suffer such punishment as a court-martial
may direct, except that is found guilty under
clause (1) or (4), he shall suffer death or
imprisonment for life as a court-martial may
direct.
See also U.C.M.J., supra note 5, art. 120(1).
It is
observed that~this article provides for the death
penalty for rape, however this provision is inoperative. The United States Supreme Court has held
that death is an unconstitutionally cruel and
unusual punishment for rape. Coker v. Georgia,
433 U.S. 584, 592 (1977). This ruling was followed
by the Air Force Court of Military Review in
McReynolds, 9 M.J. at 882.
15.
Pavlick, supra note 2, at 82 n. 6.
See also supra
note 14.
16.
See supra notes 6-7 and accompanying text.
17.
Matthews, 16 M.J. at 364.
18.
Id.
2
19.
Id.
20.
415 U.S. 361 (1974).
21.
Id. at 368 (footnotes omitted).
22.
Matthews, 16 M.J. at 364.
23.
Shaw v. United States, 209 F.2d 811, 813 (D.C. Cir. 1954).
24.
Matthews, 16 M.J. at 364.
25.
Id. at 365 quoting Northern Pipeline Construction Co. v.
Marathon Pipe Line Co., 458 U.S. 50, 63 n. 14 (1982)
(footnotes
omitted).
26.
Palmore v. United States, 411 U.S. 389, 404 (1973).
27.
458 U.S. 50 (1982).
28.
Matthews, 16 M.J. at 366.
29.
30.
Id.
Id.
The court stated,
[t]o impute a contrary intent would itself
raise the constitutional question whether
a judge - even one appointed under Article
I, rather than under Article III - could
be required by oath to support the constitution. . ., but at the same time be
forced to make decisions and render
judgments based on statutes which he
concluded were contrary to that constitution.
Id.
31.
Id. at 367 quoting United States v. Frichholz, 16 C.M.A. 150,
152, 36 C.M.R. 306, 308 (1966).
32.
Id. quoting Gale v. United States, 17 C.M.A. 40, 42, 37
C.M.R. 304, 306 (1967).
33.
Id.
34.
Id. at 368.
35.
Pavlick, supra note 2, at 105.
3
36.
Id. citing United States v. Stuckey, 10 M.J. 347, 349
(C.M.A. 1981) (opinion of Everett, C.J.).
37.
Id.
38.
Comment, supra note 1, at 375.
39.
Id.
40.
Pavlick, supra note 2, at 105.
41.
Parker v. Levy, 417 U.S. 733, 758 (1974).
42.
Comment, supra note 1, at 375-376.
43.
Pavlick, supra note 2, at 106.
44.
Comment, supra note 1, at 377.
45.
Pavlick, supra note 2, at 107.
46.
U.C.M.J., supra note 5, art. 55 provides as follows:
Note also
to trial by
to military
258, 261-63
by implication the Sixth Amendment right
jury has also been declared inapplicable
law. See 0'Callahan v. Parker, 395 U.S.
(1969).
Punishment by flogging, or by branding,
marking, or tattooing on the body, or any
other cruel or unusual punishment may not
be adjudged by any court-martial or inflicted upon any person subject to this
chapter. The use of irons, single or
double, except for the purpose of safe
custody is prohibited.
47.
Pavlick, supra note 2, at 107.
55 is basically derived from
of the Articles of War which
and unusual punishment. Id.
48.
Id.
49.
Id.
50.
Matthews, 16 M.J. at 368.
51.
Id.
52.
Id.
Note that the text of Article
the wording of Article 41
also prohibited cruel
at 107 n. 154.
See also United States v. Stuckey, 10 M.J. 347 (C.M.A.
1981); United States v. Jacoby, 11 C.M.A. 428, 430-31,
29 C.M.R. 244, 246-47 (1960).
See also supra note 46.
mom
53.
Matthews, 16 M.J. at 368 quoting United States v.
Wappler, 2 C.M.A. 393, 396, 9 C.M.R. 23, 26 (1953).
54.
55.
56.
Id. at 369.
57.
58.
Comment, The Death Penalty Cases: Shaping Substantive
Criminal Law, 58 Ind. L.J. 162, 162 (1982).
59.
402 U.S. 183 (1971).
60.
Matthews, 16 M.J. at 369.
61.
Pavlick, supra note 2, at 83.
62.
Id. at 85.
63.
Matthews, 16 M.J. at 369.
64.
Furman v. State, 225 Ga. 253, 167 S.E.2d 628 (1969);
Jackson v. State, 225 Ga. 790, 171 S.E.2d 501 (1969);
Branch v. State, 447 S.W.2d 932 (Tex. Crim. App. 1969).
65.
Furman, 408 U.S. at 240.
66.
English, The Constitutionality of the Court-Martial Sentence,
21 A.F. L. Rev. 552, 555 (1979).
67.
Furman, 408 U.S. at 360 (Marshall, J., concurring).
68.
Id. at 269-70 (Brennan, J., concurring) citing Trop v.
Dulles, 356 U.S. 86, 100-101 (1958).
69.
70.
Id. at 305 (Brennan, J., concurring).
71.
72.
English, supra note 66, at 556.
73.
Furman, 408 U.S. at 256 (Douglas, J., concurring).
74.
Id. at 309-10 (Steward, J., concurring).
Comment, supra note 1, at 379.
75.
Furman, 408 U.S. at 312 (White, J., concurring).
76.
Id.
77.
Pavlick, supra note 2, at 87.
78.
Id.
79.
See Matthews, 16 M.J. at 370.
80.
Pavlick, supra note 2, at 88.
81.
428 U.S. 153 (1976).
82.
428 U.S. 242 (1976).
83.
428 U.S. 262 (1976).
84.
It is noted that the Supreme Court announced five death
penalty decisions that day. Two of the decisions
struck down mandatory death sentencing statutes.
See infra notes 122-132 and accompanying text.
85.
See Pavlick, supra note 2, at 89.
86.
Id.
87.
Gregg, 428 U.S. at 187.
88.
Id. at 188-189 (emphasis added).
89.
Id. at 162.
90.
Id. at 163 quoting Ga. Code Ann. §27-2503 (Supp. 1975).
91.
Id. at 164 quoting Ga. Code Ann. §27-2534.1(b) (Supp. 1975).
It is noted that the four Justices who dissented wrote
separate opinions. The dissenting opinions decried
the infringement by the Court on legislature perogatives, and urged that the decision ignored almost
two centuries of case law. Id. "These opinions
[however] are not critical to the discussion of
the Court's approach to subsequent capital cases
because in future cases most of the justices
proceeded from the practical result of the Furman
decision's attack on jury discretion." Id.
See Gregg, 428 U.S. at 187.
Note that Ga. Co~de Ann. §77-2534.1 (b) (Supp. 1975)
(current version in Supp. 1982) (recodified at §17-10-30
(Supp. 1982) required a finding of at least one of the
following factors:
(a) prior conviction for capital felony or
violent assaultive crimes (Arnold v. State,
236 Ga. 534, 540, 224 S.E.2d 386, 391 (1976),
held a portion of this section invalid because it was not sufficiently clear and
obj ective);
(b) capital crime committed during certain
other felonies;
(c) knowingly creating a great public hazard;
(d) murder for the purpose of receiving money;
(e) murder of a judge or attorney because of
his official duties;
(f) acting as agent or principal in a murder
for hire;
(g) offense was outrageously or wantonly vile,
horrible, or inhuman (with torture, depravity
of mind, or aggravated battery to the victim).
This subsection cannot be a catch-all. The
Supreme Court ruled that it must be narrowly
construed, with torture or battery present,
for this section to be constituionally applied.
Godfrey v. Georgia, 446 U.S. 420, 431-32 (1980);
(h) murder of a police officer, prison guard,
or fireman engaged in performance of official
duties;
(i) murder by one in, or who has escaped from
custody;
(j) murder to avoid custody or confinement.
Pavlick, supra note 2, at 164.
92.
Gregg, 428 U.S. at 164 citing Ga. Code Ann. §26-3102
(Supp. 1975).
93.
Id. at 166 citing Ga. Code Ann. §26-2534.1(c) (Supp. 1975).
94.
Id. citing Ga. Code Ann. §§26-3102, 27-2514 (Supp. 1975).
95.
Id. citing Ga. Code Ann. §27-2537 (Supp. 1975).
96.
Ga. Code Ann. §27-2537 (Supp. 1975).
Note that even if
the death penalty is affirmed, executive clemency
is possible. See Gregg, 428 U.S. at 168.
97.
Gregg, 428 U.S. at 206-07.
51
98.
Id. at 195.
99.
Proffitt, 428 U.S. at 248.
100. Id.
See also Pavlick, supra note 2, at 92.
The aggravating circumstances were:
(a) The capital felony was committed by a
person under sentence of imprisonment.
(b) The defendant was previously convicted
of another capital felony or of a felony
involving the use or threat of violence to
the person.
(c) The defendant knowingly created a great
risk of death to many persons.
(d) The capital felony was committed while
the defendant was engaged, or was an accomplice, in the commission of, or an attempt to
commit, or flight after committing or attempting to commit, any robbery, rape, arson, burglary, kidnapping, or aircraft piracy or the
unlawful throwing, placing, or discharging of
a destructive devise or bomb.
(e) The capital felony was committed for the
purpose of avoiding or preventing a lawful
arrest or effecting an escape from custody.
(f) The capital felony was committed for
pecuniary gain.
(g) The capital felony was committed to disrupt or hinder the lawful exercise of any
governmental function or the enforcement of
laws.
(h) The capital felony was especially heinous,
atrocious, or cruel.
Fla. Stat. Ann. §921.141(5) (Supp. 1976-1977).
101. Proffitt, 428 U.S. at 248. The mitigating circumstances
were:
(a) The defendant has no significant history
of prior criminal activity.
(b) The capital felony was committed while
the defendant was under the influence of
extreme mental or emotional disturbance.
(c) The victim was a participant in the defendant's conduct or consented to the act.
(d) The defendant was an accomplice in the
capital felony committed by another person
and his participation was relatively minor.
(e) The defendant acted under extreme duress or under the substantial domination of
another person.
(uhm
(f) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law
was substantially impaired.
(g) The age of the defendant at the time of
the crime.
Fla. Stat. Ann. §921.141(6) (Supp. 1976-1977).
102. Proffitt, 428 U.S. at 248 quoting Fla. Stat. Ann. §§921.141(2)(b)
and 921.141(2)(c) (Supp. 1976-1977)."
103. Id. at 249.
104. Id.
105. Id. at 250 quoting Fla. Stat. Ann. §921.141(3) (Supp. 1976-1977).
106. Id. quoting Fla. Stat. Ann. §921.141(3) (Supp. 1976-1977).
107. Id. at 250-51.
108. Id- at 251 quoting State v. Dixon, 283 So.2d 1, 10 (1973).
109. Id. at 252.
110. See Matthews, 16 M.J. at 371.
111. See Tex. Penal Code Ann. §19.03 (Vernon 1974).
112. Comment, supra note 1, at 383.
113. See Pavlick, supra note 2, at 93.
114. Id.
115. Comment, supra note 1, at 383.
116. Tex. Penal Code Ann. §19.03 (Vernon 1974).
~
See Jurek,
42"8" U.S."at 2F8.
117. Comment, supra note 1, at 383 citing Tex. Code Crim. Proc. Ann.
art. 37.071(b) (Vernon Supp. 1975-T976)—(current version-in
Vernon 1981). See Jurek, 428 U.S. at 267, 269.
9
m
oi
118. Tex. Code Crim. Proc. Ann, art. 37.071(b)(1), (2), (3)
(Vernon Supp. 1975-1976) (current version in Vernon
1981). See Jurek, 428 U.S. at 269.
119. Tex. Code Crim. Proc. Ann, art. 37.971(c)-(e).
~
Note that
if-the jury is not unanimous on all three questions,
or does not answer beyond a reasonable doubt, the
sentence will be life imprisonment. Id.. See Jurek,
428 U.S. at 269. See also comment, supra note 1,
at 383 n. 111.
120. Jurek, 428 U.S. at 272.
121. Id. at 276.
122. See Matthews, 16 M.J. at 372.
123. Pavlick, supra note 2, at 94.
124. 428 U.S. 280 (1976).
125. Woodson, 428 U.S. at 298, 301.
126. Id. at 303.
127. Id.
128. Id. at 304.
129. 428 U.S. 325 (1976).
130. Roberts, 428 U.S. at 332.
See La. Rev. Stat. Ann. §14.30
(1974). The statute provides:
First degree murder is the killing of a
human being:
(1) When the offender has a specific intent
to kill or to inflict great bodily harm and
is engaged in the perpetration or attempted
perpetration of aggravated kidnapping, aggravated rape or armed robbery; or
(2) When the offender has a specific intent
to kill, or to inflict great bodily harm
upon, a fireman or a peace officer who was
engaged in the performance of his lawful
duties; or
(3) Where the offender has a specific intent
to kill or to inflict great bodily harm and
has previously been convicted of an unrelated
murder or is serving a life sentence; or
(4) When the offender has a specific intent
to kill or to inflict great bodily harm
upon more than one person; or
(5) When the offender has specific intent
to commit murder and has been offered or
has received anything of value for committing the murder.
For the purposes of Paragraph (2) hereof,
the term peace officer shall be defined
and include any constable, sheriff,
deputy sheriff, local or state policeman,
game warden, federal law enforcement officer, jail or prison guard, parole officer,
judge, district attorney, assistant district
attorney, or district attorneys investigator.
Whoever commits the crime of first degree
murder shall be punished by death.
131. La. Code Crim. Proc. Ann., arts. 809, 814 (Supp. 1975).
See Roberts, 428 U.S. at 332, 335.
132. Roberts, 428 U.S. at 333.
133. See e.g., Lockett v. Ohio, 438 U.S. 586 (1978); Bell v. Ohio,
438 U.S. 637 (1978); Eddings v. Oklahoma, 455 U.S. 104
(1982); Zant v. Stephens, 103 S. Ct. 2733 (1983);
California v. Ramos, 103 S. Ct. 3446 (1983); Barclay
v. Florida, 103 S. "Ct. 3418 (1983).
134. 438 U.S. 586 (1978).
135. 438 U.S. 637 (1978).
136. Pavlick, supra note 2, at 97.
137. Lockett, 438 U.S. at 589.
See Lockett, 438 U.S. at 594.
See also Matthews, 16 M.J. at 373.
138. Ohio Rev. Code Ann. §2929.04(B) (1975).
139. Lockett, 438 U.S. at 594.
140. Id.
141. Id. at 597.
142. I_d. at 604 (emphasis in original).
143. 455 U.S. 104 (1982).
11
.M
144. Id.
145. Pavlick, supra note 2, at 100.
146. Id.
See Eddings, 455 U.S. at 109.
147. Eddings, 455 U.S. at 109.
148. Id. at 113.
See also Pavlick, supjra note 2, at 100.
149. Eddings, 455 U.S. at 113-14.
150. Id.
(emphasis in original).
151. 103 S. Ct. 2733 (1983).
152. Id. at 2742-43.
153. Id. at 2743-44.
154. 103 S. Ct. 3446 (1983).
155. Id.
See Matthews, 16 M.J. at 375.
156. Ramos, 103 S. Ct. at 3451.
157. Id. at 3451.
See Matthews 16 M.J. at 375.
158. Ramos, 103 S. Ct. at 3456.
159. 103 S. Ct. 3418, reh'g denied, 104 S. Ct. 209 (1983).
160. Id. at 3424.
161. Id.
162. Pavlick, supra note 2, at 100.
163. Id.
164. Id.
165. Id.
166. Matthews, 16 M.J. at 376.
167. Id.
168. Id.
12
ftfil 04
169. Id.
See also comment, supra note 1, at 380-385. This
commentary provides an excellent discussion of the
factors essential to the constitutionality of a death
sentencing scheme.
170. Manual for Courts-Martial, United States (1969) [hereinafter
cited as M.C.M. followed by the relevant paragraph].
The M. C. MT is~promulgated by the President, under the
authority delegated by Congress. It is composed of
executive orders, which possess the force of law and
are applied in all military courts. The executive
orders that comprise the M.C.M. are as follows:
Exec.
Exec.
Exec.
Exec.
Exec.
Exec.
Exec.
Exec.
Exec.
Order
Order
Order
Order
Order
Order
Order
Order
Order
No,
No.
No,
No,
No,
No,
No,
No,
No,
12,460,
12,383,
12,340,
12,306,
12,233,
12,198,
12,018,
11,835,
11,476,
49 Fed. Reg.
3 C.F.R. 209
3 C.F.R. 122
3 C.F.R. 151
3 C.F.R. 276
3 C.F.R. 151
3 C.F.R. 152
3 C.F.R. 944
3 C.F.R. 802
3169 (1984);
(1983)
(1983)
(1982)
(1981)
(1981)
(1978)
(1975)
(1969) .
171. Comment, supra note 1, at 385.
172. Matthews, 16 M.J. at 377.
See M.C,M., supra note 170, paras
75a and 76b.
173. Matthews, 16 M.J. at 378.
See M.C.M., supra note 170, paras
73, 74, 75 and 76.
174. Matthews, 16 M.J. at 378.
See M.C.M., supra note 170, paras
75c(1) and 76b(l).
175. Comment, supra note 1, at 389.
176. Id.
177. Id..
See U. C ,M. J . , supra note 5, art. 32.
supra note 170, para. 34.
178. Comment, supra note 1, at 389.
179. Id.
See also M. C .M. ,
180. Id.
181. M.C.M., supra note 170, para. 75a.
182. Comment, supra note 1, at 389.
See M.C.M., supra note 170,
para. 75b. It is noted that the prosecution may introduce evidence establishing the accused's age, length
of service, marital status, and duration of pre-trial
confinement. Evidence of prior military record encompasses courts-martial convictions within the past
six years, letters of reprimand, demotions for misconduct or inefficiency and other disiplinary actions
taken by the accused's commander. Id.
183. Comment, supra note 1, at 390.
184. Fed. R. Crim. P. 32(c)(2).
185. Smith v. United States, 551 F.2d 1193, 1196 (10th Cir. 1977),
cert denied, 434 U.S. 830 (1977) quoting Fed. R. Crim. P.
32(c)(2).
_
186. Comment, supra note 1, at 390.
_
_
See M.C.M., supra note 170,
para. 75c(3). The paragraph provides, "[t]he military
judge or president of a special court-martial without
a military judge may, with respect to matters in extenuation or mitigation or both, relax the rules of evidence.
This may include receiving letters, affidavits, certificates of military and civil officers, and other writings
of similar authenticity and reliability." Id.
187. Comment, supra note 1, at 391.
para. 75c(3) .
See M.C.M., supra note 170,
See also supra note T86T.
188. Matthews, 16 M.J. at 378.
See U.C.M.J., supra note 5, art.
66(b)-(d).
189. Matthews, 16 M.J. at 378.
See U.C.M.J., supra note 5,
art. 67.
190. Matthews, 16 M.J. at 378.
71(a).
See U.C,M.J., supra note 5, art.
See also M.C.M., supra note 170, para. 101.
(\mm
191.
Matthews, 16 M.J. at 378. The Matthews court noted the
following:
The military justice system also provides
other safeguards against the arbitrary or
capricious imposition of the death penalty.
The circumstances of the offense are investigated by an officer appointed under
the authority of Article 32, Uniform Code
of Military Justice, 10 U.S.C. § 832, who
must make recommendations as to the level
of court-martial to try the case and as to
possible punishment levels. The staff
judge advocate to the convening authority
prepares a pretrial advice giving his recommendations in the same area. See Article 34,
UCMJ, 10 U.S.C. § 834. The convening authority
exercises his discretion in referring the case
to a particular level of court-martial and
to the maximum punishment it may impose. Id.
All of these steps are to insure that, at
least on the basis of evidence available at
that point, the accused is within a narrowed
class of persons eligible for the imposition
of the death penalty and that there is
reasonable justification for that classification. See Zant v. Stephens, . . . 103 S.Ct.
2733, 2742-43 (1983). After the case is
referred to trial, the court members, the
convening authority, the Court of Military
Review, this Court and the President must
also affirmatively find that the sentence
is appropriate for imposition on the accused.
Id. at 378 n. 12.
192.
Matthews, 16 M.J. at 379.
193.
Id. quoting Zant, 1035 S.Ct. at 2744.
194.
Id.
195.
Id.
196.
Id. quoting United States v. Gay, 16 M.J. 586, 597
(A.F.C.M.R. 1983). See also supra note 14.
197.
Matthews, 16 M.J. at 379.
15
00107
198. M.C.M., supra note 170, para. 197b.
(emphasis added).
199. Matthews, 16 M.J. at 379 citing Tex. Code Crim. Pro. Ann.
art. 37.071b(1) (Vernon 1981)7 The~provision provides
the following:
(b) On conclusion of the presentation of
the evidence, the court shall submit the
following . . . [aggravating circumstances]
to the jury.
(1) whether the conduct of the defendant
that caused the death of the deceased
was committed deliberatly and with the
reasonable expectation that the death
of the deceased or another would result
200. Matthews, 16 M.J. at 381 quoting Gay, 16 M.J. at 600.
201. Id. at 380-81 quoting Gay, 16 M.J. at 600.
note 170, paras. 74d(2), 76b(2) and (3).
See M.C.M. supra
See~aTso U.C.M.J.,
supra note 5, art. 118.
202. Id.
203. Matthews, 16 M.J. at 381, 382. See Dobbert v. Florida,
432 U.S. 282 (1977).
204. Matthews, 16 M.J. at 382.
205. Matthews, 16 M.J. at 382 (Fletcher, J., concurring).
206. Id. at 383.
207. Comment, supra note 1, at 386.
See U.C.M.J., supra note
5, art. 25(d)(2).
208. U.C.M.J., supra note 5, art. 25(d)(2).
209. Matthews, 16 M.J. at 382 (Fletcher, J., concurring) citing
U.C.M.J., supra note 5, art. 25(a) and (b).
210. Id. citing U.C.M.J., supra note 5, art. 25(c).
211. Comment, supra note 1, at 386 quoting Schick v. Reed,
419 U.S. 256,, 268 (1974). It is emphasized, however,
that the Court in Schick did not reach the issue
of whether Furman applied to death sentences imposed
by military courts in the disposition of the case. Id.
212. Matthews, 16 M.J. at 384 (Fletcher, Jr., concurring).
213. Id.
214. Comment, supra note 1, at 387.
215. See supra note 206.
216. Note that the 1984 amendments to the Manual for Courts-Martial
occurred subsequent to the Matthews decision.
217. Matthews, 16 M.J. at 385 (Fletcher, J., concurring).
218. Id. at 386.
219. Id.
220. The comparison of the two statutory schemes as provided by
Judge Fletcher:
(1) California Penal Code
§§187, 189, 190
The penalty provided for premeditated murder was death or
in the alternative life in
prison.
(2) California Penal Code
§190.1
A bifurcated trial, a guilt
stage and a punishment stage,
both before the same jury.
(3) California Penal Code
§190.1
At the penalty stage of the
trial, the government introduced evidence in aggravation,
the defense presented evidence
in mitigation, and both were
allowed to argue to the jury.
(4) CALJIC No. 306.01:
The instructions given by the
judge were virtually identical
to those given in the Matthews
case. See McGautha v. California, supra at 190-91, 91 S.Ct.
at 1458-59. See generally
(1) Uniform Code, Article
118(1)
The penalty provided for premeditated murder is death or
in the alternative life in
prison
(2) Manual for Courts-Martis
Paragraph 75a
A bifurcated trial, a guilt
stage and a punishment stage,
both before the same jury.
(3) Manual for Courts-Martia
Paragraphs 75b, c, d, f
At the penalty stage of the
trial, the government introduced evidence in aggravation,
the defense presented evidence
in mitigation, and both were
allowed to argue to the jury.
(4) The trial of Matthews:
The instructions given by the
trial judge were virtually
identical to those given in
McGautha. See 16 M.J. 377,
378 n. 11 of Chief Judge
Everett's opinion.
People v. Durham, 70
Cal.2d 171, 74 Cal.Rptr.
262, 449 P.2d 198 n. 23
(Cal. 1969).
(5) California Penal Code
Section 1181(7)
The trial judge had the power
to reduce the penalty of
death to life in prison
(6) California Penal Code
§ 12 3 9 (b)
There is an automatic appeal
to the Supreme Court of the
State.
(7) California Constitution
Article 5, §8
See California Penal Code
§4800 et seq.
The Governor has the power
to commute the death sentence .
(5) Uniform Code, Article 64
and Article 66
Article 64 - the convening authorit
need approve only such parts of
the sentence as he finds correct
in law and fact and as he in his
discretion determines should be
approved. Article 66 - The Court
of Military Review may affirm
only a sentence that it finds
correct in law and fact, determined
on the basis of the entire record.
(6) Uniform Code, Article 67
67
There is an automatic appeal to
the United States Court of
Military Appeals. (There is no
direct appeal to any court from
a decision of this Court.)
(7) Uniform Code, Article 71
The President has the power to
commute the death sentence.
Matthews, 16 M.J. at 386-87 (Fletcher, J., concurring).
generally, Cal. Penal Code (West 1970).
221. Matthews, 16 M.J. at 387 (Fletcher, J., concurring).
222. See supra not$ 220.
223. Matthews, 316 M.J. at 387 (Fletcher, J., concurring)
224. Id. at 387-88 (footnotes omitted).
225. Id. at 388.
226. Id. See Zant, 103 S. Ct. at 2742-44.
227. See supra note 14.
228. Matthews, 316 M.J. at 388 (Fletcher, J., concurring)
229. See supra note 14.
am io
See
230. Matthews, 316 M.J. at 388-89 (Fletcher, J., concurring).
231. Id. at 389.
232. Id_. quoting Zant, 103
S.Ct. at 2742-43 (emphasis in original).
233. Id.
234. Id. at 390.
See supra notes 110-121 and accompanying text.
See also comment, supra note 1, at 398.
235. Matthews, 316 M.J. at 390 (Fletcher, J., concurring).
236. See M.C.M., supra note 170, para. 76b(l).
237. Id.
238. Matthews, 16 M.J. at 392 (Fletcher, J., concurring).
239. Exec. Order No. 12,460, 49 Fed. Reg. 3169 (1984) [hereinafter
cited as Exec. Order No. 12,460].
240. Id.
241. See id.
242. See, M.C.M., supra note 170, para. 75.
243. Exec. Order No. 12,460, supra note 239, at 3169-71. It is
noted that the amendments are effective immediately
and shall apply in trials of capital offenses committed
on or after January 24, 1984. Id. at 3172.
244. Model Penal Code §210.6 (Proposed Official Draft 1962).
245. Comment, Vague and Overlapping Guidelines: A Study of North
Carolina s Capital Sentencing Statute, 16 Wake Forest L. Rev.
765, 779 n. 91 (1980). Note also that The~~United States ~
Supreme Court discussed the Model Penal Code as an
example for state capital sentencing statutes in Gregg,
428 U.S. at 193 (plurality opinion by Steward, J.),
and Proffitt, 428 U.S. at 247-48 (plurality opinion
by Powell, J.).
246. Exec. Order No. 12,460, supra note 239, at 3169.
supra note 170, para. 75g(2)(c).
19
0(1111
See M.C.M.,
247. Comment, supra note 1, at 402.
248. Exec. Order No. 12,460, supra note 239, at 3170-71.
See M.C.M.,
supra note 170, para. 75g(3)(a)-(i).
249. See supra note 166-169 and accompanying text.
250. Exec. Order No. 12,460, supra note 239, at 3169.
See M.C.M.,
supra note 170, para. 75g(2)(a).
251. Exec. Order No. 12,460, supra note 239, at 3169.
See M.C.M.,
supra note 170, para. 75g(2)(d).
252. See supra notes 174-179.
253. Exec. Order No. 12,460, supra note 239, at 3169.
See M.C.M.,
supra note 170, para. 75g(2)(d).
254. See e ^ . , Proffitt, 428 U.S. at 248.
See Fla. Stat. Ann.
§§921.141(2)(b) and 921.141(2)(c) (SuppT 1976-1977J.
255. Exec. Order No. 12,460, supra note 239, at 3169.
See M.C.M.,
supra note 170, para. 75g(2)(f).
256. Exec. Order No. 12,460, supra note 239, at 3169.
supra note 170, para. 75g(2)(g).
200-201 and accompanying text.
See also supra notes ~
257. Exec. Order No. 12,460, supra note 239, at 3169.
supra note 170, para. 75g(2)(h).
258. See supra notes 192-199 and accompanying text.
259. Gregg, 428 U.S. at 206.
260. Id. at 206-207.
(ifi^'l?
%
Iii *
See M.C.M.,
See M.C.M.,